Exhibit 10.1
FIRST AMENDMENT TO AGREEMENT
This First Amendment to Agreement (this "First Amendment") is made and
entered into as of the 1st day of June, 2006 by and among Wynn Resorts, Limited,
a corporation organized and existing under the laws of the State of Nevada
("WRL"), Xxxx Resorts (Macau) SA, a corporation organized and existing under the
laws of the Macau Special Administrative Region ("Xxxx Macau"), and Publishing
and Broadcasting, Ltd., a corporation organized and existing under the laws of
Australia ("PBL").
RECITALS
A. WRL, Xxxx Macau and PBL are parties to that certain Agreement dated
as of March 4, 2006 (the "Agreement").
B. Pursuant Section 8.8 of the Agreement the parties have agreed to
make certain amendments and deletions to the Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby mutually acknowledged, the parties hereto,
intending to be legally bound hereby, agree that the foregoing recitals are true
and correct and as follows:
1. Parties. The parties agree that:
(a) as of the date of the Agreement, WRL shall be deleted as a
Party to the Agreement and that all instances of WRL in the Agreement
shall be of no further force or effect, with the exception of the
instances mentioned on Recital A, Article I - Section 1.9 and Article
IV -Section 4.1(d); and
(b) any references in the Agreement to Xxxx Macau or its
designee shall be to Xxxx Macau.
2. Recitals. (a) The Recital C is hereby deleted and the following
inserted in lieu thereof: "Pursuant to Article 75 of the Concession Agreement
and subject to Macau Government authorization and approval, Xxxx Macau (as
concessionaire under the Concession Agreement) is permitted to grant to third
parties subconcessions which, with respect to this Agreement, shall be a binding
agreement entered into by Xxxx Macau, an SA company to be incorporated in Macau
by PBL ("PBL Macau") and the Macau SAR comprising a set of instruments from
which PBL Macau will acquire certain rights and take on certain duties and
obligations provided for in the Subconcession Agreement, pursuant to which PBL
Macau shall be entitled to operate, games of chance and other games in Casinos
in the Macau SAR as an autonomous subconcessionaire (collectively, a
"Subconcession")."
(b) Recital D is hereby deleted and of no further force or
effect.
3. Definitions. All capitalized terms used herein and not otherwise
defined shall have the meanings given such terms in the Agreement. Section 1.1
and Section 1.5 of the Agreement are hereby deleted and of no further force or
effect. The Definition of "Purchase Price" set forth in Section 1.10 of the
Agreement is hereby retitled "Premium" and all instances of Purchase Price in
the Agreement shall be deemed to refer to Premium.
4. Purchase and Sale. (a) The title of Article II of the Agreement is
hereby retitled to be "Subconcession."
(b) The heading of Section 2.1 is hereby amended to be
"Subconcession." Section 2.1 is hereby deleted and the following
inserted in lieu thereof: "Upon and subject to the terms and conditions
set forth in this Agreement, Xxxx Macau agrees to use commercially
reasonable efforts to cause the Macau Government to issue a
subconcession to operate games of chance and other games in Casinos to
PBL Macau as a result of a sale by Xxxx Macau of its right to
subconcede pursuant to Article 75 of the Concession Agreement with such
sale and subconcession being subject to such authorizations and
approvals to come into force and legal effect. As consideration for
this sale, PBL agrees to pay to Xxxx Macau the Premium as set forth in
Section 2.2 at Closing."
5. Xxxx Macau Representations and Warranties. (a) Section 4.1(a) is
hereby deleted and the following inserted in lieu thereof: "Xxxx Macau is a
company duly organized, validly existing and in good standing under the laws of
Macau."
(b) Section 4.1(b) is hereby deleted and the following
inserted in lieu thereof: "This Agreement and all documents executed by
Xxxx Macau pursuant to this Agreement (i) are duly authorized, executed
and delivered and (ii) are legal, valid and binding obligations of Xxxx
Macau enforceable against Xxxx Macau in accordance with their terms,
except as the enforceability hereof and thereof may be limited by
bankruptcy, insolvency or other similar laws affecting creditors'
rights generally and general principles of equity."
6. PBL's Representations and Warranties. Section 4.2 (a) is hereby
deleted and the following inserted in lieu thereof: "PBL is a company duly
organized, validly existing and in good standing under the laws of Australia.
Upon formation, PBL Macau will be an SA company duly organized, validly existing
and in good standing under the laws of Macau, provided that PBL and/or a company
which is at least 99% owned by PBL shall own or control at least 90% of the
issued share capital (and 99% of the economic benefit in respect of the share
capital) of PBL Macau (in which 10% of the issued share capital may be owned by
the managing director) from the date of formation through the Closing Date."
7. PBL's Conditions. The following is added at the end of Section 5.2:
(d) "the stated term of the Subconcession shall coincide with the term of the
Concession Agreement; and (e) the terms of the Subconcession in relation to the
investment plan and other financial obligations of PBL Macau shall be as
required by the Macau Government, provided that any such requirements are
similar to those agreed by Xxxx Macau in the concession or to those imposed on
any other subconcession holder in any previously issued subconcession."
8. Formation of a Macau SA Company. Section 7.1 is hereby deleted and
the following inserted in lieu thereof: "As soon as practicable, PBL agrees to
form PBL Macau, a company organized under the laws of the Macau SAR to be the
subconcessionaire pursuant to the Subconcession. Upon formation, PBL Macau will
be an SA company duly organized, validly existing and in good standing under the
laws of Macau, provided that PBL and/or a company which is at least 99% owned by
PBL shall own or control at least 90% of the issued share capital (and 99% of
the economic benefit in respect of the share capital) of PBL Macau (in which 10%
of the issued share capital may be owned by the managing director) from the date
of formation through the Closing Date."
9. Subconcession Provisions. The heading of Section 7.2 is hereby
amended to be "Form of Subconcession." Section 7.2 is hereby deleted and the
following inserted in lieu thereof: The Parties agree that the Subconcession
will be substantially in the form of previously issued subconcessions. The
Parties agree that, from and after the issuance of the Subconcession, as between
them, all operations shall be independent of one another, with each Party having
an independent relationship with the Macau Government and its regulatory
authorities. Each Party shall be solely responsible for any amounts due to the
Macau Government under its Concession Agreement or Subconcession, as applicable
and any breach or default by one Party shall not constitute a default or cause
for termination under the other Party's agreements with the Macau Government."
10. Announcement and Confidentiality. Section 8.2 is hereby deleted and
the following inserted in lieu thereof: "Immediately following execution and
delivery of this Agreement, Xxxx Macau and PBL shall make all notifications
required by their respective stock exchanges and regulatory bodies in respect of
the matters dealt with in this Agreement. The Parties shall agree on the
substance and timing of press releases announcing the terms of this Agreement.
The Parties also agree to cooperate with respect to all separate public
announcements, including to the extent possible, giving each other prior notice
of any future announcements. Each Party acknowledges that, during the course of
negotiation, it may receive confidential information relating to the other or
its business or plans. Each party agrees to keep (a) such information (other
than information in the public domain or known to the other party at the time of
disclosure), (b) the existence and terms of this Agreement, and (c) their
discussion on the matters specified in this Agreement confidential and will not
disclose the same to any third party without the prior written consent of the
other, unless such disclosure (i) is compelled by law or any competent authority
(in which case the disclosing party will use its best endeavors to advise the
other party of the proposed disclosure before making it), or (ii) is to it
advisors and partners on a need to know basis (in which case the party will
obtain from such employees or advisors or partners a confidentiality undertaking
similar in terms to this clause). Notwithstanding the foregoing, the Parties
acknowledge that, as a public company, WRL has obligations to file notification
and a copy of this Agreement with the Securities and Exchange Commission."
11. Purchase and Sale. (a) The heading of Section 8.5 of the Agreement
is hereby amended to be "Termination of Subconcession."
(b) Section 8.5 is hereby deleted and the following inserted
in lieu thereof: "The Parties hereto intend the transactions
contemplated by this Agreement to be a purchase and sale of the
Subconcession by Xxxx Macau to PBL Macau. Upon termination of the
Subconcession in accordance with its terms or otherwise, the revertible
property associated therewith shall revert to the Macau SAR."
12. Assignment; Successors. Section 8.6 of the Agreement is hereby
deleted and the following inserted in lieu thereof: "No Party hereto may assign
its rights under this Agreement. This Agreement shall be binding upon the
Parties and their respective heirs and representatives."
13. Governing Law. Section 8.13 of the Agreement is hereby deleted and
the following inserted in lieu thereof: "This Agreement shall be governed in all
respects by, and construed in accordance with, the laws of the Macau SAR."
14. Exclusive Jurisdiction and Venue. Section 8.16 of the Agreement is
hereby deleted and the following inserted in lieu thereof: "(a) If any party has
a claim against another party arising out of or in connection with this
Agreement such claim shall be referred to the courts of Macau SAR, to the
jurisdiction and venue of which each of the parties to this Agreement
irrevocably submits. The jurisdiction of the courts of Macau SAR over such claim
shall be an exclusive jurisdiction and no courts outside Macau SAR shall have
any jurisdiction to hear and determine such claim."
"(b) Each party hereby waives its right to commence any legal
proceedings in any court outside Macau S.A.R. in relation to any claim,
dispute, difference or matter arising from or relating to this
Agreement or the subject matter hereof."
15. Trial by Jury Waiver. Section 8.17 is hereby deleted and of no
further force or effect.
IN WITNESS WHEREOF, this First Amendment has been executed by the
parties on the date first stated above.
Wynn Resorts, Limited
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Chief Executive Officer
Wynn Resorts (Macau) SA
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Chairman
Publishing and Broadcasting, Ltd.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Chairman
