Attached files

file filename
EX-3.2 - EXHIBIT 3.2 - WYNN RESORTS LTDex-32.htm
EX-10.4 - EXHIBIT 10.4 - WYNN RESORTS LTDex-104.htm
EX-10.3 - EXHIBIT 10.3 - WYNN RESORTS LTDex-103.htm
EX-10.2 - EXHIBIT 10.2 - WYNN RESORTS LTDex-102.htm
EX-32 - EXHIBIT 32 - WYNN RESORTS LTDex-32q315.htm
EX-31.2 - EXHIBIT 31.2 - WYNN RESORTS LTDex-312q315.htm
EX-31.1 - EXHIBIT 31.1 - WYNN RESORTS LTDex-311q315.htm
10-Q - 10-Q - WYNN RESORTS LTDwrl-20150930x10q.htm



Exhibit 10.1
EXECUTION VERSION
DATED September 30, 2015

WYNN RESORTS (MACAU) S.A.
the Company
CERTAIN FINANCIAL INSTITUTIONS 
as Term Facility Lenders, Revolving Credit Facility Lenders, Additional Lenders and Hedging Counterparties
THE FINANCIAL INSTITUTIONS NAMED HEREIN 
as Outgoing Global Coordinating Lead Arrangers
THE FINANCIAL INSTITUTIONS NAMED HEREIN 
as Mandated Lead Arrangers and Bookrunners, Mandated Lead Arrangers, Lead Arrangers and Arrangers
BANK OF CHINA LIMITED, MACAU BRANCH
as Term Facility Agent
BANK OF CHINA LIMITED, MACAU BRANCH
as Revolving Credit Facility Agent
BANK OF CHINA LIMITED, MACAU BRANCH
as Additional Facility Agent
BANK OF CHINA LIMITED, MACAU BRANCH
as Intercreditor Agent
BANK OF CHINA LIMITED, MACAU BRANCH
as Security Agent and POA Agent
BANCO NACIONAL ULTRAMARINO, S.A. 
as Second Ranking Finance Party

 
COMMON TERMS AGREEMENT
FIFTH AMENDMENT AGREEMENT
 
    







CONTENTS
Clause
 
1.Definitions and Interpretation
 
2.Resignation of Additional Facility Agent
 
3.Global Coordinating Lead Arrangers
 
4.Amendment
 
5.Facility Advances
 
6.Order of Events on the Fifth Amendment Effective Date
 
7.Representations
 
8.Release of Security
 
9.Continuity and Further Assurance
 
10.Miscellaneous
 
11.Wong Share Substitution
 
12. Governing Law
 
 
 
 
    

    
    
    
    





THIS AGREEMENT is dated September 30, 2015 and made between:
(1)
WYNN RESORTS (MACAU) S.A. (the "Company");
(1)
THE FINANCIAL INSTITUTION named on the signing pages as the Term Facility Lender;
(2)
THE FINANCIAL INSTITUTION named on the signing pages as the Revolving Credit Facility Lender;
(3)
THE FINANCIAL INSTITUTION named on the signing pages as the Additional Lender;
(4)
THE FINANCIAL INSTITUTIONS named on the signing pages as the Hedging Counterparties;
(5)
THE FINANCIAL INSTITUTIONS named on the signing pages as, and in their capacities as, the outgoing Global Coordinating Lead Arrangers (the "Outgoing Global Coordinating Lead Arrangers");
(6)
THE FINANCIAL INSTITUTIONS named on the signing pages as, and in their capacities as, the Mandated Lead Arrangers and Bookrunners (the "Mandated Lead Arrangers and Bookrunners");
(7)
THE FINANCIAL INSTITUTIONS named on the signing pages as, and in their capacities as, the Mandated Lead Arrangers (the "Mandated Lead Arrangers");
(8)
THE FINANCIAL INSTITUTIONS named on the signing pages as, and in their capacities as, the Lead Arrangers (the "Lead Arrangers");
(9)
THE FINANCIAL INSTITUTIONS named on the signing pages as, and in their capacities as, the Arrangers (the "Arrangers");
(10)
BANK OF CHINA LIMITED, MACAU BRANCH in its capacity as the Term Facility Agent (the "Term Facility Agent");
(11)
BANK OF CHINA LIMITED, MACAU BRANCH in its capacity as the Revolving Credit Facility Agent (the "Revolving Credit Facility Agent");
(12)
BANK OF CHINA LIMITED, MACAU BRANCH in its capacity as the Additional Facility Agent (the "Additional Facility Agent");
(13)
BANK OF CHINA LIMITED, MACAU BRANCH in its capacity as the Intercreditor Agent (the "Intercreditor Agent");
(14)
BANK OF CHINA LIMITED, MACAU BRANCH in its capacity as the Security Agent (the "Security Agent");
(15)
BANCO NACIONAL ULTRAMARINO, S.A. as Second Ranking Finance Party (the "Second Ranking Finance Party"); and




(16)
BANK OF CHINA LIMITED, MACAU BRANCH in its capacity as the POA Agent (the "POA Agent").
RECITALS:
(A)
The parties hereto have agreed to amend certain Senior Finance Documents and enter into additional Senior Finance Documents.
(B)
It has been agreed to further amend the Common Terms Agreement as set out below.
IT IS AGREED as follows:




1.
DEFINITIONS AND INTERPRETATION
1.1
Definitions and incorporation of defined terms
(i)
In this Agreement:
"Amended Common Terms Agreement" means the Original Common Terms Agreement, as amended by this Agreement, the terms of which are set out in Schedule 2 (Amended Common Terms Agreement);
"Amendment to Company Floating Charge" means the Amendment to Floating Charge dated on or about the date hereof between the Company and the Security Agent;
"Amendment to Company Mortgage" means the Amendment to Mortgage dated on or about the date hereof between the Company and the Security Agent;
"Amendment to Palo Floating Charge" means the Amendment to Floating Charge dated on or about the date hereof between Palo and the Security Agent;
"Amendment to Palo Mortgage" means the Amendment to Palo Mortgage dated on or about the date hereof between Palo and the Security Agent;
"Amendment to Pledge over Gaming Equipment and Utensils" means the Amendment to Pledge over Gaming Equipment and Utensils dated on or about the date hereof between the Company and the Security Agent;
"Completion Memorandum" means the completion memorandum relating to the matters contemplated in this Agreement, in the Agreed Form;
"Completion Request" means a request in the Agreed Form for Advances denominated in HKD and USD under the Term Facility to be made on the Fifth Amendment Effective Date;
"Confirmation of Company Share Pledge" means the Confirmation of Company Share Pledge dated on or about the date hereof between Wynn HK, Wynn International, the Company and the Security Agent;
"Confirmation of Palo Share Pledge" means the Confirmation of Palo Share Pledge dated on or about the date hereof between Wynn HK, Wynn International, the Company, Palo and the Security Agent;
"Confirmation of Executive Director Share Pledge" means, if the Relevant Executive Director is Ms Linda Chen prior to the Fifth Amendment Effective Date, the Confirmation of Executive Director Share Pledge dated on or about the date hereof between Ms Linda Chen, the Company and the Security Agent;
"Deed of Appointment and Priority Fourth Deed of Amendment" means the Deed of Appointment and Priority Fourth Deed of Amendment dated on or about the date hereof between, among others, the Original First Ranking Lenders, the




Hedging Counterparties, the Second Ranking Finance Party, the Company, the Security Agent, the Intercreditor Agent and the POA Agent;
"English Security Confirmation" means the document so entitled dated on or about the Fifth Amendment Effective Date between the Company and the Security Agent;
"Executive Director Shares" means the 20,010 ordinary class A shares in the Company (of MOP1,000 par value per share) which are represented by shares certificates numbers 5 through 24 and share certificate number 205;
"Executive Director Share Pledge" means the document entitled "Wong Share Pledge" dated on or about 14 September 2004 between the Relevant Executive Director and the Security Agent;
"First Macau Security Confirmation" means the document so entitled dated on or about the Fifth Amendment Effective Date between the Company and the Security Agent;
"Fifth Amendment Effective Date" has the meaning given to such term in Clause 4 (Amendment);
"Guarantee Fourth Deed of Amendment and Acknowledgement" means the Guarantee Fourth Deed of Amendment and Acknowledgement dated on or about the date hereof between Wynn Asia 2, Wynn International, Wynn Holdings, Wynn HK, Palo and the Security Agent;
"Holding Company" in relation to a Person, means an entity of which that Person is a Subsidiary;
"Hong Kong Security Confirmation" means the document so entitled dated on or about the Fifth Amendment Effective Date between the Company, Wynn Holdings and the Security Agent;
"Livrança Covering Letter" means the letter from the Company to the Security Agent dated on or about the Fifth Amendment Effective Date in relation to the Livranças, duly acknowledged by Palo;
"Macau Security Confirmations" means the First Macau Security Confirmation, the Second Macau Security Confirmation, the Confirmation of Company Share Pledge, the Confirmation of Palo Share Pledge and (if applicable) the Confirmation of Executive Director Share Pledge;
"Nevada Security Release Agreement" means the release and termination agreement between the Company and the Security Agent dated on or about the Fifth Amendment Effective Date in relation to the US Operating Account Control Agreement;




"New Company Power of Attorney" means the irrevocable power of attorney dated on or about the date hereof granted by the Company in favour of the Security Agent;
"New Palo Power of Attorney" means the irrevocable power of attorney dated on or about the date hereof granted by Palo in favour of the Security Agent;
"Original Common Terms Agreement" means the Common Terms Agreement as amended from time to time prior to the date of this Agreement;
"Palo" means Palo Real Estate Company Limited a company with limited liability incorporated in the Macau SAR with registration number 27319 SO;
"POA Agent" has the meaning given to such term in the Deed of Appointment and Priority;
"Post-Amendment Global Transfer Agreement" means the agreement so entitled dated on or about the date of this Agreement between, among others, the Company and the Intercreditor Agent;
"Pre-Amendment Global Transfer Agreement" means the agreement so entitled dated on or about the date of this Agreement between, among others, the Company and the Intercreditor Agent;
"Relevant Executive Director" means:
(i)
if the Wong Share Substitution has not been completed in accordance with this Agreement on or before the Fifth Amendment Effective Date, Mr. Wong Chi Seng; and
(i)
if the Wong Share Substitution has been completed in accordance with this Agreement on or before the Fifth Amendment Effective Date, Ms. Linda Chen;
"Required Filings" means any filing, notification, recording, stamping and registration required in respect of any of the Senior Finance Documents referred to in paragraph 2 of Schedule 1 (Conditions Precedent) at Companies House in England and Wales, the Companies Registry in Hong Kong, the Companies Registration Office in Ireland, the Financial Supervision Commission in the Isle of Man, the Gaming Inspection and Coordination Bureau in Macau and in the register of charges of Wynn Asia 2;
"Revocation Powers of Attorney" means:
(i)
the revocation of the irrevocable power of attorney dated on or about the Fourth Amendment Effective Date granted by Palo in favour of the Security Agent; and




(ii)
the revocation of the irrevocable power of attorney dated on or about the Fourth Amendment Effective Date granted by the Company in favour of the Security Agent;
"Revolving Credit Facility Agreement Amendment Agreement" means the agreement so entitled dated on or about the date of this Agreement between the Company, the Revolving Credit Facility Agent and the Revolving Credit Facility Lenders;
"Second Macau Security Confirmation" means the document so entitled dated on or about the Fifth Amendment Effective Date between Palo and the Security Agent;
"Security Amendment Documents" means:
(i)
the Amendment to Company Floating Charge;
(ii)
the Amendment to Company Mortgage;
(iii)
the Amendment to Palo Floating Charge;
(iv)
the Amendment to Palo Mortgage; and
(v)
the Amendment to Pledge over Gaming Equipment and Utensils;
"Security Confirmation Documents" means:
(i)
each Macau Security Confirmation;
(ii)
the Hong Kong Security Confirmation; and
(iii)
the English Security Confirmation;
"Subordination Deed Fourth Deed of Amendment and Acknowledgement of Security" means the Subordination Deed Fourth Deed of Amendment and Acknowledgement of Security dated on or about the date hereof between, among others, the Company, Wynn Resorts, Wynn Resorts Holdings, LLC, Wynn Asia 2, Wynn International, Wynn Holdings, Wynn HK, Worldwide Wynn, LLC, Wynn Design & Development, LLC, Wynn International Marketing, Ltd., WML Finance I Limited, Palo and the Security Agent;
"Term Facility Agreement Fourth Amendment Agreement" means the agreement so entitled dated on or about the date of this Agreement between the Company, the Term Facility Agent and the Term Facility Lenders;
"Tranche A Facility" has the meaning given to it in the Term Facility Agreement (as amended by the Term Facility Agreement Fourth Amendment Agreement, and as further amended from time to time);




"Tranche B Facility" has the meaning given to it in the Term Facility Agreement (as amended by the Term Facility Agreement Fourth Amendment Agreement, and as further amended from time to time);
"Tranche C Facility" has the meaning given to it in the Term Facility Agreement (as amended by the Term Facility Agreement Fourth Amendment Agreement, and as further amended from time to time);
"US Operating Account" means an account denominated in US dollars opened in Nevada and designated "USD Operating Account" prior to the date of this Agreement;
"US Operating Account Control Agreement" means the bank account control agreement so entitled dated 14 September 2005 between the Company, the Security Agent and Bank of America, N.A.;
"Wong Share Substitution" means the substitution of Ms. Linda Chen for Mr. Wong Chi Seng as the holder and pledgor of the Executive Director Shares.
(j)
Unless a contrary indication appears, a term defined in or by reference in Schedule 2 (Amended Common Terms Agreement) or, if not defined in or by reference in such Schedule, the Deed of Appointment and Priority, has the same meaning in this Agreement and in the Amended Common Terms Agreement.
(k)
The principles of construction and rules of interpretation set out in Schedule 2 (Amended Common Terms Agreement) 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.
1.3
Designation
In accordance with the Common Terms Agreement, each of the Company and the Intercreditor Agent designates:
(i)
the Term Facility Agreement Fourth Amendment Agreement as a Senior Finance Document;
(j)
the Revolving Credit Facility Agreement Amendment Agreement as a Senior Finance Document;
(k)
this Agreement as a Senior Finance Document;
(l)
the Subordination Deed Fourth Deed of Amendment and Acknowledgement of Security as a Security Document;
(m)
the Guarantee Fourth Deed of Amendment and Acknowledgement as a Security Document;




(n)
the Deed of Appointment and Priority Fourth Deed of Amendment as a Security Document;
(o)
the New Company Power of Attorney as a Security Document;
(p)
the New Palo Power of Attorney as a Security Document;
(q)
each of the Security Confirmation Documents as a Security Document;
(r)
each of the Security Amendment Documents as a Security Document; and
(s)
the Livrança Covering Letter as a Security Document.
2.
RESIGNATION OF ADDITIONAL FACILITY AGENT
2.1
Resignation
Bank of China Limited, Macau Branch hereby resigns as Additional Facility Agent with effect on and from the Fifth Amendment Effective Date (but subject to Clause 6 (Order of Events on the Fifth Amendment Effective Date)).
2.2
Notice Period
The parties hereto agree that the resignation referred to in Clause 2.1 (Resignation) shall be effective notwithstanding the notice period specified in sub-clause 23.12.1 of clause 23.12 (Resignation) of the Original Common Terms Agreement or any other provision of the Senior Finance Documents.
3.
GLOBAL COORDINATING LEAD ARRANGERS
With effect on and from the Fifth Amendment Effective Date (subject to Clause 6 (Order of Events on the Fifth Amendment Effective Date)), each Outgoing Global Coordinating Lead Arranger, in its capacity as an original Global Coordinating Lead Arranger (under and as defined in the Original Common Terms Agreement), shall be discharged from any further obligations towards the other parties to the Original Common Terms Agreement and their respective rights against one another shall be cancelled (except in each case for those rights which arose prior to the Fifth Amendment Effective Date) and, as from that date, each Mandated Lead Arranger and Bookrunner, Mandated Lead Arranger, Lead Arranger and Arranger shall assume the same obligations, and become entitled to the same rights, as if it had been an original Global Coordinating Lead Arranger (under and as defined in the Original Common Terms Agreement) and party to the Original Common Terms Agreement.
4.
AMENDMENT
With effect from the date upon which the Intercreditor Agent confirms to the Lenders and the Company that it has received (or the Intercreditor Agent has waived receipt of, as the case may be) each of the documents or evidence listed in Schedule 1 (Conditions Precedent) in a form and substance satisfactory to the Intercreditor Agent, (such date being the "Fifth Amendment Effective Date"), the Original Common Terms Agreement




shall be amended so that it shall be read and construed for all purposes as set out in Schedule 2 (Amended Common Terms Agreement).
5.
FACILITY ADVANCES
5.1
Completion Request
Subject to the occurrence of the Fifth Amendment Effective Date and receipt by the Intercreditor Agent and the Term Facility Agent of the Completion Request, the requirements specified in clause 3.1 (Drawdown conditions) of the Amended Common Terms Agreement (and clause 11.1 (Advances) of the Term Facility Agreement) shall, with effect from the Fifth Amendment Effective Date, be deemed to have been satisfied in respect of the Advances requested in the Completion Request as if such requests comprised Advance Requests and had been delivered (and notified) in accordance with the provisions thereof and each of the other provisions of clause 3 (Drawdown of Advances) of the Amended Common Terms Agreement and the other Senior Finance Documents shall apply accordingly. Each Advance under the Term Facility, in each case which is outstanding on the Fifth Amendment Effective Date, shall have an initial Interest Period set out opposite that Advance in the Completion Memorandum.
5.2
Repayment of Facilities
The Term Facility Agent, the Revolving Credit Facility Agent and the Additional Facility Agent are each hereby directed by the Company (with the agreement and acknowledgement of the parties hereto) to pay:
(i)
an amount of each Advance requested in the Completion Request equal to all amounts then outstanding and denominated in USD and HKD, as the case may be, under the Additional Lender Facility directly to the Additional Facility Lender, to be applied in repayment in full of the Additional Lender Facility, whereupon the Additional Lender Facility shall be permanently cancelled and the Available Facility (as defined in the Additional Lender Facility Agreement) in respect thereof shall be zero;
(j)
an amount of each Advance requested in the Completion Request equal to all amounts then outstanding and denominated in USD and HKD, as the case may be, under the Revolving Credit Facility directly to the Revolving Credit Facility Lender, to be applied in repayment in full of the Revolving Credit Facility; and
(k)
such amount of each such Advance remaining after the application referred to in paragraph (a) above, as the Company directs in the Completion Request.
5.3
[Not used]
5.4
Additional Lender
Upon the repayment in full of the Additional Lender Facility in accordance with paragraph (a) of Clause 5.2 (Repayment of Facilities) each of the Additional Lender and the Additional Facility Agent shall cease to be a Lender and Facility Agent (respectively) for the purpose of the Amended Common Terms Agreement and the other Senior Finance




Documents and, in the case of the Additional Lender, shall be released from the indemnity set out in clause 15.3 (Indemnity to the Additional Facility Agent) of the Additional Lender Facility Agreement (as defined in the Original Common Terms Agreement) (other than to the extent of any claims arising thereunder prior to the Fifth Amendment Effective Date).
5.5
Waiver of notice and pro-rata payments requirements
(a)
The parties hereto waive (a) the notice requirement specified in sub-clause 8.2.1 of clause 8.2 (Voluntary Prepayment of the Term Loan Facilities) of the Original Common Terms Agreement and (b) the requirement in sub-clause 8.2.2 of clause 8.2 (Voluntary Prepayment of the Term Loan Facilities) of the Original Common Terms Agreement for payments or prepayments to be made pro rata as between the Advances outstanding under the Term Loan Facilities, in each case, in respect of the repayment in full of the Additional Lender Facility referred to in Clause 5.2 (Repayment of Additional Lender Facility).
(b)
The parties hereto agree that, in connection with the actions, events and other steps that are set out in the Pre-Amendment Global Transfer Agreement, the Company may repay each Revolving Credit Facility Advance (as defined in the Revolving Credit Facility Agreement) on a date other than the last day of its Interest Period (in accordance with, and as contemplated by, the Completion Memorandum).
5.6
Breakfunding and accrued interest
(a)
The Company shall pay to Bank of China Limited, Macau Branch (for its own account) the amounts (at the times) contemplated by a letter dated on or prior to the date hereof and made between Company and Bank of China Limited, Macau Branch in connection with the roles of Bank of China Limited, Macau Branch under the Pre-Amendment Global Transfer Agreement and the Post-Amendment Global Transfer Agreement (the "Letter").
(b)
Notwithstanding clause 26.1 (Payments under the Senior Finance Documents) of the Original Common Terms Agreement, payments of accrued interest as contemplated by the Letter shall be made to Bank of China Limited, Macau Branch by the time contemplated in the Completion Memorandum (in the applicable currency or currencies) and not to the Term Facility Agent for the account of the Term Facility Lender or the Revolving Credit Facility Agent for the account of the Revolving Credit Facility Lender, as the case may be.
6.
ORDER OF EVENTS ON THE FIFTH AMENDMENT EFFECTIVE DATE
The parties hereto agree in respect of the actions, events and other steps that are set out in the Pre-Amendment Global Transfer Agreement, Clauses 2 (Resignation of Additional Facility Agent), 3 (Global Coordinating Lead Arrangers), 4 (Amendment) and 5 (Facility Advances) of this Agreement and in the Post-Amendment Global Transfer Agreement which are stated to occur on the Fifth Amendment Effective Date, that such actions, events and other steps shall (where those actions, events and other steps have been carried




out in accordance with the Completion Memorandum) occur on the Fifth Amendment Effective Date in the order set out in the Completion Memorandum.
7.
REPRESENTATIONS
7.1
Prior to the Fifth Amendment Effective Date
The representations and warranties set out in schedule 4 of the amended Common Terms Agreement set out as Schedule 2 (Amended Common Terms Agreement) are deemed to be made by the Company (by reference to the facts and circumstances then existing) on the date of this Agreement.
7.2
On the Fifth Amendment Effective Date
The representations and warranties set out in schedule 4 of the amended Common Terms Agreement set out as Schedule 2 (Amended Common Terms Agreement) are deemed to be made by the Company (by reference to the facts and circumstances then existing) on the Fifth Amendment Effective Date, as if any reference therein to any Senior Finance Document in respect of which any amendment, acknowledgement, confirmation, consolidation, novation, restatement, replacement or supplement is expressed to be made by any of the documents referred to in Clause 1.3 (Designation) included, to the extent relevant, such document and the Senior Finance Document as so amended, acknowledged, confirmed, consolidated, novated, restated, replaced or supplemented.
7.3
[Not used]
8.
RELEASE OF SECURITY
(a)
The Intercreditor Agent (acting on the instructions of each of the Term Facility Lender and the Revolving Credit Facility Lender) and the Second Ranking Finance Party hereby instruct the Security Agent to release the Security created or purported to be created under the US Operating Account Control Agreement by executing and dating the Nevada Security Release Agreement, such release to be effective on and from the Fifth Amendment Effective Date.
(b)
The Company shall ensure that, at all times on and from the Fifth Amendment Effective Date, the amount standing to the credit of the US Operating Account is no greater than US$10,000 at any time and shall provide the Intercreditor Agent with evidence reasonably satisfactory to the Intercreditor Agent that the US Operating Account has been closed and all amounts standing to the credit thereof (if any) have been transferred to an Account on or prior to such closure by no later than the date falling 90 days from the Fifth Amendment Effective Date.
9.
CONTINUITY AND FURTHER ASSURANCE
9.1
Continuing obligations
The provisions of the Common Terms Agreement shall, save as amended by this Agreement, continue in full force and effect. In particular, nothing in this Agreement




shall affect the rights of the Senior Secured Creditors in respect of the occurrence of any Default which is continuing or which arises on or after the date of this Agreement.
9.2
Further assurance
The Company shall, upon the written request of the Intercreditor Agent and the Company's expense, do all such acts and things reasonably necessary to give effect to the amendments effected or to be effected pursuant to this Agreement.
10.
MISCELLANEOUS
10.1
Incorporation of terms
The provisions of Clauses 1.5.1(e), 1.5.2 and 1.5.3 (Third Party Rights), Clause 16.2 (Transaction Expenses), Clause 16.4 (Enforcement costs), Clause 28 (Non-recourse Liability), Clause 29.1 (Communications in Writing) to 29.5 (Electronic communication), Clause 31 (Partial Invalidity), Clause 32 (Remedies and Waivers) and Clause 38 (Jurisdiction) of Schedule 2 (Amended Common Terms Agreement) shall be incorporated into this Agreement as if set out in full herein 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.
10.2
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.
10.3
[Not used]
11.
WONG SHARE SUBSTITUTION
By their execution of this Agreement, the Required Lenders grant their consent to the Wong Share Substitution with effect from the date upon which the Intercreditor Agent confirms to the Required Lenders and the Company that it has received (or the Intercreditor Agent has waived receipt of, as the case may be) each of the following documents or evidence in a form and substance satisfactory to the Intercreditor Agent:
(a)
approval of the Wong Share Substitution by the Government of the Macau SAR (in accordance with Clause 16(1) of the Concession Contract) in the letter from the DICJ to the Company dated 26 August 2015;
(b)
due execution of the following agreements by the parties thereto:
(i)
a transfer of the Executive Director Shares between Mr. Wong Chi Seng (as transferor), Ms. Linda Chen (as transferee), the Company, the Intercreditor Agent and the Security Agent in substantially the form distributed to the Intercreditor Agent prior to the date of this Agreement;
(ii)
any other contracts and accessions to existing contracts by Ms. Linda Chen, the Company and any other relevant Obligor as are necessary or desirable in order for Ms. Linda Chen to step into Mr. Wong Chi Seng's




position and role as executive director of the Company and owner of the Executive Director Shares; and
(iii)
Ms. Linda Chen duly executing and, (where applicable) the Company providing the Intercreditor Agent with, any acknowledgement, confirmation and/or such other documents as the Intercreditor Agent, acting on the advice of its legal counsel, shall deem appropriate in connection with the pledge of the Executive Director Shares to ensure such shares are pledged after the date of this Agreement in the same manner as such shares are pledged as at the date of this Agreement, such that Ms. Linda Chen will be the "Pledgor" under the Executive Director Share Pledge (as defined in the Amended Common Terms Agreement) and Mr. Wong Chi Seng will no longer be the Pledgor thereunder and be released from any obligations thereunder; and
(c)
a legal opinion with respect to the above matters from Mr Henrique Saldanha, Macanese legal adviser to the Senior Secured Creditors.
12.
GOVERNING LAW
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
This Agreement has been entered into on the date stated at the beginning of this Agreement.






Schedule 1
CONDITIONS PRECEDENT
1.
Due establishment, authority and certification
In relation to each Obligor, receipt by the Intercreditor Agent of a certificate signed by a duly authorised signatory of that Person and which:
(a)
either (A) attaches a copy of that Person's Governing Documents or (B) certifies that the copy of that Person's Governing Documents (which was previously delivered to the Intercreditor Agent on or about 14 September 2004 or subsequently) remains correct, complete and in full force and effect as at a date no earlier than the Fifth Amendment Effective Date;
(b)
attaches a copy of a board resolution or such other equivalent corporate authorisation approving the execution, delivery and performance of the Senior Finance Documents referred to in paragraph 2 below to which it is a party, the terms and conditions thereof and the transactions contemplated thereby, authorising a named person or persons to sign such Senior Finance Documents and any document to be delivered by that Person pursuant to such Senior Finance Documents and authorising the signatory of the relevant certificate to sign certificates in connection therewith;
(c)
(in the case of the Company only) certifies that each document listed in this Schedule 1 and delivered by an Obligor is correct, complete and in full force and effect and has not been amended or superseded as at a date no earlier than the Fifth Amendment Effective Date;
(d)
confirms that borrowing, guaranteeing or securing as appropriate, the total commitments of all Lenders in respect of the Term Facility and the Revolving Credit Facility would not cause any borrowing, guarantee, security or similar limit binding on any such Person to be exceeded; and
(e)
certifies that no Material Adverse Effect has occurred and is continuing nor could reasonably be expected to occur.
2.
Senior Finance Documents
(a)
Receipt by the Intercreditor Agent of an original of each of the following Senior Finance Documents, in each case duly executed by the parties thereto:
(i)
the Term Facility Agreement Fourth Amendment Agreement;
(ii)
the Revolving Credit Facility Agreement Amendment Agreement;
(iii)
this Agreement;
(iv)
the Subordination Deed Fourth Deed of Amendment and Acknowledgement of Security;
(v)
the Guarantee Fourth Deed of Amendment and Acknowledgement;




(vi)
the Deed of Appointment and Priority Fourth Deed of Amendment;
(vii)
each of the Security Confirmation Documents;
(viii)
each of the Security Amendment Documents;
(ix)
the New Company Power of Attorney;
(x)
the New Palo Power of Attorney;
(xi)
a Fee Letter between the Term Facility Agent, the Revolving Credit Facility Agent, the Intercreditor Agent, the Security Agent and the Company;
(xii)
a Fee Letter between the Intercreditor Agent and the Company relating to the payment by the Company of an up-front fee to each Person that, immediately following the consummation of the transactions set out in the Post-Amendment Global Transfer Agreement, shall be a Lender;
(xiii)
the Livranças and the Livrança Covering Letter (in each case signed by the Company and duly endorsed by Palo); and
(xiv)
any other document entered into which the Intercreditor Agent and the Company agree prior to the Fifth Amendment Signing Date to designate as a Senior Finance Document.
(b)
Each Senior Finance Document referred to in this paragraph 2 has been duly authorised, executed and delivered by such of the Obligors party thereto and (save in respect of any registration required in respect of the Subordination Deed Fourth Deed of Amendment and Acknowledgement of Security, each of the Security Confirmation Documents and each of the Security Amendment Documents at the Companies House in England and Wales, the Hong Kong Companies Registry, the Conservatória dos Registos Comercial e de Bens Móveis in Macau SAR, the Conservatória do Registo Predial in Macau SAR, the applicable Uniform Commercial Code filing office for local/county, state and federal Uniform Commercial Code filings and the Isle of Man Companies Registry, as applicable, based on the Senior Finance Document subject to the filing) duly filed, notified, recorded, stamped and registered as necessary.
(c)
All conditions precedent to the effectiveness thereof (other than any such conditions relating to the occurrence of the Fifth Amendment Effective Date) have been satisfied or waived in accordance with their respective terms and each such Senior Finance Document (save as provided in paragraph (b)) is in full force and effect accordingly.
3.
Legal opinions
Receipt by the Intercreditor Agent of legal opinions (substantially in the form distributed to the Intercreditor Agent prior to the Fifth Amendment Signing Date) from:




(a)
Mr Henrique Saldanha, Macanese legal adviser to the Senior Secured Creditors;
(b)
M&P Legal, Isle of Man legal adviser to the Senior Secured Creditors;
(c)
Walkers, Cayman legal adviser to the Senior Secured Creditors;
(d)
Clifford Chance, Hong Kong SAR legal advisers to the Senior Secured Creditors; and
(e)
Clifford Chance, English legal advisers to the Senior Secured Creditors.
4.
Fees and expenses
Receipt by the Intercreditor Agent of evidence that:
(a)
all taxes, fees and other costs payable in connection with the execution, delivery, filing, recording, stamping and registering of the documents referred to in this Schedule 1; and
(b)
all fees, costs and expenses due to the Senior Secured Creditors and their advisers under the Senior Finance Documents on or before the Fifth Amendment Effective Date,
have been paid or shall be paid (to the extent that such amounts have been duly invoiced) by no later than the Fifth Amendment Effective Date.
5.
[Not used]
6.
Security
Receipt by the Intercreditor Agent of evidence that each Security Document has been (save as provided in paragraph 2(b) above) duly filed, notified, recorded, stamped and registered as necessary and all other actions necessary in the reasonable opinion of the Intercreditor Agent or the Security Agent to perfect the Security have been carried out.
7.
Process agents
Confirmation from the process agent of each Obligor that, where such appointment is required under any Senior Finance Document referred to in paragraph 2 above, the process agent has accepted its appointment by such Obligor for the acceptance of legal proceedings.
8.
Other documents and evidence
(a)
Evidence that all those things specified as being required to be done on or prior to the Fifth Amendment Effective Date in the Completion Memorandum have been done in accordance with the Completion Memorandum.
(b)
Receipt by the Intercreditor Agent and the Term Facility Agent of the Completion Request.




(c)
Receipt by the Intercreditor Agent of a copy of:
(i)
the Pre-Amendment Global Transfer Agreement; and
(ii)
the Post-Amendment Global Transfer Agreement,
in each case, duly executed by the parties thereto.
(d)
Receipt by the Intercreditor Agent of evidence that:
(i)
the transfers and acquisitions referred to in the Pre-Amendment Global Transfer Agreement have been completed; and
(ii)
the transfers and acquisitions referred to in the Post-Amendment Global Transfer Agreement will be completed on the Fifth Amendment Effective Date.
(e)
A copy of any other authorisation or other document, opinion or assurance which the Intercreditor Agent considers to be necessary or desirable (if it has notified the Company accordingly prior to the Fifth Amendment Effective Date) in connection with the entry into and performance of the transactions contemplated by any Senior Finance Document or for the validity and enforceability of any Senior Finance Document.
(f)
The valuation report by Jones Lang LaSalle Limited relating to the land and buildings comprised in the Site and the Cotai Site.
(g)
Receipt by the Intercreditor Agent of a copy of the letter dated 8 September 2015 issued by the Macau SAR government in which the Macau SAR government has:
(i)
consented to the increase in the Company's financial indebtedness contemplated by the Senior Finance Documents (including, without limitation, as the same may be entered into, amended, consolidated, supplemented, novated or replaced on or about the Fifth Amendment Effective Date); and
(ii)
confirmed that the Gaming Concession Consent Agreement and the Land Concession Consent Agreement (as amended, consolidated, supplemented, novated or replaced from time to time prior to the Fifth Amendment Effective Date) continue to apply with respect to at least USD2,500,000,000 (or equivalent) of such financial indebtedness.
(h)
Each Revocation Power of Attorney.






SCHEDULE 2    
AMENDED COMMON TERMS AGREEMENT
DATED 14 SEPTEMBER 2004
WYNN RESORTS (MACAU) S.A.
the Company
CERTAIN FINANCIAL INSTITUTIONS
as Term Facility Lenders, Revolving Credit Facility Lenders
and Hedging Counterparties
CERTAIN FINANCIAL INSTITUTIONS
as Mandated Lead Arrangers and Bookrunners, Mandated Lead Arrangers, Lead Arrangers and Arrangers
BANK OF CHINA LIMITED, MACAU BRANCH
as Term Facility Agent
BANK OF CHINA LIMITED, MACAU BRANCH
as Revolving Credit Facility Agent
BANK OF CHINA LIMITED, MACAU BRANCH
as Intercreditor Agent
BANK OF CHINA LIMITED, MACAU BRANCH
as Security Agent
                                            
COMMON TERMS AGREEMENT
(As amended by the Common Terms Agreement Amendment Agreement
dated 14 September 2005,
the Common Terms Agreement Second Amendment Agreement
dated 27 June 2007
the Common Terms Agreement Third Amendment Agreement
dated 8 September 2009
the Common Terms Agreement Fourth Amendment Agreement
dated 31 July 2012
and the Common Terms Agreement Fifth Amendment Agreement
dated September 30, 2015)
                                            



CONTENTS

 




Clause

 
1. Definitions And Interpretation
 
2. Conditions Precedent
 
3. Drawdown of Advances
 
4. Availability Periods
 
5. Purpose
 
6. Pro Rata Drawings
 
7. [NOT USED]
 
8. Repayments, Prepayments And Cancellation
 
9.Interest, Interest Periods And Default Interest
 
10.Changes To The Calculation Of Interest
 
11.Tax Gross Up And Indemnities
 
12.Increased Costs
 
13.Currency And Other Indemnities
 
14.Illegality
 
15.Mitigation By The Senior Secured Creditors
 
16.Fees, Costs And Expenses
 
17. Representations And Warranties
 
18.Covenants
 
19.Events Of Default
 
20.Application Of Enforcement Proceeds
 
21. Changes To The Parties
 
22. Hedging Counterparties
 
23.Agents And Global Coordinating Lead Arrangers
 
24.Conduct Of Business By The Senior Secured Creditors
 
25. Sharing Among The Senior Secured Creditors
 
26.Payment Mechanics
 
27.Set-Off
 
28.Non-Recourse Liability
 
29.Notices
 
30.Calculations And Certificates
 
31.Partial Invalidity
 
32.Remedies And Waivers
 
33.Intercreditor Arrangements
 
34.Amendments And Waivers
 
35.Counterparts
 
36.Language
 
37.Governing Law
 
38.Jurisdiction
 
39.Confidentiality
 
40.Gaming Authorities
 
41.Waiver of Immunity
 
 
 
 
 










THIS AGREEMENT is made on the 14th day of September 2004
BETWEEN:
(1)
WYNN RESORTS (MACAU) S.A. (the "Company");
(2)
THE FINANCIAL INSTITUTIONS defined below as Term Facility Lenders;
(3)
THE FINANCIAL INSTITUTIONS defined below as Revolving Credit Facility Lenders;
(4)
THE FINANCIAL INSTITUTIONS defined below as Hedging Counterparties;
(5)
THE FINANCIAL INSTITUTIONS named on the signing pages to the Common Terms Agreement Fifth Amendment Agreement as, and in their capacities as, the Mandated Lead Arrangers and Bookrunners;
(6)
THE FINANCIAL INSTITUTIONS named on the signing pages to the Common Terms Agreement Fifth Amendment Agreement as, and in their capacities as, the Mandated Lead Arrangers;
(7)
THE FINANCIAL INSTITUTIONS named on the signing pages to the Common Terms Agreement Fifth Amendment Agreement as, and in their capacities as, the Lead Arrangers;
(8)
THE FINANCIAL INSTITUTIONS named on the signing pages to the Common Terms Agreement Fifth Amendment Agreement as, and in their capacities as, the Arrangers;
(9)
BANK OF CHINA LIMITED, MACAU BRANCH in its capacity as Term Facility Agent;
(10)
BANK OF CHINA LIMITED, MACAU BRANCH in its capacity as Revolving Credit Facility Agent;
(11)
BANK OF CHINA LIMITED, MACAU BRANCH in its capacity as Intercreditor Agent; and
(12)
BANK OF CHINA LIMITED, MACAU BRANCH in its capacity as Security Agent.
WHEREAS:
(A)
The Senior Secured Creditors have agreed, subject to the terms and conditions contained in the Senior Finance Documents, to make available to the Company certain loan facilities for Wynn Macau, the Cotai Project and for general corporate purposes and/or to enter into other agreements or arrangements associated therewith.
(B)
The parties have agreed to enter into this Agreement to set out certain terms and conditions which are common to all the Facility Agreements and to agree certain terms and conditions upon and subject to which the Senior Secured Creditors shall or may enjoy,

520703-4-32-v8.1
520703-4-32-v8.1
520703-4-32-v8.1




exercise or enforce their rights, discretions and remedies under the Senior Finance Documents.
NOW IT IS HEREBY AGREED as follows:




1.
DEFINITIONS AND INTERPRETATION
1.2
Definitions
In this Agreement, except as otherwise defined herein or to the extent the context otherwise requires, capitalised terms used shall have the following meanings:
"Acceptable Bank" means:
(a)
a bank notified by the Company to the Security Agent which:
(i)
is licensed by the Hong Kong Monetary Authority, the Monetary Authority of Macao, the Monetary Authority of Singapore, the Financial Supervisory Commission in Taiwan, the Office of the Superintendent of Financial Institutions in Canada, the Federal Reserve System in the United States of America and/or the Financial Services Agency in Japan; and
(ii)
has, at all times, general obligations rated at least BBB-, Baa3 or BBB from one or more of S&P, Moody's or Fitch respectively; or
(b)
any of Banco Comercial de Macau, S.A., Banco Nacional Ultramarino, S.A., Bank of China Limited, Macau Branch, Industrial and Commercial Bank of China (Macau) Limited or Tai Fung Bank Limited; or
(c)
any bank which is confirmed by the Security Agent (acting reasonably) as acceptable (including any bank confirmed by the Security Agent or its predecessor as acceptable prior to the Fifth Amendment Effective Date).
"Account" means an account (other than an Excluded Account):
(a)
held by a member of the Restricted Group with an Acceptable Bank in Macau, Hong Kong, the United States or any other jurisdiction on terms reasonably acceptable to the Security Agent; and
(b)
subject to Liens in favour of the Security Agent in form and substance satisfactory to the Security Agent.
"Account Bank" means, in relation to an Account, the bank with which the Account is maintained.
"Account Bank Notices and Acknowledgements" mean the notices and acknowledgements to be delivered to and executed by each Account Bank in respect of each Account in accordance with the Charges over Accounts and this Agreement.
"Additional Facility Agent" means:
(a)
each bank or financial institution appointed as a facility agent for Additional Lenders under an Additional Lender Facility Agreement and which has executed and delivered to the Intercreditor Agent:




(i)
a duly completed Agent's Deed of Accession; and
(ii)
a duly completed Finance Party Accession Undertaking executed by such party, the Intercreditor Agent and all other parties hereto acting through the Intercreditor Agent for this purpose (the authority for which is hereby conferred on the Intercreditor Agent and which the Intercreditor Agent shall promptly deliver to the Security Agent),
each of which the Intercreditor Agent shall promptly copy to the Company and the other Senior Secured Creditors; or
(b)
each successor to any such bank or financial institution appointed in accordance with this Agreement.
"Additional Lender Facility" means each term loan facility and each revolving credit facility provided by the Additional Lenders to the Company.
"Additional Lender Facility Agreement" means an agreement between the Additional Lenders, the Additional Facility Agent and the Company for the provision of an Additional Lender Facility.
"Additional Lender Facility Availability Period" means, in relation to the Additional Lender Facility, the period specified in respect thereof in Clause 4.3 (Additional Lender Facility Availability Period).
"Additional Lender's Accession Deed" means a deed of accession in substantially the form set out in Schedule 14 (Form of Additional Lender's Accession Deed).
"Additional Lenders" means the parties who have agreed to provide the Company with loan facilities permitted by paragraph 2.1(f) of Part B of Schedule 5 (Covenants) and who have each executed and delivered to the Intercreditor Agent:
(a)
a duly completed Additional Lender's Accession Deed; and
(b)
a duly completed Finance Party Accession Undertaking executed by such party, the Intercreditor Agent and all other parties hereto acting through the Intercreditor Agent for this purpose (the authority for which is hereby conferred on the Intercreditor Agent and which the Intercreditor Agent shall promptly deliver to the Security Agent),
each of which the Intercreditor Agent shall promptly copy to the Company and the other Senior Secured Creditors.
"Additional Lending Group" means, with respect to an Additional Lender Facility Agreement, the Additional Lenders party to such Additional Lender Facility Agreement, acting as a lending group in accordance with, and subject to the decision making rules under, such Additional Lender Facility Agreement.
"Advance" means an advance (as from time to time reduced by repayment or prepayment) made or to be made under a Facility.




"Advance Date" means the date on which an Advance is required to be made.
"Advance Request" means, in relation to an Advance under the Term Loan Facilities, a request for an Advance in substantially the form set out in Schedule 3 (Form of Advance Request) and, in relation to an Advance under the Revolving Credit Facilities, in substantially the form set out in schedule 2 to the Revolving Credit Facility Agreement or the equivalent schedule to the Additional Lender Facility Agreement setting out the form of advance request, as the case may be.
"Affected Lender Decision" means an amendment or waiver that has the effect of changing or which relates to:
(a)
a reduction in the interest margin applicable to a Lender's participation in an Advance or a reduction in the amount of any payment of principal, interest or fees owing or payable under any Senior Finance Document; or
(b)
(save for any change in the currency of any fees payable under a Senior Finance Document to any Secured Party as expressly permitted pursuant to such Senior Finance Document) a change in the currency of payment of any amount under the Senior Finance Document.
"Affiliate" as applied to any Person, means 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, to (a) vote 10% or more of the shares or other securities having ordinary voting power for the election of the Board 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 (provided that the Executive Director shall not, by virtue of fulfilling either of these requirements alone as a result of the Executive Director Shares held by such individual in the Company or as a result of such individual's role as executive director of the Company, be an Affiliate of the Company).
"Affiliate Agreement" means any agreement entered into by any Obligor with an Affiliate of that Obligor involving expenditures by any party thereto or any other flow of funds of not less than USD1,000,000 or its equivalent, but excluding any agreement entered into between the Company and a Subsidiary Obligor.
"Agent" means the Intercreditor Agent or a Facility Agent, as the case may be.
"Agent's Deed of Accession" means a deed of accession in substantially the form of Part A of Schedule 11 (Transfers and Accession).
"Agreed Form" means, in relation to any document, the form most recently initialled for the purposes of identification as such by the Company and the Intercreditor Agent with such changes as the Intercreditor Agent may agree with the Company.
"Ancillary Finance Documents" means the Fee Letters.




"Anti-Bribery Laws" has the meaning given to that term in paragraph 32 of Part A of Schedule 5 (Covenants).
"Anti-Terrorism Laws" means the Executive Order, the Bank Secrecy Act (31 U.S.C. §§ 5311 et seq.), the Money Laundering Control Act of 1986 (18 U.S.C. §§ 1956 et seq.), the USA Patriot Act, the International Emergency Economic Powers Act (50 U.S.C. §§ 1701 et seq.), the Trading with the Enemy Act (50 U.S.C. App. §§ 1 et seq.), any other applicable law or regulation administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or other Governmental Authority, in each case for the purpose of controlling or preventing terrorism and related activities and any law enacted in the United States of America after the Fifth Amendment Effective Date for such purposes.
"Approved Corporate Administrative Fees" means, for any Fiscal Year, an amount, when added to any other Corporate Administrative Fees paid by or on behalf of the Company during such Fiscal Year, as does not exceed 50% of the corporate administrative overhead costs incurred by Wynn Resorts during such Fiscal Year in relation to its management of the Wynn Resorts Group.
"Approved IP Fees" means the IP Fees as set out in the IP Agreement but without regard to any amendment, variation or supplement that would have the effect of increasing such IP Fees pursuant to the terms of the IP Agreement.
"Asset Sale" means any Disposition of Property other than:
(a)
the granting of any Lien permitted by paragraph 3 of Part B of Schedule 5 (Covenants);
(b)
any Disposition permitted by paragraph 5 of Part B of Schedule 5 (Covenants) (provided that, in the case of paragraph 5(a) of Part B of Schedule 5 (Covenants), Dispositions of Property thereunder shall be considered "Asset Sales" to the extent of any proceeds thereof not applied to the replacement of Property pursuant to paragraph 5(a)(ii) of Part B of Schedule 5 (Covenants)).
"Assignment of Rights" means the assignment so entitled dated on or about the date of this Agreement between the Company and the Security Agent.
"Assignment of Insurances" means the Assignment of Onshore Insurance Policies dated on or about the date of this Agreement between the Company and the Security Agent.
"Assignments of Reinsurances" means each assignment of Reinsurance so entitled between the relevant Direct Insurer and the Security Agent.
"Auditors" means Ernst & Young LLP or such other firm of independent accountants of international recognised standing as may be appointed by the Company.
"Availability Period" means, as the case may be, the Term Facility Availability Period, the Additional Lender Facility Availability Period or the Revolving Credit Facility Availability Period.




"Available Commitment", in relation to each Lender under each Facility Agreement, has the meaning given in that Facility Agreement.
"Board of Directors" means:
(a)
with respect to a corporation, the board of directors of the corporation;
(b)
with respect to a limited partnership, the board of directors of the general partner of the partnership; and
(c)
with respect to any other Person (other than a natural person), the board or committee of such Person serving a similar function.
"Break Costs" means the amount (if any) by which:
(a)
the additional interest which a Lender should have received for the period from the date of receipt by such Lender of all or any part of its participation in an Advance or Unpaid Sum to the last day of the current Interest Period in respect of that Advance or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds:
(b)
the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the London interbank market (or, in the case of any principal amount or Unpaid Sum denominated in HK dollars, the Hong Kong interbank market) for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period,
provided that Break Costs shall not include any loss of margin.
"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in the Macau SAR, Hong Kong SAR and New York and, save for the purposes of Clause 3.1.1 (Drawdown conditions), London and Singapore.
"Capital Expenditure" means, in relation to any Person, for any period, the aggregate of all expenditures by such Person for the acquisition or leasing (pursuant to a capital lease or a finance lease) of fixed or capital assets (including, without limitation, real property) or additions to equipment (including replacements, capitalized repairs and improvements during such period) which should be capitalized under applicable GAAP.
"Capital Lease Obligations" means, as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases or finance leases under applicable GAAP, and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with applicable GAAP.




"Capital Stock" means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all classes of membership interests in a limited liability company, any and all classes of partnership interests in a partnership, any and all equivalent ownership interests in a Person and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Flow Available for Debt Service" or "CFADS" means, in relation to any period, EBITDA for such period plus, without duplication, the sum of:
(a)
decreases in Working Capital for such period; and
(b)
any other non-cash charges,
and minus, without duplication, the sum of:
(c)
increases in Working Capital for such period;
(d)
any other non-cash credits;
(e)
the aggregate amount actually paid by each member of the Restricted Group in cash during such period on account of Capital Expenditure;
(f)
the aggregate amount actually paid by each member of the Restricted Group in cash during such period on account of any accrued charges from any prior period; and
(g)
Tax paid by each member of the Restricted Group during such period,
determined on a consolidated basis which includes members of the Restricted Group only (and which, for the avoidance of doubt, does not take account of any amount to the extent it (i) would otherwise have the effect of increasing Cash Flow Available for Debt Service and (ii) is in any way derived from or attributable or otherwise related to or connected with an Excluded Project, an Excluded Subsidiary, a Resort Management Agreement, the grant of any Subconcession or any interest, right or claim in respect thereof).
"Change of Control" means the occurrence of any of the following:
(a)
the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of any Wynn Obligor to any Person (except as may be permitted by this Agreement or any Security Document and excluding any disposition forming part of a Permitted Cotai Reorganisation);
(b)
the adoption of a plan relating to the liquidation or dissolution of any Wynn Obligor or any successor thereto, but excluding any voluntary liquidation, winding-up, dissolution of, or similar action with respect to, Palo after a Permitted Cotai Reorganisation; or
(c)
a Wynn Event.




"Charge over HK Accounts" means the charge so entitled between the Company and the Security Agent in the Agreed Form.
"Charges over Accounts" means the Pledge over Onshore Accounts, the Charge over HK Accounts, the Palo Pledge over Onshore Accounts and the documents granting the Liens referred to in the definition of "Account" in this Clause 1.1 (Definitions).
"Claim Proceeds" means the proceeds of a claim (a "Recovery Claim") against any party to a Major Project Document (or a Cotai Resort Management Agreement) or any of such party's Affiliates (or any employee, officer or adviser) in relation to such Major Project Document (or a Cotai Resort Management Agreement) except for Excluded Claim Proceeds, and after deducting:
(a)
any reasonable expenses which are incurred by any member of the Restricted Group to Persons who are not members of the Restricted Group; and
(b)
any Tax incurred and required to be paid by a member of the Restricted Group (as reasonably determined by the relevant member of the Restricted Group on the basis of existing rates and taking into account any available credit, deduction or allowance),
in each case in relation to that Recovery Claim.
"Code" means the Internal Revenue Code of 1986 of the United States of America, as amended from time to time.
"Common Terms Agreement Amendment Agreement" means the agreement so entitled dated 14 September 2005 between the Company, Banc of America Securities Asia Limited, Deutsche Bank AG, Hong Kong Branch, Société Générale Asia Limited, Société Générale Hong Kong Branch and certain other financial institutions.
"Common Terms Agreement Fifth Amendment Agreement" means the agreement so entitled dated 30 September 2015 between the parties thereto.
"Common Terms Agreement Fourth Amendment Agreement" means the agreement so entitled dated 31 July 2012 between the parties thereto.
"Common Terms Agreement Second Amendment Agreement" means the agreement so entitled dated 27 June 2007 between the parties thereto.
"Common Terms Agreement Third Amendment Agreement" means the agreement so entitled dated 8 September 2009 between the parties thereto.
"Commonly Controlled Entity" means an entity, whether or not incorporated, which is under common control with any Obligor within the meaning of section 4001 of ERISA or is part of a group that includes such Person and that is treated as a single employer under section 414 of the Code.




"Company Share Pledge" means the pledge over shares in the Company dated on or about the date of this Agreement between Wynn HK, Wynn International, the Company and the Security Agent.
"Compensation Proceeds Account" means the account so designated in Schedule 6 (Accounts).
"Completion Memorandum" has the meaning given in the Common Terms Agreement Fifth Amendment Agreement.
"Completion Request" has the meaning given in the Common Terms Agreement Fifth Amendment Agreement.
"Compliance Certificate" means a certificate in substantially the form set out in Schedule 15 (Form of Compliance Certificate).
"Concession Contract" means the concession contract dated 24 June 2002 between the Macau SAR and the Company for the operation of games of chance and other games in casinos in the Macau SAR.
"Concession Contract Performance Bond" means the guarantee to be provided under article 61 of the Concession Contract.
"Confidentiality Undertaking" means a confidentiality undertaking in substantially the form set out in Part C of Schedule 11 (Transfers and Accession) or any other form agreed between the Company and the Intercreditor Agent.
"Construction Disbursement Account" means the account so designated in Schedule 6 (Accounts).
"Contractual Obligation" means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its Property is bound.
"Contribution" has the meaning given to such term in paragraph (a) of the definition of "Specified Equity Contributions" in this Clause 1.1 (Definitions).
"Corporate Administrative Fees" means any fees payable by the Company to Wynn Resorts pursuant to the Corporate Administrative Fees Agreement in respect of any corporate administrative overhead costs incurred by Wynn Resorts in relation to its management of the Wynn Resorts Group.
"Corporate Administrative Fees Agreement" means any agreement between the Company and Wynn Resorts regarding, among other things, the payment of the Company's portion of any Corporate Administrative Fees.
"Corporate Services Provider" means Wynn Resorts in its capacity as a party to the Corporate Administrative Fees Agreement.
"Cotai Land Concession Contract" means the land concession contract agreed to by and between Palo, the Company and the Macau SAR dated 2 May 2012 pursuant to




Dispatch number 16/2012, and includes any novation, assignment, transfer or other Disposition to the Company or replacement thereof in the name of the Company in connection with a Permitted Cotai Reorganisation.
"Cotai Mortgage" means the mortgage relating to the Cotai Site dated 15 October 2012 between Palo (or, if Palo's interest in the Cotai Site is transferred to the Company pursuant to a Permitted Cotai Reorganisation, the Company) and the Security Agent.
"Cotai Opening Date" means the date upon which all Licenças de Ocupação required pursuant to applicable Legal Requirements in respect of the Cotai Project have been issued by the Macau SAR and the Cotai Project is open for business to the general public.
"Cotai Power of Attorney" means the irrevocable power of attorney dated on or about the Fifth Amendment Effective Date granted by Palo (or, if Palo's interest in the Cotai Site is transferred to the Company pursuant to a Permitted Cotai Reorganisation, the Company) in favour of the Security Agent in connection with the Cotai Mortgage.
"Cotai Project" means a luxury hotel resort, retail and entertainment complex and casino facilities known as "Wynn Palace" being designed, developed and constructed, and to be operated and maintained, on land leased under the Cotai Land Concession Contract (excluding any Excluded Project located on a portion of the Cotai Site).
"Cotai Resort Management Agreement" means any agreement entered into by the Company and/or Palo (that does not conflict with the Cotai Land Concession Contract and all other applicable Legal Requirements) with an Excluded Subsidiary or other third party in connection with the use by such Excluded Subsidiary or other third party of a portion of the Cotai Site for the purposes of an Excluded Project.
"Cotai Site" means the land described in the Cotai Land Concession Contract.
"Cotai Site Easements" means the easements appurtenant, easements in gross, licence agreements and other rights running for the benefit of Palo (or, if Palo's interest in the Cotai Site is transferred to the Company pursuant to a Permitted Cotai Reorganisation, the Company) and/or appurtenant to the Cotai Site.
"Cotai Site Facilities" means
(a)
the Cotai Site; and
(b)
the Project Works (whether completed or uncompleted) in respect of the Cotai Project.
"CP Satisfaction Date" means the date on which all conditions precedent (as set out in Part A of Schedule 2 (Conditions Precedent) as at the Fourth Amendment Effective Date) have been satisfied in accordance with (and as set out in) sub-clause 2.1.2 of Clause 2.1 (Conditions Precedent to the CP Satisfaction Date) as at the Fourth Amendment Effective Date.
"Current Assets" means, at any date, all amounts (other than cash) which would, in conformity with applicable GAAP, be set forth opposite the caption "total current




assets" (or any like caption) on a balance sheet of the Restricted Group at such date prepared on a consolidated basis which includes members of the Restricted Group only (and which, for the avoidance of doubt, does not take account of any amount to the extent it (i) would otherwise have the effect of increasing Current Assets and (ii) is in any way derived from or attributable or otherwise connected with an Excluded Project, an Excluded Subsidiary, a Resort Management Agreement, the grant of any Subconcession or any interest, right or claim in respect thereof).
"Current Liabilities" means, at any date, all amounts that would, in conformity with applicable GAAP, be set forth opposite the caption "total current liabilities" (or any like caption) on a balance sheet of the Restricted Group at such date prepared on a consolidated basis which includes members of the Restricted Group only (and which, for the avoidance of doubt, does not take account of any amount to the extent it (i) would otherwise have the effect of reducing Current Liabilities and (ii) is in any way derived from or attributable or otherwise connected with an Excluded Project, an Excluded Subsidiary, a Resort Management Agreement, the grant of any Subconcession or any interest, right or claim in respect thereof), but excluding:
(a)
the current portion of any Funded Debt of any member of the Restricted Group; and
(b)
without duplication of paragraph (a) above, all Financial Indebtedness consisting of Revolving Credit Facilities Advances to the extent otherwise included therein.
"Debenture" means the debenture so entitled dated on or about the date of this Agreement between the Company and the Security Agent.
"Decision" means the giving of a consent, the making of an agreement or the exercise of any other right, power, discretion or determination in respect of any matter which, under this Agreement or any other Senior Finance Document, requires such consent, agreement or exercise to be given or made by more than one Senior Secured Creditor or by the Required Lenders.
"Decision Date" has the meaning given in Clause 33.1 (Notices of Required Decisions).
"Deed of Appointment and Priority" means the deed so entitled dated on or about the date of this Agreement between, among others, the Lenders, the Performance Bond Provider, the Company, the Agents and the Security Agent.
"Default" means an Event of Default or any event or circumstance specified in Schedule 10 (Events of Default) hereto which would become (with the expiry of a grace period, the giving of notice, the making of any determination as permitted under the Senior Finance Documents or any combination of any of the foregoing) an Event of Default.
"Defaulting Lender" means any Lender:
(a)
which has rescinded or repudiated a Finance Document; or
(b)
with respect to which an Insolvency Event has occurred and is continuing.




"Derivatives Counterparty" has the meaning given in paragraph 6 of Part B of Schedule 5 (Covenants).
"Designated Jurisdiction" means, at any time, any country, region or territory to the extent that such country, region or territory (or portion thereof) itself is the subject of any Sanctions.
"Designated Person" means a Person:
(a)
listed in the annex to, or otherwise subject to the provisions of, the Executive Order;
(b)
named as a "Specially Designated National and Blocked Person" on the most current list published by Office of Foreign Assets Control of the U.S. Department of the Treasury at its official website or any replacement website or other replacement official publication of such list; or
(c)
with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law or who or which is the subject of any Sanctions provided that such Person is named as a "prohibited person", "prohibited entity" or equivalent or, as the case may be, who or which is named as a Person that is the subject of any Sanctions (in each case) on any list published by any Governmental Authority (including, without limitation, the authorities referred to in the definition of "Sanctions" in this Clause 1.1 (Definitions)) pursuant to or otherwise in connection with any Anti-Terrorism Laws or any Sanctions.
"Development Accounts" means each Development Account (as defined in each of the Term Facility Agreement and the Revolving Facility Agreement).
"DICJ Authorisation" means:
(a)
the approval by the Macau SAR government of the financial indebtedness in respect of the Term Facility and the Revolving Credit Facility, as set forth in the submission made by the Company to the Macau SAR government on 24 August 2015;
(b)
the Macau SAR government having confirmed that the Gaming Concession Consent Agreement and the Land Concession Consent Agreement (as amended, consolidated, supplemented, novated or replaced from time to time) continue to apply with respect to such financial indebtedness; and
(c)
if the Company requests an Advance under an Additional Lender Facility:
(i)
the approval by the Macau SAR government of the financial indebtedness in respect of the Additional Lender Facility, as set forth in the submission made by the Company to the Macau SAR government in connection therewith; and




(ii)
the Macau SAR government having confirmed that the Gaming Concession Consent Agreement and the Land Concession Consent Agreement (as amended, consolidated, supplemented, novated or replaced from time to time) continue to apply with respect to such financial indebtedness.
"Direct Agreements" means each of the following documents:
(a)
the Gaming Concession Consent Agreement;
(b)
the Land Concession Consent Agreement;
(c)
the Account Bank Notices and Acknowledgements; and
(d)
the Insurer Notices and Acknowledgements.
"Direct Insurances" means a contract or policy of insurance of any kind from time to time taken out or effected by on behalf of or in favour of the Company or any other member of the Restricted Group (whether or not in conjunction with any other Person) with one or more insurers in accordance with the terms of paragraph 10 of Part A of Schedule 5 (Covenants).
"Direct Insurer" means the insurer(s) with whom a Direct Insurance is placed from time to time in accordance with paragraph 10 of Part A of Schedule 5 (Covenants)
"Disposition" means, with respect to any Property, any sale, lease, sale and leaseback, assignment, conveyance, transfer or other disposition thereof (whether legal or equitable); and the terms "Dispose", "Disposed" and "Disposed of" shall have correlative meanings.
"Disqualified Stock" means any Capital Stock or other ownership or profit interest of any Obligor that any Obligor is or, upon the passage of time or the occurrence of any event, may become obligated to redeem, purchase, retire, defease or otherwise make any payment in respect thereof for consideration other than Capital Stock (other than Disqualified Stock).
"EBITDA" means, in relation to any period, the Net Income of the Restricted Group for such period plus, without duplication and to the extent reflected as a charge in the Company's statement of such Net Income for such period, the sum of:
(a)
income Tax expense (whether or not paid during such period) other than Tax on gross gaming revenue;
(b)
amortization or write-off of debt discount and debt issuance costs and interest, commissions, discounts and other fees and charges associated with Financial Indebtedness (including the Advances);
(c)
depreciation and amortization expense;
(d)
amortization of intangibles (including goodwill);




(e)
an amount equal to the aggregate net non-cash loss on the Disposition of Property during such period (other than sales of inventory in the ordinary course of business);
(f)
any extraordinary expenses or losses;
(g)
any foreign currency translation losses;
(h)
any corporate expenses;
(i)
any expense that is non-recurring in nature;
(j)
stock-based compensation;
(k)
pre-opening and development expenses;
(l)
Approved IP Fees paid in accordance with paragraph 6.1 of Part B of Schedule 5 (Covenants); and
(m)
Specified Equity Contributions,
and minus, without duplication and to the extent included in the statement of such Net Income for such period, the sum of:
(n)
interest income;
(o)
an amount equal to the aggregate net non-cash gain on the Disposition of Property during such period (other than sales of inventory in the ordinary course of business);
(p)
any extraordinary income or gains;
(q)
any foreign currency translation gains; and
(r)
any upfront premium or similar income or gains derived from, or in connection with the grant of, any Subconcession,
all (including Net Income) as determined on a consolidated basis which includes members of the Restricted Group only (and which, for the avoidance of doubt, does not take account of any amount to the extent it (i) would otherwise have the effect of increasing EBITDA and (ii) is in any way derived from or attributable or otherwise related to or connected with an Excluded Project, an Excluded Subsidiary, a Resort Management Agreement, the grant of any Subconcession or any interest, right or claim in respect thereof) and otherwise in accordance with applicable GAAP.
"ECF Percentage" means, with respect to any period:
(a)
25% of the Excess Cash Flow if the Leverage Ratio as of the last day of such period is greater than 4.5:1; or
(b)
zero if the Leverage Ratio as of the last day of such period is 4.5:1 or less.




"Effective Date" means the Fifth Amendment Effective Date.
"Eminent Domain Proceeds" means all amounts and proceeds (including monetary instruments) received in respect of any Event of Eminent Domain relating to any member of the Restricted Group or any of its assets, less any costs or expenses incurred by any member of the Restricted Group or its agents in collecting such amounts and proceeds.
"Enforcement Notice" has the meaning given in the Deed of Appointment and Priority.
"Enforcement Proceeds" means all moneys received or recovered by the Security Agent after the Security has become enforceable in accordance with the terms of the Security Documents from the exercise or enforcement of the Security.
"Environment" means land, including any natural or man-made structures; water; and air.
"Environmental Claim" means any formal claim by any Person as a result of or in connection with any material violation of Environmental Law which claim could reasonably be expected to give rise to any remedy or penalty (whether interim or final) or liability for any member of the Restricted Group or any Senior Secured Creditor (in its capacity as such in the transactions contemplated by the Senior Finance Documents).
"Environmental Law" means any law or regulation of the Macau SAR with regard to:
(a)
harm to the health of humans; or
(b)
the pollution or protection of the Environment.
"Environmental Licence" means any material permit, licence, approval, registration, notification, exemption or any other authorisation required under any Environmental Law.
"Equity" means, at any time, the aggregate of the US dollar equivalents of:
(a)
the amounts paid up by the Shareholders by way of subscription for shares in the Company; and
(b)
the amounts advanced to the Company and outstanding at such time by way of Shareholder Loans.
"Equity Issuance" means:
(a)
any allotment or issuance (or the entering into by the Company or any other member of the Restricted Group of any agreement to allot or issue), or any grant to any Person of any right (whether conditional or unconditional) to call for or require the allotment or issuance of, any share or equity interest, or other securities (including without limitation bonds, notes, debentures, stock or similar instrument) which are convertible (whether at the option of the holder(s) thereof, the Company or otherwise) into shares or equity interests in the Company or other member of the Restricted Group, or any depositary receipt(s) in respect of any such share or equity interest; or




(b)
any grant of any option, warrant or other right of acquisition in respect of any such share, equity interest, other security or depositary receipt,
provided that for the avoidance of doubt, "Equity Issuance" shall not include (i) any secondary sales of any shares, equity interests or other securities of the Company or any other member of the Restricted Group by any or all of the holders of such shares, equity interests or other securities or (ii) any allotment or issuance or other grant to the Company or any other member of the Restricted Group of shares, equity interests or other securities in a Subsidiary Obligor.
"Equity Issuance Proceeds" means the amount of the proceeds (if not in cash, the monetary value thereof) of any Equity Issuance after deducting:
(a)
fees and expenses reasonably incurred in connection with such Equity Issuance by the Company or other member of the Restricted Group; and
(b)
any Taxes incurred or required to be paid by the Company or other member of the Restricted Group in connection with such Equity Issuance (as reasonably determined by the Company, on the basis of existing rates and taking account of any available credit, deduction or allowance).
"ERISA" means the Employee Retirement Income Security Act of 1974 of the United States of America, as amended from time to time.
"Event of Default" means any event or circumstance set out in Schedule 10 (Events of Default).
"Event of Eminent Domain" means, with respect to any Property:
(a)
any compulsory transfer or taking by condemnation, seizure, eminent domain or exercise of a similar power, or transfer under threat of such compulsory transfer or taking or confiscation of such Property or the requisition of the use of such Property, by any agency, department, authority, commission, board, instrumentality or political subdivision of any Governmental Authority having jurisdiction; or
(b)
any settlement in lieu of paragraph (a) above.
"Event of Loss" means, with respect to any property or asset (tangible or intangible, real or personal), any of the following:
(a)
any loss, destruction or damage of such property or asset;
(b)
any actual condemnation, seizure or taking by exercise of the power of eminent domain or otherwise of such property or asset, or confiscation of such property or asset or the requisition of the use of such property or asset; or
(c)
any settlement in lieu of paragraph (b) above.
"Excess Cash Flow" means, in relation to any period, CFADS for such period plus, without duplication the US dollar equivalents of:




(a)
to the extent included in Net Income for such period, interest income received during such period,
minus, without duplication, the US dollar equivalents of:
(b)
the aggregate amount of Financing Costs paid by the Company or any other member of the Restricted Group in cash during such period;
(c)
the aggregate amount of all prepayments of Advances under the Revolving Credit Facilities during such period to the extent accompanying permanent voluntary reductions of the commitments thereunder and all voluntary prepayments of Term Loan Facility Advances during such period;
(d)
the aggregate amount of all scheduled principal payments of the Company under the Facility Agreements made during such period (other than in respect of any Revolving Credit Facility to the extent there is not an equivalent permanent reduction in commitments thereunder such that after giving effect to such commitment reduction the Company would not be able to reborrow all or any of the amount so prepaid); and
(e)
the aggregate of all other scheduled payments of any Financial Indebtedness permitted to be incurred by a member of the Restricted Group pursuant to paragraphs 2.1(e) and 2.1(f) of Part B of Schedule 5 (Covenants) falling due and any voluntary prepayments thereof made during such period (other than in respect of any overdraft or revolving facility to the extent there is not an equivalent permanent reduction in commitments thereunder such that after giving effect to such commitment reduction the relevant member of the Restricted Group would not be able to reborrow all or any of the amount so prepaid),
determined on a consolidated basis which includes members of the Restricted Group only (and which, for the avoidance of doubt, does not take account of any amount to the extent it (i) would otherwise have the effect of increasing Excess Cash Flow and (ii) is in any way derived from or attributable or otherwise related to or connected with an Excluded Project, an Excluded Subsidiary, a Resort Management Agreement, the grant of any Subconcession or any interest, right or claim in respect thereof).
"Excluded Account" means any account held by a member of the Restricted Group which:
(a)
is used exclusively for the remittance of remuneration to employees;
(b)
is a zero-balance disbursement account used exclusively for the remittance of vendor payments;
(c)
is established for the exclusive purpose of receiving funds for customers and patrons to establish credit;
(d)
is established for the exclusive benefit of officers, directors and employees in connection with share option schemes, welfare benefit schemes, pension schemes or other similar arrangements; and




(e)
the granting of a Lien in favour of a Senior Secured Creditor in respect thereof would violate applicable law or regulations provided that the Intercreditor Agent has received legal advice (in form and substance reasonably satisfactory to the Intercreditor Agent) to confirm the relevant violation of applicable law or regulation and that such relevant violation cannot be overcome by the relevant member of the Restricted Group (using all commercially reasonable efforts).
"Excluded Amount" means any amount referred to in paragraphs (a) to (e) (inclusive) of the definition of "Excluded Account" in this Clause 1.1 (Definitions) that is deposited into an Excluded Account provided that such amount must, within five days of such deposit, be applied solely towards the purpose for which that account has been established.
"Excluded Claim Proceeds" means any proceeds of a Recovery Claim which the Company notifies the Intercreditor Agent are, or are to be, applied:
(a)
to satisfy (or reimburse a member of the Restricted Group which has discharged) any liability, charge or claim upon a member of the Restricted Group by a Person which is not a member of the Restricted Group; or
(b)
in the replacement, reinstatement and/or repair of assets of members of the Restricted Group which have been lost, destroyed or damaged,
in each case as a result of the events or circumstances giving rise to that Recovery Claim, if those proceeds are deposited into and retained in an Account pending such application and are so applied within 6 months, or such longer period as the Intercreditor Agent may agree, after receipt.
"Excluded Project" means any gaming, hotel or resort related business, development or undertaking of any kind (including any business, development or undertaking referred to in clause (c) of the definition of "Permitted Businesses" in this Clause 1.1 (Definitions)) in the Macau SAR (other than Wynn Macau or the Cotai Project) and, save as contemplated by any Resort Management Agreement therefor in the case of the Company or Palo, neither involving nor permitting any claim, interest, liability, right of recourse of any kind in connection therewith against or in any member of the Restricted Group or its assets, including Wynn Macau and the Cotai Project. For the avoidance of doubt, an Excluded Project may be located on a portion of the Cotai Site provided that to the extent any such Excluded Project located on a portion of the Cotai Site is funded by the proceeds of any Advance, such funding is applied solely towards the financing or refinancing of the development costs incurred in relation to such Excluded Project (it being agreed that such development costs 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), and further provided that the following additional conditions are met prior to the earlier of entry into of any contract for and the commencement of the construction of an Excluded Project on the Cotai Site:
(i)
the entire Cotai Site shall remain part of the Project Security and subject to the Cotai Mortgage and there shall be no adverse effect on the validity or




enforceability of, or the effectiveness or ranking of any Security of the Finance Parties as a result of the Excluded Project being located on the Cotai Site;
(ii)
the development, operation and maintenance of such Excluded Project:
(A)
complies in all material respects with all applicable Legal Requirements (including, without limitation, Environmental Laws), the Cotai Land Concession Contract and the Concession Contract; and
(B)
does not materially interfere with or materially obstruct (or otherwise have any material adverse effect on) the development, operation and maintenance of the Cotai Project; and
(iii)
any claim, interest or liability, or right of recourse of any kind of any counterparty to any Resort Management Agreement, in respect of such Excluded Project against or in the Company, Palo or any other member of the Restricted Group or any of their respective assets (including, without limitation, Wynn Macau and the Cotai Project) is limited to an aggregate amount equal to all revenues derived by the Company (or, as the case may be, Palo) in respect of that Excluded Project and any other assets of the Company (or, as the case may be, Palo) comprised in that Excluded Project (and which do not form part of and are not necessary to ensure to the Restricted Group the full benefit of Wynn Macau or the Cotai Project).  
"Excluded Subsidiary" means a Subsidiary of the Company exclusively engaged in the development, financing, ownership, leasing or operation of Excluded Projects on terms which, save as contemplated by any Resort Management Agreement to which such Subsidiary is party in the case of the Company, neither involve nor permit any claim, interest, liability, right of recourse of any kind in connection therewith against or in any member of the Restricted Group or its assets.
"Executive Director" means an individual:
(a)
who is an executive director of the Company, is a Macau permanent resident and holds the Executive Director Shares, pursuant to Clause 2 of Article 19 of Macau SAR Law 16/2001; and
(b)    
(i)
whose Executive Director Shares are subject to the Executive Director Option Agreement and the Executive Director Share Pledge, in each case entered into by that individual prior to the Fifth Amendment Effective Date; or
(ii)
(other than the person referred to in sub-paragraph (i) above) who has satisfied all the requirements pursuant to an Executive Director Substitution.
"Executive Director Event" means any of the following events:




(a)
any representation or warranty made or deemed to be made by the Executive Director under the Executive Director Share Pledge proves to have been incorrect in any material respect on or as of the date made or deemed made;
(b)
the Executive Director defaults in the observance or performance of any covenant or agreement contained in the Executive Director Share Pledge in any material respect and such default continues unremedied for a period of 30 days or, provided the Executive Director is diligently pursuing action to remedy the default and it is of a nature that is capable of being remedied, 60 days after the earlier of (i) the Executive Director becoming aware of such default and (ii) receipt by the Executive Director of notice from the Security Agent of such default; or
(c)
the Executive Director commences or there is commenced against the Executive Director any case, proceeding or other action relating to his or her bankruptcy or (ii) the death or incompetency of the Executive Director.
"Executive Director Option Agreement" means the option agreement between Mr Wong Chi Seng, Wynn International and the Company delivered on or about 14 September 2004 or such other option agreement entered into between the Company, Wynn International and the Executive Director from time to time.
"Executive Director Share Pledge" means the document formerly entitled "Wong Share Pledge" dated on or about 14 September 2004 between the Executive Director and the Security Agent.
"Executive Director Shares" means (as the context requires):
(a)
the Existing Executive Director Shares; or
(b)
the New Executive Director Shares.
"Executive Director Substitution" means each of the following having occurred:
(a)
the Macau SAR government has approved a new executive director of the Company in accordance with the Concession Contract (the "New Executive Director") and, if applicable, the issuance of the New Executive Director Shares to the New Executive Director (including the Security over such New Executive Director Shares as contemplated by paragraph (d) below) and the cancellation of the Existing Executive Director Shares;
(b)
the Executive Director has transferred all of the Existing Executive Director Shares to the New Executive Director or New Executive Director Shares have been issued to the New Executive Director and the Existing Executive Director Shares have been cancelled on or prior to such issuance;
(c)
any other contracts and accessions to existing contracts by the New Executive Director, the Company and any other relevant Obligor as are necessary or desirable in order for the New Executive Director to step into the Executive Director's position and role as executive director of the Company and owner of the Executive Director Shares have been entered into; and




(d)
the New Executive Director has duly executed and, (where applicable) the Company has provided the Intercreditor Agent with, any acknowledgement, confirmation and/or such other documents as the Intercreditor Agent, acting on the advice of its legal counsel, shall deem appropriate to ensure (1) the Existing Executive Director Shares are pledged in the same manner after the occurrence of the steps set out in paragraphs (a) to (c) (inclusive) above as such shares are pledged prior to the occurrence of the steps set out in paragraphs (a) to (c) (inclusive) above, such that the New Executive Director will be the "Pledgor" under the Executive Director Share Pledge and the outgoing Executive Director will no longer be the Pledgor thereunder and will be released from any obligations thereunder or (2) the New Executive Director Shares when issued are pledged in the same manner as the Existing Executive Director Shares are pledged prior to the occurrence of the steps set out in paragraphs (a) to (c) (inclusive) above,
in each case, in form and substance satisfactory to the Intercreditor Agent (acting reasonably), and following the occurrence of each of the steps set out in paragraphs (a) to (d) above and the Intercreditor Agent confirming its satisfaction thereto, the New Executive Director shall be (for the purposes of the Senior Finance Documents) the Executive Director (pursuant to paragraph (b)(ii) of the definition set out in Clause 1.1 (Definition)) (it being agreed and acknowledged that the Intercreditor Agent is not obliged to obtain any further instructions, authorizations or consents from the Lenders (or any of them) or from any other Senior Secured Creditor in respect of confirming its satisfaction as so contemplated by this paragraph (and that the Lenders and the other Senior Secured Creditors party to this Agreement so authorise the Intercreditor Agent to provide such confirmation on being so satisfied)).
"Executive Order" means Executive Order 13224 on Terrorist Financing: Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, Or Support Terrorism issued September 23, 2001, as amended by Order 13268.
"Existing Executive Director Shares" means the shares in the Company held by the Executive Director as at the Fifth Amendment Effective Date and having de minimis economic interest.
"Facility" means any of:
(a)
the Term Loan Facilities; or
(b)
the Revolving Credit Facilities.
"Facility Agents" means the Term Facility Agent, the Revolving Credit Facility Agent and each Additional Facility Agent.
"Facility Agreements" means:
(a)
the Term Facility Agreement;
(b)
the Revolving Credit Facility Agreement; and
(c)
each Additional Lender Facility Agreement.




"Facility Office" means the office or offices notified by a Senior Secured Creditor to the relevant Facility Agent under the Facilities and by the relevant Facility Agent to the Company and the Intercreditor Agent in writing on or before the date it becomes a Senior Secured Creditor (or, following that date, by not less than 10 Business Days' written notice) as the office or offices through which it shall perform its obligations under the relevant Facility.
"Fee Letters" means each of the fee letters entered into from time to time between the Company on the one hand and any of the Agents and the Security Agent on the other hand.
"Fifth Amendment Effective Date" has the meaning given in the Common Terms Agreement Fifth Amendment Agreement.
"Fifth Amendment Effective Date Fee Letters" means the Fee Letters referred to in Schedule 1 (Conditions Precedent) of the Common Terms Agreement Fifth Amendment Agreement.
"Fifth Amendment Signing Date" means the date of the Common Terms Agreement Fifth Amendment Agreement.
"Final Repayment Date" means:
(a)
in relation to the Term Facility, the sixth anniversary of the Fifth Amendment Effective Date; and
(b)
in relation to an Additional Lender Facility providing for a term loan, the date set forth in the applicable Additional Lender Facility Agreement.
"Finance Document" has the meaning given in the Deed of Appointment and Priority.
"Finance Party Accession Undertaking" has the meaning given in the Deed of Appointment and Priority.
"Financial Indebtedness" means, in relation to any Person at any date, without duplication:
(a)
all indebtedness of such Person for borrowed money;
(b)
all obligations of such Person for the purchase price of Property or services to the extent the payment of such obligations is deferred for a period in excess of 90 days (other than trade payables incurred in the ordinary course of such Person's business);
(c)
all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments;
(d)
all indebtedness created or arising under any conditional sale or other title retention agreement with respect to Property acquired by such Person (unless the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such Property);




(e)
all Capital Lease Obligations (to the extent treated as finance or capital lease obligations in accordance with applicable GAAP) or Synthetic Lease Obligations of such Person;
(f)
any indebtedness of such Person for or in respect of receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis or on a basis where recourse is limited solely to warranty claims relating to title or objective characteristics of the relevant receivables);
(g)
any indebtedness of such Person in respect of any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing;
(h)
all indebtedness of such Person, contingent or otherwise, as an account party under acceptance, letter of credit, completion guaranties, performance bonds or similar facilities;
(i)
all obligations of such Person, contingent or otherwise, to purchase, redeem, retire or otherwise acquire for value any Capital Stock of such Person;
(j)
all obligations of such Person in respect of Swap Agreements or any other derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price;
(k)
all Guarantee Obligations of such Person in respect of obligations (whether of such Person or another Person) of the kind referred to in paragraphs (a) through (j) above;
(l)
all obligations of the kind referred to in paragraphs (a) through (k) above secured by (or for which the holder of such obligation has an existing right, contingent or otherwise, to be secured by) any Lien on Property (including, without limitation, accounts and contract rights) owned by such Person, whether or not such Person has assumed or become liable for the payment of such obligation; and
(m)
the liquidation value of any preferred Capital Stock of such Person or its Subsidiaries held by any Person other than such Person and its Wholly Owned Subsidiaries.
"Financing Costs" means:
(a)
interest, fees, commissions, costs and expenses payable by the Company under the Senior Finance Documents;
(b)
interest, fees, commissions, costs and expenses payable by the Company under the Performance Bond Facility;
(c)
amounts payable by the Company under Clause 10 (Changes to the Calculation of Interest), Clause 11 (Tax Gross Up and Indemnities), Clause 12 (Increased Costs) and Clause 13 (Currency and Other Indemnities);




(d)
any other amounts of interest, fees, commissions, discounts, prepayment penalties or premiums and other finance payments payable in respect of Financial Indebtedness permitted to be incurred by a member of the Restricted Group pursuant to paragraphs 2.1(e) and 2.1(f) of Part B of Schedule 5 (Covenants);
(e)
any amounts of dividends, disbursements or other payments payable for the purpose of paying any amount with respect to Guaranteed WML Debt (pursuant to paragraph 6.1(v) of Part B of Schedule 5 (Covenants));
(f)
net amounts payable by the Company under any Hedging Agreement and Permitted Swap Transaction; and
(g)
any value added or other taxes payable by the Company or any other member of the Restricted Group in respect of paragraphs (a) through (f) above and, save to the extent already included in paragraph (c) above, any withholding tax on a party under a Senior Finance Document, the Performance Bond Facility or any other agreement relating to the provision of Financial Indebtedness referred to above in respect of which the Company or any other member of the Restricted Group has an obligation to gross up.
"FinCEN" means the Financial Crimes Enforcement Network of the U.S. Department of the Treasury.
"Fiscal Quarter" means any one of the four consecutive three calendar month periods comprised in a Fiscal Year.
"Fiscal Year" means the fiscal year of the Company, the Restricted Group and the Wynn Obligors ending on 31 December of each calendar year.
"Fitch" means Fitch Ratings Ltd.
"Floating Charge" means the charge so entitled dated on or about the date of this Agreement between the Company and the Security Agent.
"Fourth Amendment Effective Date" has the meaning given in the Common Terms Agreement Fourth Amendment Agreement.
"Fundamental Term" means, in respect of a Senior Finance Document:
(a)
the definitions of Required Lenders and Fundamental Term in Clause 1.1 (Definitions) and Clause 34 (Amendments and Waivers);
(b)
the provisions setting out the date for, or the amount of, or the currency of, any payment of principal (other than Clause 8.2 (Voluntary Prepayment of the Term Loan Facilities)) or interest under a Senior Finance Document or any interest rate hedging payment to a Hedging Counterparty (but excluding, in each case, any amendment bringing forward the date of any such interest rate hedging payment or increasing the amount of any such interest rate hedging payment);
(c)
[Not used];




(d)
the provisions setting out the amount of a Lender's Available Commitment under a Facility (otherwise than by a transfer in accordance with the terms of this Agreement) or the duration of its availability or any additional obligation on a Lender to lend money or provide any other form of credit;
(e)
a term which expressly requires the consent of each Lender or Senior Secured Creditor;
(f)
the priority or ranking of any Security or the Secured Obligations (and any other provisions which, if amended, would have the effect of changing the priority or ranking thereof);
(g)
the provisions dealing with the order of distribution on partial payment by the Company or the proceeds of Security;
(h)
paragraph 2.1(e) of Part B of Schedule 5 (Covenants) or paragraph 2.1(f) of Part B of Schedule 5 (Covenants);
(i)
Clause 25 (Sharing Among the Senior Secured Creditors); and
(j)
Clause 33 (Intercreditor Arrangements).
Notwithstanding the above:
(i)
unanimity among the Lenders and Hedging Counterparties shall not be required with respect to any changes, additions, deletions, modifications or supplements (herein "changes") comprised in any amendment to the Deed of Appointment and Priority made in accordance with paragraph (c) of clause 24.1 (Required Consents) of the Deed of Appointment and Priority with respect to subparagraphs (a), (e), (f), (g), (h) and (j) above and any Decision related to such changes shall be effected pursuant to subparagraph (a) of the definition of "Required Lenders" in this Clause 1.1 (Definitions) (and as if a Hedging Voting Right Event had occurred and was continuing in relation to each Hedging Counterparty) provided that, in each case, the Senior Secured Creditors' rights, benefits and interests in respect of the First Ranking Liabilities (as defined in the Deed of Appointment and Priority) and the Security, the enforcement thereof and the priority and ranking of their claims in respect thereof and the subordination thereto of all other claims, remain unaffected by any such changes; and
(ii)
any amendment or waiver that is an Affected Lender Decision may be made in accordance with Clause 34.5 (Amendment and Waiver of an Affected Lender Decision).
"Funded Debt" means, in relation to any Person, all Financial Indebtedness of such Person of the types described in sub-clauses (a) through (g) of the definition of "Financial Indebtedness" in this Clause 1.1 (Definitions).




"Funds" means any funds that are unconditionally available and have been made available, raised, procured or obtained in a manner that does not breach the terms of this Agreement, including such amount of Financial Indebtedness permitted to be created, incurred, assumed or allowed to remain outstanding pursuant to paragraph 2.1(e) of Part B of Schedule 5 (Covenants) as, when aggregated with all other amounts of Financial Indebtedness permitted to be created, incurred, assumed or allowed to remain outstanding pursuant to paragraph 2.1(e), does not exceed USD500,000,000 or its equivalent.
"GAAP" means, in respect of the Company and other members of the Restricted Group, IFRS and, in respect of any Wynn Obligor, generally accepted accounting principles in the United States of America as in effect from time to time.
"Gaming Concession Consent Agreement" means the Agreement Relating to Security (with the Exclusion of Land Concession and Immovable Property) between the Government of the Macau SAR, the Company and the Security Agent and the Supplement in respect thereof dated 14 September 2005.
"Global Coordinating Lead Arrangers" or "GCLAs" means the Mandated Lead Arrangers and Bookrunners, the Mandated Lead Arrangers, the Lead Arrangers and the Arrangers (each a "Global Coordinating Lead Arranger" or "GCLA").
"Governing Documents" means, collectively, as to any Person, the certificate of incorporation, the memorandum and articles of association or bylaws, any shareholders agreement, certificate of formation, limited liability company agreement, partnership agreement or other formation or constituent documents applicable to such Person.
"Governmental Authority" means, as to any Person, the government of the Macau SAR, any other national, state, provincial 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, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, in each case having jurisdiction over such Person, or any arbitrator with authority to bind such Person at law.
"Group" means the Company and each of the Company's Subsidiaries (other than any Excluded Subsidiary) for the time being (including, without limitation, Palo and any other Subsidiary of the Company which becomes an Obligor pursuant to paragraph 27 of Part A of Schedule 5 (Covenants)).
"Guarantee" means the guarantee formerly entitled the "Wynn Pledgors' Guarantee" dated on or about the date of this Agreement between Wynn Asia 2, Wynn Holdings, Wynn HK, Wynn International, Palo and the Security Agent, as amended, restated, supplemented and novated by, inter alia, the Guarantee Fourth Deed of Amendment and Acknowledgement.
"Guarantee Fourth Deed of Amendment and Acknowledgement" has the meaning given in the Common Terms Agreement Fifth Amendment Agreement.
"Guaranteed WML Debt" means WML Debt in respect of which the Company or any Obligor has incurred, assumed or allowed to remain outstanding any Guarantee




Obligations in compliance with paragraph 2.1(i) of Part B of Schedule 5 (Covenants) of this Agreement.
"Guarantee Obligation" means any guarantee, indemnity, letter of credit or other legally binding assurance against loss granted by one Person in respect of any Financial Indebtedness or other liability or obligation of another Person, or any agreement to assume any Financial Indebtedness of any other Person or to supply funds or to invest in any manner whatsoever in such other Person by reason of Financial Indebtedness of such Person; provided, however, that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing Person shall be deemed to be the lower of (1) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (2) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation (unless such primary obligation and the maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing Person's maximum reasonably anticipated liability in respect thereof as determined by the Company in good faith).
"Hedging Agreements" means any agreement entered into by the Company in accordance with paragraph 1 of Schedule 8 (Hedging Arrangements) but, for the avoidance of doubt, excludes any Permitted Swap Transaction.
"Hedging Arrangements" means the requirements concerning interest rate hedging set out in Schedule 8 (Hedging Arrangements).
"Hedging Counterparties" means a financial institution identified as such in Part C of Schedule 1 (The Lenders and Hedging Counterparties) and the parties, other than the Company, to the Hedging Agreements and who have executed a Hedging Counterparty's Deed of Accession.
"Hedging Counterparty's Deed of Accession" means a deed of accession in substantially the form set out in Appendix 1 to Schedule 8 (Hedging Arrangements).
"Hedging Voting Right Event" means, in relation to any Hedging Counterparty, the occurrence and continuation of both of the following events:
(a)
the serving of any notice given by the Intercreditor Agent pursuant to sub-clause 19.2.2 of Clause 19.2 (Remedies following an Event of Default); and
(b)
a Realised Hedge Loss is not paid when due under the Hedging Agreement to which such Hedging Counterparty is party.
"HIBOR" in relation to any Facility Agreement, has the meaning given in such Facility Agreement.
"HKD" or "HK dollars" denotes the lawful currency of the Hong Kong SAR.




"HKD Debt Service Account" means the account so designated in Schedule 6 (Accounts).
"HKD Debt Service Reserve Account" means the account so designated in Schedule 6 (Accounts).
"HKD Operating Account" means the account so designated in Schedule 6 (Accounts).
"Hong Kong SAR" means the Hong Kong Special Administrative Region.
"IFRS" means the International Financial Reporting Standards issued by the International Accounting Standards Board or its successor.
"Increased Costs" has the meaning given in Clause 12 (Increased Costs).
"Information Memorandum" means the information memorandum dated August 2015 prepared by the Company in relation to Wynn Macau and the Cotai Project for the purposes of the financing of any or all of the Facilities, and sent to the Lenders on 19 August 2015 by the Intercreditor Agent.
"Initial Advance" means the first Advance made under each of the Facilities.
"Insolvency Event" in relation to an entity means that the entity:
(a)
is dissolved (other than pursuant to a consolidation, amalgamation or merger);
(b)
becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due;
(c)
makes a general assignment, arrangement or composition with or for the benefit of its creditors;
(d)
institutes or has instituted against it, by a regulator, supervisor or any similar official with primary insolvency, rehabilitative or regulatory jurisdiction over it in the jurisdiction of its incorporation or organisation or the jurisdiction of its head or home office, a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation by it or such regulator, supervisor or similar official;
(e)
has instituted against it a proceeding seeking a judgment of insolvency or bankruptcy or any other relief under any bankruptcy or insolvency law or other similar law affecting creditors' rights, or a petition is presented for its winding-up or liquidation, and, in the case of any such proceeding or petition instituted or presented against it, such proceeding or petition is instituted or presented by a person or entity not described in paragraph (d) above and:
(i)
results in a judgment of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its winding-up or liquidation; or




(ii)
(is not dismissed, discharged, stayed or restrained in each case within 30 days of the institution or presentation thereof;
(f)
has a resolution passed for its winding-up, official management or liquidation (other than pursuant to a consolidation, amalgamation or merger);
(g)
seeks or becomes subject to the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official for it or for all or substantially all its assets (other than, for so long as it is required by law or regulation not to be publicly disclosed, any such appointment which is to be made, or is made, by a person or entity described in paragraph (d) above);
(h)
has a secured party take possession of all or substantially all its assets or has a distress, execution, attachment, sequestration or other legal process levied, enforced or sued on or against all or substantially all its assets and such secured party maintains possession, or any such process is not dismissed, discharged, stayed or restrained, in each case within 30 days thereafter;
(i)
causes or is subject to any event with respect to it which, under the applicable laws of any jurisdiction, has an analogous effect to any of the events specified in paragraphs (a) to (h) above; or
(j)
takes any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the foregoing acts.
"Insurance" means a Direct Insurance or a Reinsurance.
"Insurance Proceeds" means all amounts and proceeds (including monetary instruments) paid under any insurance policy maintained by the Company or Palo (including, without limitation, any insurance policy required to be maintained by the Company or Palo under any Transaction Document but excluding any public liability, third party liability, workers compensation and legal liability insurances and also excluding any other insurance the proceeds of which are payable to the employees of the Company or Palo) less any costs or expenses incurred by the Company, Palo or their respective agents in collecting such amounts and proceeds.
"Insurer" means a Direct Insurer or a Reinsurer.
"Insurer Notices and Acknowledgements" means the notices and acknowledgements to be delivered to and executed by each Insurer and Reinsurer in accordance with the Assignment of Insurances and the Assignments of Reinsurances, respectively.
"Intellectual Property" means the collective reference to all rights, priorities and privileges relating to intellectual property, including copyrights, patents, trademarks, service-marks, technology, know-how and processes, formulas, trade secrets or licenses (under which the applicable Person is licensor or licensee) relating to any of the foregoing and all rights to sue at law or in equity for any infringement or other impairment thereof, including the right to receive all proceeds and damages therefrom.




"Intercreditor Agent" means Bank of China Limited, Macau Branch in its capacity as intercreditor agent for the Senior Secured Creditors or its successor appointed in accordance with this Agreement.
"Interest Coverage Ratio" means, in relation to any period, the ratio of EBITDA to Financing Costs for such period.
"Interest Payment Date" means each date on which an Interest Period ends.
"Interest Period" means, in relation to any Advance, each period for the calculation of interest in respect thereof ascertained in accordance with Clause 9 (Interest, Interest Periods and Default Interest).
"Investment Income" means any interest, dividends or other income arising from or in respect of a Permitted Investment.
"Investment Proceeds" means any net proceeds received upon any disposal, realisation or redemption of a Permitted Investment, but excluding any Investment Income.
"Investments" has the meaning given to it in paragraph 8 of Part B of Schedule 5 (Covenants).
"IP Agreement" means the Amended and Restated Fourth Amendment to Intellectual Property Licence Agreement dated 19 September 2009.
"IP Fees" means the "Licensing Fee" as defined in the IP Agreement.
"ISDA Master Agreement" has the meaning given in Schedule 8 (Hedging Arrangements).
"ISDA Schedule" means the schedule to the ISDA Master Agreement in form and substance reasonably satisfactory to the Intercreditor Agent.
"Land Concession Contract" means the land concession contract agreed to by the Company with the Macau SAR on 4 June 2004 which forms an integral part of Dispatch number 81/2004.
"Land Concession Consent Agreement" means the Agreement relating to Security under the Land Concession Contract between the Government of the Macau SAR, the Company and the Security Agent and the Supplement in respect thereof dated 14 September 2005.
"Land Security Assignment" means the assignment so entitled dated on or about the date of this Agreement between the Company and the Security Agent.
"Legal Requirements" means all laws, statutes, orders, decrees, injunctions, licenses, permits, approvals, agreements and regulations of any Governmental Authority having jurisdiction over the matter in question.
"Lender" means a Term Facility Lender, a Revolving Credit Facility Lender or an Additional Lender.




"Lending Group" means the Term Lending Group, each Revolving Lending Group and each Additional Lending Group.
"Leverage Ratio" means, in relation to any period, the ratio of Total Debt on the last day of such period to EBITDA for such period.
"LIBOR", in relation to any Facility Agreement, has the meaning given in such Facility Agreement.
"Licensor" has the meaning given in the IP Agreement.
"Lien" means, with respect to any Property, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such Property, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement, any option or other agreement to sell or give a security interest in and any filing of or agreement to give any financing statement under the UCC (or equivalent statutes of any jurisdiction)).
"Listing Rules" means the rules as in effect from time to time governing the listing of securities on The Stock Exchange of Hong Kong Limited.
"Livrança Covering Letter" means the letter from the Company to the Security Agent dated on or about the Fifth Amendment Effective Date in relation to the Livranças, duly acknowledged by Palo.
"Livranças" means the promissory notes dated on or about the date of this Agreement issued by the Company and endorsed and payable to the Security Agent.
"London Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in London.
"Macau Gaming Laws" means Law No. 16/2001 and Administrative Regulation No. 26/2001, as amended from time to time, and other laws promulgated by any Governmental Authority of the Macau SAR and applying to gaming operations in the Macau SAR.
"Macau SAR" means the Macau Special Administrative Region.
"Major Project Document" means any of:
(a)
the Concession Contract;
(b)
the Land Concession Contract;
(c)
the IP Agreement;
(d)
the Performance Bond Facility Agreement;
(e)
the Concession Contract Performance Bond;
(f)
any Resort Management Agreement; and




(g)
the Cotai Land Concession Contract.
"Major Project Participants" means:
(a)
each Obligor;
(b)
the Macau SAR; and
(c)
each other Person who is party to a Major Project Document (other than any Resort Management Agreement).
"Market Disruption Event" has the meaning given in Clause 10.2 (Market disruption).
"Material Adverse Effect" means a material adverse condition or material adverse change in or affecting:
(a)
the business, assets, liabilities, property, condition (financial or otherwise), results of operations, prospects, value or management of the Company or Palo or the Company, the Restricted Group and the Wynn Obligors, taken as a whole;
(b)
the ability of the Company or any other Obligor to perform its obligations under the Senior Finance Documents;
(c)
[not used];
(d)
the validity or enforceability of any Senior Finance Document (other than any Palo Security Document provided that such material adverse condition or material adverse change in or affecting the validity or enforceability of that Palo Security Document arises as a result of the matters contemplated by Clause 18.3.4(a) (Permitted Cotai Reorganisation; Release of Palo Security) of this Agreement following a Permitted Cotai Reorganisation);
(e)
the validity, enforceability or priority of any of the Liens purported to be created under any of the Security Documents (other than any of the Palo Security Documents, provided that such material adverse condition or material adverse change in or affecting the validity, enforceability or priority of any of the Liens purported to be created under that Palo Security Document arises as a result of the matters contemplated by Clause 18.3.4(a) (Permitted Cotai Reorganisation; Release of Palo Security) of this Agreement following a Permitted Cotai Reorganisation); or
(f)
the rights and remedies of any Senior Secured Creditor under any Senior Finance Document (other than any Palo Security Document provided that such material adverse condition or material adverse change in or affecting the rights or remedies of any Senior Secured Creditor under that Palo Security Document arises as a result of the matters contemplated by Clause 18.3.4(a) (Permitted Cotai Reorganisation; Release of Palo Security) of this Agreement following a Permitted Cotai Reorganisation).




"Money Laundering Laws" has the meaning given to that term in paragraph 33 of Part A of Schedule 5 (Covenants).
"Moody's" means Moody's Investors Service, Inc or its successor.
"MOP Operating Account" means the account so designated in Schedule 6 (Accounts).
"Mortgage" means the mortgage so entitled dated on or about the date of this Agreement between the Company and the Security Agent.
"Multiemployer Plan" means a Plan that is a multiemployer plan as defined in section 3(37) or 4001(a)(3) of ERISA.
"Net Cash Proceeds" means:
(a)
in connection with any Asset Sale, the proceeds thereof in the form of cash (including any such proceeds received by way of deferred payment of principal pursuant to a note or instalment receivable or purchase price adjustment receivable or otherwise, but only as and when received) of such Asset Sale, net of attorneys' fees, accountants' fees, investment banking fees, amounts required to be applied to the repayment of Financial Indebtedness secured by a Lien expressly permitted hereunder on any asset which is the subject of such Asset Sale (other than any Lien pursuant to a Security Document) and other fees and expenses, in each case, to the extent actually incurred in connection with such Asset Sale and net of taxes paid or reasonably estimated to be payable as a result thereof (after taking into account any tax credits or deductions and any tax sharing arrangements, in each case reducing the amount of taxes so paid or estimated to be payable); and
(b)
in connection with any issuance or sale of debt securities or instruments or the incurrence of loans, the cash proceeds received from such issuance or incurrence, net of attorneys' fees, investment banking fees, accountants' fees, underwriting discounts and commissions and other fees and expenses, in each case, to the extent actually incurred by the Company or any other member of the Restricted Group in connection therewith.
"Net Income" means, in relation to any period, the net income (or loss) of the Restricted Group for such period, determined on a consolidated basis which includes members of the Restricted Group only (and which, for the avoidance of doubt, does not take account of any amount to the extent it (i) would otherwise have the effect of increasing Net Income and (ii) is in any way derived from or attributable or otherwise related to or connected with an Excluded Project, an Excluded Subsidiary, a Resort Management Agreement, the grant of any Subconcession or any interest, right or claim in respect thereof) and otherwise in accordance with GAAP without taking account of any amount of cash or cash proceeds paid or received in respect of the grant or entry into any Subconcession and before any reduction in respect of preferred equity dividends.
"New Executive Director Shares" means the shares in the Company which constitute a ten percent (10%) non-blocking voting interest in the Company (and having de minimis economic interest) issued to a New Executive Director in connection with an Executive




Director Substitution on or prior to the cancellation of the Existing Executive Director Shares.
"Notional Amount", in relation to a Hedging Agreement or a Permitted Swap Transaction, has the meaning referred to in paragraph 10 of Schedule 8 (Hedging Arrangements).
"Novation Certificate" means a novation certificate in substantially the form set out in Part B of Schedule 11 (Transfers and Accession).
"Obligations" means:
(a)
all loans, advances, debts, liabilities and obligations howsoever arising, owed by the Company or any other Obligor under the Senior Finance Documents to any Senior Secured Creditors of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, pursuant to the terms of the Senior Finance Documents or any of the other Transaction Documents, including all interest (including interest accruing after the maturity of any Advance and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to any Obligor, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), fees, premiums, if any, and any charges, expenses, attorneys' fees and accountants' fees, in each case chargeable to any Obligor in connection with its dealings with such Obligor and payable by such Obligor thereunder;
(b)
any and all sums advanced by any Agent or any Lender in order to preserve the Project Security or preserve any Senior Secured Creditor's security interest in the Project Security as permitted by the Senior Finance Documents; and
(c)
in the event of any proceeding for the collection or enforcement of the Obligations after issuance of an Enforcement Notice, the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realising on the Project Security, or of any exercise by any Senior Secured Creditor of its rights under the Security Documents, together with attorneys' fees and court costs, in each case as permitted by the Senior Finance Documents.
"Obligors" means the Company, the Wynn Obligors, Palo, the other members of the Restricted Group (in each case, on and from the date on which the requirements of paragraph 27.1 of Part A of Schedule 5 (Covenants) have been satisfied in respect of such other member of the Restricted Group) and any party to a Senior Finance Document referred to in paragraph (f) of the definition of "Senior Finance Document" in this Clause 1.1 (Definitions) (other than, in each case, the Wynn Non-Obligor Subordination Deed Parties, any Person that accedes to the Subordination Deed on or after the Fifth Amendment Effective Date as a "Wynn Non-Obligor" (or in any additional capacity at the same time as such Person's accession as a "Wynn Non-Obligor"), a Secured Party or a Person who is solely party to an acknowledgement of Security).




"OFAC" has the meaning given to that term in paragraph 31 of Part A of Schedule 5 (Covenants).
"Open Market Purchases" means the purchase of outstanding Advances from a Lender or Lenders by the Company pursuant to secondary market purchases entered into with such a Lender or Lenders as the Company shall see fit.
"Operatives" means a shareholder, officer, employee, servant, controlling Person, executive, director, agent, authorised representative or Affiliate of any of the Obligors.
"Palo" means Palo Real Estate Company Limited a company with limited liability incorporated in the Macau SAR with registration number 27319 SO.
"Palo Assignment of Insurances" means the Palo Assignment of Onshore Insurance Policies entered into between Palo and the Security Agent on 15 October 2012.
"Palo Floating Charge" means the charge so entitled entered into between Palo and the Security Agent on 15 October 2012.
"Palo Pledge over Onshore Accounts" means the pledge so entitled dated on or about the Fourth Amendment Effective Date and made between Palo and the Security Agent.
"Palo Share Pledge" means the Share Pledge entered into between the Company, Wynn International, Wynn HK, Palo and the Security Agent on 15 October 2012.
"Palo Security Documents" means (in each case, from the date thereof):
(a)
the Cotai Mortgage;
(b)
the Cotai Power of Attorney;
(c)
the Palo Assignment of Insurances;
(d)
the Palo Floating Charge;
(e)
the Palo Pledge over Onshore Accounts; and
(f)
the Palo Share Pledge.
"Patacas" or "MOP" denotes the lawful currency of the Macau SAR.
"Performance Bond Facility" means a facility extended to the Company by the Performance Bond Provider in accordance with the terms of the Performance Bond Facility Agreement for the issuance of the Concession Contract Performance Bond and subordinated to amounts owed to the Senior Secured Creditors under the Senior Finance Documents in accordance with the Deed of Appointment and Priority.
"Performance Bond Facility Agreement" means the agreement dated as of 14 September 2004 between the Performance Bond Provider and the Company.




"Performance Bond Provider" means Banco Nacional Ultramarino, S.A. or such other Person as may be acceptable to the Intercreditor Agent.
"Permits" means all approvals, licences, consents, permits, authorisations, registrations and filings, necessary in connection with the execution, delivery or performance, admission into evidence or enforcement of the Transaction Documents and all material approvals, licences, consents, permits, authorisations, registrations and filings required for the development, construction, ownership or operation of Wynn Macau and the Cotai Project, in each case, as contemplated under the Transaction Documents.
"Permitted Businesses" means:
(a)
the development, construction, ownership, operation, management, maintenance, refurbishment, enhancement and financing of hotel resorts and casinos in the Macau SAR as permitted under the Concession Contract;
(b)
the operation of casino games of chance or other forms of gaming in one or more locations in the Macau SAR in connection with Wynn Macau, the Cotai Project or any Excluded Project, in each case as permitted under the Concession Contract and, in the case of any Excluded Project, as contemplated by the Resort Management Agreement entered into by the Company in respect thereof; and
(c)
the ownership, operation or oversight of food and beverage, spa, entertainment production, convention, retail, residential, foreign exchange, transportation and outsourcing of in-house facilities, businesses or other activities which are necessary for, incident to, arising out of, supportive of or connected to the development, construction, financing, ownership, operation, maintenance, refurbishment or enhancement of such hotel resorts and casinos,
and, in the case of the Company and other members of the Restricted Group, the holding of shares and other interests permitted hereunder in Subsidiary Obligors and Excluded Subsidiaries.
"Permitted Cotai Reorganisation" means any transaction or series of transactions in which Palo Disposes to the Company Palo's interest in the Cotai Site (whether by assignment, novation, transfer or replacement of the Cotai Land Concession Contract or otherwise) and Palo's ownership of, and interest in, all of Palo's other assets (including, without limitation, assets relating to the Cotai Site and/or the Cotai Project) provided that, in any such case:
(i)
such Disposal, does not conflict with the Cotai Land Concession Contract, the Concession Contract and applicable Legal Requirements (taking into account any relevant Macau SAR Permits obtained or to be obtained as a condition to any such Permitted Cotai Reorganisation);
(ii)
the Company gives prompt written notice to the Intercreditor Agent of the occurrence of such Disposal (and such written notice includes a confirmation that both the Company and Palo are then (and will, following the completion of such Disposal, be) Solvent);




(iii)
the entire Cotai Site shall remain at all times part of the Project Security and there shall be no adverse effect on the validity or enforceability of, or the effectiveness or ranking of any Security as a result of such Disposal; and
(iv)
(without prejudice to paragraph (iii) above) the Company complies with paragraph 15 of Part A of Schedule 5 (Covenants) with respect to its acquisition of any Disposed Property.
"Permitted Financial Indebtedness" has the meaning given in paragraph 2.1 of Part B of Schedule 5 (Covenants).
"Permitted Investments" means the following:
(a)
securities issued, or directly and fully guaranteed or insured, by the United States government or any agency or instrumentality of the United States government (as long as the full faith and credit of the United States is pledged in support of those securities) having maturities of not more than nine months from the date of acquisition;
(b)
securities issued, or directly and fully guaranteed or insured, by the government of the Hong Kong SAR or any agency or instrumentality of the government of the Hong Kong SAR (as long as the full faith and credit of the Hong Kong SAR is pledged in support of those securities) having maturities of not more than nine months from the date of acquisition;
(c)
interest-bearing demand or time deposits (which may be represented by certificates of deposit) issued by banks having general obligations rated (on the date of acquisition thereof) at least "A" or the equivalent by S&P or Moody's or, if not so rated, secured at all times, in the manner and to the extent provided by law, by collateral security in paragraph (a) or (b) above, of a market value of no less than the amount of monies so invested;
(d)
repurchase obligations with a term of not more than seven days for underlying securities of the types described in paragraphs (a), (b) and (c) above entered into with any financial institution meeting the qualifications specified in paragraph (c) above;
(e)
commercial paper having a rating of A-1, P-1 or F1 from one or more of S&P, Moody's or Fitch respectively and in each case maturing within nine months after the date of acquisition;
(f)
corporate bonds having a rating of at least BBB-, Baa3 or BBB from two or more of S&P, Moody's or Fitch respectively, with an aggregate principal amount not exceeding (when aggregated with the principal amount of any Dim Sum Bonds then held by any Obligor pursuant to paragraph (h) below) USD250,000,000 or its equivalent at any time;
(g)
money market or mutual funds which are rated at least AAA by S&P or Aaa by Moody's or have an equivalent rating from another internationally recognised rating agency; and




(h)
corporate bonds denominated in Renminbi (commonly known as "offshore RMB" or "Dim Sum" bonds) which do not satisfy the ratings requirements set out in paragraph (f) above ("Dim Sum Bonds") with an aggregate principal amount not exceeding USD100,000,000 or its equivalent at any time.
"Permitted Liens" means the collective reference to:
(a)
in the case of any Property other than any Pledged Stock, Liens permitted by paragraph 3 of Part B of Schedule 5 (Covenants) hereto (but only of the priority and to the extent of coverage expressly set forth in paragraph 3 of Part B of Schedule 5 (Covenants) hereto); and
(b)
in the case of any Property consisting of Pledged Stock, non-consensual Liens permitted by paragraph 3 of Part B of Schedule 5 (Covenants) hereto to the extent arising by operation of law.
"Permitted Loan Repurchase" means any purchase of Advances by the Company made in accordance with Clause 21.10 (Permitted Loan Repurchases); provided that:
(a)
the aggregate amount paid by the Company for such purchases (excluding payments of accrued interest) during the period commencing on the Fifth Amendment Effective Date and ending on (and including) the Release Date shall not exceed the Permitted Loan Repurchase Amount; and
(b)
each such purchase is either an Open Market Purchase or is consummated pursuant to a written offer made to all Term Facility Lenders (if the Company proposes to purchase Advances under the Term Facility), all Revolving Credit Facility Lenders (other than Additional Lenders) (if the Company proposes to purchase Advances under a Revolving Credit Facility that is not an Additional Lender Facility), all Additional Lenders party to the applicable Additional Lender Facility (if the Company proposes to purchase Advances under such Additional Lender Facility), and delivered to the Intercreditor Agent concurrently with the delivery of such offer to the applicable Lenders.
"Permitted Loan Repurchase Amount" means USD200,000,000.
"Permitted Swap Transaction" means any derivative transaction entered into to protect against or benefit from any Obligor's exposure to fluctuations in any rate, price, index or credit rating (whether in relation to interest rates, commodity prices, currency exchange or otherwise) but excluding any transaction entered into for purely speculative purposes.
"Person" means any natural person, corporation, partnership, firm, association, Governmental Authority or any other entity whether acting in an individual, fiduciary or other capacity.
"Plan" means, at a particular time, any employee benefit plan that is subject to the requirements of section 412 of the Code or that is a Single Employer Plan and which any Obligor or any Commonly Controlled Entity maintains, administers, contributes to




or is required to contribute to or under which any Obligor or any Commonly Controlled Entity could reasonably be expected to incur any liability.
"Pledge over Gaming Equipment and Utensils" means the pledge so entitled dated on or about the date of this Agreement between the Company and the Security Agent.
"Pledge over Onshore Accounts" means the pledge so entitled dated on or about the date of this Agreement between the Company and the Security Agent.
"Pledged Stock" means any Property expressed to be subject to any Lien created or purported to be created under all and any of the Company Share Pledge, the Palo Share Pledge, the Wynn International Share Charge and the Wynn HK Share Charge.
"Post-Amendment Global Transfer Agreement" has the meaning given in the Common Terms Agreement Fifth Amendment Agreement.
"Power of Attorney" means the irrevocable power of attorney dated on or about the Fifth Amendment Effective Date granted by the Company in favour of the Security Agent in connection with the Mortgage.
"Pre-Amendment Global Transfer Agreement" has the meaning given in the Common Terms Agreement Fifth Amendment Agreement.
"Proceedings" has the meaning given to it in paragraph 12(i) of Part A of Schedule 5 (Covenants) hereto.
"Project Security" means any Property expressed to be subject to any Lien created or purported to be created under any of the Security Documents.
"Project Works" means the design, development and construction of the Cotai Project.
"Projections" has the meaning given in paragraph 2(c) of Part A of Schedule 5 (Covenants).
"Property" means any property or assets including without limitation any right or interest (whether legal or equitable) in or to property or assets of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, including, without limitation, Capital Stock.
"Quarterly Date" means:
(a)
with respect to the first Quarterly Date, the last day of the first full Fiscal Quarter falling after the Fifth Amendment Effective Date; and
(b)
with respect to each subsequent Quarterly Date, the last day of the next succeeding Fiscal Quarter.
"Quotation Day" means, in relation to any period for which an interest rate is to be determined, two London Business Days before the first day of that period or, in the case of any interest rate determined using HIBOR, the first day of that period.




"Realised Hedge Loss" has the meaning given in paragraph 7 of Schedule 8 (Hedging Arrangements).
"Recovering Senior Secured Creditor" has the meaning given in Clause 25.1 (Payments to Senior Secured Creditors).
"Reference Banks", in relation to any Facility Agreement, has the meaning given in such Facility Agreement.
"Reinsurance" means any contract or policy of reinsurance from time to time taken out or effected in respect of any Direct Insurance.
"Reinsurer" means an international reinsurer of good standing and responsibility with whom a Reinsurance is placed from time to time in accordance with paragraph 10 of Part A of Schedule 5 (Covenants).
"Release Date" means the date on which the Intercreditor Agent notifies the Company that the following conditions have been satisfied:
(a)
receipt by the Intercreditor Agent of confirmation from each Agent and Hedging Counterparty that all liabilities to its Lending Group or, as the case may be, to it have been discharged in full under the Senior Finance Documents; and
(b)
unless the discharge in paragraph (a) above is effected using the proceeds of Financial Indebtedness incurred pursuant to paragraph 2.1(d) of Part B of Schedule 5 (Covenants), receipt by the Intercreditor Agent of a legal opinion from the Lenders' Macanese counsel in a form satisfactory to the Intercreditor Agent on the basis of which the Intercreditor Agent is able to determine that the risk of the discharge of the Financial Indebtedness owed by the Company to the Senior Secured Creditors in accordance with the Senior Finance Documents not being recognised or deemed to be discharged under the insolvency laws of the Macau SAR is acceptable to the Intercreditor Agent.
"Renminbi " or "RMB" denotes the lawful currency of the People's Republic of China.
"Repair Plan" has the meaning given in paragraph 5 of Schedule 9 (Mandatory Prepayment).
"Repayment Date" means:
(a)
in relation to the Term Facility, each of the dates on which repayments of principal are scheduled to be made, as set forth in the Term Facility Agreement; and
(b)
in relation to an Additional Lender Facility providing for a term loan, each of the dates on which repayments of principal are scheduled to be made, as set forth in the applicable Additional Lender Facility Agreement.
"Reportable Event" means any of the events set forth in section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived under regulations under ERISA.




"Required Filings" has the meaning given to that term in the Common Terms Agreement Fifth Amendment Agreement.
"Required Lenders" means:
(a)
in relation to any Decision other than on a Fundamental Term, Lenders (and, after the occurrence and continuation of a Hedging Voting Right Event in relation to any Hedging Counterparty, that Hedging Counterparty) who:
(i)
have notified the Intercreditor Agent of their vote in respect of such Decision within the time required by the Intercreditor Agent pursuant to this Agreement; and
(ii)
hold, in aggregate, more than 50% of the Voting Entitlements of all such Senior Secured Creditors who have so notified their votes; and
(b)
in relation to a Decision on a Fundamental Term, all Lenders (and, after the occurrence of a Hedging Voting Rights Event in relation to a Hedging Counterparty that is continuing, that Hedging Counterparty).
"Resort Management Agreement" means (a) any agreement entered into by the Company (that does not conflict with the Concession Contract and all other applicable Legal Requirements) with an Excluded Subsidiary or other third party for the management or operation by the Company in compliance with the Concession Contract and all other applicable Legal Requirements of an Excluded Project or any part thereof (other than an Excluded Project or any part thereof located on the Cotai Site) and/or (b) any Cotai Resort Management Agreement.
"Responsible Officer" means, as to any Person in respect of any matter, the chief executive officer, president, managing director, chief financial officer, chief operating officer or treasurer of such Person duly authorised in respect of such matter, but in any event, with respect to financial matters, the chief financial officer or treasurer of such Person or the chief financial officer of WML or Wynn Resorts. Unless otherwise qualified, all references to a "Responsible Officer" shall refer to a Responsible Officer of the Company.
"Restricted Group" means the Group other than any Excluded Subsidiary.
"Restricted Payments" has the meaning given to it in paragraph 6 of Part B of Schedule 5 (Covenants) hereto.
"Revolving Credit Facilities" means each of the revolving loan facilities to be provided under the Revolving Credit Facility Agreements.
"Revolving Credit Facility Agent" means Bank of China Limited, Macau Branch as facility agent for the Revolving Credit Facility Lenders.
"Revolving Credit Facility Agreements" means:




(a)
the agreement so entitled between the Company, the Revolving Credit Facility Agent and the Revolving Credit Facility Lenders; and
(b)
each Additional Lender Facility Agreement providing for a revolving credit facility.
"Revolving Credit Facility Availability Period" means the period specified in Clause 4.2 (Revolving Credit Facility Availability Period).
"Revolving Credit Facility Lender" means:
(a)
a lender identified as such in Part B of Schedule 1 (The Lenders and the Hedging Counterparties) or in an Additional Lender Facility Agreement providing for a revolving credit facility; or
(b)
a Transferee in respect of a Revolving Credit Facility made available pursuant to a Revolving Credit Facility Agreement.
"Revolving Credit Facility Termination Date" means, in relation to the Revolving Credit Facilities, the fifth anniversary of the Fifth Amendment Effective Date.
"Revolving Lending Group" means the Revolving Credit Facility Lenders under a Revolving Credit Facility Agreement, acting as a lending group in accordance with, and subject to the decision making rules under, that Revolving Credit Facility Agreement.
"Sanctions" means any sanctions administered or enforced by the United States Government (including, without limitation, OFAC), the United Nations Security Council, the European Union, Her Majesty’s Treasury, the Federal Government of Canada or other relevant sanctions authority.
"Secured Obligations" has the meaning given in the Deed of Appointment and Priority.
"Secured Parties" has the meaning given in the Deed of Appointment and Priority.
"Security" means the Liens created or purported to be created under the Security Documents.
"Security Agent" means Bank of China Limited, Macau Branch in its capacity as agent and security trustee for the Secured Parties or its successor appointed in accordance with the Deed of Appointment and Priority.
"Security Confirmation Documents" has the meaning given to that term in the Common Terms Agreement Fifth Amendment Agreement.
"Security Documents" means:
(a)
the Mortgage;
(b)
the Cotai Mortgage;
(c)
the Power of Attorney;




(d)
the Cotai Power of Attorney;
(e)
the Land Security Assignment;
(f)
the Assignment of Rights;
(g)
the Pledge over Gaming Equipment and Utensils;
(h)
the Pledge over Onshore Accounts;
(i)
the Assignment of Insurances;
(j)
the Palo Assignment of Insurances;
(k)
the Assignment(s) of Reinsurances;
(l)
the Floating Charge;
(m)
the Palo Floating Charge;
(n)
the Livranças and the Livrança Covering Letter;
(o)
the Debenture;
(p)
the Palo Pledge over Onshore Accounts;
(q)
the Guarantee;
(r)
the Executive Director Share Pledge;
(s)
the Company Share Pledge;
(t)
the Palo Share Pledge;
(u)
the Wynn International Share Charge;
(v)
the Wynn HK Share Charge;
(w)
the Charge over HK Accounts;
(x)
the Subordination Deed;
(y)
the Deed of Appointment and Priority;
(z)
each Direct Agreement;
(aa)
(with effect from the date thereof) each Supplemental Security Document;
(bb)
any other document from time to time creating, evidencing or entered into as security for or guaranteeing the Obligations of the Company or any other Obligor or member of the Restricted Group and any documents entered into pursuant to any of the documents referred to in this definition, including any such document




notifying or acknowledging the granting or creation of such security or creating or evidencing security over an Account; and
(cc)
any document entered into pursuant to any further assurance provisions set out in any of the documents referred to in this definition which the Intercreditor Agent and the Company (both acting reasonably) agree to designate as a Security Document and any other document which the Intercreditor Agent and the Company (both acting reasonably) agree to designate as a Security Document.
"Senior Finance Documents" means:
(a)
each Facility Agreement;
(b)
this Agreement;
(c)
each Security Document;
(d)
the Ancillary Finance Documents;
(e)
each Hedging Agreement; and
(f)
any other document entered into which the Intercreditor Agent and the Company (both acting reasonably) agree to designate as a Senior Finance Document.
"Senior Secured Creditors" means the GCLAs, the Agents, the Security Agent, the Lenders and the Hedging Counterparties.
"Senior Secured Indebtedness" means all Financial Indebtedness (actual or contingent) of the Company to the Senior Secured Creditors under the Senior Finance Documents together with all other amounts payable by the Company to the Senior Secured Creditors (or any of them) under or arising out of the Senior Finance Documents.
"Shareholder Guarantees" means the Guarantee and the Executive Director Share Pledge.
"Shareholder Loans" means Financial Indebtedness advanced by one or more of the Shareholders, the Wynn Obligors or Affiliates of the Wynn Obligors (including, without limitation, Wynn Resorts, WML or any Affiliate of any of Wynn Resorts or WML) to the Company or any other member of the Group that is subordinated in accordance with the terms provided by the Subordination Deed.
"Shareholders" means Wynn HK, Wynn International and the Executive Director.
"Shareholders' Agreement" means the amended and restated shareholders' agreement entered into between the Shareholders and the Company dated 16 September 2004.
"Sharing Payment" has the meaning given in Clause 25.1 (Payments to Senior Secured Creditors).




"Signing Date" means the date of signing of this Agreement being 14 September 2004 (and any reference in this Agreement to the date of this Agreement shall be construed accordingly).
"Single Employer Plan" means any Plan that is covered by Title IV of ERISA, but which is not a Multiemployer Plan.
"Site" means the land described in the Land Concession Contract.
"Site Easements" the easements appurtenant, easements in gross, licence agreements and other rights running for the benefit of the Company and/or appurtenant to the Site.
"Solvent" means, when used with respect to any Person, as of any date of determination, (a) the amount of the "present fair saleable value" of the assets of such Person will, as of such date, exceed the amount of all "liabilities of such Person, contingent or otherwise", as of such date, as such quoted terms are determined in accordance with applicable federal and state laws governing determinations of the insolvency of debtors, (b) the present fair saleable value of the assets of such Person will, as of such date, be greater than the amount that will be required to pay the liability of such Person on its debts as such debts become absolute and matured, (c) such Person will not have, as of such date, an unreasonably small amount of capital with which to conduct its business, (d) such Person will be able to pay its debts as they mature, and (e) such Person is not insolvent within the meaning of any applicable Legal Requirements. For purposes of this definition, (i) "debt" means liability on a "claim", and (ii) "claim" means any (A) right to payment, whether or not such a right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, legal, equitable, secured or unsecured or (B) right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether or not such right to an equitable remedy is reduced to judgment, fixed, contingent, matured or unmatured, secured or unsecured.
"Special Gaming Tax Account" means the account so designated in Schedule 6 (Accounts).
"Specified Equity Contributions" means:
(a)
on and prior to 30 June 2016, any cash contribution (whether by way of equity, debt or otherwise) the proceeds of which are paid to the Company or Palo (each such cash contribution being a "Contribution"); and
(b)
after 30 June 2016, any Contribution at any time,
designated by the Company as a "Specified Equity Contribution" in writing to the Intercreditor Agent and made, in each case, in accordance with and as permitted by (and which shall be treated, for all purposes under the Senior Finance Documents, as specified in) the Specified Equity Contributions Conditions.
"Specified Equity Contributions Conditions" means each of the following conditions, stipulations and other requirements:




(a)
no more than two Contributions may be made in any period of four consecutive Fiscal Quarters (commencing with the Fiscal Quarter ending on 30 September 2016);
(b)
when two Contributions are made in any period of four consecutive Fiscal Quarters (commencing with the Fiscal Quarter ending on 30 September 2016), no Contribution is permitted to be made at any time during the immediately succeeding period of four consecutive Fiscal Quarters (commencing with the Fiscal Quarter immediately succeeding the Fiscal Quarter in which the second of the two Contributions referenced in this paragraph was made);
(c)
each Contribution shall be deemed to be made on the first day of the relevant Fiscal Quarter in which it is made;
(d)
each Contribution shall only be included in EBITDA where EBITDA is calculated for the purposes of testing compliance with the financial covenants set out in paragraphs 1(a) and 1(b) of Part B of Schedule 5 (Covenants) and in EBITDA where EBITDA is calculated for the purposes of determining the Leverage Ratio used in ascertaining the ECF Percentage;
(e)
no Contribution shall be included or taken into account for any purpose (other than as set out in paragraph (d) above) and (without limitation) the effect of each Contribution shall be ignored or excluded (to the extent it would otherwise be taken into account or included under the terms of any Senior Finance Document) in any calculation (other than those specified in paragraph (d) above) for the purposes of (or definitions set out in) the Senior Finance Documents;
(f)
without prejudice to paragraph (e) above, the aggregate amount of all Contributions standing to the credit of any Account or Accounts (as well as the aggregate amount of all Permitted Investments made using such Contributions) shall be excluded for the purposes of paragraph (f) of the definition of "Total Debt" in this Clause 1.1 (Definitions); and
(g)
any Contribution:
(i)
(where made by way of loan or the incurrence of other Financial Indebtedness), constitutes Subordinated Debt; and
(ii)
(where made by way of equity, being the provision of cash consideration for the issuance of Capital Stock by the relevant Obligors), such issuance of Capital Stock is made, in each case, to the existing direct shareholder of such Obligor and is either subject to the existing first ranking fixed Lien in favour of the Security Agent over the Capital Stock of the Obligor or, if needed (in the opinion of the Intercreditor Agent, acting reasonably), is otherwise in such form and on such terms as the Intercreditor Agent may require.
"Standard & Poor's" or "S&P" means Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc., or its successor




"Subconcession" means any subconcession for the operation of games of chance and other games in casinos in the Macau SAR granted by the Company under the Concession Contract with the approval of Macau SAR and in accordance with paragraph 17 of Part B of Schedule 5 (Covenants).
"Subordinated Debt" means Financial Indebtedness that is subordinated in accordance with the terms provided by the Subordination Deed.
"Subordination Deed" means the deed formerly entitled the "Sponsor's Subordination Deed" and dated on or about the Signing Date between the Wynn Obligors, the Company, Wynn Resorts, Wynn Holdings and the Security Agent as further amended, restated, supplemented and novated by, inter alia, the Subordination Deed Third Deed of Amendment and Acknowledgement of Security (as such term is defined in the Common Terms Agreement Fourth Amendment Agreement), the Sponsors' Subordination Deed Second Deed of Amendment and Acknowledgment of Security (as such term is defined in the Common Terms Agreement Third Amendment Agreement) and the Sponsors' Subordination Deed of Release, Amendment and Acknowledgement of Security (as such term is defined in the Common Terms Agreement Second Amendment Agreement) .
"Subsidiary" means, as to any Person, a corporation, partnership, limited liability company or other entity of which shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity are at the time owned, or the management of which is otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such Person.
"Subsidiary Obligor" has the meaning given to it in paragraph 2.1(g) of Part B of Schedule 5 (Covenants).
"Substitution" has the meaning given to that term in the Common Terms Agreement Third Amendment Agreement.
"Supplemental Security Documents" has the meaning given to it in Part H of Schedule 2 (Conditions Precedent) to the Common Terms Agreement Fifth Amendment Agreement.
"Swap Agreements" means interest rate swaps, caps or collar agreements or similar arrangements providing for protection against fluctuations in interest rates or currency exchange rates or the exchange of nominal interest obligations, either generally or under specific contingencies.
"Synthetic Lease Obligations" means all monetary obligations of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations which do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the Financial Indebtedness of such Person (without regard to accounting treatment).




"Tax" means any tax (including, without limitation, value-added and income), levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
"Tax Credit" means a credit against, relief or remission for, or repayment of any Tax.
"Tax Deduction" means any deduction or withholding for or on account of Tax.
"Tax Payment" means an increased payment made by the Company to a Senior Secured Creditor under Clause 11.2 (Tax gross-up) or a payment under Clause 11.3 (Tax indemnity).
"Term Facility" means the term loan facilities provided pursuant to the Term Facility Agreement.
"Term Facility Agent" means Bank of China Limited, Macau Branch as facility agent for the Term Facility Lenders or its successor appointed in accordance with this Agreement.
"Term Facility Agreement" means the agreement formerly entitled the "Hotel Facility Agreement" between the Company, the Term Facility Agent and the Term Facility Lenders as further amended, restated, supplemented and novated from time to time by, inter alia, the Term Facility Agreement Fourth Amendment Agreement.
"Term Facility Agreement Fourth Amendment Agreement" has the meaning given to such term in the Common Terms Agreement Fifth Amendment Agreement.
"Term Facility Availability Period" means the period specified in Clause 4.1 (Term Facility Availability Period).
"Term Facility HKD Disbursement Account" means the account so designated in Schedule 6 (Accounts).
"Term Facility Lender" means a lender identified as such in Part A of Schedule 1 (The Lenders and Hedging Counterparties) or a Transferee in respect of the Term Facility.
"Term Facility USD Disbursement Account" means the account so designated in Schedule 6 (Accounts).
"Term Lending Group" means the Term Facility Lenders, acting as a lending group in accordance with, and subject to the decision making rules under, the Term Facility Agreement.
"Term Loan Facilities" means each of the term loan facilities provided pursuant to the Term Loan Facilities Agreements.
"Term Loan Facilities Agreements" means:
(a)
the Term Facility Agreement; and




(b)
each Additional Lender Facility Agreement providing for a term loan facility.
"Term Loan Facility Lender" means a Term Facility Lender or an Additional Lender party to an Additional Lender Facility Agreement providing for a term loan facility.
"Termination Event" has the meaning given in paragraph 2 (Certificates; Other Information) of Part A of Schedule 5 (Covenants).
"Termination Proceeds" means compensation or other proceeds paid by the Macau SAR in relation to the termination or rescission of the Concession Contract.
"Total Debt" means, in relation to the Restricted Group at any time, the aggregate principal amount of all Financial Indebtedness of each member of the Restricted Group at such time (without double counting) but:
(a)
excluding Financial Indebtedness referred to in paragraph (j) of the definition thereof (save in relation to any Realised Hedge Loss);
(b)
excluding Financial Indebtedness arising in respect of the Performance Bond Facility (save in relation to any drawing under the Concession Contract Performance Bond);
(c)
excluding Financial Indebtedness arising in respect of any Shareholder Loans;
(d)
excluding such Financial Indebtedness to the extent it is owed to another member of the Restricted Group;
(e)
including the amount of any liability or obligation, whether or not contingent, assumed by the Company under any Resort Management Agreement and quantified in the same manner as though it were a Guarantee Obligation, in accordance with the deeming provision set out in the definition thereof in this Clause 1.1; and
(f)
subject to paragraph (f) of the definition of "Specified Equity Contributions Conditions" in this Clause 1.1 (Definitions), deducting the aggregate amount of any balances standing to the credit of, amounts on deposit in and any Permitted Investments held, in each case, in any Account.
"Transaction Document" means a Senior Finance Document or a Major Project Document (other than any Resort Management Agreement).
"Transfer Date" means, in relation to a Transferee, the later of:
(a)
the proposed Transfer Date specified in the Novation Certificate; and
(b)
the date on which the Intercreditor Agent executes the Novation Certificate.
"Transferee" means a Person to whom the rights and obligations of a Lender under the Senior Finance Documents to which that Lender is a party are transferred in accordance with Clause 21.6 (Transfers by Lenders).




"UCC" means the Uniform Commercial Code of any State in the United States of America, as in effect from time to time.
"Unpaid Sum" means any sum due and payable by an Obligor but unpaid under the Senior Finance Documents.
"Upfront Premium Account" means the account so designated in Schedule 6 (Accounts).
"Upsize Advance" has the meaning given to it in Clause 3.1.3.
"Upsized Amount" has the meaning given to it in paragraph 1 of Part H of Schedule 2 (Conditions Precedent).
"USD" or "US dollars" or "US$" denotes the lawful currency of the United States of America.
"USD Debt Service Account" means the account so designated in Schedule 6 (Accounts).
"USD Debt Service Reserve Account" means the account so designated in Schedule 6 (Accounts).
"USD Operating Account" means the account so designated in Schedule 6 (Accounts).
"Voting Entitlement" means, in respect of a Decision:
(a)
in relation to a Lender, the sum of the US dollar equivalent amounts, as at the Decision Date for such Decision, of its participations in the outstanding Advances and the aggregate undrawn Available Commitments of such Lender under the Facilities;
(b)
in relation to each Hedging Counterparty (after a Hedging Voting Right Event has occurred in relation to such Hedging Counterparty and is continuing), the US dollar equivalent value, as at the Decision Date for such Decision, of the Realised Hedge Loss due and payable but unpaid by the Company to such Hedging Counterparty under the Hedging Agreement to which such Hedging Counterparty is party.
"Voting Stock" means, with respect to any Person as of any date, the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person.
"WML" means Wynn Macau, Limited.
"WML Debt" means Financial Indebtedness of WML (or a Subsidiary of WML, other than an Obligor, any Excluded Subsidiary or any member of the Group).
"Wholly Owned Subsidiary" means, as to any Person, any other Person in which all (or, in the case of a Sociedade Anonima incorporated in Macau, not less than 99.8%) of the Capital Stock (other than directors' qualifying shares required by any Legal




Requirement) of such other Person is beneficially owned by such first-mentioned Person directly and/or through other Wholly Owned Subsidiaries.
"Working Capital" means, at any date, an amount equal to Current Assets on such date minus Current Liabilities on such date.
"Wynn Asia 2" means WM Cayman Holdings Limited II.
"Wynn Event" means:
(a)
the first day on which Wynn Resorts ceases to beneficially own, directly or indirectly, 51% of the outstanding Capital Stock of the Company (measured by both voting power and size of equity interests); or
(b)
the first day on which Wynn Resorts otherwise ceases to have, directly or indirectly, the ability or the right to direct or procure the direction of the management and policies of the Company.
"Wynn HK" means Wynn Resorts (Macau), Limited.
"Wynn HK Share Charge" means the share charge so entitled dated on or about the date of this Agreement between Wynn Holdings and the Security Agent.
"Wynn Holdings" means Wynn Resorts (Macau) Holdings, Ltd.
"Wynn International" means Wynn Resorts International, Ltd.
"Wynn International Share Charge" means the share charge so entitled dated on or about the date of this Agreement between Wynn Asia 2 and the Security Agent.
"Wynn Macau" means the luxury hotel resort, casino, retail and entertainment complex located in peninsular Macau, owned and operated by the Company, and including "Encore at Wynn Macau".
"Wynn Non-Obligor Subordination Deed Party" means each of Worldwide Wynn, LLC, Wynn Design & Development, LLC Wynn International Marketing, Ltd., WML Finance I Limited, the Corporate Services Provider and the Licensor.
"Wynn Obligor" means Wynn Holdings, Wynn Asia 2, Wynn International and Wynn HK.
"Wynn Resorts" means Wynn Resorts, Limited.
"Wynn Resorts Group" means Wynn Resorts and each of its Subsidiaries for the time being.
1.3
Principles of Construction
Any reference in this Agreement to:




1.3.1
"continuing", in relation to a Default or an Event of Default, shall be construed as a reference to a Default or an Event of Default which has not been remedied or waived;
1.3.2
the "equivalent" of one currency (the "original currency") in another currency (the "conversion currency") shall (unless otherwise specified) be determined by the Intercreditor Agent or such Person nominated by the Intercreditor Agent for that purpose by reference to its spot rate of exchange in Hong Kong for the purchase of the conversion currency with the original currency at or about 11:00 a.m. on the date of the determination or if no such spot rate of exchange exists on that date, by such other method as the Intercreditor Agent (in consultation with the Company) shall reasonably determine;
1.3.3
"include", "includes" and "including" is without limitation;
1.3.4
a "month" is a reference to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next succeeding calendar month save that:
(a)
if any such numerically corresponding day is not a Business Day, such period shall end on the immediately succeeding Business Day to occur in that next succeeding calendar month or, if none, it shall end on the immediately preceding Business Day; and
(b)
if there is no numerically corresponding day in that next succeeding calendar month, that period shall end on the last Business Day in that next succeeding calendar month,
(and references to "months" shall be construed accordingly);
1.3.5
"repay" (or any derivative form thereof) shall, subject to any contrary indication, be construed to include "prepay" (or, as the case may be, the corresponding derivative form thereof); and
1.3.6
a document being in "substantially the Agreed Form" or in substantially a specified form shall be construed as meaning such document being in the same form as the Agreed Form or the specified form save for the insertion of information left in blank or the correction of typographical errors.
1.4
Rules of Interpretation
In this Agreement, unless the context otherwise requires:
1.4.1
words importing the singular include the plural and vice versa;
1.4.2
words importing a gender include every gender;
1.4.3
references to any document (including this Agreement) are references to that document as amended, consolidated, supplemented, confirmed, novated or replaced from time to time;




1.4.4
references to this Agreement are references to this Agreement and the Schedules;
1.4.5
references to clauses and Schedules are references to clauses of, and Schedules to, this Agreement;
1.4.6
headings are for convenience only and shall be ignored in construing this Agreement;
1.4.7
references to any party to this Agreement include references to its respective successors, permitted transferees and permitted assigns;
1.4.8
references to law shall be construed as references to any constitutional provision, treaty, decree, convention, statute, act, regulation, rule, ordinance, subordinate legislation, rule of common law and of equity and judgement;
1.4.9
references to any law are references to that law as amended, consolidated, supplemented or replaced from time to time;
1.4.10
references to any judgement include references to any order, injunction, decree, determination or award of any court or tribunal;
1.4.11
a time of day is a reference to Hong Kong time unless otherwise stated.
Following the Fourth Amendment Effective Date, any reference to the Hotel Facility Agent or a Hotel Facility Lender in any Senior Finance Document, shall be deemed to be a reference to the Term Facility Agent or a Term Facility Lender, as the case may be.
Following the Fifth Amendment Effective Date, unless the context otherwise requires, the terms "Wong Option Agreement" and "Shareholders Agreement" shall have the meaning given to each such term in clause 1.5 (Other Definitions) of the Deed of Appointment and Priority.
In this Agreement, on and following the date on which (a) a Permitted Cotai Reorganisation and (b) the first to occur of (i) a voluntary liquidation, winding up or dissolution (or similar action) of, or in respect of, Palo and (ii) the date on which all rights, title and interests in, or to, the assets of Palo have been transferred, novated or assigned (as the case may be) to the Company and the Company has assumed all of the rights and obligations of Palo under all contracts to which Palo is party, have each occurred, Palo's obligations under this Agreement shall be deemed to be (and shall be construed as) obligations of the Company.
1.5
Conflict with a Senior Finance Document
In the case of any conflict between:
1.5.1
the terms of this Agreement and the terms of any other Senior Finance Document (save for the Facility Agreements and the Deed of Appointment and Priority), the terms of this Agreement shall prevail;
1.5.2
the terms of this Agreement and the terms of any Facility Agreement, the terms of that Facility Agreement shall prevail (save in the case of Clause 33




(Intercreditor Arrangements), which shall prevail over the terms of the Facility Agreement);
1.5.3
the terms of this Agreement and the terms of the Deed of Appointment and Priority, the terms of the Deed of Appointment and Priority shall prevail; or
1.5.4
the terms of the Deed of Appointment and Priority and the terms of any Facility Agreement, the terms of the Deed of Appointment and Priority shall prevail.
1.6
Third party rights
1.6.1
The Contracts (Rights of Third Parties) Act 1999 applies to:
(c)
sub-clause 3.2.5 of Clause 3.2 (Completion of an Advance Request) but only for the benefit of the relevant officer of the Company;
(d)
Clause 23.10 (No Actions) but only for the benefit of any director, officer or employee of any of the Agents or any of the GCLAs;
(e)
[Not used];
(f)
paragraph 1 of Part A of Schedule 5 (Covenants) but only for the benefit of the relevant Responsible Officers of the Company;
(g)
Clause 18.3 (Permitted Cotai Reorganisation; Release of Palo Security), paragraph 15.3 (Additional Collateral, Discharge of Liens, etc.) of Part A of Schedule 5 (Covenants), paragraph 6 (Limitation on Restricted Payments) of Part B of Schedule 5 (Covenants), paragraph 15.2(a) (Other Contracts) of Part B of Schedule 5 (Covenants) and paragraphs 1 and 3.7 of Schedule 6 (Accounts) but, in each case, only for the benefit of the Obligors and the Wynn Non-Obligor Subordination Deed Parties;
(h)
Clause 23.9 (Exclusion of Liabilities) but only for the benefit of any officer, employee or agent of an Agent or GCLA; and
(i)
Clause 28 (Non-Recourse Liability) but only for the benefit of the Operatives,
subject always to the terms of Clause 37 (Governing Law) and Clause 38 (Jurisdiction).
1.6.2
Except as provided in sub-clause 1.5.1 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.
1.6.3
Notwithstanding any term of any Senior Finance Document, the consent of any Person who is not a party to this Agreement is not required to rescind or vary this Agreement.
1.7
[Not used]




1.8
Application of Agreement
The parties acknowledge that this Agreement contains references to certain obligations and contracts which have been performed and references to certain matters and circumstances that have occurred, in each case, prior to the Fifth Amendment Effective Date. The existence of such references shall not be construed so as to imply (in respect of such obligations, contracts, matters and circumstances) additional or continuing obligations beyond the express terms of this Agreement.
2.
CONDITIONS PRECEDENT
2.1
[Not used]
2.2
Conditions Precedent to each Advance
The obligation of each Lender to participate in each Advance under a Term Loan Facility and a Revolving Credit Facility is subject to the Company having satisfied the conditions set out in Part B2 of Schedule 2 (Conditions Precedent) in respect of each Facility in form and substance acceptable to the Intercreditor Agent.
2.3
Independent rights and obligations of Lenders
2.3.12
The obligations of each Senior Secured Creditor under the Senior Finance Documents are several. Failure by a Senior Secured Creditor to perform its obligations under the Senior Finance Documents does not affect the obligations of any other party under the Senior Finance Documents. No Senior Secured Creditor is responsible for the obligations of any other Senior Secured Creditor under the Senior Finance Documents.
2.3.13
The rights of each Senior Secured Creditor under or in connection with the Senior Finance Documents are separate and independent rights and any debt arising under the Senior Finance Documents to a Senior Secured Creditor from an Obligor shall be a separate and independent debt. Each participation by a Lender in an Advance shall constitute a separate and independent debt arising under the Senior Finance Documents to such Lender from the Company of an amount equal to such participation, and references to repayment of an Advance by the Company or to the payment by the Company of interest or any fee or other amount in respect of or in connection with an Advance or determined by reference to the amount of an Advance or a Facility shall be construed accordingly.
2.3.14
A Senior Secured Creditor may, except as otherwise stated in the Senior Finance Documents, separately enforce its rights under the Senior Finance Documents. In relation to any amount due and payable by any Obligor to any Senior Secured Creditor under any Senior Finance Document (whether on account of such Senior Secured Creditor's participation in any Advance that has become due and payable or otherwise), nothing in any Senior Finance Document shall (or shall be construed so as to) prevent or restrict such Senior Secured Creditor (whether alone or with any other Senior Secured Creditor) from (without limitation) seeking any judicial remedy or commencing or taking any legal proceeding or




other procedure or step under the laws of any jurisdiction (including any application for a winding-up, bankruptcy or moratorium of or for any Obligor).
3.
DRAWDOWN OF ADVANCES
3.1
Drawdown conditions
Subject to the terms of this Agreement and the Facility Agreements, the Company may request, and the relevant Lending Group shall make, Advances under a Facility if:
3.1.7
not later than 5:00 p.m. on the tenth Business Day before the proposed Advance Date (in the case of an Advance under the Term Loan Facilities and with any necessary amendments thereto made and received by the Intercreditor Agent and the relevant Facility Agent not later than 3:00 p.m. on the sixth Business Day before the proposed Advance Date) or the fourth day before the proposed Advance Date (in the case of an Advance under a Revolving Credit Facility), the Intercreditor Agent and the relevant Facility Agent have received a completed Advance Request;
3.1.8
in the case of the Term Loan Facilities, no other Advance Request has been served by the Company in respect of any Term Loan Facility in the same month; and
3.1.9
in the case of the Revolving Credit Facility and the Term Loan Facilities, if any Advance to be requested under the Advance Request, when drawn on the proposed Advance Date, would result in the aggregate US dollar equivalent amount of all Advances outstanding under the Facilities to exceed USD2,500,000,000 (such Advance being an "Upsize Advance"), the Intercreditor Agent has received (prior to the duly completed Advance Request in respect of such Advance being received) all documents and other evidence listed in either paragraph 1 of Part H of Schedule 2 (Conditions Precedent) or paragraphs 2 to 8 (inclusive) of Part H of Schedule 2 (Conditions Precedent), in each case, in form and substance satisfactory to the Intercreditor Agent.
3.2
Completion of an Advance Request
Each Advance Request is irrevocable and shall not be regarded as having been completed unless:
3.2.15
it is signed by a Responsible Officer of the Company whose specimen signature has been delivered to the Intercreditor Agent and who is identified as being authorised to so sign on behalf of the Company by a resolution of its Board of Directors, a copy of which, together with a certification in relation thereto by a Responsible Officer, has also been delivered to the Intercreditor Agent;
3.2.16
the proposed Advance Date is a Business Day within the relevant Availability Period;
3.2.17
it specifies:
(a)
the amount and currency of the Advances to be made;
(b)
the Facility under which each such Advance shall be made;
(c)
the first Interest Period for such Advances (which shall be the same for each such Advance requested under a Term Loan Facility);
(d)
(in the case of Advances under the Term Facility) the purpose for which such Advances shall be applied; and
(e)
(in the case of Advances under the Revolving Credit Facility) the purpose for which such Advances shall be applied.
3.2.18
the amount requested under each Facility is not more than the aggregate for the time being of each Lender's Available Commitment under such Facility and, in the case of:
(a)
any Term Loan Facility, the amount requested is either a minimum amount of USD5,000,000 or (as the case may be) its HK dollar equivalent which is less than the aggregate for the time being of each Lender's Available Commitment under such Facility or, if less than such minimum amount, equal to this latter amount;
(b)
the Revolving Credit Facilities, the aggregate amount requested is either a minimum amount of USD5,000,000 or (as the case may be) its HK dollar equivalent which is less than the aggregate for the time being of each Lender's Available Commitment under such Facility or, if less than such minimum amount, equal to this latter amount; and
3.2.19
it certifies, among other things and without any personal liability on the part of the officer of the Company signing such Advance Request, that:
(a)
no Default (or, in the case of any Rollover Advance (as defined in each Revolving Credit Facility Agreement), Event of Default) is continuing or would result from the proposed Advances; and
(b)
the representations and warranties contained in Schedule 4 (Representations and Warranties) which are repeated by the Company at the Advance Date are true and correct in all material respects with reference to the facts and circumstances existing on the date of the Advance Request.
3.3
Funding of Development Account from Revolving Credit Facility and the Term Facility
The Company shall ensure that an aggregate US dollar equivalent amount at least equal to:
3.3.5
(in respect of the Term Facility) US$414,934,426 (the "Term Facility Portion"); and




3.3.6
(in respect of the Revolving Credit Facility) US$135,065,574 (the "RCF Portion"),
is paid (immediately upon utilisation) from the first Advance made under each tranche of the Term Facility and the Revolving Credit Facility and the Company shall ensure that it submits Advance Requests such that Advances under:
(a)
the Term Facility are drawn on a pro rata basis between each of the Tranche A Facility, the Tranche B Facility and the Tranche C Facility in an aggregate amount equal to the Term Facility Portion as further set out in the Completion Memorandum; and
(b)
the Revolving Credit Facility are drawn on a pro rata basis between each of the tranches thereunder in an aggregate amount equal to the RCF Portion,
in order to fund an aggregate equivalent amount of not less than US$550,000,000 into a Development Account in accordance with each relevant Facility Agreement.
4.
AVAILABILITY PERIODS
4.1
Term Facility Availability Period
Subject to other terms of the Senior Finance Documents, the Term Facility shall be made available from the Fifth Amendment Effective Date until the date falling 5 Business Days from the Fifth Amendment Effective Date.
4.2
Revolving Credit Facility Availability Period
Subject to other terms of the Senior Finance Documents, the Revolving Credit Facility shall be made available pursuant to the Revolving Credit Facility Agreement from the Fifth Amendment Effective Date until the earliest of:
4.2.7
the Termination Date (as defined in the Revolving Credit Facility Agreement); and
4.2.8
the date upon which the Advances thereunder are declared to be immediately due and payable pursuant to Clause 19.2 (Remedies following an Event of Default).
4.3
Additional Lender Facility Availability Period
Subject to other terms of the Senior Finance Documents, each Additional Lender Facility shall be made available from the date of such Additional Lender Facility Agreement until the earliest of:
(a)
the termination date (as set out in the applicable Additional Lender Facility Agreement); and




(b)
the date upon which the Advances thereunder are declared to be immediately due and payable pursuant to Clause 19.2 (Remedies following an Event of Default).
5.
PURPOSE
5.1
Purpose - General
The Company shall apply the proceeds of each Advance under a Facility in accordance with the relevant Facility Agreement and this Agreement.
5.2
No Obligation to be Concerned with Application
None of the Senior Secured Creditors shall be obliged to concern themselves with the application of proceeds of the Facilities.
5.3
Limitation on Advances
5.3.1
The proceeds of the Advances shall not be applied towards the acquisition (or maintenance or repair) of any equipment or utensils used in the operation of casino games of chance or other forms of gaming.
5.3.2
The Company shall ensure that, in the case of the Revolving Credit Facility, the first Advance thereunder is sufficient to ensure that an amount equal to the RCF Portion (as defined in Clause 3.3.2) is paid into a Development Account pursuant to Clause 3.3 (Funding of Development Account from Revolving Credit Facility and the Term Facility).
6.
PRO RATA DRAWINGS
The Company shall ensure that:
(a)
where an Advance is requested under a Term Loan Facility, an Advance, as a proportion of the Available Commitments under such Facility, in a US dollar equivalent amount pro rata with that requested has also been requested to be made on the same Advance Date under each of the other Term Loan Facilities; and
(b)
where an Advance is requested under a Revolving Credit Facility, an Advance, as a proportion of the Available Commitments under such Facility, in a US dollar equivalent amount pro rata with that requested has also been requested to be made on the same Advance Date under each of the other Revolving Credit Facilities.
7.
[NOT USED]
8.
REPAYMENTS, PREPAYMENTS AND CANCELLATION
8.1
Repayments
The Company may repay principal amounts falling due under any Facility Agreement only in accordance with that Facility Agreement and this Agreement.
8.2
Voluntary Prepayment of the Term Loan Facilities
8.2.1
Subject to the other provisions of this Clause 8 and any applicable terms in the Facility Agreements, the Company may, on at least 30 days' prior written notice to the Intercreditor Agent (which notice shall, if not withdrawn prior thereto, become irrevocable on the tenth Business Day prior to the proposed prepayment date), make voluntary prepayments under the Term Loan Facilities on the last day of any Interest Period, provided that for each voluntary prepayment, the amount prepaid under the Term Loan Facilities must exceed an aggregate of USD10,000,000 or its equivalent or, if less, the balance of the principal amount owing to all Term Loan Facility Lenders.
8.2.2
Amounts prepaid under sub-clause 8.2.1 above shall be applied on the Interest Payment Date on which they are made pro rata between the Advances outstanding under the Term Loan Facilities and applied pro rata against the repayment instalments of those Advances.
8.2.3
For purposes of clarification, Permitted Loan Repurchases shall not constitute payments or prepayments of any amount under the Term Loan Facilities and shall not be subject to the provisions of this Clause 8.
8.3
Mandatory Prepayment
8.3.1
The Company shall prepay Advances and/or cancel Available Commitments under the Facilities on the dates and in the amounts specified in Schedule 9 (Mandatory Prepayment) and this Clause 8.3.
8.3.2
Any amount prepaid under this Clause 8.3 and Schedule 9 (Mandatory Prepayment) shall be applied in the following order:
(a)
first, pro rata between the Advances outstanding under the Term Loan Facilities and then in inverse order of maturity against the remaining repayment instalments of those Advances;
(b)
second, in cancellation of the Available Commitments under the Revolving Credit Facilities (and the Available Commitments of the Lenders under the Revolving Credit Facilities will be cancelled rateably); and
(c)
thirdly, in prepayment pro rata of Advances outstanding under the Revolving Credit Facilities (and any Available Commitments of the Lenders under the Revolving Credit Facilities associated therewith shall be automatically cancelled).
8.3.3
Each of the Facilities (and any Available Commitments thereunder) shall be automatically cancelled upon the Company being required to make prepayment pursuant to paragraph 7 of Schedule 9 (Mandatory Prepayment).
8.4
Cancellation
(a)
Save as provided in Clause 8.5 (Prepayment and Cancellation of Individual Lenders) and Clause 14 (Illegality), the Company may only cancel the whole or any part (being a minimum amount of USD25,000,000) of the Available Commitments under the Revolving Credit Facilities made available pursuant to the Revolving Credit Facility Agreements on not less than seven Business Days' prior irrevocable written notice to the Intercreditor Agent and the relevant Facility Agent, in all cases without penalty or payment of fees or charges save as provided for in Clause 8.6.2 (Restrictions) or the relevant Facility Agreement. Such cancellation shall apply pro rata across all Revolving Credit Facilities made available under the Revolving Credit Facility Agreements.
(b)
The Available Commitments of each Lender under each of the Term Loan Facilities will be automatically cancelled at the close of business in Hong Kong on the last day of the relevant Availability Period for that Term Loan Facility to the extent undrawn at that date.
8.5
Prepayment and Cancellation of Individual Lenders
If:
(a)
any sum payable to any Lender by the Company is required to be increased under Clause 11.2 (Tax gross-up); and/or
(b)
any Lender claims indemnification from the Company under Clause 11.3 (Tax Indemnity) or Clause 12 (Increased costs); and/or
(c)
a Market Disruption Event occurs in relation to any Advance for any Interest Period pursuant to Clause 10.2 (Market disruption); and/or
(d)
any Lender withholds its consent to the incurrence of any Financial Indebtedness by the Company such that the Intercreditor Agent is unable to approve the incurrence of additional Financial Indebtedness in accordance with paragraph 2.1(j) of Part B of Schedule 5 (Covenants) or the amendment or waiver of paragraph 2.1 of Part B of Schedule 5 (Covenants); and/or
(e)
any Lender becomes a Non-Consenting Lender (as defined in Clause 8.8.3 below) and that Non-Consenting Lender has not, within 10 Business Days of being supplied with the same, executed (and returned to the Intercreditor Agent) all agreements and other instruments (to which it is required to be a party) needed to effect the transfer contemplated by (and in accordance with) Clause 8.8 (Replacement of Non-Consenting Lender); and /or
(f)
any Lender becomes an Outgoing Lender (as defined in Clause 8.9 (Anti-Terrorism and Restricted Party Events) below) and that Outgoing Lender has not, within 10 Business Days of being supplied with the same, executed (and returned to the Intercreditor Agent) all agreements and other instruments (to which it is required to be a party) needed to effect the transfer contemplated by (and in accordance with) Clause 8.9 (Anti-Terrorism and Restricted Party Events),
then, the Company may, subject to the other provisions hereof and, in the case of paragraph (d) above, whilst the circumstances described therein continue, and on giving at least fifteen days' prior irrevocable written notice to the Intercreditor Agent:
(i)
prepay that Lender's participation in the Advances outstanding under the relevant Facility Agreement on the Interest Payment Date which immediately ends after the Company's notice; and/or
(ii)
cancel that Lender's undrawn and uncancelled Available Commitments under the relevant Facility Agreement.
8.6
Restrictions
8.6.1
Any notice of cancellation or prepayment given under this Clause 8 shall be irrevocable if not withdrawn in accordance with Clause 8.2.1 (Voluntary Prepayment of the Term Loan Facilities) and shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of the cancellation or prepayment.
8.6.2
Any prepayment or cancellation pursuant to this Clause 8 shall be made together with accrued interest and fees on the amount prepaid or cancelled and without premium or penalty, save that the Company shall pay any Break Costs and any other fees specified in the relevant Facility Agreement.
8.6.3
The Company shall not repay or prepay all or any part of the Advances or cancel all or any part of the Available Commitments under any Facility Agreement except in accordance with that Facility Agreement and this Clause 8.
8.6.4
The Company may not reborrow any part of the Term Loan Facilities which is prepaid.
8.6.5
No amount of the Available Commitments cancelled under this Clause 8 may be subsequently reinstated.
8.6.6
If the Intercreditor Agent receives a notice under this Clause 8, it shall promptly forward a copy of that notice to either the Company or the affected Lender (or the Facility Agent acting for such Lender), as appropriate.
8.6.7
[Not used]
8.7
Replacement of Lender
If any Lender:
(a)
claims any amounts from the Company under Clauses 11.2 (Tax gross-up), 11.3 (Tax indemnity) or 12 (Increased costs) hereof;
(b)
fails to make its portion of any Advance to be made by it on the relevant Advance Date;
(c)
withholds its consent in any of the circumstances contemplated in Clause 8.5(d) (Prepayment and Cancellation of Individual Lenders); or
(d)
is a Defaulting Lender,
(an "Affected Lender"), the Company may (after paying all amounts then due under Clauses 11.2 (Tax gross-up), 11.3 (Tax indemnity) or 12 (Increased costs) hereof to the Affected Lender and, in the case of paragraph (c) above, whilst the circumstances referred to therein continue) designate a non-Affected Lender, any commercial bank or any other financial institution or bank reasonably satisfactory to the Intercreditor Agent (the "Replacement Lender") to accept a transfer in accordance with Clause 21.6 (Transfers by Lenders) of the Affected Lender's rights, benefits and obligations hereunder, and, promptly following such designation, the Affected Lender shall be obliged to execute the Novation Certificate required for such transfer in accordance with Clause 21.6 (Transfers by Lenders) and the non-Affected Lender may, but shall not be obliged to, execute such Novation Certificate and, if it does so, shall be obliged to accept such transfer in accordance with Clause 21.6 (Transfers by Lenders). Any such acceptance of transfer shall be for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Affected Lender's participation in the outstanding Advances and all accrued interest, Break Costs and other amounts payable in relation thereto under the Senior Finance Documents.
8.8
Replacement of Non-Consenting Lender
8.8.1
If at any time any Lender becomes a Non-Consenting Lender (as defined in Clause 8.8.3 below), then the Company may, on 5 Business Days' prior written notice to the Intercreditor Agent and such Lender, replace such Lender by requiring such Lender to (and such Lender shall) transfer pursuant to Clause 21 (Changes to the Parties) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity (a "Replacement Lender") selected by the Company, and which is acceptable to the Intercreditor Agent (acting reasonably) which confirms its willingness to assume and does assume all the obligations of the transferring Lender (including the assumption of the transferring Lender's participations on the same basis as the transferring Lender) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Lender's participation in the outstanding Advances and all accrued interest, Break Costs and other amounts payable in relation thereto under the Senior Finance Documents. Such Non-Consenting Lender shall provide all reasonable assistance to effect the foregoing transfer.
8.8.2
The replacement of a Lender pursuant to this Clause shall be subject to the following conditions:
(a)
neither the Intercreditor Agent nor the Lender shall have any obligation to the Company to find a Replacement Lender;
(b)
such replacement of a Non-Consenting Lender must take place no later than 60 days after the date the Lender was deemed a Non-Consenting Lender under Clause 8.8.3; and
(c)
in no event shall the Lender replaced under this Clause 8.8.2 be required to pay or surrender to such Replacement Lender any of the fees previously received by such Lender pursuant to the Senior Finance Documents.
8.8.3
In the event that:
(a)
the Intercreditor Agent (at the request of the Company) has pursuant to sub-clause 33.1.2 of Clause 33.1 (Notices of Required Decisions) notified the relevant Senior Secured Creditors of a Decision required in respect of a waiver or amendment of any provisions of the Senior Finance Documents;
(b)
the waiver or amendment in question requires the consent of all Lenders and, after the occurrence of a Hedging Voting Rights Event in relation to a Hedging Counterparty that is continuing, that Hedging Counterparty; and
(c)
Lenders and, after the occurrence and continuation of a Hedging Voting Right Event in relation to any Hedging Counterparty, that Hedging Counterparty, who hold, in aggregate, more than 66 2/3% of the Voting Entitlements of all such Senior Secured Creditors have voted in favour of that Decision,
then any Lender who does not and continues not to vote in favour of such Decision shall be deemed a "Non-Consenting Lender".
8.9
Anti-Terrorism and Restricted Party Events
(a)
If any litigation, governmental, regulatory or other proceedings by OFAC, FinCEN, the Monetary Authority of Macao, the Hong Kong Monetary Authority or any other United States, European Communities, Macau or Hong Kong Governmental Authority (or any divisions of any of them or authority deriving power from any of them) is pending or adversely determined against a Lender (an "Outgoing Lender") as a direct result of that Outgoing Lender's (i) receipt of funds or other property from a Designated Person, (ii) breach of any Anti-Terrorism Law, (iii) breach of any anti-money laundering law or (iv) breach of any anti-corruption law, the Company may on 5 Business Days' prior written notice to the Intercreditor Agent and such Outgoing Lender, replace such Outgoing Lender by requiring such Outgoing Lender to (and such Outgoing Lender shall) transfer pursuant to Clause 21.4 (Assignment and Transfer by Lenders) all (and not part only) of its rights and obligations under this Agreement to a Lender or other bank, financial institution, trust, fund or other entity (an "Incoming Lender") selected by the Company and which is acceptable to the Intercreditor Agent (acting reasonably), which confirms its willingness to assume and does assume all the obligations of the transferring Outgoing Lender (including the assumption of the transferring Outgoing Lender's participations on the same basis as the transferring Outgoing Lender) for a purchase price in cash payable at the time of transfer equal to the outstanding principal amount of such Outgoing Lender's participation in the outstanding Advances and all accrued interest and/or Break Costs and other amounts payable in relation thereto under the Senior Finance Documents.
(b)
The replacement of an Outgoing Lender pursuant to this Clause shall be subject to the following conditions:
(i)
neither the Intercreditor Agent nor the Outgoing Lender shall have any obligation to the Company to find an Incoming Lender;
(ii)
in the event of a replacement of an Outgoing Lender such replacement must take place no later than 60 days after the date the Outgoing Lender notifies the Company and the Intercreditor Agent, or the Company notifies the Intercreditor Agent, as the case may be, of the occurrence of any event set out in paragraph (a) above; and
(iii)
in no event shall the Outgoing Lender replaced under this paragraph (b) be required to pay or surrender to such Incoming Lender any of the fees previously received by such Outgoing Lender pursuant to the Senior Finance Documents.
9.
INTEREST, INTEREST PERIODS AND DEFAULT INTEREST
9.1
Calculation of interest
The Company shall pay interest under each Facility Agreement at the rate specified in that Facility Agreement.
9.2
Payment of interest
9.2.4
Subject to Clause 9.2.2 below, interest on each Advance shall be due on each Interest Payment Date relating to that Advance.
9.2.5
If an Interest Period for a Revolving Credit Facility Advance is 6 months or longer, interest on that Advance shall be due on the dates falling on three month intervals after the first day of that Interest Period provided that the last such due date shall be brought forward or postponed (as the case may be) so as to coincide with the Interest Payment Date relating to that Advance.
9.3
Interest Periods
The duration of each Interest Period shall be determined as follows:
9.3.1
Each Interest Period for a Term Loan Facility Advance shall start on the Advance Date for such Advance or (if already made) on the last day of its preceding Interest Period. A Revolving Credit Facility Advance has one Interest Period only which shall start on the Advance Date for such Advance.
9.3.2
Subject to this Clause 9, the duration of each Interest Period for each Advance under:
(a)
a Term Loan Facility shall be one, two, three or six months; and
(b)
a Revolving Credit Facility shall be one, two, three or six months,
in each case as the Company may, by not less than five (or, in the case of any Term Loan Facility Advance made on or prior to the Fifth Amendment Effective Date, two) Business Days' prior notice to the Facility Agent for such Facility, select, provided that Term Loan Facility Advances with the same Advance Date shall have the same Interest Period and, save in the case of each Initial Advance made thereunder, the first Interest Period for each Advance made under a Term Loan Facility shall end on the same day as the end of the current Interest Period of any other outstanding Advance made under the same Facility.
9.3.3
If the Company fails to give such notice of its selection in relation to an Interest Period, the duration of such Interest Period shall, subject to this Clause 9, be 3 months.
9.3.4
Any Interest Period which would otherwise extend beyond:
(a)
a Repayment Date (in the case of any Interest Period relating to an Advance under the Term Facility); or
(b)
the Revolving Credit Facility Termination Date (in the case of any Interest Period relating to an Advance under a Revolving Credit Facility),
shall be of such duration that it shall end on such date.
9.3.5
If two or more Interest Periods relating to Advances in the same currency under the same Term Loan Facility end at the same time, then, on the last day of such Interest Periods, such Advances shall be consolidated into and treated as a single Advance.
9.3.6
The Company shall use reasonable efforts to at all times select the duration of Interest Periods so as to ensure that, in respect of such of the Advances outstanding under the Facilities as is from time to time equal to the Notional Amounts specified in the Hedging Agreements or, as the case may be, any Permitted Swap Transaction (to the extent that such Permitted Swap Transaction relates to hedging an Obligor's exposure to interest rate fluctuations under the Term Loan Facilities), the Interest Payment Dates for such Advances coincide with (and are no more frequent than) the selected dates for payment of amounts to the Company under the Hedging Agreements or, if applicable, a Permitted Swap Transaction.
9.3.7
Any Interest Period which would end on a day which is not a Business Day shall be extended to the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
9.3.8
Interest on an Advance shall accrue from and including the first day of an Interest Period relating to such Advance up to but excluding the last day of such Interest Period.
9.4
Default interest
9.4.1
If the Company fails to pay any amount payable by it under a Senior Finance Document on its due date, interest shall accrue on such Unpaid Sum from the due date up to the date of actual payment (both before and after judgment) at a rate which, subject to sub-clause 9.4.2 below, is 2% higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted an Advance under the relevant Facility Agreement in the currency of the overdue amount (or, where there is no such relevant Facility Agreement, an Advance in the relevant currency under the Term Facility Agreement) for successive Interest Periods, each of a duration selected by the relevant Facility Agent (each acting reasonably). Any interest accruing under this sub-clause 9.4.1 shall be immediately payable by the Company on demand in writing by the Intercreditor Agent or the relevant Facility Agent.
9.4.2
If any Unpaid Sum consists of all or part of an Advance which became due on a day which was not the last day of an Interest Period relating to that Advance:
(a)
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Advance; and
(b)
the rate of interest applying to the Unpaid Sum during that first Interest Period shall be 2% per annum higher than the rate which would have applied if the overdue amount had not become due.
9.4.3
Default interest (if unpaid) arising on an Unpaid Sum shall be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but shall remain immediately due and payable.
10.
CHANGES TO THE CALCULATION OF INTEREST
10.1
Absence of quotations
Subject to Clause 10.2 (Market disruption), if LIBOR or HIBOR is to be determined by reference to the Reference Banks under any Facility Agreement but a Reference Bank does not supply a quotation on the Quotation Day under such Facility Agreement, the applicable LIBOR or HIBOR for the purpose of such Facility Agreement shall be determined on the basis of the quotations of the remaining Reference Banks under such Facility Agreement. Where LIBOR or HIBOR is to be determined by reference to the Reference Banks under any Facility Agreement and none or only one Reference Bank supplies a quotation, then LIBOR or, as the case may be, HIBOR shall be treated as incapable of being determined under such Facility Agreement.
10.2
Market disruption
10.2.5
If a Market Disruption Event occurs in relation to an Advance under a Facility for any Interest Period, the relevant Facility Agent shall promptly notify the Intercreditor Agent of the fact and that this Clause 10.2 is in operation and the Intercreditor Agent shall promptly notify the Company and the other Lenders.
10.2.6
For the purpose of this Clause 10.2, "Market Disruption Event" means:
(d)
in the case of a US dollar Advance:
(i)
it is not possible, in respect of the Facility under which such Advance is made, to determine LIBOR in accordance with the provisions of the relevant Facility Agreement and Clause 10.1 (Absence of quotations); or
(ii)
before the close of business in London on the Quotation Day for the relevant Interest Period, the Intercreditor Agent has been notified by a Lender or Lenders (whose participations in such Advance exceed 50 per cent of the Advance) that the cost to it/them of obtaining matching deposits in the London interbank market would be in excess of LIBOR;
(e)
in the case of a HK dollar Advance:
(i)
it is not possible, in respect of the Facility under which such Advance is made, to determine HIBOR in accordance with the provisions of the relevant Facility Agreement and Clause 10.1 (Absence of quotations); or
(ii)
before the close of business in Hong Kong on the Quotation Day for the relevant Interest Period, the Intercreditor Agent has been notified by a Lender or Lenders (whose participations in such Advance exceed 50 per cent of the Advance) that the cost to it/them of obtaining matching deposits in the Hong Kong interbank market would be in excess of HIBOR.
10.2.7
Within five Business Days of the Intercreditor Agent notifying the Company in accordance with sub-clause 10.2.1 above, the Company and the Intercreditor Agent shall enter into good faith negotiations for a period of up to thirty days with a view to agreeing an alternative basis for determining the rate of interest applicable to the relevant Advances. Any alternative basis agreed shall be binding on all parties hereto until (subject to the terms of such agreement) the Market Disruption Event referred to in sub-clause 10.2.1 above is at an end and the Intercreditor Agent has notified the Facility Agents and the Company accordingly.
10.2.8
If no alternative basis is agreed pursuant to sub-clause 10.2.3 above by the earlier of (i) the thirty-day period provided in sub-clause 10.2.3 above and (ii) the Advance Date (where the notification under sub-clause 10.2.1 applies to any Advance which has not been made) or the last day of the Interest Period (where the notification under sub-clause 10.2.1 applies to an Advance which is outstanding), then each Lender participating in the relevant Advance shall, acting reasonably, certify an alternative basis for maintaining its participation in the relevant Advance which may include an alternative method of fixing the interest rate, alternative Interest Periods or alternative currencies but such alternative basis must reflect its cost of funding its participation in the relevant Advance from whatever sources it may in good faith select plus the applicable interest margin applicable to that Lender's participation in the relevant Advance. Each alternative basis so certified shall be binding on the Company and the certifying Lender and treated as part of this Agreement and the relevant Facility Agreement.
10.3
Break Costs
10.3.4
The Company shall, within three Business Days of demand by a Senior Secured Creditor, pay to that Senior Secured Creditor its Break Costs attributable to all or any part of an Advance or Unpaid Sum being paid by the Company on a day other than an Interest Payment Date for that Advance or Unpaid Sum.
10.3.5
Each Lender shall, as soon as reasonably practicable after a demand by the Intercreditor Agent or the Company, provide a certificate confirming the amount and providing reasonable supporting evidence of its Break Costs for any Interest Period in which they accrue.
11.
TAX GROSS UP AND INDEMNITIES
11.1
Construction
Unless a contrary indication appears, in this Clause 11 a reference to "determines" or "determined" means a determination made in the absolute discretion of the Person making the determination.
11.2
Tax gross-up
11.2.6
The Company shall make all payments to be made by it under the Senior Finance Documents without any Tax Deduction, unless a Tax Deduction is required by law.
11.2.7
The Company or a Senior Secured Creditor shall promptly upon becoming aware that it must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Intercreditor Agent accordingly. Similarly, a Senior Secured Creditor shall notify the Intercreditor Agent on becoming so aware in respect of a payment payable to that Senior Secured Creditor. If the Intercreditor Agent receives such notification from a Senior Secured Creditor it shall promptly notify the Company.
11.2.8
If a Tax Deduction is required by law to be made by the Company, the amount of the payment due from the Company shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the amount which would have been due if no Tax Deduction had been required.
11.2.9
If the Company is required to make a Tax Deduction, it shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
11.2.10
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Company shall deliver to the Intercreditor Agent the payment evidence reasonably satisfactory to the relevant Senior Secured Creditor that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority (provided that the Company shall not be obliged to provide any such evidence from a Governmental Authority to the extent that it is not provided by such Governmental Authority).
11.3
Tax indemnity
11.3.8
The Company shall (within fifteen days of demand by the Intercreditor Agent) pay to a Senior Secured Creditor an amount equal to the loss, liability or cost which that Senior Secured Creditor determines has been (directly or indirectly) suffered for or on account of Tax by that Senior Secured Creditor in respect of a Senior Finance Document including Tax arising on payment of any premia or other sums payable on an Ancillary Finance Document whether or not such payment is required to be made by such Senior Secured Creditor.
11.3.9
Sub-clause 11.3.1 above shall not apply:
(c)
with respect to any Tax assessed on a Senior Secured Creditor:
(i)
under the law of the jurisdiction in which that Senior Secured Creditor is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Senior Secured Creditor is treated as resident for tax purposes; or
(ii)
under the law of the jurisdiction in which that Senior Secured Creditor's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income received or receivable (but not any sum deemed to be received or receivable) by that Senior Secured Creditor; or
(d)
to the extent a loss, liability or cost is compensated for by an increased payment under Clause 11.2 (Tax gross-up).
11.3.10
A Senior Secured Creditor making, or intending to make a claim under sub-clause 11.3.1 above shall promptly notify the Intercreditor Agent of the event which shall give, or has given, rise to the claim, following which the Intercreditor Agent shall promptly notify the Company.
11.3.11
A Senior Secured Creditor shall, on receiving a payment from the Company under this Clause 11.3, notify the Intercreditor Agent.
11.3.12
Each Senior Secured Creditor shall, as soon as practicable after a demand by the Intercreditor Agent, provide a certificate confirming the amount of the loss, liability or cost referred to in sub-clause 11.3.1 above and the basis thereof.
11.4
Tax Credit
If the Company makes a Tax Payment and the relevant Senior Secured Creditor determines that:
11.4.1
a Tax Credit is attributable to that Tax Payment; and
11.4.2
that Senior Secured Creditor has obtained, utilised and retained that Tax Credit,
that Senior Secured Creditor shall pay an amount to the Company which that Senior Secured Creditor determines shall leave it (after that payment) in the same after-Tax position as it would have been in had the Tax Payment not been made by the Company.
11.5
Stamp taxes
The Company shall pay and, within fifteen days of demand, indemnify each Senior Secured Creditor against any cost, loss or liability that a Senior Secured Creditor incurs in relation to all stamp duty, registration and other similar Taxes payable in respect of any Senior Finance Document.
12.
INCREASED COSTS
12.1
Increased costs
12.1.11
Subject to Clause 12.3 (Exceptions), the Company shall, within fifteen days of a demand by the Intercreditor Agent, pay for the account of a Lender the amount of any Increased Costs incurred by that Lender or any Affiliate of that Lender as a result of:
(c)
the introduction of or change in (or in the interpretation, administration or application of) any law or regulation after the Fifth Amendment Signing Date;
(d)
compliance with any request or requirement relating to the maintenance of capital or any other request from or requirement of any central bank or other fiscal, monetary, regulatory or other authority;
(e)
the implementation or application of, or compliance with, Basel III or any law or regulation that implements or applies Basel III; or
(f)
the implementation or application of, or compliance with, the Dodd-Frank Wall Street Reform and Consumer Protection Act of the United States of America (whether enacted, adopted or issued before, on or after the date of this Agreement) and/or all requests, rules, guidelines or directives in connection therewith (in each case whether enacted, adopted or issued before, on or after the date of this Agreement) and all amendments thereto from time to time.
12.1.12
In this Agreement:
(a)
"Increased Costs" means:
(iii)
a reduction in the rate of return from a Facility or on a Lender's (or its Affiliate's) overall capital (including as a result of any reduction in the rate of return on capital brought about by more capital being required to be allocated by such Lender or Affiliate);
(iv)
an additional or increased cost; or
(v)
a reduction of any amount due and payable under any Senior Finance Document,
which is incurred or suffered by a Lender or any of its Affiliates to the extent that it is attributable to that Lender's having entered into or maintaining its commitment or funding or performing its obligations under any Senior Finance Document; and
(b)
"Basel III" means:
(i)
the agreements on capital requirements, a leverage ratio and liquidity standards contained in "Basel III: A global regulatory framework for more resilient banks and banking systems", "Basel III: International framework for liquidity risk measurement, standards and monitoring" and "Guidance for national authorities operating the countercyclical capital buffer" published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated; and
(ii)
any further guidance or standards published by the Basel Committee on Banking Supervision relating to "Basel III".
12.2
Increased cost claims
12.2.13
When a Senior Secured Creditor intends to make a claim pursuant to Clause 12.1 (Increased costs), it shall notify the Intercreditor Agent of the event giving rise to the claim, following which the Intercreditor Agent shall promptly notify the Company.
12.2.14
Each Senior Secured Creditor shall, as soon as practicable after a demand by the Intercreditor Agent, provide a certificate confirming the amount of its Increased Costs and the basis thereof.
12.3
Exceptions
Clause 12.1 (Increased costs) does not apply to the extent any Increased Cost is:
12.3.3
attributable to a Tax Deduction required by law to be made by the Company and compensated for by payment under Clause 11 (Tax Gross Up and Indemnities);
12.3.4
compensated for by Clause 11.3 (Tax indemnity) (or would have been compensated for under Clause 11.3 (Tax indemnity) but was not so compensated solely because one of the exclusions in sub-clause 11.3.2 of Clause 11.3 (Tax indemnity) applied); or
12.3.5
attributable to the wilful breach by the relevant Senior Secured Creditor or their Affiliates of any law or regulation.
13.
CURRENCY AND OTHER INDEMNITIES
13.1
Currency Indemnity
If any Senior Secured Creditor receives an amount in respect of the Company's liability to that Senior Secured Creditor under any Senior Finance Document or if that liability is converted into a claim, proof, judgment or order in a currency other than the currency (the "contractual currency") in which the amount is expressed to be payable under that Senior Finance Document:
13.1.15
the Company shall indemnify that Senior Secured Creditor as an independent obligation against any costs, loss or liability arising out of or as a result of the conversion; and
13.1.16
if the amount received by that Senior Secured Creditor, when converted into the contractual currency at a market rate in the usual course of its business is less than the amount owed in the contractual currency and such is specified to the Company in reasonable detail, the Company shall, within 3 Business Days of its receipt of a written demand by such Senior Secured Creditor, pay to that Senior Secured Creditor an amount in the contractual currency equal to the deficit.
13.2
Other Indemnities
The Company shall, within fifteen days of demand, indemnify each Senior Secured Creditor against any cost, loss or liability incurred by that Senior Secured Creditor as a result of:
13.2.6
the occurrence of any Event of Default;
13.2.7
funding, or making arrangements to fund, its participation in an Advance requested by the Company in an Advance Request but not made by reason of the operation of any one or more of the provisions of the Senior Finance Documents (other than by reason of default or negligence by that Senior Secured Creditor alone);
13.2.8
an Advance (or part of an Advance) not being prepaid in accordance with a notice of prepayment given by the Company; and
13.2.9
any claim concerning Wynn Macau or the Cotai Project (including, in each case, its participation therein) to the extent that loss or liability is suffered or incurred by that Senior Secured Creditor (other than by reason of default or negligence by a Senior Secured Creditor),
provided that, prior to the delivery of an Enforcement Notice, any such cost, loss or liability shall be reasonable.
13.3
Indemnity to the Agents
The Company shall, within fifteen days of demand, indemnify each of the Agents against any cost, loss or liability incurred by such Agent (acting reasonably) as a result of:
13.3.4
investigating any event which it reasonably believes is a Default; or
13.3.5
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised,
provided that, prior to the delivery of an Enforcement Notice, any such cost, loss or liability shall be reasonable.
14.
ILLEGALITY
If it becomes, or shall become, unlawful in any applicable jurisdiction for a Lender to perform any of its obligations as contemplated by the Senior Finance Documents to which it is a party or to fund or maintain its participation in any Advance:
14.1.10
that Lender shall promptly notify the Company through the Intercreditor Agent and the relevant Facility Agent upon becoming aware of that event; and
14.1.11
by the latest date necessary to ensure compliance with the relevant law or regulation:
(a)
if the relevant Facility Agent so requires, the Company shall prepay that Lender's participation in all the Advances (or such lesser amount if required to comply with the relevant law or regulation) together with all other relevant amounts payable by it to that Lender under the Senior Finance Documents to which it is a party; and
(b)
that Lender's undrawn Available Commitment (or such lesser amount if permitted by the relevant law or regulation) shall be cancelled.
15.
MITIGATION BY THE SENIOR SECURED CREDITORS
15.1
Mitigation
15.1.6
Each Lender shall, in consultation with the Company, take all reasonable steps to mitigate or remove any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 10 (Changes to the calculation of interest), Clause 11 (Tax Gross Up and Indemnities), Clause 12 (Increased Costs) or Clause 14 (Illegality) including (but not limited to) transferring its rights and obligations under the Senior Finance Documents to another Affiliate or Facility Office.
15.1.7
Sub-clause 15.1.1 above does not in any way limit the obligations of any Obligor under the Senior Finance Documents.
15.2
Indemnity by Company
15.2.2
The Company shall indemnify each Senior Secured Creditor for all costs and expenses reasonably incurred by that Senior Secured Creditor as a result of steps taken by it under Clause 15.1 (Mitigation).
15.2.3
A Senior Secured Creditor is not obliged to take any steps under Clause 15.1 (Mitigation) if, in the opinion of that Senior Secured Creditor (acting reasonably), to do so might be prejudicial to it.
16.
FEES, COSTS AND EXPENSES
16.1
Agency Fees
The Company shall pay to each Agent for its own account a fee in amounts and on dates separately agreed between that Agent and the Company in the relevant Fee Letter.
16.2
Transaction expenses
The Company shall, within fifteen days of receipt of a written demand, pay the Agents the amount of all reasonable costs and expenses (including legal fees) incurred by any of them in connection with the review, negotiation, preparation, printing and execution of:
16.2.1
this Agreement, the other Senior Finance Documents and any other documents referred to herein or therein; and
16.2.2
any other Senior Finance Documents executed after the Fifth Amendment Signing Date,
in accordance with, in the case of any fees, costs and expenses of the legal advisers appointed on or prior to the Fifth Amendment Signing Date, the appointment or engagement letters (if any) executed by the Company on or prior to the Fifth Amendment Signing Date.
16.3
Amendment costs
If the Company or any other Obligor requests an amendment, waiver or consent under any Senior Finance Document, the Company shall, within thirty days of demand, reimburse the Agents for the amount of all costs and expenses (including legal fees) reasonably incurred by the Agents in responding to, evaluating, negotiating or complying with that request.
16.4
Enforcement costs
The Company shall, within fifteen days of written demand, pay to each Senior Secured Creditor the amount of all costs and expenses (including legal fees) incurred by that Senior Secured Creditor in connection with the enforcement of, or the preservation of, any rights under and in accordance with any Senior Finance Document provided that, prior to the delivery of an Enforcement Notice, such costs and expenses shall be reasonable.
17.
REPRESENTATIONS AND WARRANTIES
17.1
Matters represented
The Company makes the representations and warranties set out in Schedule 4 (Representations and Warranties) to each Senior Secured Creditor as at each of the dates specified in Clause 17.2 (Timing).
17.2
Timing
17.2.1
Each of the representations and warranties set out in Schedule 4 (Representations and Warranties) are deemed to be made by the Company (by reference to the facts and circumstances then existing) on the Fifth Amendment Signing Date.
17.2.2
Unless otherwise stated to have been made as of a specific date, each of the representations and warranties set out in Schedule 4 (Representations and Warranties) is made by the Company (with reference to the facts and circumstances then existing) on the Fifth Amendment Effective Date and (other than the representations and warranties set out in paragraphs 10.5 (Taxes), 21.1 to 21.6 (inclusive) (Subsidiaries and Beneficial Interest) and 36 (Wynn Asia 2) of Schedule 4 (Representations and Warranties)) is deemed to be repeated by the Company on each subsequent Advance Date (with reference to the facts and circumstances then existing), as if any reference therein to any Senior Finance Document in respect of which any amendment, acknowledgement, confirmation, consolidation, novation, restatement, replacement or supplement is expressed to be made by any of the documents referred to in Clause 1.3 (Designation) of the Common Terms Agreement Fifth Amendment Agreement or by the Common Terms Agreement Fifth Amendment Agreement included, to the extent relevant, such document and the Senior Finance Document as so amended, acknowledged, confirmed, consolidated, novated, restated, replaced or supplemented.
18.
COVENANTS
18.1
Content
The Company undertakes to each of the Senior Secured Creditors that it shall comply with the covenants set out in Schedule 5 (Covenants).
18.2
Duration
The covenants in Schedule 5 (Covenants) shall remain in force from the Fifth Amendment Signing Date until the Senior Secured Indebtedness has been fully discharged.
18.3
Permitted Cotai Reorganisation; Release of Palo Security
18.3.1
Notwithstanding any other provision of this Agreement or the other Senior Finance Documents to the contrary, the Company shall be permitted to undertake a Permitted Cotai Reorganisation. If, for the purposes of carrying out such Permitted Cotai Reorganisation, where Palo has created a Lien over any of its assets or business under the Palo Security Documents (save for the Palo Share Pledge) in favour of the Security Agent and such Lien is required (in order to effect such Permitted Cotai Reorganisation) to be released, the Security Agent shall, at the cost and request of the Company, promptly release such Liens.
18.3.2
The Company may, in writing to the Intercreditor Agent, request that Palo be the subject of a voluntary liquidation, winding up or dissolution (or similar action) after a Permitted Cotai Reorganisation. Such written request from the Company shall also confirm that Palo has no (and shall not have any) assets, no Default is continuing or would result from such voluntary liquidation, winding up or dissolution (or similar action) and any payments or assets to be distributed as a result of such voluntary liquidation, winding up or dissolution (or similar action) shall be distributed to the Company.
18.3.3
Palo may, following such written request, be the subject of such voluntary liquidation, winding up or dissolution (or similar action) if the Intercreditor Agent confirms in writing that it is satisfied that the matters contemplated by paragraphs (i) to (iv) (inclusive) of the definition of "Permitted Cotai Reorganisation" in Clause 1.1 (Definitions) have occurred in a form and substance satisfactory to it (acting reasonably) and that no payment is due from Palo pursuant to the Guarantee or any Palo Security Document.
18.3.4
If Palo is or is proposed to be, pursuant to Clause 18.3.3 above, the subject of such voluntary liquidation, winding up or dissolution (or similar action) then:
(c)
where Palo has created a Lien over any of its assets or business under the Security Documents in favour of the Security Agent, or any Lien in favour of the Security Agent was created over the shares (or equivalent) of Palo, the Security Agent shall, at the cost and request of the Company, promptly release such Liens and the Security Agent (and/or, as required, the Intercreditor Agent) shall promptly release Palo from its obligations under the Senior Finance Documents (including, without limitation, any obligations Palo has as an Obligor) and Palo shall, upon such release occurring, no longer be an Obligor for the purposes of the Senior Finance Documents;
(d)
the releases referred to in paragraph (a) above shall not become effective until the date of such voluntary liquidation, winding up or dissolution (or similar action); and
(e)
if such voluntary liquidation, winding up or dissolution (or similar action) does not occur in respect of Palo, the releases referred to in paragraph (a) above shall have no effect and the obligations of Palo under the Senior Finance Documents (including, without limitation, its obligations as an Obligor) and the Liens created or intended to be created by or over Palo shall continue in such force and effect (and Palo shall continue to be an Obligor for the purposes of the Senior Finance Documents) as if those releases had not been effected.
18.4
Release of Security over the Existing Executive Director Shares
If the Existing Executive Director Shares are (or are proposed) to be cancelled in connection with an Executive Director Substitution then:
18.4.1
where there is a Lien over such Existing Executive Director Shares under the Security Documents in favour of the Security Agent, the Security Agent shall, at the cost and request of the Company, promptly release such Liens;
18.4.2
the releases referred to in Clause 18.4.1 above shall not become effective until immediately prior to the cancellation of such Existing Executive Director Shares; and
18.4.3
if such cancellation of the Existing Executive Director Shares does not occur, the releases referred to in Clause 18.4.1 above shall have no effect and the Liens created or intended to be created over such Existing Executive Director Shares shall continue in such force and effect as if those releases had not been effected.
19.
EVENTS OF DEFAULT
19.1
Events of Default
Each of the events set out in Schedule 10 (Events of Default) is an Event of Default.
19.2
Remedies following an Event of Default
Upon the occurrence of an Event of Default and at any time thereafter whilst it is continuing or following issuance of an Enforcement Notice (as the case may be), the Intercreditor Agent shall, if so instructed by the Required Lenders, by written notice to the Company:
19.2.5
declare that the Available Commitments under any of the Facility Agreements be cancelled or suspended, whereupon they shall be cancelled or suspended;
19.2.6
declare that all or any part of the Advances, together with accrued interest, and all other amounts accrued or outstanding under the Senior Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable;
19.2.7
declare that all or part of the Advances be payable on demand, whereupon they shall immediately become payable on demand by the Intercreditor Agent;
19.2.8
notify the Security Agent that an Event of Default has occurred and is continuing and instruct the Security Agent to issue an Enforcement Notice;
19.2.9
following the issue of an Enforcement Notice, require the Security Agent to take action to enforce all or any part of the Security or all or any of the Shareholder Guarantees (subject to the expiration of any cure periods contained therein), whereupon any such action shall be taken;
19.2.10
following the issue of an Enforcement Notice, instruct the Security Agent to require the perfection of the Liens granted pursuant to the Land Security Assignment and the Assignment of Rights;
19.2.11
following the issue of an Enforcement Notice, give (or require the Security Agent to give) notices regarding the payment of insurance proceeds in accordance with the terms of the Senior Finance Documents;
19.2.12
following the issue of an Enforcement Notice, give (or require the Security Agent to give) notice to any Account Bank in relation to the operation of the Accounts in accordance with paragraph 3.3 (Default) of Schedule 6 (Accounts); and/or
19.2.13
exercise any or all other remedies available at law not inconsistent with the foregoing,
provided that the foregoing shall not in any way affect the Intercreditor Agent's or the Security Agent's right to separately enforce its rights under the Senior Finance Documents.
19.3
Remedies following an Executive Director Event
Without prejudice to Clause 19.2 (Remedies following an Event of Default) or in any way affecting the Intercreditor Agent's or the Security Agent's right to separately enforce its rights under the Senior Finance Documents, upon the occurrence of an Executive Director Event and at any time thereafter whilst it is continuing or following issuance of an Enforcement Notice (as the case may be), the Intercreditor Agent shall, if so instructed by the Required Lenders, require the Security Agent to take action to enforce all or any part of the Security granted pursuant to the Executive Director Share Pledge.
20.
APPLICATION OF ENFORCEMENT PROCEEDS
After delivery of an Enforcement Notice and notwithstanding the provisions of Schedule 6 (Accounts), all Enforcement Proceeds shall be applied in accordance with the Deed of Appointment and Priority and Clause 33.6 (Application of Enforcement Proceeds).
21.
CHANGES TO THE PARTIES
21.1
Binding Agreement
This Agreement shall be binding upon and enure to the benefit of each party hereto and its or any subsequent successors and transferees.
21.2
Assignment and Transfer by the Company or the GCLAs
21.2.1
The Company may not assign, transfer, novate or dispose of any of its rights or obligations under this Agreement or the other Senior Finance Documents.
21.2.2
The GCLAs may not assign or transfer its rights and/or obligations under this Agreement without the prior written consent of the Company.
21.3
Assignment and Transfer by Agents
Each Agent may assign or transfer any of its rights and obligations under any Senior Finance Document to which it is party only in accordance with its voluntary or requested resignation under and subject to the relevant Senior Finance Document and this Agreement and then only if it first procures that its assignee or transferee executes a duly completed Agent's Deed of Accession and Finance Party Accession Undertaking (also executed, in the case of the latter, by such Agent, the Intercreditor Agent and all other parties hereto acting through the Intercreditor Agent for this purpose (the authority for which is hereby conferred on the Intercreditor Agent) and promptly delivered by the Intercreditor Agent to the Security Agent) and enters into such other acknowledgements as may be necessary or desirable to protect the Security.
21.4
Assignment and Transfer by Lenders
21.4.1
Subject to the provisions of the Facility Agreement to which it is a party and execution and delivery by the assignee or Transferee of a Finance Party Accession Undertaking, any Lender may, at any time, assign in accordance with Clause 21.5 (Assignments by Lenders) all or any of its rights and benefits under the Senior Finance Documents or transfer in accordance with Clause 21.6 (Transfers by Lenders) all or any of its rights, benefits and obligations under the Senior Finance Documents to:
(c)
another Lender or an Affiliate of a Lender;
(d)
any commercial bank;
(e)
any other bank or financial institution or trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets;
(f)
in the case of a Permitted Loan Repurchase, the Company; or
(g)
any other entity with the consent of the Company (such consent not to be unreasonably withheld or delayed and which consent shall not be required in respect of any assignment or transfer after the occurrence of an Event of Default which is continuing),
provided that all transactional costs (including any stamp duties, transfer taxes and any costs attributable to any transfer of Security) of such assignment or transfer shall be borne by the relevant Lender or assignee or Transferee except for:
(i)
any transfer in connection with the syndication of the Facilities, all such costs of which (including those set forth in Clause 21.7 (Assignment and Transfer Fees)) shall be borne by the Company; and
(ii)
any transfer contemplated by the Pre-Amendment Global Transfer Agreement or the Post-Amendment Global Transfer Agreement, all such costs of which shall be borne by the Company.
21.4.2
Any assignment or transfer of a Lender's participations in Advances outstanding or, as the case may be, Available Commitments under:
(a)
the Term Facility shall be in a minimum amount of USD1,000,000 or its equivalent or, if less, equal to the aggregate of such Lender's participations or Available Commitments under such Facility; or
(b)
a Revolving Credit Facility shall be in a minimum amount of USD1,000,000 or its equivalent or, if less, equal to the aggregate of such Lender's participations or Available Commitments under such Facility.
21.4.3
Each assignee or Transferee, by executing a Finance Party Accession Undertaking (including, without limitation, the Pre-Amendment Global Transfer Agreement and the Post-Amendment Global Transfer Agreement), confirms, for the avoidance of doubt, that the Intercreditor Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement on or prior to the date on which the transfer or assignment becomes effective in accordance with this Agreement and that it is bound by that decision to the same extent as the assigning or transferring Lender would have been had it remained a Lender.
21.5
Assignments by Lenders
If any Lender assigns all or any of its rights and benefits under the Senior Finance Documents in accordance with Clause 21.4 (Assignment and Transfer by Lenders), then, unless and until the assignee has delivered:
(a)
a notice to the Intercreditor Agent (which the Intercreditor Agent shall promptly copy to the Company and the other Senior Secured Creditors) confirming in favour of the Senior Secured Creditors that it shall be under the same obligations towards each of them as it would have been under if it had been an original party hereto as a Lender and to the relevant Facility Agreement as a Term Facility Lender, Additional Lender or Revolving Credit Facility Lender (as the case may be); and
(b)
a duly completed Finance Party Accession Undertaking executed by such Lender, such assignee, the Intercreditor Agent and all other parties hereto acting through the Intercreditor Agent for this purpose (the authority for which is hereby conferred on the Intercreditor Agent and which the Intercreditor Agent shall promptly deliver to the Security Agent),
(whereupon such assignee shall become a party hereto as a "Lender" or thereto as a "Term Facility Lender", "Additional Lender" or "Revolving Credit Facility Lender"), the Company and the Senior Secured Creditors shall not be obliged to recognise such assignee as having the rights against each of them which it would have had if it had been such a party hereto or thereto. This Clause 21.5 shall not apply to the Company's acquisition of an Advance pursuant to a Permitted Loan Repurchase.
21.6
Transfers by Lenders
Except in the case of a Permitted Loan Repurchase, if any Lender wishes to transfer all or any of its rights, benefits and/or obligations under this Agreement and the corresponding rights, benefits and/or obligations under the other Senior Finance Documents as contemplated in Clause 21.4 (Assignment and Transfer by Lenders), then such transfer shall only be effective if the procedure set out in this Clause 21.6 is complied with. Such transfer shall be effected by the delivery to the Intercreditor Agent (which the Intercreditor Agent shall promptly copy to the Company and the other Senior Secured Creditors) of:
(a)
a duly completed Novation Certificate executed by such Lender, the relevant Transferee, the Intercreditor Agent and all other parties hereto acting through the Intercreditor Agent for this purpose (the authority for which is hereby conferred on the Intercreditor Agent); and
(b)
a duly completed Finance Party Accession Undertaking executed by such Lender, the relevant Transferee, the Intercreditor Agent and all other parties hereto acting through the Intercreditor Agent for this purpose (the authority for which is hereby conferred on the Intercreditor Agent and which the Intercreditor Agent shall promptly deliver to the Security Agent),
in which event, on the later of the Transfer Date specified in such Novation Certificate and the fifth Business Day after (or such earlier Business Day endorsed by the Intercreditor Agent on such Novation Certificate falling on or after) the date of delivery of such Novation Certificate and Finance Party Accession Undertaking to the Intercreditor Agent:
21.6.1
to the extent that in such Novation Certificate the Lender party thereto seeks to transfer by novation its rights, benefits and obligations under this Agreement and the corresponding rights, benefits and obligations under the other Senior Finance Documents, the Company and such Lender shall be released from further obligations towards one another under this Agreement and the corresponding rights, benefits and/or obligations under the other Senior Finance Documents and their respective rights against one another shall be cancelled (such rights and obligations being referred to in this Clause 21.6 as "discharged rights and obligations");
21.6.2
each of the Company and the Transferee shall assume obligations towards one another and/or acquire rights against one another which differ from such discharged rights and obligations only insofar the Company and such Transferee have assumed and/or acquired the same in place of such other party and such Lender;
21.6.3
the Agents, the GCLAs, such Transferee and the other Lenders shall acquire the same rights and benefits and assume the same obligations between themselves as they would have acquired and assumed had such Transferee been an original party to this Agreement and the other relevant Senior Finance Documents as a Lender with the rights, benefits and/or obligations acquired or assumed by it as a result of such transfer and to that extent the Agents, the GCLAs and the relevant Lender shall each be released from further obligations to each other under this Agreement and the other relevant Senior Finance Documents; and
21.6.4
such Transferee shall become a party hereto as a "Lender" and to the relevant Facility Agreement as a "Term Facility Lender", "Additional Lender" or "Revolving Credit Facility Lender" (as the case may be).
21.7
Assignment and Transfer Fees
On the date upon which an assignment takes effect pursuant to Clause 21.5 (Assignments by Lenders) or a transfer takes effect pursuant to Clause 21.6 (Transfers by Lenders), the relevant assignee or Transferee shall pay to the Intercreditor Agent for its own account a fee of USD2,000.
21.8
Disclosure of Information
Any Senior Secured Creditor may disclose to any of its Affiliates and any other Person:
21.8.1
to (or through) whom such Senior Secured Creditor assigns or transfers (or may potentially assign or transfer) all or any of its rights, benefits and obligations in accordance with the Senior Finance Documents;
21.8.2
in the case of a Lender, with (or through) whom such Lender enters into (or may potentially enter into) any sub-participation in relation to the Senior Finance Documents or any Obligor; or
21.8.3
to whom information may be required to be disclosed by any applicable law or pursuant to any regulatory or stock exchange requirement;
such information about any Obligor, Wynn Macau, the Cotai Project and the Senior Finance Documents as such Senior Secured Creditor may consider appropriate, provided that the Person to whom such information is provided under sub-clause 21.8.1 or 21.8.2 first enters into a Confidentiality Undertaking (or, in the case of the Security Agent, the confidentiality undertaking referred to in clause 18.9 (Disclosure of Information by Security Agent) of the Deed of Appointment and Priority) and that the Company has received a copy of such signed undertaking.
21.9
Change of Facility Office
Any Lender may change its Facility Office provided that the Company shall have no liability (or no increase in liability) under Clause 11 (Tax gross-up and Indemnities) or Clause 12 (Increased costs) which would not exist as at the date of such change but for such change, unless such change was requested by the Company pursuant to Clause 15 (Mitigation by the Senior Secured Creditors).
21.10
Permitted Loan Repurchases
21.10.1
Notwithstanding anything to the contrary contained in this Agreement or the other Senior Finance Documents, the Company shall be permitted to acquire Advances pursuant to a Permitted Loan Repurchase (including through Open Market Purchases), so long as any Advances so acquired are cancelled and retired immediately upon such Permitted Loan Repurchase becoming effective, the consideration for such Permitted Loan Repurchase is not funded from any Advance (or the proceeds thereof) and where such Permitted Loan Repurchase is made by way of Open Market Purchase, no Event of Default has occurred and is continuing or might reasonably be expected to occur as a result of such Permitted Loan Repurchase. For all purposes under this Agreement and the other Senior Finance Documents, upon a Permitted Loan Repurchase becoming effective:
(a)
any Advances acquired by the Company pursuant to such Permitted Loan Repurchase:
(ii)
shall be deemed not to be outstanding and to have no principal amount (or any other amount owing in respect thereof);
(iii)
shall be deemed to be automatically cancelled and retired without any further action by the Company, the Intercreditor Agent, the Lenders or any other Person; and
(iv)
shall be deemed not to constitute payments (or prepayments) of Advances for any purpose hereunder;
(b)
for the purposes of testing compliance with the financial covenants in paragraph 1 of Part B of Schedule 5 (Covenants), any impact of such Permitted Loan Repurchase on EBITDA shall be ignored;
(c)
for the avoidance of doubt and without otherwise limiting the definition or interpretation of "Permitted Business", the Company shall be deemed not to be in breach of paragraph 14 of Part B of Schedule 5 (Covenants) solely by virtue of carrying out a Permitted Loan Repurchase;
(d)
Clause 25 (Sharing Among The Senior Secured Creditors) shall not be applicable to the consideration paid under such Permitted Loan Repurchase;
(e)
no Obligor shall be permitted to receive any payment or prepayment under this Agreement which is payable to any Lender by virtue of the Company having made a Permitted Loan Repurchase; and
(f)
the Company shall not be permitted to sell, transfer or otherwise dispose of the subject matter of such Permitted Loan Repurchase.
21.10.2
The Company shall take such actions and execute such documents and agreements as may be reasonably requested by the Intercreditor Agent to further evidence the cancellation and retirement referred to in Clause 21.10.1 above.
21.10.3
The Company shall promptly notify the Intercreditor Agent of any Permitted Loan Repurchase made by way of an Open Market Purchase and the identity of the Facilities to which they relate. The Intercreditor Agent shall disclose such information to any Lender that requests the same.
21.10.4
For so long as the Company beneficially owns or has any Voting Entitlements following a Permitted Loan Repurchase, those Voting Entitlements shall be deemed to be zero and the Company shall be deemed not to be a Lender. The Company agrees that, following a Permitted Loan Repurchase by it, it shall not, in relation to any meeting or conference call to which all the Lenders are invited to attend or participate, attend or participate in the same or be entitled to receive the agenda or any minutes of the same and it shall not be entitled to receive any report or other document prepared at the request of, or on the instructions of, the Intercreditor Agent or one or more of the Lenders or any other Secured Party or Secured Parties.




22.
HEDGING COUNTERPARTIES
22.1
Accession
Each Hedging Counterparty shall execute and deliver to the Intercreditor Agent a Hedging Counterparty's Deed of Accession and shall execute and deliver to the Security Agent in accordance with the Deed of Appointment and Priority a Finance Party Accession Undertaking. A Hedging Counterparty may, at any time, assign all or any of its rights and benefits or transfer all or any of its rights, benefits and obligations under and in accordance with the Senior Finance Documents subject to delivery to the Intercreditor Agent of a duly completed:
(a)
Hedging Counterparty's Deed of Accession executed by the assignee or transferee; and
(b)
Finance Party Accession Undertaking executed by the assignee or transferee, the Hedging Counterparty, the Intercreditor Agent and all other parties hereto acting through the Intercreditor Agent for this purpose (the authority for which is hereby conferred on the Intercreditor Agent and which the Intercreditor Agent shall promptly deliver to the Security Agent).
22.2
Interest in the Security
The obligations of the Company owed to each Hedging Counterparty shall be secured by the Security and each Hedging Counterparty shall be entitled to share in the Enforcement Proceeds in accordance with the Deed of Appointment and Priority and Clause 33.6 (Application of Enforcement Proceeds).
22.3
Voting rights
Nothing in this Clause 22 nor any other provisions of any Senior Finance Document shall be deemed to entitle any Hedging Counterparty in its capacity as such under any Hedging Agreement to exercise any voting, consent, approval or similar right under the Senior Finance Documents (other than the Hedging Agreements) including any right to participate in any Decision provided that:
22.3.1
each Hedging Counterparty shall have the right to participate in all Decisions after the occurrence of a Hedging Voting Right Event in relation to such Hedging Counterparty that is continuing; and
22.3.2
the consent of all Hedging Counterparties shall be required for any change to the matters referred to in paragraphs (a), (b), (f), (g), (h), (i) and (j) in the definition of "Fundamental Term" in Clause 1.1 (Definitions) and for any amendment to Clause 33.6 (Application of Enforcement Proceeds) and this Clause 22.
22.4
Restrictions on Amendment
Each Hedging Counterparty agrees that, except with the prior written consent of the Intercreditor Agent, no amendment may be made to a Hedging Agreement to an extent which would result in:




22.4.1
any payment under that Hedging Agreement being required to be made by the Company on any date other than the dates originally provided for in that Hedging Agreement; or
22.4.2
the Company becoming liable to make an additional payment under any Hedging Agreement which liability does not arise from the original provisions of that Hedging Agreement; or
22.4.3
the Company becoming liable to make any payment under that Hedging Agreement in any currency other than in the currency provided for under the original provisions of that Hedging Agreement.
22.5
Restrictions on Termination
No Hedging Counterparty may terminate a hedging facility or close out any hedging transaction under a Hedging Agreement prior to its stated maturity except in accordance with the terms of the ISDA Master Agreement and the ISDA Schedule (each as may be amended pursuant to paragraph 4 of Schedule 8 (Hedging Arrangements).
22.6
Termination at request of Intercreditor Agent
After a notice has been given by the Intercreditor Agent pursuant to sub-clause 19.2.2 of Clause 19.2 (Remedies following an Event of Default), a Hedging Counterparty shall, at the written request of the Intercreditor Agent, terminate the hedging facility or close out any hedging transaction under the Hedging Agreement to which it is party in accordance with the terms of such Hedging Agreement.
23.
AGENTS AND GLOBAL COORDINATING LEAD ARRANGERS
23.1
Appointment and duties of the Agents
23.1.1
Each of:
(f)
the Senior Secured Creditors appoints the Intercreditor Agent;
(g)
the Term Facility Lenders appoints the Term Facility Agent;
(h)
the Revolving Credit Facility Lenders appoints the Revolving Credit Facility Agent; and
(i)
the Additional Lenders under each Additional Lender Facility Agreement appoint the applicable Additional Facility Agent as facility agent for those Additional Lenders (or its successor approved in accordance with this Agreement),
to act as its agent under and in connection with the Senior Finance Documents and irrevocably authorises it on its behalf to perform the duties and to exercise the rights, powers and discretions that are specifically delegated to it under or in connection with the Senior Finance Documents, together with any other incidental rights, powers and discretions.
23.1.2
None of the Agents may begin any legal action or proceeding in the name of a Senior Secured Creditor (other than itself) without that Senior Secured Creditor's consent.
23.1.3
Each Agent has only those duties which are expressly specified in the Senior Finance Documents, and those duties are solely of a mechanical and administrative nature.
23.2
Relationship
23.2.3
The relationship between each Agent and the relevant Senior Secured Creditors is that of principal and agent only. Nothing in this Agreement constitutes any Agent as trustee or fiduciary for any other Person and no Agent need hold in trust any moneys paid to it for a Person or be liable to account for interest on those moneys except to the extent expressly stated in a Senior Finance Document.
23.2.4
No Agent shall in any respect be the agent of the Company by virtue of this Agreement.
23.2.5
No Agent shall be liable to the Company for any breach by any other Senior Secured Creditor of any Senior Finance Document or be liable to any other Senior Secured Creditor for any breach by the Company of the Senior Finance Documents.
23.3
Role of the GCLAs
Except as specifically provided in the Senior Finance Documents, none of the GCLAs has any obligations of any kind to any other party to a Senior Finance Document under or in connection with any Senior Finance Document.
23.4
Delegation
Each Agent may act through its personnel and agents.
23.5
Instructions
23.5.1
Unless otherwise expressly provided in the Senior Finance Documents, the Intercreditor Agent shall act (and shall be fully protected if it so acts) in accordance with the instructions of the Required Lenders in connection with the exercise of any right, power or discretion under or in connection with the Senior Finance Documents.
23.5.2
Each Facility Agent shall be fully protected if it acts in accordance with the instructions of its Lending Group in connection with the exercise of any right, power or discretion under or in connection with any matter not expressly provided for in the Senior Finance Documents.
23.5.3
In the absence of such instructions each Agent may act, subject to the terms of the Senior Finance Documents, as that Agent, in its sole discretion, considers to be in the best interests of all the Senior Secured Creditors or, in the case of each Facility Agent, its Lending Group.
23.6
Discretions
Notwithstanding any provision of the Senior Finance Documents, each Agent may:
23.6.4
assume, unless it has, in its capacity as Agent, received written notice to the contrary from any other Party, that (a) any representation made or deemed to be made by an Obligor in connection with the Senior Finance Documents is true, (b) no Default has occurred, (c) no Obligor is in breach of or default under its obligations under the Senior Finance Documents and (d) any right, power, authority or discretion vested in the Senior Finance Documents upon the Required Lenders, a Lending Group, the Lenders or any other Person or group of Persons has not been exercised;
23.6.5
assume that (a) the Facility Office of each Lender is that notified to it by such Lender in writing and (b) the information provided by each Lender pursuant to Clause 29 (Notices) is true and correct in all respects until it has received from such Lender notice of a change to the Facility Office or any such information and act upon any such notice until the same is superseded by a further notice;
23.6.6
engage and pay for the advice or services of any lawyers, accountants, surveyors or other experts whose advice or services may to it seem necessary, expedient or desirable and rely upon any advice so obtained;
23.6.7
rely as to any matters of fact which might reasonably be expected to be within the knowledge of an Obligor upon a certificate signed by or on behalf of such Obligor;
23.6.8
rely upon any communication or document believed by it to be genuine;
23.6.9
refrain from exercising any right, power or discretion vested in it as Agent under the Senior Finance Documents unless and until instructed as described in Clause 23.5 (Instructions) as to whether or not such right, power or discretion is to be exercised and, if it is to be exercised, as to the manner in which it should be exercised;
23.6.10
refrain from acting in accordance with any instructions to begin any action or proceeding arising out of or in connection with the Senior Finance Documents until it shall have received such security as it may require (whether by way of payment in advance or otherwise) for all costs, claims, losses, expenses (including legal fees) and liabilities which it shall or may expend or incur in complying with such instructions;
23.6.11
refrain from acting where to do so would put it in breach of an applicable Legal Requirement;
23.6.12
treat each Facility Agent as the duly appointed and authorised agent of the relevant Lenders until it receives written notice to the contrary from the relevant Lenders; and
23.6.13
(in the case of the Intercreditor Agent) in applying any moneys received by it under any Security Document under Clause 33.6 (Application of Enforcement Proceeds), rely on any certificate made by the relevant Facility Agent or Hedging Counterparty as to the identity of, and the amounts owing to, any of the Senior Secured Creditors and shall be protected in so relying.
23.7
Agents' Obligations
23.7.1
Each Agent shall:
(a)
promptly inform each Senior Secured Creditor (in the case of the Intercreditor Agent) or the Intercreditor Agent and the Lenders in its Lending Group (in the case of each Facility Agent) of the contents of any notice or document received by it pursuant to the terms of any Senior Finance Document in its capacity as Agent from the Security Agent or an Obligor under the Senior Finance Documents; and
(b)
promptly notify each Senior Secured Creditor (in the case of the Intercreditor Agent) or the Intercreditor Agent and the Lenders in its Lending Group (in the case of each Facility Agent) of the occurrence of any Event of Default or any default by an Obligor in the due performance of or compliance with its obligations under the Senior Finance Documents of which such Agent has notice from any other party.
23.7.2
The Intercreditor Agent shall promptly inform the Security Agent of the occurrence of the Release Date.
23.8
Excluded Obligations
Notwithstanding anything to the contrary expressed or implied herein, none of the Agents nor any of the GCLAs shall:
23.8.5
be bound to enquire as to (a) whether or not any representation made or deemed to be made by an Obligor in connection with the Senior Finance Documents is true, (b) the occurrence or otherwise of any Default, (c) the performance by an Obligor of its obligations under the Senior Finance Documents or (d) any breach of or default by an Obligor of or under its obligations under the Senior Finance Documents;
23.8.6
be bound to account to any Senior Secured Creditor for any sum or the profit element of any sum received by it for its own account;
23.8.7
be bound to disclose to any other Person any information relating to any Obligor, any party to a Major Project Document or any of their respective related entities if (a) such Person, on providing such information, expressly stated to such Agent or, as the case may be, such GCLA, that such information was confidential or (b) such disclosure would or might in its opinion constitute a breach of any law or be otherwise actionable at the suit of any Person; or
23.8.8
be under any obligations other than those for which express provision is made herein or in any other Senior Finance Document to which such Agent or GCLA is a party.
23.9
Exclusion of Liabilities
None of the Agents and the GCLAs accepts any responsibility:
23.9.1
for the adequacy, accuracy and/or completeness of the Information Memorandum or any other information supplied by the Agents or the GCLAs, by an Obligor or by any other Person in connection with the Senior Finance Documents, the transactions therein contemplated or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Senior Finance Documents;
23.9.2
for the legality, validity, effectiveness, adequacy or enforceability of the Senior Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Senior Finance Documents; or
23.9.3
for the exercise of, or the failure to exercise, any judgement, discretion or power given to any of them by or in connection with the Senior Finance Documents or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Senior Finance Documents.
Accordingly, none of the Agents and the GCLAs shall be under any liability (whether in negligence or otherwise) in respect of such matters.
No party hereto (other than the applicable Agent or GCLA) may take any proceedings against any officer, employee or agent of an Agent or a GCLA in respect of any claim it might have against such Agent or such GCLA, as the case may be, or in respect of any act or omission of any kind by that officer, employee or agent (other than by reason of the fraud, gross negligence or wilful misconduct of such officer, employee or agent) in relation to any Senior Finance Document and any officer, employee or agent of such Agent or GCLA may rely on this Clause subject to Clause 1.5 (Third party rights) and the provisions of the Third Parties Act.
23.10
No Actions
Each of the Lenders and the Hedging Counterparties agrees that it shall not assert or seek to assert against any director, officer or employee of any of the Agents or any of the GCLAs any claim it might have against any of them.
23.11
Business with the Obligors
Each Agent and GCLA may accept deposits from, lend money to and generally engage in any kind of banking or other business with any of the Obligors or their Affiliates.
23.12
Resignation
23.12.1
An Agent may resign its appointment hereunder at any time without assigning any reason therefor by giving not less than 25 Business Days' prior notice to that effect to the Senior Secured Creditors and the Company, in which case:
(a)
the Required Lenders (in the case of the Intercreditor Agent) may appoint a successor Agent and, unless an Event of Default has occurred and is continuing, such appointment shall be subject to the prior agreement of the Required Lenders and the Company or, failing such agreement within 15 Business Days after such notice of resignation, the Required Lenders may appoint a successor Agent on the same terms and conditions as previously applied to the outgoing Agent; and
(b)
the relevant Lending Group under a Facility (in the case of a Facility Agent for that Facility) may appoint a successor Agent and, unless an Event of Default has occurred and is continuing, such appointment shall be subject to the prior agreement of such Lending Group and the Company or, failing such agreement within 15 Business Days after such notice of resignation, the Lending Group may appoint a successor Agent on the same terms and conditions as previously applied to the outgoing Agent.
23.12.2
If the Required Lenders have not, within 15 Business Days after notice of resignation, appointed a successor Intercreditor Agent which accepts the appointment, the outgoing Agent may appoint a successor Agent and, unless an Event of Default has occurred and is continuing, such appointment shall be subject to the prior agreement of the Intercreditor Agent and the Company or, failing such agreement within 25 Business Days after notice of resignation, the Intercreditor Agent may appoint a successor Agent on the same terms and conditions as previously applied to it.
23.12.3
If a Lending Group has not, within 15 Business Days after notice of resignation appointed a successor Facility Agent which accepts the appointment, the outgoing Facility Agent may appoint a successor Facility Agent and, unless an Event of Default has occurred and is continuing, such appointment shall be subject to the prior agreement of the outgoing Facility Agent and the Company or, failing such agreement within 25 Business Days after notice of resignation, the outgoing Facility Agent may appoint a successor Facility Agent on the same terms and conditions as previously applied to it.
23.12.4
If, at the time of expiry of the period specified in sub-clause 23.12.2 or, as the case may be, sub-clause 23.12.3 above, the outgoing Agent cannot find a successor owing to the unwillingness of any proposed successor to accept the terms and conditions which apply to the outgoing Agent, the Company shall offer to any proposed successor such terms and conditions as are consistent with the role to be performed, taking into account the current market for the performance of such duties and the then existing circumstances of Wynn Macau and the Cotai Project.
23.12.5
If the Agent has not been paid an amount due to it under the Senior Finance Documents and gives notice thereof as its reason for resigning together with its notice pursuant to Clause 23.12.1, it shall not be obliged to appoint a successor. If, at the time of expiry of the period specified in clause 23.12.1, the Required Lenders or, as the case may be, the relevant Lending Group, cannot find a successor owing to the unwillingness of any proposed successor to accept the terms and conditions which apply to the outgoing Agent, the Company shall offer to any proposed successor such terms and conditions as are consistent with the role to be performed, taking into account the current market for the performance of such duties and the then existing circumstances of the Company.
23.12.6
The resignation of an Agent and the appointment of any successor Agent shall both become effective only upon the successor Agent executing an Agent's Deed of Accession provided that, where the Agent has notified the reason for its resignation pursuant to Clause 23.12.5, its resignation shall become effective upon the expiry of the period notified by it pursuant to Clause 23.12.1. Upon the execution of an Agent's Deed of Accession, the successor Agent shall succeed to the position of the retiring Agent (as the case may be) under the Senior Finance Documents and the term "Agent" shall mean the successor Agent.
23.12.7
The Intercreditor Agent agrees that it shall, if so requested in writing by the Required Lenders, tender its resignation in accordance with this Clause 23.12.
23.12.8
Each Facility Agent agrees that it shall, if so requested in writing by its Lending Group, tender its resignation in accordance with this Clause 23.12.
23.12.9
Upon the appointment of a successor (or, as the case may be, its resignation becoming effective), the retiring Agent shall be discharged from any future (but not accrued) obligations in respect of the Senior Finance Documents but shall remain entitled to the benefit of Clause 13.2 (Other Indemnities) and sub-clauses 23.1, 23.2, 23.5.2, 23.5.3, 23.6.10, 23.8, 23.9, 23.10 and 23.15 of this Clause 23.
23.13
Own Responsibility
It is understood and agreed by each Senior Secured Creditor that at all times it has itself been, and shall continue to be, solely responsible for making its own independent appraisal of, and investigation into, all risks arising under or in connection with the Senior Finance Documents including, but not limited to:
23.13.1
the financial condition, creditworthiness, condition, affairs, status and nature of Wynn Macau, the Cotai Project and each Obligor;
23.13.2
the legality, validity, effectiveness, adequacy and enforceability of the Senior Finance Documents and any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Senior Finance Documents;
23.13.3
whether such Senior Secured Creditor has recourse, and the nature and extent of that recourse, against an Obligor or any other Person or any of their respective assets under or in connection with the Senior Finance Documents, the transactions therein contemplated or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Senior Finance Documents; and
23.13.4
the adequacy, accuracy and/or completeness of the Information Memorandum and any other information provided by the Agents or the GCLAs, an Obligor, or by any other Person in connection with the Senior Finance Documents, the transactions contemplated therein or any other agreement, arrangement or document entered into, made or executed in anticipation of, pursuant to or in connection with the Senior Finance Documents.
Accordingly, each Senior Secured Creditor acknowledges to the Agents and the GCLAs that it has not relied on and shall not hereafter rely on the Agents and the GCLAs or any of them in respect of any of these matters.
23.14
Agency Division Separate
In acting as Agent under the Senior Finance Documents, each of the Agents shall be regarded as acting through its agency division which shall be treated as a separate entity from any other of its divisions or departments and, notwithstanding the foregoing provisions of this Clause 23, any information received by some other division or department of such Agent may be treated as confidential and shall not be regarded as having been given to such Agent's agency division.
23.15
Indemnity to Intercreditor Agent
23.15.1
Each Senior Secured Creditor 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 Advances bear to the US dollar equivalent of the aggregate of the Available Commitments and such participations of all the Senior Secured Creditors (or, if all such amounts have been reduced to zero, such proportion determined immediately prior to such reduction) for the time being, indemnify the Intercreditor Agent, within fifteen days of demand (accompanied by reasonable written certification), against cost, loss or liability incurred by the Intercreditor Agent (other than by reason of fraud, negligence or wilful misconduct of the Intercreditor Agent) in acting as Intercreditor Agent in accordance with the terms of the Senior Finance Documents (unless the Intercreditor Agent has been reimbursed by, or indemnified to its satisfaction by, an Obligor pursuant to a Senior Finance Document or otherwise in writing). For the purposes of this Clause 23.15.1, each Hedging Counterparty shall, in respect of each Hedging Agreement entered into by it, be deemed to have made an Advance to the Company in an amount equal to the Realised Hedge Loss (if any) under the Hedging Agreement to which such Hedging Counterparty is party.
23.15.2
Clause 23.15.1 shall not apply to the extent that the Intercreditor Agent is otherwise actually indemnified or reimbursed by any party to a Senior Finance Document under any other provision of the Senior Finance Documents.
23.15.3
Provided that the Company is required to reimburse or indemnify the Intercreditor 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 Senior Secured Creditor, indemnify such Senior Secured Creditor in relation to any payment actually made by such Senior Secured Creditor pursuant to Clause 23.15.1 above.
24.
CONDUCT OF BUSINESS BY THE SENIOR SECURED CREDITORS
No provision of the Senior Finance Documents shall:
24.1.6
interfere with the right of any Senior Secured Creditor to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
24.1.7
subject to Clause 15 (Mitigation by Senior Secured Creditors), oblige any Senior Secured Creditor to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
24.1.8
oblige any Senior Secured Creditor to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
25.
SHARING AMONG THE SENIOR SECURED CREDITORS
25.1
Payments to Senior Secured Creditors
If a Senior Secured Creditor (a "Recovering Senior Secured Creditor") receives or recovers any amount from an Obligor other than in accordance with the provisions of the Senior Finance Documents (excluding any such provision which permits the setting off of obligations owed by such Obligor against obligations owed to it by such Recovering Senior Secured Creditor but allowing, for the avoidance of doubt, any such provision in any Hedging Agreement permitting netting off between transactions under such Hedging Agreement) and applies that amount to a payment due under the Senior Finance Documents then: