þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Nevada | 27-0099920 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification No.) | |
3355 Las Vegas Boulevard South | 89109 | |
Las Vegas, Nevada | (Zip Code) | |
(Address of principal executive offices) |
Large accelerated filer þ | Accelerated filer o | Non-accelerated filer o | Smaller reporting company o | |||
(Do not check if a smaller reporting company) |
Class | Outstanding as of November 2, 2009 | |
Common Stock ($0.001 par value) | 660,309,999 shares |
2
September 30, | December 31, | |||||||
2009 | 2008 | |||||||
(In thousands, except share data) | ||||||||
(Unaudited) | ||||||||
ASSETS
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
$ | 3,091,845 | $ | 3,038,163 | ||||
Restricted cash
|
229,091 | 194,816 | ||||||
Accounts receivable, net
|
375,201 | 384,819 | ||||||
Inventories
|
26,153 | 28,837 | ||||||
Deferred income taxes, net
|
23,005 | 22,971 | ||||||
Prepaid expenses and other
|
32,962 | 71,670 | ||||||
|
||||||||
Total current assets
|
3,778,257 | 3,741,276 | ||||||
Property and equipment, net
|
12,956,106 | 11,868,228 | ||||||
Deferred financing costs, net
|
175,865 | 158,776 | ||||||
Deferred income taxes, net
|
24,443 | 44,189 | ||||||
Leasehold interests in land, net
|
1,107,830 | 1,099,938 | ||||||
Other assets, net
|
230,557 | 231,706 | ||||||
|
||||||||
Total assets
|
$ | 18,273,058 | $ | 17,144,113 | ||||
|
||||||||
LIABILITIES AND EQUITY
|
||||||||
Current liabilities:
|
||||||||
Accounts payable
|
$ | 78,672 | $ | 71,035 | ||||
Construction payables
|
784,421 | 736,713 | ||||||
Accrued interest payable
|
11,831 | 14,750 | ||||||
Other accrued liabilities
|
690,751 | 593,295 | ||||||
Current maturities of long-term debt
|
159,921 | 114,623 | ||||||
|
||||||||
Total current liabilities
|
1,725,596 | 1,530,416 | ||||||
Other long-term liabilities
|
76,878 | 61,677 | ||||||
Deferred proceeds from sale of The Shoppes at The Palazzo
|
243,928 | 243,928 | ||||||
Deferred gain on sale of The Grand Canal Shoppes
|
55,138 | 57,736 | ||||||
Deferred rent from mall transactions
|
149,498 | 150,771 | ||||||
Long-term debt
|
11,604,476 | 10,356,115 | ||||||
|
||||||||
Total liabilities
|
13,855,514 | 12,400,643 | ||||||
|
||||||||
Preferred stock, $0.001 par value, issued to Principal
Stockholders family, 5,250,000 shares issued and
outstanding, after allocation of fair value of attached
warrants, aggregate redemption/liquidation value of
$577,500 (Note 4)
|
387,697 | 318,289 | ||||||
Commitments and contingencies (Note 8)
|
||||||||
Equity:
|
||||||||
Preferred stock, $0.001 par value, 50,000,000 shares
authorized, 4,089,999 and 5,196,300 shares issued and
outstanding with warrants to purchase up to 68,166,786
and 86,605,173 shares of common stock
|
234,607 | 298,066 | ||||||
Common stock, $0.001 par value, 1,000,000,000 shares
authorized, 660,309,999 and 641,839,018 shares issued
and outstanding
|
660 | 642 | ||||||
Treasury stock, at cost, 2,253 shares
|
(13 | ) | | |||||
Capital in excess of par value
|
3,185,414 | 3,090,292 | ||||||
Accumulated other comprehensive income
|
25,992 | 17,554 | ||||||
Retained earnings
|
587,747 | 1,015,554 | ||||||
|
||||||||
Total Las Vegas Sands Corp. stockholders equity
|
4,034,407 | 4,422,108 | ||||||
Noncontrolling interest
|
(4,560 | ) | 3,073 | |||||
|
||||||||
Total equity
|
4,029,847 | 4,425,181 | ||||||
|
||||||||
Total liabilities and equity
|
$ | 18,273,058 | $ | 17,144,113 | ||||
|
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
55
56
Three Months Ended
Nine Months Ended
September 30,
September 30,
2009
2008
2009
2008
(In thousands, except share and per share data)
(Unaudited)
$
908,255
$
805,258
$
2,504,233
$
2,404,973
155,673
188,794
492,030
575,172
74,457
91,025
248,852
272,315
95,604
123,233
304,976
290,791
1,233,989
1,208,310
3,550,091
3,543,251
(92,845
)
(102,876
)
(271,185
)
(246,680
)
1,141,144
1,105,434
3,278,906
3,296,571
598,934
580,755
1,680,307
1,639,849
28,096
36,436
93,387
116,663
37,384
46,035
124,845
136,578
56,349
69,013
178,826
164,622
29,272
8,859
70,989
22,960
127,189
130,192
372,292
421,051
17,519
23,390
105,250
82,529
6,691
8,437
22,497
25,573
28,855
40,777
115,619
105,470
80
1,153
344
11,504
148,677
132,239
431,559
364,753
151,175
(284
)
(47
)
4,500
6,977
1,078,762
1,077,239
3,351,590
3,098,529
62,382
28,195
(72,684
)
198,042
1,599
3,215
9,840
11,813
(88,514
)
(90,535
)
(224,503
)
(293,709
)
(1,564
)
7,209
(6,534
)
11,624
(204
)
(204
)
(4,022
)
(26,301
)
(51,916
)
(294,085
)
(76,252
)
(54,316
)
19,425
(641
)
19,533
(80,617
)
(32,491
)
(294,726
)
(56,719
)
4,111
283
7,674
4,481
(76,506
)
(32,208
)
(287,052
)
(52,238
)
(23,350
)
(69,676
)
(23,136
)
(69,408
)
$
(122,992
)
$
(32,208
)
$
(426,136
)
$
(52,238
)
$
(0.19
)
$
(0.09
)
$
(0.65
)
$
(0.15
)
660,245,590
355,393,259
655,687,503
355,344,306
Table of Contents
Las Vegas Sands Corp. Stockholders Equity
Accumulated
Other
Capital in
Comprehensive
Preferred
Common
Treasury
Excess of
Income
Retained
Noncontrolling
Stock
Stock
Stock
Par Value
(Loss)
Earnings
Interest
Total
(In thousands)
(Unaudited)
$
$
355
$
$
1,064,878
$
(2,493
)
$
1,197,534
$
4,926
$
2,265,200
(163,558
)
(4,767
)
(168,325
)
20,047
20,047
(148,278
)
1
6,833
6,834
1,117
1,117
59,643
59,643
298,066
200
1,482,907
1,781,173
86
474,914
475,000
2,914
2,914
(6,854
)
(6,854
)
(11,568
)
(11,568
)
298,066
642
3,090,292
17,554
1,015,554
3,073
4,425,181
(287,052
)
(7,674
)
(294,726
)
8,438
8,438
(286,288
)
(4,275
)
(4,275
)
35,475
35,475
(13
)
(13
)
(63,459
)
18
63,441
41
41
481
481
(64,493
)
(64,493
)
(6,854
)
(6,854
)
(69,408
)
(69,408
)
$
234,607
$
660
$
(13
)
$
3,185,414
$
25,992
$
587,747
$
(4,560
)
$
4,029,847
Table of Contents
Nine Months Ended
September 30,
2009
2008
(In thousands)
(Unaudited)
$
(294,726
)
$
(56,719
)
431,559
364,753
19,621
19,982
21,794
24,236
(3,871
)
(3,792
)
48,843
204
4,022
155,675
6,977
32,914
39,219
70,989
22,960
(238
)
(20,432
)
(1,626
)
15,438
(47,629
)
481
(60,810
)
(168,161
)
2,685
(7,339
)
40,201
(63,783
)
(16,094
)
(19,060
)
7,483
(2,883
)
(2,881
)
1,802
111,995
75,773
532,419
217,143
(1,539,078
)
(2,908,396
)
(35,394
)
174,297
3,894
(1,570,578
)
(2,734,099
)
6,833
1,626
475,000
(71,347
)
(13
)
1,434,874
4,002,320
(227,325
)
(1,713,098
)
243,928
41
(44,759
)
(92,547
)
1,091,471
2,924,062
370
11,719
53,682
418,825
3,038,163
857,150
$
3,091,845
$
1,275,975
$
205,167
$
267,633
$
(69,604
)
$
290
$
47,708
$
116,301
$
2,561
$
4,194
$
25,567
$
$
6,854
$
$
69,408
$
$
63,459
$
Table of Contents
(UNAUDITED)
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
September 30,
December 31,
2009
2008
$
353,801
$
341,927
6,842,633
6,309,494
1,688,022
1,547,261
403,137
322,194
5,186,588
4,438,216
14,474,181
12,959,092
(1,518,075
)
(1,090,864
)
$
12,956,106
$
11,868,228
Table of Contents
September 30,
December 31,
2009
2008
$
2,589,580
$
1,422,795
1,923,301
1,917,547
364,005
255,373
90,893
413,563
16,589
166,450
202,220
262,488
$
5,186,588
$
4,438,216
Table of Contents
September 30,
December 31,
2009
2008
$
2,932,500
$
2,955,000
592,500
597,000
397,000
400,000
775,860
775,860
248,779
248,608
116,900
141,950
83,031
85,797
25,146
5,005
5,765
1,791,000
1,800,000
696,500
700,000
570,299
695,299
88,018
100,589
600,000
228,458
218,564
11,023
11,054
2,602,378
1,735,252
11,764,397
10,470,738
(159,921
)
(114,623
)
$
11,604,476
$
10,356,115
Table of Contents
Nine Months Ended
September 30,
2009
2008
$
824,986
$
1,558,091
1,675,860
442,732
600,000
9,888
176,739
148,898
$
1,434,874
$
4,002,320
$
(150,074
)
$
(30,000
)
(324,000
)
(18,223
)
(1,329,737
)
(25,841
)
(56,596
)
(2,766
)
(2,765
)
(421
)
$
(227,325
)
$
(1,713,098
)
Table of Contents
Preferred Stock
Dividends Paid to
Preferred Stock
Board of Directors
Principal
Dividends Paid to
Total Preferred Stock
Declaration Date
Payment Date
Stockholders Family
Public Holders
Dividends Paid
February 17, 2009
$
13,125
$
11,347
$
24,472
May 15, 2009
13,125
10,400
23,525
August 17, 2009
13,125
10,225
23,350
$
71,347
November 16, 2009
$
13,125
$
10,225
$
23,350
Table of Contents
Three Months Ended
Nine Months Ended
September 30,
September 30,
2009
2008
2009
2008
660,245,590
355,393,259
655,687,503
355,344,306
660,245,590
355,393,259
655,687,503
355,344,306
170,653,596
10,580,996
170,653,596
10,580,996
Table of Contents
Three Months Ended
Nine Months Ended
September 30,
September 30,
2009
2008
2009
2008
$
12,062
$
14,586
$
32,132
$
36,999
(53
)
800
782
2,220
$
12,009
$
15,386
$
32,914
$
39,219
$
937
$
1,623
$
2,561
$
4,194
1,194
288
8,242
4,443
$
6.41
$
18.49
$
3.02
$
29.82
66
27
$
$
$
7.38
$
71.67
Three Months Ended
Nine Months Ended
September 30,
September 30,
2009
2008
2009
2008
79.57
%
35.85
%
75.45
%
35.85
%
5.7
6.7
5.1
6.3
3.14
%
2.96
%
2.72
%
2.96
%
Total Carrying
Fair Value Measurements as of September 30, 2009 Using:
Value as of
Quoted Market
Significant Other
Significant
September 30,
Prices in Active
Observable Inputs
Unobservable Inputs
2009
Markets (Level 1)
(Level 2)
(Level 3)
$
2,097,319
$
2,097,319
$
$
$
3,596
$
$
3,596
$
(1)
The Company has short-term investments classified as cash equivalents as the original maturities are less than 90 days.
(2)
The Company has 22 interest rate cap agreements with an aggregate fair value of approximately $3.6 million, based on
quoted market values from the institutions holding the agreements as of September 30, 2009.
Table of Contents
Table of Contents
Table of Contents
Three Months Ended
Nine Months Ended
September 30,
September 30,
2009
2008
2009
2008
$
493,579
$
522,409
$
1,420,445
$
1,471,823
280,794
248,444
739,404
784,943
67,052
20,303
162,743
20,303
8,630
6,313
24,008
11,560
228,095
307,965
836,601
1,007,942
62,994
95,705
$
1,141,144
$
1,105,434
$
3,278,906
$
3,296,571
Table of Contents
Three Months Ended
Nine Months Ended
September 30,
September 30,
2009
2008
2009
2008
$
150,389
$
135,737
$
381,849
$
386,227
77,115
42,591
188,522
162,283
10,152
2,963
20,083
2,963
(8,088
)
(10,848
)
(23,989
)
(34,086
)
34,452
73,316
202,336
302,497
8,323
11,160
272,343
243,759
779,961
819,884
(8,423
)
(9,615
)
(21,701
)
(25,036
)
(17,519
)
(23,390
)
(105,250
)
(82,529
)
(6,691
)
(8,437
)
(22,497
)
(25,573
)
(28,855
)
(40,777
)
(115,619
)
(105,470
)
(80
)
(1,153
)
(344
)
(11,504
)
(148,677
)
(132,239
)
(431,559
)
(364,753
)
(151,175
)
284
47
(4,500
)
(6,977
)
62,382
28,195
(72,684
)
198,042
1,599
3,215
9,840
11,813
(88,514
)
(90,535
)
(224,503
)
(293,709
)
(1,564
)
7,209
(6,534
)
11,624
(204
)
(204
)
(4,022
)
(54,316
)
19,425
(641
)
19,533
4,111
283
7,674
4,481
$
(76,506
)
$
(32,208
)
$
(287,052
)
$
(52,238
)
(1)
Adjusted property EBITDAR is net loss attributable to Las Vegas Sands
Corp. before interest, income taxes, depreciation and
amortization, pre-opening expense, development expense, other
income (expense), loss on modification or early retirement of
debt, gain (loss) on disposal of assets, impairment loss, rental
expense, corporate expense, stock-based compensation expense and
noncontrolling interest. Adjusted property EBITDAR is used by management
as the primary measure of operating performance of the Companys
properties and to compare the operating performance of the
Companys properties with that of its competitors.
Nine Months Ended
September 30,
2009
2008
$
31,527
$
68,608
12,700
109,114
5,556
30,192
206,546
471,955
23,696
58,021
70,084
851,929
58,065
543,162
212,529
200,652
918,375
574,763
$
1,539,078
$
2,908,396
Table of Contents
September 30,
December 31,
2009
2008
$
407,603
$
707,276
2,883,920
3,060,279
550,271
592,998
1,134,242
973,892
348,084
347,359
2,132,496
2,015,386
6,552,572
6,562,124
725,648
475,256
3,538,222
2,409,543
$
18,273,058
$
17,144,113
On February 29, 2008, all of the capital stock of Phase II Mall
Subsidiary, LLC was sold to GGP and in connection therewith, it was released as a guarantor under
the Senior Notes. The sale is not complete from an accounting perspective due to the Companys
continuing involvement in the transaction related to the completion of construction on the
remainder of The Shoppes at The Palazzo, certain activities to be performed on behalf of GGP and
the uncertainty of the final sales price. Certain of the assets, liabilities, operating results and
cash flows related to the ownership and operation of the mall by Phase II Mall Subsidiary, LLC
subsequent to the sale will continue to be accounted for by the Guarantor Subsidiaries until the
final sales price has been determined, and therefore are included in the Guarantor Subsidiaries
columns in the following condensed consolidating financial information. As a result, net assets of
$48.0 million (consisting of $292.1 million of property and equipment, offset by $244.1 million of
liabilities consisting primarily of deferred proceeds from the sale) and $116.4 million (consisting
of $360.6 million of property and equipment, offset by $244.2 million of liabilities consisting
primarily of deferred proceeds from the sale) as of September 30, 2009 and December 31, 2008,
respectively, and a net loss (consisting primarily of depreciation expense) of $2.7 million and
$8.9 million for the three and nine months ended September 30, 2009, respectively, and $4.0 million
and $9.1 million for the three and nine months ended September 30, 2008, respectively, related to
the mall and are being accounted for by the Guarantor Subsidiaries. These balances and amounts are
not collateral for the Senior Notes and should not be considered as credit support for the
guarantees of the Senior Notes.
Table of Contents
September 30, 2009
Consolidating/
Las Vegas
Guarantor
Non-Guarantor
Eliminating
Sands Corp.
Subsidiaries
Subsidiaries
Entries
Total
$
314
$
2,653,145
$
438,386
$
$
3,091,845
6,936
222,155
229,091
9,825
793,667
(803,492
)
1,450
119,714
255,744
(1,707
)
375,201
1,897
11,388
12,868
26,153
26,814
826
(4,635
)
23,005
6,896
6,135
20,495
(564
)
32,962
20,382
3,617,799
950,474
(810,398
)
3,778,257
143,427
3,846,095
8,966,584
12,956,106
4,624,964
2,028,705
(6,653,669
)
1,143
41,088
133,634
175,865
37,494
64,046
(101,540
)
115,123
515,847
(630,970
)
41,456
199
(17,212
)
24,443
1,107,830
1,107,830
2,517
29,552
198,488
230,557
$
4,986,506
$
10,143,132
$
11,357,209
$
(8,213,789
)
$
18,273,058
$
3,883
$
29,172
$
47,324
$
(1,707
)
$
78,672
18,206
766,215
784,421
140,634
662,858
(803,492
)
2,094
374
9,363
11,831
34,717
154,353
501,681
690,751
564
(564
)
4,635
(4,635
)
3,688
66,771
89,462
159,921
189,651
268,876
2,077,467
(810,398
)
1,725,596
46,628
9,976
20,274
76,878
101,540
(101,540
)
630,970
(630,970
)
448,564
448,564
17,212
(17,212
)
328,123
4,773,135
6,503,218
11,604,476
564,402
5,517,763
9,333,469
(1,560,120
)
13,855,514
387,697
387,697
4,034,407
4,624,964
2,028,705
(6,653,669
)
4,034,407
405
(4,965
)
(4,560
)
4,034,407
4,625,369
2,023,740
(6,653,669
)
4,029,847
$
4,986,506
$
10,143,132
$
11,357,209
$
(8,213,789
)
$
18,273,058
Table of Contents
December 31, 2008
Consolidating/
Las Vegas
Guarantor
Non-Guarantor
Eliminating
Sands Corp.
Subsidiaries
Subsidiaries
Entries
Total
$
294,563
$
2,286,825
$
456,775
$
$
3,038,163
6,225
188,591
194,816
19,586
16,683
4,843
(41,112
)
1,168
146,085
242,270
(4,704
)
384,819
645
14,776
13,416
28,837
1,378
21,446
147
22,971
45,768
4,577
21,717
(392
)
71,670
363,108
2,496,617
927,759
(46,208
)
3,741,276
148,543
4,128,835
7,590,850
11,868,228
4,105,980
1,642,651
(5,748,631
)
1,353
47,441
109,982
158,776
398,398
1,296,988
(1,695,386
)
94,310
86,249
(180,559
)
25,251
18,722
216
44,189
1,099,938
1,099,938
3,677
25,701
202,328
231,706
$
5,140,620
$
9,743,204
$
9,931,073
$
(7,670,784
)
$
17,144,113
$
5,004
$
34,069
$
36,666
$
(4,704
)
$
71,035
90,490
646,223
736,713
16,683
4,843
19,586
(41,112
)
6,191
758
7,801
14,750
4,943
175,617
412,735
593,295
392
(392
)
3,688
65,049
45,886
114,623
36,509
370,826
1,169,289
(46,208
)
1,530,416
32,996
8,798
19,883
61,677
1,695,386
(1,695,386
)
180,559
(180,559
)
452,435
452,435
330,718
4,804,760
5,220,637
10,356,115
400,223
5,636,819
8,285,754
(1,922,153
)
12,400,643
318,289
318,289
4,422,108
4,105,980
1,642,651
(5,748,631
)
4,422,108
405
2,668
3,073
4,422,108
4,106,385
1,645,319
(5,748,631
)
4,425,181
$
5,140,620
$
9,743,204
$
9,931,073
$
(7,670,784
)
$
17,144,113
Table of Contents
For the Three Months Ended September 30, 2009
Consolidating/
Las Vegas
Guarantor
Non-Guarantor
Eliminating
Sands Corp.
Subsidiaries
Subsidiaries
Entries
Total
$
$
99,015
$
809,240
$
$
908,255
98,619
57,054
155,673
29,209
45,248
74,457
33,016
67,922
(5,334
)
95,604
259,859
979,464
(5,334
)
1,233,989
(140
)
(40,751
)
(51,246
)
(708
)
(92,845
)
(140
)
219,108
928,218
(6,042
)
1,141,144
65,769
533,854
(689
)
598,934
22,284
5,812
28,096
13,000
25,936
(1,552
)
37,384
16,301
43,563
(3,515
)
56,349
12,524
16,748
29,272
58,478
68,997
(286
)
127,189
15,205
51
2,263
17,519
74
6,617
6,691
178
1
28,676
28,855
87
(7
)
80
3,064
57,215
88,398
148,677
3
(287
)
(284
)
18,534
245,700
820,570
(6,042
)
1,078,762
(18,674
)
(26,592
)
107,648
62,382
1,875
17,499
196
(17,971
)
1,599
(4,566
)
(31,287
)
(70,632
)
17,971
(88,514
)
194
(1,758
)
(1,564
)
(204
)
(204
)
14,889
38,825
(53,714
)
(6,476
)
(1,361
)
35,250
(53,714
)
(26,301
)
(70,030
)
16,250
(536
)
(54,316
)
(76,506
)
14,889
34,714
(53,714
)
(80,617
)
4,111
4,111
$
(76,506
)
$
14,889
$
38,825
$
(53,714
)
$
(76,506
)
Table of Contents
For the Three Months Ended September 30, 2008
Consolidating/
Las Vegas
Guarantor
Non-Guarantor
Eliminating
Sands Corp.
Subsidiaries
Subsidiaries
Entries
Total
$
$
113,175
$
692,083
$
$
805,258
130,487
58,307
188,794
46,067
44,958
91,025
45,768
79,262
(1,797
)
123,233
335,497
874,610
(1,797
)
1,208,310
(224
)
(44,115
)
(57,780
)
(757
)
(102,876
)
(224
)
291,382
816,830
(2,554
)
1,105,434
80,057
501,309
(611
)
580,755
29,093
7,343
36,436
20,933
26,856
(1,754
)
46,035
19,936
49,077
69,013
4,799
4,060
8,859
68,486
61,895
(189
)
130,192
13,537
90
9,763
23,390
1,746
6,691
8,437
595
1,637
38,545
40,777
(343
)
1,496
1,153
2,633
58,460
71,146
132,239
(63
)
16
(47
)
16,422
285,174
778,197
(2,554
)
1,077,239
(16,646
)
6,208
38,633
28,195
1,274
2,486
1,807
(2,352
)
3,215
(6,836
)
(50,424
)
(35,627
)
2,352
(90,535
)
(873
)
8,082
7,209
(12,200
)
13,519
(1,319
)
(34,408
)
(29,084
)
12,895
(1,319
)
(51,916
)
2,200
16,884
341
19,425
(32,208
)
(12,200
)
13,236
(1,319
)
(32,491
)
283
283
$
(32,208
)
$
(12,200
)
$
13,519
$
(1,319
)
$
(32,208
)
Table of Contents
For the Nine Months Ended September 30, 2009
Consolidating/
Las Vegas
Guarantor
Non-Guarantor
Eliminating
Sands Corp.
Subsidiaries
Subsidiaries
Entries
Total
$
$
347,902
$
2,156,331
$
$
2,504,233
334,389
157,641
492,030
120,492
128,360
248,852
119,511
196,430
(10,965
)
304,976
922,294
2,638,762
(10,965
)
3,550,091
(484
)
(124,039
)
(144,424
)
(2,238
)
(271,185
)
(484
)
798,255
2,494,338
(13,203
)
3,278,906
210,468
1,471,720
(1,881
)
1,680,307
73,816
19,571
93,387
51,482
78,159
(4,796
)
124,845
55,903
128,563
(5,640
)
178,826
37,239
33,750
70,989
180,408
192,770
(886
)
372,292
96,217
182
8,851
105,250
2,895
19,602
22,497
832
96
114,691
115,619
243
101
344
8,378
170,711
252,470
431,559
151,175
151,175
(107
)
4,607
4,500
105,670
934,268
2,324,855
(13,203
)
3,351,590
(106,154
)
(136,013
)
169,483
(72,684
)
9,046
28,290
506
(28,002
)
9,840
(13,993
)
(90,380
)
(148,132
)
28,002
(224,503
)
659
(7,193
)
(6,534
)
(204
)
(204
)
(97,299
)
21,608
75,691
(208,400
)
(175,836
)
14,460
75,691
(294,085
)
(78,652
)
78,537
(526
)
(641
)
(287,052
)
(97,299
)
13,934
75,691
(294,726
)
7,674
7,674
$
(287,052
)
$
(97,299
)
$
21,608
$
75,691
$
(287,052
)
Table of Contents
For the Nine Months Ended September 30, 2008
Non-
Consolidating/
Las Vegas
Guarantor
Guarantor
Eliminating
Sands Corp.
Subsidiaries
Subsidiaries
Entries
Total
$
$
387,495
$
2,017,478
$
$
2,404,973
409,153
166,019
575,172
145,428
126,887
272,315
133,290
162,198
(4,697
)
290,791
1,075,366
2,472,582
(4,697
)
3,543,251
(1,437
)
(105,516
)
(137,645
)
(2,082
)
(246,680
)
(1,437
)
969,850
2,334,937
(6,779
)
3,296,571
235,777
1,405,858
(1,786
)
1,639,849
93,371
23,292
116,663
67,178
73,873
(4,473
)
136,578
61,831
102,791
164,622
17,948
5,012
22,960
203,428
218,143
(520
)
421,051
67,913
562
14,054
82,529
5,591
19,982
25,573
2,716
7,827
94,927
105,470
1,621
9,883
11,504
7,230
160,517
197,006
364,753
5,915
1,062
6,977
79,480
859,945
2,165,883
(6,779
)
3,098,529
(80,917
)
109,905
169,054
198,042
3,995
7,485
6,200
(5,867
)
11,813
(15,389
)
(150,953
)
(133,234
)
5,867
(293,709
)
(39
)
(1,305
)
12,968
11,624
(4,022
)
(4,022
)
41,848
57,759
(99,607
)
(50,502
)
22,891
50,966
(99,607
)
(76,252
)
(1,736
)
18,957
2,312
19,533
(52,238
)
41,848
53,278
(99,607
)
(56,719
)
4,481
4,481
$
(52,238
)
$
41,848
$
57,759
$
(99,607
)
$
(52,238
)
Table of Contents
For the Nine Months Ended September 30, 2009
Non-
Consolidating/
Las Vegas
Guarantor
Guarantor
Eliminating
Sands Corp.
Subsidiaries
Subsidiaries
Entries
Total
$
66,743
$
(49,051
)
$
514,727
$
$
532,419
(3,322
)
(86,242
)
(1,449,514
)
(1,539,078
)
(711
)
(34,683
)
(35,394
)
60
1,687
2,147
3,894
4,651,977
(4,651,977
)
11,406
(11,406
)
(20,000
)
20,000
(57,000
)
(125,537
)
182,537
385,000
216,537
(601,537
)
(5,243,581
)
(135,022
)
5,378,603
(286,866
)
(117,882
)
(1,482,050
)
316,220
(1,570,578
)
(71,347
)
(71,347
)
(13
)
(13
)
5,243,581
135,022
(5,378,603
)
(4,651,977
)
4,651,977
(11,406
)
11,406
77,000
(77,000
)
125,537
(125,537
)
(385,000
)
385,000
(216,537
)
216,537
824,986
824,986
600,000
600,000
9,888
9,888
(150,074
)
(150,074
)
(30,000
)
(30,000
)
(18,223
)
(18,223
)
(25,471
)
(791
)
(26,262
)
(2,766
)
(2,766
)
41
41
(2,880
)
(41,879
)
(44,759
)
(74,126
)
533,253
948,564
(316,220
)
1,091,471
370
370
(294,249
)
366,320
(18,389
)
53,682
294,563
2,286,825
456,775
3,038,163
$
314
$
2,653,145
$
438,386
$
$
3,091,845
Table of Contents
For the Nine Months Ended September 30, 2008
Non-
Consolidating/
Las Vegas
Guarantor
Guarantor
Eliminating
Sands Corp.
Subsidiaries
Subsidiaries
Entries
Total
$
9,241
$
71,747
$
136,155
$
$
217,143
(10,937
)
(555,589
)
(2,341,870
)
(2,908,396
)
405
173,892
174,297
(35,317
)
35,317
(35,000
)
35,000
(25,000
)
(1,094,467
)
1,119,467
92,108
(92,108
)
34,018
(34,018
)
(575,000
)
(9,201
)
584,201
(553,829
)
(1,660,151
)
(2,167,978
)
1,647,859
(2,734,099
)
6,833
6,833
1,626
1,626
575,000
9,201
(584,201
)
35,000
25,000
(60,000
)
1,129,784
(1,129,784
)
(92,108
)
92,108
(34,018
)
34,018
475,000
475,000
1,675,860
1,675,860
1,558,091
1,558,091
442,732
442,732
176,739
176,739
105,584
43,314
148,898
(1,329,737
)
(1,329,737
)
(324,000
)
(324,000
)
(16,700
)
(39,896
)
(56,596
)
(2,765
)
(2,765
)
243,928
243,928
(4,935
)
(87,612
)
(92,547
)
475,759
2,202,564
1,893,598
(1,647,859
)
2,924,062
11,719
11,719
(68,829
)
614,160
(126,506
)
418,825
73,489
129,684
653,977
857,150
$
4,660
$
743,844
$
527,471
$
$
1,275,975
Table of Contents
Table of Contents
Table of Contents
Parcels 5 and 6 Under our revised development plan, we are sequencing the construction
of the integrated resort on parcels 5 and 6 due to difficulties in the capital markets and
overall decline in general economic conditions. Upon completion of phases I and II of the
project, the integrated resort will feature approximately 6,000 luxury and mid-scale hotel
rooms, approximately 300,000 square feet of gaming space, approximately 1.2 million square
feet of retail, entertainment and dining facilities, exhibition and conference facilities
and a multipurpose theater. Phase I of the project is expected to
include two hotel towers with
approximately 3,700 hotel rooms to be managed by Shangri-La
International Hotel Management Limited
(Shangri-La) under its Shangri-La and Traders brands and
Sheraton International Inc. and Sheraton Overseas Management Co. (collectively Starwood) under
its Sheraton brand, as well as completion of the structural
work of an adjacent hotel tower with approximately 2,300 rooms to be managed by Starwood
under its Sheraton brand. Phase I will also include
the gaming space and a partial opening of the retail and exhibition and conference
facilities. The total cost to complete phase I is expected to be approximately $2.0 billion.
Phase II of the project includes completion of the Sheraton hotel tower as well as the
remaining retail facilities. The total cost to complete phase II is expected to be
approximately $190 million. Phase III of the project is expected
to include a fourth hotel and mixed-use
tower to be managed by Starwood under its St. Regis brand. The total cost to complete phase
III is expected to be approximately $450 million. We plan to recommence construction of
phases I and II with supplemental financing that we are currently in discussions to obtain,
together with a portion of the proceeds from the potential sale of a minority interest in
certain of our Macau operations. We expect that if and when financing is obtained, it will
take approximately 18 months to complete construction of phase I, another six months
thereafter to complete the adjacent Sheraton tower in phase II and an additional 24 months thereafter
to complete the remaining retail facilities in phase II. We intend to commence construction
of phase III of the project as demand and market conditions warrant it. As of September 30,
2009, we have capitalized construction costs of $1.73 billion for the entire project
(including $153.3 million in outstanding construction payables). Our management agreement
with Starwood imposes certain construction deadlines and opening obligations
on us, and certain past and/or anticipated delays, as described above, may represent a
default under the agreement, allow Starwood to
terminate its agreement and/or may subject us to penalties.
Parcels 7 and 8 The integrated resort on parcels 7 and 8 is expected to be similar in
size and scope to the integrated resort on parcels 5 and 6. We had commenced
pre-construction and have capitalized construction costs of $116.1 million as of September
30, 2009. We intend to commence construction after the integrated
resorts on parcels 5 and 6 and 3 are complete, necessary government approvals are
obtained, regional and global economic conditions improve, future demand warrants it and
additional financing is obtained.
Parcel 3 The integrated resort on parcel 3 will be connected to The Venetian Macao and
Four Seasons Macao. The multi-hotel complex is intended to include a casino, a shopping mall
and serviced luxury apart-hotel units. We had commenced pre-construction and have
capitalized construction costs of $35.7 million as of September 30, 2009. We intend to
commence construction after the integrated resort on parcels 5 and 6
is complete, necessary government approvals are obtained, regional and global
economic conditions improve, future demand warrants it and additional financing is obtained.
Table of Contents
Table of Contents
Three Months Ended September 30,
Nine Months Ended September 30,
Percent
Percent
2009
2008
Change
2009
2008
Change
(Dollars in thousands)
$
1,141,144
$
1,105,434
3.2
%
$
3,278,906
$
3,296,571
(0.5
)%
1,078,762
1,077,239
0.1
%
3,351,590
3,098,529
8.2
%
62,382
28,195
121.3
%
(72,684
)
198,042
(136.7
)%
(26,301
)
(51,916
)
(49.3
)%
(294,085
)
(76,252
)
285.7
%
(80,617
)
(32,491
)
148.1
%
(294,726
)
(56,719
)
419.6
%
(76,506
)
(32,208
)
137.5
%
(287,052
)
(52,238
)
449.5
%
Percent of Net Revenues
Three Months
Nine Months
Ended September 30,
Ended September 30,
2009
2008
2009
2008
94.5
%
97.4
%
102.2
%
94.0
%
5.5
%
2.6
%
(2.2
)%
6.0
%
(2.3
)%
(4.7
)%
(9.0
)%
(2.3
)%
(7.1
)%
(2.9
)%
(9.0
)%
(1.7
)%
(6.7
)%
(2.9
)%
(8.8
)%
(1.6
)%
Table of Contents
Three Months Ended September 30,
Percent
2009
2008
Change
(Dollars in thousands)
$
908,255
$
805,258
12.8
%
155,673
188,794
(17.5
)%
74,457
91,025
(18.2
)%
95,604
123,233
(22.4
)%
1,233,989
1,208,310
2.1
%
(92,845
)
(102,876
)
(9.8
)%
$
1,141,144
$
1,105,434
3.2
%
Table of Contents
Three Months Ended September 30,
2009
2008
Change
(Dollars in thousands)
$
420,830
$
432,628
(2.7
)%
$
834,905
$
930,621
(10.3
)%
23.0
%
19.7
%
3.3
pts
$
9,062,194
$
9,778,702
(7.3
)%
2.83
%
3.06
%
(0.23
)pts
$
609,734
$
549,895
10.9
%
7.5
%
7.8
%
(0.3
)pts
$
275,360
$
243,524
13.1
%
$
626,428
$
652,252
(4.0
)%
19.0
%
17.9
%
1.1
pts
$
5,479,118
$
7,256,360
(24.5
)%
3.37
%
2.35
%
1.02
pts
$
327,485
$
273,126
19.9
%
6.6
%
7.3
%
(0.7
)pts
$
54,835
$
15,931
244.2
%
$
82,946
$
16,748
395.3
%
22.3
%
18.4
%
3.9
pts
$
2,183,677
$
165,155
1,222.2
%
2.31
%
8.33
%
(6.02
)pts
$
60,620
$
7,903
667.1
%
5.4
%
6.4
%
(1.0
)pts
$
99,015
$
113,175
(12.5
)%
$
429,717
$
477,182
(9.9
)%
12.2
%
13.8
%
(1.6
)pts
$
672,208
$
976,577
(31.2
)%
7.8
%
6.0
%
1.8
pts
$
58,215
$
%
$
813,292
$
%
7.2
%
%
pts
Table of Contents
Three Months Ended September 30,
2009
2008
Change
(Room revenues in thousands)
$
45,005
$
51,085
(11.9
)%
$
198
$
211
(6.2
)%
88.1
%
92.1
%
(4.0
)pts
$
175
$
194
(9.8
)%
$
5,464
$
517
956.9
%
$
294
$
440
(33.2
)%
56.2
%
31.4
%
24.8
pts
$
165
$
138
19.6
%
$
98,619
$
130,486
(24.4
)%
$
172
$
218
(21.1
)%
88.4
%
93.1
%
(4.7
)pts
$
152
$
202
(24.8
)%
Three Months Ended September 30,
Percent
2009
2008
Change
(Dollars in thousands)
$
598,934
$
580,755
3.1
%
28,096
36,436
(22.9
)%
37,384
46,035
(18.8
)%
56,349
69,013
(18.4
)%
29,272
8,859
230.4
%
127,189
130,192
(2.3
)%
17,519
23,390
(25.1
)%
6,691
8,437
(20.7
)%
28,855
40,777
(29.2
)%
80
1,153
(93.1
)%
148,677
132,239
12.4
%
(284
)
(47
)
504.3
%
$
1,078,762
$
1,077,239
0.1
%
Table of Contents
Table of Contents
Three Months Ended September 30,
Percent
2009
2008
Change
(Dollars in thousands)
$
34,452
$
73,316
(53.0
)%
8,323
%
150,389
135,737
10.8
%
77,115
42,591
81.1
%
10,152
2,963
242.6
%
(8,088
)
(10,848
)
(25.4
)%
$
272,343
$
243,759
11.7
%
Three Months Ended September 30,
2009
2008
(Dollars in thousands)
$
105,462
$
128,896
(16,948
)
(38,361
)
$
88,514
$
90,535
$
94,635
$
128,254
$
11,210,464
$
9,247,382
3.8
%
5.6
%
Table of Contents
Nine Months Ended September 30,
Percent
2009
2008
Change
(Dollars in thousands)
$
2,504,233
$
2,404,973
4.1
%
492,030
575,172
(14.5
)%
248,852
272,315
(8.6
)%
304,976
290,791
4.9
%
3,550,091
3,543,251
0.2
%
(271,185
)
(246,680
)
9.9
%
$
3,278,906
$
3,296,571
(0.5
)%
Table of Contents
Nine Months Ended September 30,
2009
2008
Change
(Dollars in thousands)
$
1,214,083
$
1,231,434
(1.4
)%
$
2,458,155
$
2,662,242
(7.7
)%
23.2
%
19.8
%
3.4
pts
$
27,652,284
$
28,378,526
(2.6
)%
2.74
%
3.01
%
(0.27
)pts
$
1,703,548
$
1,369,832
24.4
%
7.5
%
8.1
%
(0.6
)pts
$
724,235
$
770,113
(6.0
)%
$
1,834,840
$
2,033,529
(9.8
)%
19.1
%
19.2
%
(0.1
)pts
$
15,324,411
$
19,046,137
(19.5
)%
2.97
%
2.56
%
0.41
pts
$
904,733
$
787,118
14.9
%
6.7
%
7.9
%
(1.2
)pts
$
129,832
$
15,931
715.0
%
$
250,435
$
16,748
1,395.3
%
24.2
%
18.4
%
5.8
pts
$
3,308,855
$
165,155
1,903.5
%
2.60
%
8.33
%
(5.73
)pts
$
160,642
$
7,903
1,932.7
%
5.6
%
6.4
%
(0.8
)pts
$
347,902
$
387,495
(10.2
)%
$
1,260,268
$
1,341,985
(6.1
)%
17.3
%
19.8
%
(2.5
)pts
$
2,046,734
$
2,708,860
(24.4
)%
7.3
%
5.8
%
1.5
pts
$
88,181
$
%
$
1,182,866
$
%
7.5
%
%
pts
Nine Months Ended September 30,
2009
2008
Change
(Room revenues in thousands)
$
124,538
$
145,258
(14.3
)%
$
205
$
222
(7.7
)%
80.6
%
83.7
%
(3.1
)pts
$
165
$
186
(11.3
)%
$
13,399
$
517
2,491.7
%
$
293
$
440
(33.4
)%
46.5
%
31.4
%
15.1
pts
$
136
$
138
(1.4
)%
$
334,389
$
409,152
(18.3
)%
$
194
$
241
(19.5
)%
89.7
%
90.5
%
(0.8
)pts
$
174
$
218
(20.2
)%
Table of Contents
Nine Months Ended September 30,
Percent
2009
2008
Change
(Dollars in thousands)
$
1,680,307
$
1,639,849
2.5
%
93,387
116,663
(20.0
)%
124,845
136,578
(8.6
)%
178,826
164,622
8.6
%
70,989
22,960
209.2
%
372,292
421,051
(11.6
)%
105,250
82,529
27.5
%
22,497
25,573
(12.0
)%
115,619
105,470
9.6
%
344
11,504
(97.0
)%
431,559
364,753
18.3
%
151,175
%
4,500
6,977
(35.5
)%
$
3,351,590
$
3,098,529
8.2
%
Table of Contents
Table of Contents
Nine Months Ended September 30,
Percent
2009
2008
Change
(Dollars in thousands)
$
202,336
$
302,497
(33.1
)%
11,160
%
381,849
386,227
(1.1
)%
188,522
162,283
16.2
%
20,083
2,963
577.8
%
(23,989
)
(34,086
)
(29.6
)%
$
779,961
$
819,884
(4.9
)%
Nine Months Ended September 30,
2009
2008
(Dollars in thousands)
$
269,622
$
394,290
(45,119
)
(100,581
)
$
224,503
$
293,709
$
250,286
$
368,214
$
10,774,878
$
8,639,652
3.3
%
6.1
%
Table of Contents
Nine Months Ended September 30,
2009
2008
(In thousands)
$
532,419
$
217,143
(1,539,078
)
(2,908,396
)
(35,394
)
174,297
3,894
(1,570,578
)
(2,734,099
)
(71,347
)
475,000
1,434,874
4,002,320
(227,325
)
(1,713,098
)
(44,731
)
159,840
1,091,471
2,924,062
370
11,719
$
53,682
$
418,825
Table of Contents
Table of Contents
Table of Contents
our substantial leverage, debt service and debt covenant compliance (including
sensitivity to fluctuations in interest rates and other capital markets trends);
recent disruptions in the global financing markets and our ability to obtain sufficient
funding for our current and future developments, including our Cotai Strip, Pennsylvania,
Singapore and Las Vegas developments;
the expected proceeds to be generated from a potential sale of a minority interest in
certain of our Macau operations:
general economic and business conditions which may impact levels of disposable income,
consumer spending, pricing of hotel rooms and retail and mall sales;
the impact of the suspensions of certain of our development projects and our ability to
meet certain development deadlines, including Macau and Singapore;
the uncertainty of tourist behavior related to spending and vacationing at casino-resorts
in Las Vegas and Macau;
regulatory policies in mainland China or other countries in which our customers reside, including
visa restrictions limiting the number of visits or the length of stay for visitors from mainland
China to Macau and restrictions on foreign currency exchange or importation of currency;
our dependence upon properties in Las Vegas, Pennsylvania and Macau for all of our cash
flow;
the expected annualized savings and enhanced operating leverage to be generated from our
cost-cutting measures may not be fully realized;
our relationship with GGP or any successor owner of The Shoppes at The Palazzo and The
Grand Canal Shoppes, and the ability of GGP to perform under the purchase and sale agreement
for The Shoppes at The Palazzo, as amended;
new developments, construction and ventures, including our Cotai Strip developments,
Marina Bay Sands, Sands Bethlehem and the St. Regis Residences;
the passage of new legislation and receipt of governmental approvals for our proposed
developments in Macau, Singapore and other jurisdictions where we are planning to operate;
our insurance coverage, including the risk that we have not obtained sufficient coverage
against acts of terrorism or will only be able to obtain additional coverage at
significantly increased rates;
disruptions or reductions in travel due to conflicts in Iraq and any future terrorist
incidents;
disruptions or reductions in travel, as well as disruptions in our operations, due to
outbreaks of infectious diseases, such as severe acute respiratory syndrome, avian flu or
swine flu;
government regulation of the casino industry, including gaming license regulation, the
legalization of gaming in other jurisdictions and regulation of gaming on the Internet;
increased competition and additional construction in Las Vegas, including recent and
upcoming increases in hotel rooms, meeting and convention space, and retail space;
fluctuations in the demand for all-suites rooms, occupancy rates and average daily room
rates in Las Vegas and Macau;
the popularity of Las Vegas and Macau as convention and trade show destinations;
new taxes, changes to existing tax rates or proposed changes in tax legislation;
our ability to maintain our Macau gaming subconcession and Singapore gaming concession;
the completion of infrastructure projects in Macau and Singapore;
Table of Contents
increased competition and other planned construction projects in Macau and Singapore; and
the outcome of any ongoing and future litigation.
Fair
2010
2011
2012
2013
2014
Thereafter
Total
Value(1)
(Dollars in millions)
$
1.7
$
1.7
$
1.6
$
1.6
$
601.5
$
267.0
$
875.1
$
849.8
7.5
%
7.5
%
7.5
%
7.5
%
15.0
%
6.4
%
12.3
%
$
158.2
$
1,278.9
$
2,173.4
$
2,118.4
$
3,772.3
$
1,389.3
$
10,890.5
$
9,860.2
3.3
%
4.7
%
3.7
%
4.5
%
2.1
%
2.7
%
3.3
%
$
$
0.3
$
3.3
$
$
$
$
3.6
$
3.6
(1)
The estimated fair values are based on quoted market prices, if
available, or by pricing models based on the value of related
cash flows discounted at current market interest rates.
(2)
Based upon contractual interest rates for fixed rate indebtedness
or current LIBOR, HIBOR and Singapore SWAP Offer Rate for
variable-rate indebtedness. Based on variable-rate debt levels as
of September 30, 2009, an assumed 100 basis point change in
LIBOR, HIBOR and Singapore SWAP Offer Rate would cause our annual
interest cost to change approximately $109.3 million.
(3)
As of September 30, 2009, we have 22 interest rate cap agreements
with an aggregate fair value of approximately $3.6 million based
on quoted market values from the institutions holding the
agreements.
Table of Contents
OTHER INFORMATION
Table of Contents
Table of Contents
Exhibit No.
Description of Document
Amendment to Employment Agreement, effective as of October 1, 2009, between Las Vegas Sands Corp. and
Michael Quartieri.
Aircraft Time Sharing Agreement, dated as of November 6, 2009 and effective as of January 1, 2009,
between Las Vegas Sands Corp. and Interface Operations, LLC.
Aircraft Time Sharing Agreement, dated as of November 6, 2009 and effective as of January 1, 2009,
between Interface Operations, LLC and Las Vegas Sands Corp.
Aircraft Cost Sharing Agreement, dated as of November 6, 2009 and effective as of January 1, 2009,
between Las Vegas Sands Corp. and Interface Operations, LLC.
Aircraft Cost Sharing Agreement, dated as of November 6, 2009 and effective as of January 1, 2009,
between Interface Operations, LLC and Las Vegas Sands Corp.
Aircraft Cost Allocation Agreement, dated as of November 6, 2009 and effective as of January 1, 2009,
between Interface Operations Bermuda, LTD and Las Vegas Sands Corp.
Second Amendment, dated as of August 12, 2009, by and among VML US FINANCE LLC, Venetian Macau
Limited) and The Bank of Nova Scotia, as administrative agent for the Lenders and the Loan Parties
party thereto.
Trust Deed made on 4 September 2009 between Venetian Venture Development Intermediate II and Citicorp
International Limited.
Paying, Exchange and Transfer Agency Agreement made on September 4, 2009 between Venetian Venture
Development Intermediate II, Citibank, N.A., London Branch, Citigroup Global Markets Deutschland, AG,
& KO. KGaA and Citicorp International Limited.
Deed of Subordination made on September 4, 2009 between Citicorp International Limited, the
Subordinated Creditors party thereto and Venetian Venture Development Intermediate II, Venetian
Venture Intermediate Development Intermediate Limited, Venetian Macau Limited, Venetian Cotai Limited,
VML US Finance LLC, Venetian Macau Finance Company, Sands China Ltd., Cotai Ferry Company Limited,
Venetian Orient Limited, Venetian Travel Limited and Venetian Retail Limited.
Placing Agreement made as of September 1, 2009 between Venetian Venture Development Intermediate II
and Goldman Sachs (Asia) L.L.C.
Certification of the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Executive Officer of Las Vegas Sands Corp. pursuant to 18 U.S.C. Section 1350,
as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer of Las Vegas Sands Corp. pursuant to 18 U.S.C. Section 1350,
as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Table of Contents
LAS VEGAS SANDS CORP.
By:
/s/ Sheldon G. Adelson
Sheldon G. Adelson
Chairman of the Board and
Chief Executive Officer
By:
/s/ Kenneth J. Kay
Kenneth J. Kay
Chief Financial Officer
Table of Contents
Exhibit No.
Description of Document
Amendment to Employment Agreement, effective as of October 1, 2009, between Las Vegas Sands Corp. and
Michael Quartieri.
Aircraft Time Sharing Agreement, dated as of November 6, 2009 and effective as of January 1, 2009,
between Las Vegas Sands Corp. and Interface Operations, LLC.
Aircraft Time Sharing Agreement, dated as of November 6, 2009 and effective as of January 1, 2009,
between Interface Operations, LLC and Las Vegas Sands Corp.
Aircraft Cost Sharing Agreement, dated as of November 6, 2009 and effective as of January 1, 2009,
between Las Vegas Sands Corp. and Interface Operations, LLC.
Aircraft Cost Sharing Agreement, dated as of November 6, 2009 and effective as of January 1, 2009,
between Interface Operations, LLC and Las Vegas Sands Corp.
Aircraft Cost Allocation Agreement, dated as of November 6, 2009 and effective as of January 1, 2009,
between Interface Operations Bermuda, LTD and Las Vegas Sands Corp.
Second Amendment, dated as of August 12, 2009, by and among VML US FINANCE LLC, Venetian Macau
Limited) and The Bank of Nova Scotia, as administrative agent for the Lenders and the Loan Parties
party thereto.
Trust Deed made on 4 September 2009 between Venetian Venture Development Intermediate II and Citicorp
International Limited.
Paying, Exchange and Transfer Agency Agreement made on September 4, 2009 between Venetian Venture
Development Intermediate II, Citibank, N.A., London Branch, Citigroup Global Markets Deutschland, AG,
& KO. KGaA and Citicorp International Limited.
Deed of Subordination made on September 4, 2009 between Citicorp International Limited, the
Subordinated Creditors party thereto and Venetian Venture Development Intermediate II, Venetian
Venture Intermediate Development Intermediate Limited, Venetian Macau Limited, Venetian Cotai Limited,
VML US Finance LLC, Venetian Macau Finance Company, Sands China Ltd., Cotai Ferry Company Limited,
Venetian Orient Limited, Venetian Travel Limited and Venetian Retail Limited.
Placing Agreement made as of September 1, 2009 between Venetian Venture Development Intermediate II
and Goldman Sachs (Asia) L.L.C.
Certification of the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Executive Officer of Las Vegas Sands Corp. pursuant to 18 U.S.C. Section 1350,
as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Certification of Chief Financial Officer of Las Vegas Sands Corp. pursuant to 18 U.S.C. Section 1350,
as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
MICHAEL QUARTIERI | LAS VEGAS SANDS CORP. | ||||||||
|
|||||||||
By:
|
/s/ Michael Quartieri | By: | /s/ Kenneth J. Kay | ||||||
|
|||||||||
|
Name: | Michael Quartieri | Name: | Kenneth J. Kay | |||||
|
Title: | Vice President, Global Controller | Title: | Senior Vice President and Chief | |||||
|
and Chief Accounting Officer | Financial Officer |
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-8-
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To Provider at:
|
Las Vegas Sands Corp. | |
|
3355 Las Vegas Blvd. South | |
|
Las Vegas, Nevada 89109 | |
|
Attn: General Counsel | |
|
Fax: (702) 733-5088 | |
|
Tel.: (702) 733-5631 | |
|
||
To Recipient at:
|
Interface Operations, LLC | |
|
300 First Avenue | |
|
Needham, Massachusetts 02494 | |
|
Attn: Stephen J. OConnor | |
|
Fax: (781) 449-6616 | |
|
Tel. (781) 449-6500 |
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PROVIDER: | RECIPIENT: | |||||||
|
||||||||
LAS VEGAS SANDS CORP. | INTERFACE OPERATIONS, LLC | |||||||
|
||||||||
By:
|
/s/ Michael A. Leven | By: | /s/ Sheldon G. Adelson | |||||
|
Print: Michael A. Leven | Print: Sheldon G. Adelson | ||||||
|
Title: President & Chief Operating Officer | Title: Manager & President |
-13-
(1) | Gulfstream IV SP aircraft bearing U.S. registration number N688LS and manufacturers serial number 1280 | |
(2) | Gulfstream IV SP aircraft bearing U.S. registration number N988LS and manufacturers serial number 1290 | |
(3) | Gulfstream V aircraft bearing U.S. registration number N383LS and manufacturers serial number 544 | |
(4) | Gulfstream IV SP aircraft bearing U.S. registration number N588LS and manufacturers serial number 1245 |
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-8-
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PROVIDER: | RECIPIENT: | |||||||||||||
|
||||||||||||||
INTERFACE OPERATIONS, LLC | LAS VEGAS SANDS CORP. | |||||||||||||
|
||||||||||||||
By: | /s/ Sheldon G. Adelson | By: | /s/ Michael A. Leven | |||||||||||
|
Print: | Sheldon G. Adelson | Print: | Michael A. Leven | ||||||||||
|
Title: | Manager & President | Title: | President & Chief Operating Officer |
-13-
(1) | Gulfstream III 1159A aircraft bearing U.S. registration number N623MS and manufacturers serial number 351 | |
(2) | Boeing B737-BBJ aircraft bearing U.S. registration number N108MS and manufacturers serial number 33102 | |
(3) | Gulfstream IV SP aircraft bearing U.S. registration number N972MS and manufacturers serial number 1285 |
-14-
-2-
-3-
-4-
-5-
-6-
-7-
-8-
-9-
To Provider at:
|
Las Vegas Sands Corp. | |
|
3355 Las Vegas Blvd. South | |
|
Las Vegas, Nevada 89109 | |
|
Attn: General Counsel | |
|
Fax: (702) 733-5088 | |
|
Tel.: (702) 733-5631 | |
|
||
To Recipient at:
|
Interface Operations, LLC | |
|
300 First Avenue | |
|
Needham, Massachusetts 02494 | |
|
Attn: Stephen J. OConnor | |
|
Fax: (781) 449-6616 | |
|
Tel. (781) 449-6500 |
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PROVIDER: | RECIPIENT: | ||||||||||
|
|||||||||||
LAS VEGAS SANDS CORP. | INTERFACE OPERATIONS, LLC | ||||||||||
|
|||||||||||
By: | /s/ Michael A. Leven | By: | /s/ Sheldon G. Adelson | ||||||||
|
Print: | Michael A. Leven | Print: | Sheldon G. Adelson | |||||||
|
Title: | President and Chief Operating Officer | Title: | Manager & President |
-12-
(1) | Boeing 737-300 Aircraft bearing U.S. Registration number N788LS and manufacturers serial number 24220 | |
(2) | Boeing 737-300 Aircraft bearing U.S. Registration number N789LS and manufacturers serial Number 24269 |
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-2-
-3-
-4-
-5-
-6-
-7-
-8-
-9-
To Provider at:
|
Interface Operations, LLC
300 First Avenue Needham, Massachusetts 02494 Attn: Stephen J. OConnor Fax: (781) 449-6616 Tel. (781) 449-6500 |
|
|
||
To Recipient at:
|
Las Vegas Sands Corp.
3355 Las Vegas Blvd. South Las Vegas, Nevada 89109 Attn: General Counsel Fax: (702) 733-5088 Tel.: (702) 733-5631 |
-10-
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PROVIDER: | RECIPIENT: | ||||||||||
|
|||||||||||
INTERFACE OPERATIONS, LLC | LAS VEGAS SANDS CORP. | ||||||||||
|
|||||||||||
By: | /s/ Sheldon G. Adelson | By: | /s/ Michael A. Leven | ||||||||
|
Print: | Sheldon G. Adelson | Print: | Michael A. Leven | |||||||
|
Title: | Manager & President | Title: | President & Chief Operating Officer |
-12-
(1) | Boeing B767-3P6 aircraft bearing U.S. registration number N804MS and manufacturers serial number 27255 |
-13-
-2-
-3-
-4-
-5-
-6-
-7-
-8-
-9-
To Provider at:
|
Interface Operations Bermuda, Ltd. | |
|
c/o Interface Operations, LLC | |
|
300 First Avenue | |
|
Needham, Massachusetts 02494 | |
|
Attn: Stephen J. OConnor | |
|
Fax: (781) 449-6616 | |
|
Tel. (781) 449-6500 | |
|
||
To Recipient at:
|
Las Vegas Sands Corp. | |
|
3355 Las Vegas Blvd. South | |
|
Las Vegas, Nevada 89109 | |
|
Attn: General Counsel | |
|
Fax: (702) 733-5088 | |
|
Tel.: (702) 733-5631 |
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PROVIDER: | RECIPIENT: | |||||||||||||
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INTERFACE OPERATIONS BERMUDA, LTD | LAS VEGAS SANDS CORP. | |||||||||||||
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By: | /s/ Sheldon G. Adelson | By: | /s/ Michael A Leven | |||||||||||
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Print: | Sheldon G. Adelson | Print: | Michael A. Leven | ||||||||||
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Title: | Title: | President & Chief Operating Officer | |||||||||||
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(1) | Boeing 747-SP aircraft bearing Bermuda registration number VQ-BMS and manufacturers serial number 21649 | |
(2) | Boeing 747-SP aircraft bearing Bermuda registration number VP-BLK and manufacturers serial number 21961 |
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2
3
4
5
6
7
8
9
Maximum Consolidated Leverage | ||||
Fiscal Quarter Ending | Ratio | |||
June 30, 2009
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4.00:1.0 | |||
September 30, 2009
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4.50:1.0 | |||
December 31, 2009
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4.50:1.0 | |||
March 31, 2010
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4.00:1.0 | |||
June 30, 2010
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4.00:1.0 | |||
September 30, 2010
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3.50:1.0 | |||
December 31, 2010
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3.50:1.0 | |||
March 31, 2011 and thereafter
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3.00:1.0 |
10
11
12
13
14
BORROWER:
VML US FINANCE LLC |
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By: | /s/ Kenneth J. Kay | |||
Name: | Kenneth J. Kay | |||
Title: |
Senior Vice President and
Chief Financial Officer |
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COMPANY:
VENETIAN MACAU LIMITED |
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By: | /s/ Luis Nuno Mesquita de Melo | |||
Name: | Luis Nuno Mesquita de Melo | |||
Title: | Director | |||
THE BANK OF NOVA SCOTIA
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as Administrative Agent |
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By: | /s/ Annabella Guo | |||
Name: | Annabella Guo | |||
Title: | Director |
GOLDMAN SACHS CREDIT PARTNERS L.P.
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as Syndication Agent |
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By: | /s/ Douglas Tansey | |||
Title: Authorized Signatory | ||||
(1) | VENETIAN VENTURE DEVELOPMENT INTERMEDIATE II, whose registered office is situated at c/o Walkers Corporate Services Limited, Walker House, 87 Mary Street, George Town, Grand Cayman KY1-9005, Cayman Islands (the Issuer ); and | |
(2) | CITICORP INTERNATIONAL LIMITED, whose registered office is situated at 50 th Floor, Citibank Tower, Citibank Plaza, 3 Garden Road, Central, Hong Kong (the Trustee , which expression, where the context so admits, includes all persons for the time being the trustee or trustees of this Trust Deed). |
(A) | The Issuer has (pursuant to a resolution of its Board of Directors dated 1 September 2009) authorised the issue of US$600,000,000 Exchangeable Bonds due 2014 exchangeable into fully paid shares of Sands China, to be constituted by this Trust Deed. | |
(B) | The Trustee has agreed to act as trustee of this Trust Deed for the benefit of the Bondholders (as defined below) on the following terms and conditions. |
(a) | an act of war (whether war is declared or not), hostilities, invasion, act of foreign enemies, riot, rebellion, terrorism, revolution, military insurrection, civil disorder or civil disobedience; or | |
(b) | act of God, flood, fire, tempest, earthquake or other natural disaster; or | |
(c) | embargo, labour disputes, strike, lockout or other industrial action; or | |
(d) | general failure of electricity or other supply, aircraft collision or failure of any money transmission system; or |
(e) | any reason which is beyond the control of the Trustee; |
(a) | every payment of any sum due in respect of the Bonds made to the Principal Agent as provided in the Agency Agreement shall, to that extent, satisfy such obligation except to the extent that there is failure in its subsequent payment to the relevant Bondholders under the Conditions; and | |
(b) | a payment made after the due date or pursuant to Condition 10 will be deemed to have been made when the full amount due (including default interest accrued, if any) has been received by the Principal Agent or the Trustee and notice to that effect has been given to Bondholders (if required under the Conditions or this Trust Deed) except (if payment is made to the Principal Agent) to the extent that there is failure in the subsequent payment to the relevant Bondholders under the Conditions. |
2.4.1 | by notice in writing to the Issuer, the Agents and the Registrar, require the Agents and the Registrar, until notified in writing by the Trustee to the contrary, so far as permitted by applicable law: |
(i) | to act as agents of the Trustee under this Trust Deed and the Bonds on the terms of the Agency Agreement (with consequential amendments as necessary and save that the Trustees liability for the indemnification, remuneration and all other expenses of the Agents and the Registrar shall be limited to the amounts for the time being held by the Trustee in respect of the Bonds on the terms of this Trust Deed) and thereafter to hold all Certificates and all moneys, documents and records held by them in respect of the Bonds to the order of the Trustee; |
or | |||
(ii) | to deliver all Certificates and all moneys, documents and records held by them in respect of the Bonds to the Trustee or as the Trustee directs in such notice or subsequently, provided that this sub-Clause 2.4.1(ii) shall not apply to any documents or records which the relevant Agent or the Registrar, as the case may be, is/are obliged not to release pursuant to any law or regulation to which it/they are subject; and |
2.4.2 | by notice in writing to the Issuer require it to make all subsequent payments in respect of the Bonds to or to the order of the Trustee and not to the Principal Agent and any subsequent payment so made by the Issuer shall discharge the Issuers obligations with respect to such payment. |
(a) | determining whether the Issuer is liable to pay any taxes or the amounts payable (if any) in connection with Condition 6 or 9; or | |
(b) | determining the sufficiency or insufficiency of any amounts so paid and neither the Trustee nor the Agents shall be responsible to the Bondholders or any other person for any loss arising from any failure to do so. |
7.5.1 | no Event of Default or Potential Event of Default had occurred since the date of this Trust Deed or the Certification Date of the last such certificate (if any) or, if such an event had occurred, giving details of it; and | ||
7.5.2 | the Issuer has complied with all its obligations under this Trust Deed; |
8.3.1 | in the case of payments made by the Trustee before such demand carry interest from the date of receipt of such demand and shall accrue at the rate of two per cent. above the costs of funds determined by the Trustee; and | ||
8.3.2 | in other cases carry interest at such rate from 15 days after the due date of the demand or (where the demand specifies that payment is to be made on an earlier date) from such earlier date. |
(i) | a deed is executed or undertaking given by the Substituted Obligor to the Trustee, in form and manner satisfactory to the Trustee, agreeing to be bound by this Trust Deed and the Bonds (with consequential amendments as the Trustee in its sole discretion may deem appropriate) as if the Substituted Obligor had been named in this Trust Deed and the Bonds as the principal debtor in place of the Issuer; | ||
(ii) | if the Substituted Obligor is subject generally to the taxing jurisdiction of a territory or any authority of or in that territory with power to tax (the Substituted Territory ) other than the territory to the taxing jurisdiction of which (or to any such authority of or in which) the Issuer is subject generally (the Issuers Territory ), the Substituted Obligor will (unless the Trustee otherwise agrees) give to the Trustee an undertaking satisfactory to the Trustee in terms corresponding to Condition 9 with the substitution for the references in that Condition to the Issuers Territory of references to the Substituted Territory whereupon the Trust Deed and the Bonds will be read accordingly; | ||
(iii) | if any two directors of the Substituted Obligor certify that it will be solvent immediately after such substitution, the Trustee need not have regard to the Substituted Obligors financial condition, profits or prospects or compare them with those of the Issuer; |
(iv) | the Issuer and the Substituted Obligor comply with such other requirements as the Trustee may direct in the interests of the Bondholders; and | ||
(v) | (unless the Issuers successor in business is the Substituted Obligor as the principal debtor under this Trust Deed and the Bonds) the obligations of the Substituted Obligor as the principal debtor under this Trust Deed and the Bonds are guaranteed by the Issuer to the Trustees satisfaction. |
(i) | conform with any legal requirement, restriction or condition in a jurisdiction in which a particular act is to be performed; or | ||
(ii) | obtain a judgment or to enforce a judgment or any provision of this Trust Deed in any jurisdiction. |
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Director
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in the presence of: | ||||
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Signature of Witness | ||||
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Name:
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Address:
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Occupation:
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Authorised Signatory | ||||
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Dated [
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in the presence of: | ||||
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Signature of Witness | ||||
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Name:
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Address:
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Occupation:
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Director
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in the presence of: | ||||
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Signature of Witness | ||||
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Name:
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Address:
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Occupation:
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Authorised Signatory | ||||
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Dated [
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in the presence of: | ||||
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Signature of Witness | ||||
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Name:
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Address:
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Occupation:
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EXECUTED AS A DEED
by
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VENETIAN VENTURE
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DEVELOPMENT INTERMEDIATE II
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/s/ Michael A. Leven
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) | Duly Authorised Signatory | |||||||
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) | Name: | Michael A. Leven | |||||
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) | |||||||
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) | Title: | Director | |||||
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in the presence of: | ||||
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/s/ Daniel J. Weinrot | ||||
Signature of Witness | ||||
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Name:
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Daniel J. Weinrot | |||
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3355 Las Vegas Blvd South | |||
Address:
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Las Vegas, NV 89109 | |||
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Occupation:
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Attorney | |||
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(Note: These details are to be completed in
the witnesss own hand writing.) |
EXECUTED AS A DEED
by
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CITICORP INTERNATIONAL
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) | |||||||
LIMITED
:
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) | |||||||
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/s/ Terence Yeung
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) | Duly Authorised Signatory | |||||||
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) | Name: | Terence Yeung | |||||
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) | |||||||
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) | Title: | Vice President | |||||
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CLAUSE | PAGE | |||
1. INTERPRETATION
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1 | |||
2. AMOUNT OF THE BONDS, COVENANT TO PAY
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5 | |||
3. FORM OF THE BONDS AND CERTIFICATES; ISSUE OF THE BONDS
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7 | |||
4. STAMP DUTIES AND TAXES
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8 | |||
5. COVENANTS RELATING TO THE EXCHANGE OF BONDS AND ISSUE OF WARRANTS
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8 | |||
6. APPLICATION OF MONEYS RECEIVED BY THE TRUSTEE
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9 | |||
7. GENERAL COVENANTS
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9 | |||
8. REMUNERATION AND INDEMNIFICATION OF THE TRUSTEE
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12 | |||
9. PROVISIONS SUPPLEMENTAL TO THE TRUSTEE ACT 1925 AND THE TRUSTEE ACT 2000 AND OTHER PROVISIONS
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14 | |||
10. TRUSTEE LIABLE FOR NEGLIGENCE
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19 | |||
11. WAIVER AND PROOF OF DEFAULT
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19 | |||
12. TRUSTEE NOT PRECLUDED FROM ENTERING INTO CONTRACTS
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19 | |||
13. MODIFICATION AND SUBSTITUTION
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20 | |||
14. CURRENCY INDEMNITY
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21 | |||
15. APPOINTMENT, RETIREMENT AND REMOVAL OF THE TRUSTEE
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22 | |||
16. COMMUNICATIONS
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23 | |||
17. GOVERNING LAW AND JURISDICTION
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24 | |||
18. COUNTERPARTS
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24 | |||
SCHEDULE 1 FORM OF CERTIFICATES
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25 | |||
SCHEDULE 2 PROVISIONS FOR MEETINGS OF BONDHOLDERS
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(1) | VENETIAN VENTURE DEVELOPMENT INTERMEDIATE II whose registered office is at c/o Walkers Corporate Services Limited, Walker House, 87 Mary Street, George Town, Grand Cayman KY1-9005, Cayman Islands (the Issuer ); |
(2) | CITIBANK, N.A., LONDON BRANCH at its specified office at Citigroup Centre, 33 Canada Square, Canary Wharf, London E14 5LB, United Kingdom as principal paying and exchange agent (the Paying Agent , Exchange Agent , and the Principal Agent which expression shall, unless the context otherwise requires, include its successors as such paying, exchange or principal agent); |
(3) | CITIGROUP GLOBAL MARKETS DEUTSCHLAND, AG & CO. KGaA at its specified office at Reuterweg 16, 60323 Frankfurt, Germany as registrar and transfer agent (the Transfer Agent and the Registrar , which expression shall, unless the context otherwise requires, include its successors as such transfer agent or registrar); and |
(4) | CITICORP INTERNATIONAL LIMITED at its registered office at 50 th Floor, Citibank Tower, Citibank Plaza, 3 Garden Road, Central, Hong Kong as trustee of the Bonds (which expression shall, unless the context otherwise requires, include its successors as such trustee). |
(a) | Subject to compliance with the Conditions, the provisions of this Clause 3 and Exhibit C and the consent of the Issuer (which consent shall not unreasonably be withheld, it being understood that: (i) consent may not be withheld to a transfer by a Bondholder to one of its Affiliates (except such consent may be |
Page 2
withheld pursuant to sub-clause (ii) below) provided that such Affiliate remains an Affiliate of such Bondholder after the transfer; and (ii) consent may be withheld with respect to a transfer to any Person who or whose Affiliate is engaged in any business activity that competes with the business of the Issuer and the Restricted Subsidiaries or with respect to any transfer which would or might, in the reasonable opinion of the Issuer, have a material adverse effect on the Issuers or any Restricted Subsidiarys ability to comply with applicable gaming regulatory requirements), the holder of Bonds represented by the Certificates may transfer such Bonds and the relevant Transfer Agent and the Registrar shall register the transfer of Bonds represented by the Certificates in accordance with Clauses 10 and 11 below. |
(b) | If the holder of a Certificate wishes at any time to transfer the Bonds represented by such Certificate (or any part thereof), such transfer shall be subject to the delivery to the Registrar a transfer certificate in the form set out in Exhibit F (the Transfer Certificate ) duly executed by the transferor and (if applicable) the transferee of such Bonds. The Registrar shall be entitled to require, prior to registering any such transfer of the Bonds, such legal opinions, certifications and other information as the Registrar may reasonably require. |
(c) | Bonds represented by a Restricted Certificate may be transferred to a transferee who takes delivery in the form of a Regulation S Certificate if the transferee and the transferor represent in the Transfer Certificate that it is acquiring the Bonds for its own account in an offshore transaction (within the meaning of Regulation S). Bonds represented by a Restricted Certificate may be transferred to a transferee who takes delivery in the form of another Restricted Certificate if either: |
(i) | the transferor and the transferee first deliver to the Registrar a Transfer Certificate duly executed by the transferor and the transferee to the effect that: |
(A) | the transferor represents that it reasonably believes the transferee to be a QIB; and |
(B) | the transferee represents that it is a QIB purchasing for its own account or the account of another QIB in a transaction meeting the requirements of Rule 144A; or |
(ii) | the transferee represents that it is acquiring the Bonds pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A and provides information satisfactory to the Issuer (including, without limitation, an opinion of counsel) confirming the availability of such exemption. |
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4.1.1 | on maturity or early redemption of any Bonds, for value by 12:00 noon (London time) at least one Business Day prior to the redemption date thereof (or, in the case of the Bonds becoming due and payable pursuant to Condition 10, forthwith upon being required by the Trustee to make such payment) to an account specified by the Principal Agent, an amount sufficient (together with any funds then held by the Principal Agent which are available for such purpose) to pay the amounts due on redemption of all Bonds so to be redeemed (or the amount due pursuant to Condition 10); and |
4.1.2 | for value by 12 noon (London time) at least one Business Day before the due date (to an account specified by the Principal Agent) for the payment of interest or other sums payable in respect of the Bonds in accordance with the Conditions (including any interest on the Bonds), other than sums referred to in sub-Clause 4.1.1 above, an amount sufficient (together with any funds then held by the Principal Agent which are available for such purpose) to pay interest or other sums payable then becoming due on the outstanding Bonds. |
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5.6.1 | act as agents of the Trustee under the Trust Deed and the Bonds on the terms provided in this Agreement (with consequential amendments as necessary and save that the Trustees liability for the indemnification, remuneration and all other expenses of the Agents shall be limited to the amounts for the time being held by the Trustee in respect of the Bonds on the terms of the Trust Deed) and thereafter to hold all Certificates and all moneys, documents and records held by them in respect of the Bonds to the order of the Trustee; or |
5.6.2 | deliver all Certificates and all moneys, documents and records held by them in respect of the Bonds to the Trustee or as the Trustee directs in such notice or subsequently, provided that this Clause 5.6.2 shall not apply to any documents or records which the Principal Agent, the Registrar or the relevant Agent is obliged not to release by any law or regulation to which it is subject. |
Page 6
6.4.1 | As soon as practicable following deposit of a Certificate (if applicable) and Exchange Notice (in duplicate) and payment of any required amount by the Issuer in accordance with Clause 6.1, the Exchange Agent with which they were deposited shall verify that the Exchange Notice (in duplicate) has been duly completed in relation to the Bonds, which are the subject of the mandatory exchange, in accordance with its terms and purports to have been signed by or on behalf of the Bondholder named therein and that the Exchange Notice is accompanied by all Certificates (if applicable) to which it relates, and endorse the Exchange Notice to that effect. |
6.4.2 | Immediately following receipt of the Exchange Notice (in duplicate) by an Exchange Agent other than the Principal Agent and the fulfilment of the conditions in Clause 6.4.1, such Exchange Agent shall: |
(i) | send by facsimile transmission a copy of such Exchange Notice (endorsed pursuant to Clause 6.4.1) to the Principal Agent and the Issuer; |
(ii) | cancel forthwith upon the Exchange Date all Certificates delivered with such Exchange Notice and despatch such cancelled Certificates promptly (together with a certificate stating the identifying numbers of the Bonds in respect of which the relevant Certificates have been delivered and the identifying numbers of the relevant Certificates), to or to the order of the Principal Agent or its designated agent, who shall destroy such cancelled Certificates; and |
(iii) | despatch as soon as practicable and in any event within three (3) days after the Exchange Date, by post, the original Exchange Notice to the Principal Agent. |
6.4.3 | Upon receipt of the Exchange Notice by the Principal Agent (either as a result of deposit of the original by a exchanging Bondholder with the Principal |
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Agent in its capacity as Exchange Agent or as a result of receipt of the facsimile of such Exchange Notice pursuant to Clause 6.4.2(i) above) and fulfilment of the conditions in Clause 6.4.1, the Principal Agent in its capacity as Exchange Agent shall as soon as practicable and in any event no later than the Cut Off Time (as defined in Condition 6.2(iii)): |
(i) | notify the Issuer by facsimile in the manner specified in Exhibit B hereto (an Agent Exchange Notification ), of the following (together with a copy of the Exchange Notice(s) endorsed pursuant to Clause 6.4.1): |
(1) | the total number, the aggregate principal amount and the identifying certificate numbers of all Bonds deposited on the same occasion by the same Bondholder which are to be exchanged; | ||
(2) | the name and address of: |
i) | the person in whose name the Shares issuable upon exchange are to be registered; and | ||
ii) | the exchanging Bondholder; |
(3) | the date on which the Exchange Notice is deposited and the date on which the Certificate is surrendered to the Agent; and |
(4) | the name and address of the person(s) to whom share certificates are to be despatched (as provided by the Bondholder); |
(ii) | (where the Exchange Agent with which the Certificate is deposited is itself the Principal Agent) cancel forthwith upon the Exchange Date all Certificates delivered with such Exchange Notice and procure the destruction of such cancelled Certificates; and |
(iii) | despatch as soon as practicable and in any event within five (5) Business Days after: |
(1) | where the original Exchange Notice is directly deposited with the Principal Agent, the Exchange Date; or |
(2) | where the original Exchange Notice is despatched to the Principal Agent pursuant to Clause 6.4.2(iii), such date of receipt by the Principal Agent, | ||
the original Exchange Notice to the Issuer. |
6.4.4 | Where an Exchange Notice is received which requires the Shares issuable on exchange of the Bonds to which it relates to be dealt with in different ways for specified principal amounts of Bonds, the Principal Agent receiving the |
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Exchange Notice may, and if requested by the Bondholder depositing the Exchange Notice, shall, treat each specified principal amount of Bonds as if it were subject to its own Exchange Notice and prepare and send the details referred to in Clause 6.4.3 separately for each such specified principal amount (and, for the avoidance of doubt so they are not aggregated for the purpose of calculating the number of Shares, or amount of other property, issuable on exchange). |
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(a) | the aggregate amounts paid in respect of Bonds redeemed or paid and cancelled; | |
(b) | the aggregate principal amount of Bonds exchanged and cancelled; | |
(c) | the identifying numbers and certificate numbers of such Bonds (if any); and | |
(d) | that such Bonds have been cancelled. |
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9.3.1 | paid such costs, taxes and duties as may be incurred in connection therewith; |
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9.3.2 | furnished the Registrar (directly or, if applicable, through the relevant Agent) with such evidence (including evidence as to the identifying number of the Certificate in question if known) and indemnity as the Issuer and the Registrar may reasonably require; and |
9.3.3 | surrendered to the Registrar (directly or, if applicable, through the relevant Agent) any mutilated or defaced Certificate to be replaced. |
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11.1.1 | show the amount of Bonds and the date of issue and all subsequent transfers and changes of ownership in respect thereof and the names and addresses of the holders of Bonds; |
11.1.2 | be made available, at all times during office hours upon reasonable notice being given to the Registrar, to the Issuer, the Trustee, the other Agents or any person authorised by any of them for inspection and (at the expense of the person making the request) for the taking of copies thereof or extracts therefrom and the Registrar shall deliver to such persons all such lists of holders of Bonds, their addresses, registered accounts, holdings and other details as they may request; and |
11.1.3 | include a record of the identifying number allocated to each Bond and the identifying number allocated to each Certificate which is issued. Each Certificate will carry the identifying number of the Bond or Bonds in respect of which it is issued, as well as its own identifying number. |
(a) | receive requests for the transfer of Bonds and will also receive Certificates deposited with a Transfer Agent for transfer, effect the necessary entries, authenticate and issue new Certificates in accordance with the Regulations referred to in Clause 13 and deliver the new Certificate(s) to the relevant Agent; and |
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(b) | without prejudice to the generality of sub-clause (a) above, upon receipt of a request from a Bondholder to transfer its Bonds pursuant to Condition 4.1 and the documents referred to in Condition 4.1, within two Business Days (as defined in the Conditions) notify the Issuer in writing of such request and the Registrar shall thereafter comply with its obligations under Condition 4.1. |
(a) | provide the Issuer notice of any change in the place where the Register is kept within two (2) Business Days after such change; and |
(b) | transmit to the Issuer a copy of every entry in the Register within two (2) Business Days after such entry is made. |
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17.1.1 | to the Trustee; |
17.1.2 | in the case of any Agent other than the Principal Agent, to the Principal Agent; and |
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17.1.3 | to the Agent whose appointment is to be terminated, at least 30 days prior written notice to that effect. |
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19.3.1 | The courts of England are to have non-exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Agreement, including, without limitation, disputes relating to any non-contractual obligations arising out of or in connection with this Agreement, and accordingly any legal action or proceedings arising out of or in connection with this Agreement ( Proceedings ) may be brought in such courts. The parties to this Agreement irrevocably submit for all purposes for or in connection with this Agreement to the jurisdiction of the courts of England and waive any objection to Proceedings in such courts whether on the ground of venue or on the ground that the Proceedings have been brought in an inconvenient forum. |
19.3.2 | Nothing in this Clause 19 shall limit the right of any party to this Agreement to take Proceedings against any other party in any other court of competent jurisdiction nor shall the taking of Proceedings in one or more jurisdictions preclude any party from taking Proceedings in any other jurisdiction, whether concurrently or not. |
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Name (or Contact Person): | Date: | |||
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Address:
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Tel No. | |||
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Fax No.
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Email address:
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(*delete as appropriate)
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To: |
Citibank, N.A., London Branch
1 North Wall Quay Dublin 1 Ireland |
Attention: Agency & Trust
Fax No.: +353 1 622 2202 |
cc: | Venetian Venture Development Intermediate II (the Issuer ) |
1. | Total principal amount, number and identifying and certificate numbers of Bonds to be exchanged: | |
Total principal amount:
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Total number of Bonds:
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Identifying numbers of Bonds:
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Identifying numbers of Certificates
deposited in respect of Bonds to be exchanged:
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2. | Name(s) and address(es) of person(s) in whose name(s) the Shares required to be delivered on exchange are to be registered (who shall either be the Bondholder itself or its nominee or trustee (with evidence thereof being provided to the reasonable satisfaction of the Issuer) and no other person): | |
Name: | ||
Address: | ||
Telephone Number: | ||
Fax Number: |
3. | I/We hereby request that [I/We or my/our nominee or trustee be registered as holder(s) of the relevant number of Shares in the register of shareholders of Sands China Ltd.] [the Shares be delivered to, and registered in the name of the depositary for credit to the securities account specified below] and [the certificates for the Shares together with] any [other] securities or property required to be delivered upon exchange, be despatched by ordinary post (at my/our risk and expense) to the person whose name, contact person, telephone numbers, fax number and address is given below and, in each case, in the manner specified below: | |
Name:
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Contact Person:
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Address:
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[Securities Account Details:
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Securities Account Name:
]
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Telephone Number/Fax Number:
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Manner of despatch:
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The Certificate in respect of the Bonds to be exchanged hereby accompanies this Exchange Notice. | ||
Name: | ||
Address: |
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(i) | This Exchange Notice will be void unless the introductory details and Sections 1 to 3 are completed. |
(ii) | Your attention is drawn to Condition 6 of the Bonds with respect to the conditions precedent which must be fulfilled before the Bonds specified above will be treated as effectively eligible for exchange. |
(iii) | Despatch of share certificates or other securities or property will be made at the risk and expense of the exchanging Bondholder and the exchanging Bondholder will be required to submit any necessary documents required in order to effect despatch in the manner specified. |
1 | (A) Bond exchange identification reference: |
(B) | Date on which the Exchange Notice is deposited with (and, if applicable, Certificate is surrendered to) the Agent: | ||
(C) | Exchange Date: | ||
(D) |
Date of deposit of Exchange Notice:
|
2 | Aggregate principal amount of Bonds in respect of which Certificates have been deposited for exchange: |
Page 28
To: |
Venetian Venture Development Intermediate II (the
Issuer
) (attention: Ms. Bonnie Bruce)
Bonds exchange identification reference: Venetian Venture Development Intermediate II US$600,000,000 Exchangeable Bonds Due 2014 |
Page 29
(A)
|
= | name and address of exchanging holder of the Bonds; | ||
|
||||
(B)
|
= | total number and the aggregate principal amount of Bonds in respect of which a Certificate has been deposited by the same holder of the Bonds; | ||
|
||||
(C)
|
= | identifying and Certificate numbers of the Bonds; | ||
|
||||
(D)
|
= | name(s) and address(es) of person(s) in whose name(s) the Shares issuable upon exchange are to be registered; | ||
|
||||
(E)
|
= | the date on which the Exchange Notice is deposited with the Agent, and the date on which the Certificate is surrendered to the Agent; and | ||
|
||||
(F)
|
= | name and address of person to whom share certificates are to be despatched or details of securities account into which the Shares issuable upon exchange are to be deposited (in each case, as provided by the Bondholder). |
Page 30
Page 31
Page 32
Page 33
(1) | This Redemption Notice is not valid unless all of the paragraphs requiring completion are duly completed. |
(3) | The Agent with whom Certificates are deposited will not in any circumstances be liable to the depositing Bondholder or any other person for any loss or damage arising from any act, default or omission of such Agent in relation to such Certificates or any of them unless the loss or damage was caused by the wilful misconduct, wilful default, gross negligence, fraud or bad faith of such Agent or its directors, officers or employees or agents. |
(4) | Terms used in this Redemption Notice and not otherwise defined have the meanings given to them in the paying, exchange and transfer agency agreement dated 4 September 2009 between, among others, the Issuer and Citibank, N.A., London Branch as principal agent. |
Page 34
To: | Citibank, N.A., London Branch, as Exchange Agent |
1 North Wall Quay
Dublin 1 Ireland |
Attention: Agency & Trust
Fax: +353 1 622 2202 |
Cc: | Citibank, N.A., Hong Kong Branch |
39
th
Floor, ICBC Tower
Citibank Plaza 3 Garden Road Central Hong Kong |
Attention: Agency & Trust |
Fax No.: +852 2868 8048 |
Page 35
(A)
|
= | the identity of the Exchange Agent who forwarded the copy of the Exchange Notice in respect of the Bonds that have been exchanged; | ||
|
||||
(B)
|
= | number of Shares (excluding fractions) deliverable to such holder of the Bonds upon exchange; | ||
|
||||
(C)
|
= | the Exchange Date and the Exchange Price; and | ||
|
||||
(D)
|
= | name and address of person to whom share certificates are to be dispatched or details of securities account into which the Shares issuable upon exchange are to be deposited (in each case, as provided by the Bondholder). |
Page 36
(a) | [the transfer is being made in an offshore transaction (within the meaning of Regulation S) and acknowledges that the Issuer and others will rely upon the truth and accuracy of such certification.] 1 |
(b) | [the transferor and any person acting on its behalf reasonably believes that the transferee is a qualified institutional buyer (as defined in Rule 144A) (a QIB ) purchasing for its own account or for the account of another QIB.] 2 |
(c) | [the transferor and transferee are relying on an exemption from the registration requirements of the Securities Act other than Rule 144A.] 3 |
1 | To be inserted if the transferee takes delivery in the form of a Regulation S. | |
2 | To be inserted if the transferor and transferee are relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A. | |
3 | To be inserted if the transferor and transferee are relying on an exemption from the registration requirements of the Securities Act other than Rule 144A. |
Page 37
|
||||
Signature must be guaranteed
|
Signature |
Page 38
4 | To be inserted if the transferee takes delivery in the form of a Regulation S. | |
5 | To be inserted if the transferor and transferee are relying on the exemption from the registration requirements of the Securities Act provided by Rule 144A. |
Page 39
6 | To include such information as may be requested by the Issuer, including, without limitation, an opinion of counsel. | |
7 | To be inserted if the transferor and transferee are relying on an exemption from the registration requirements of the Securities Act other than Rule 144A. |
Page 40
By: | /s/ Michael A. Leven | |||
Name: | Michael A. Leven | |||
Title: | Director |
By: | /s/ Terence Yeung | |||
Terence Yeung | ||||
Vice President |
By: | /s/ S. Roos | |||
S. Roos | ||||
Assistant Manager |
By: | /s/ Terence Yeung | |||
Terence Yeung | ||||
Vice President | ||||
CLAUSE | PAGE | |||
1. DEFINITIONS
|
1 | |||
2. APPOINTMENTS
|
2 | |||
3. AUTHENTICATION; TRANSFER OF CERTIFICATES
|
2 | |||
4. PAYMENT BY THE ISSUER
|
4 | |||
5. PAYMENT BY THE AGENTS
|
5 | |||
6. EXCHANGE
|
6 | |||
7. EARLY REDEMPTION AND DEPOSIT OF CERTIFICATES
|
10 | |||
8. CANCELLATION OF BONDS
|
11 | |||
9. ISSUE OF REPLACEMENT CERTIFICATES
|
12 | |||
10. DUTIES OF THE TRANSFER AGENTS IN RESPECT OF TRANSFERS
|
13 | |||
11. DUTIES OF THE REGISTRAR
|
14 | |||
12. DOCUMENTS AND CERTIFICATES FOR THE REGISTRAR
|
15 | |||
13. INFORMATION AND REGULATIONS CONCERNING THE BONDS
|
15 | |||
14. REMUNERATION
|
16 | |||
15. FUNDS HELD BY PRINCIPAL AGENT
|
16 | |||
16. MISCELLANEOUS
|
17 | |||
17. CHANGES IN AGENTS
|
20 | |||
18. NOTICES
|
22 | |||
19. GOVERNING LAW AND JURISDICTION
|
24 | |||
20. COUNTERPARTS
|
25 | |||
EXHIBIT A EXCHANGE NOTICE
|
26 | |||
EXHIBIT B AGENT EXCHANGE NOTIFICATION
|
29 | |||
EXHIBIT C REGULATIONS CONCERNING THE TRANSFER AND REGISTRATION OF BONDS
|
31 | |||
EXHIBIT D FORM OF REDEMPTION NOTICE
|
33 | |||
EXHIBIT E NOTIFICATION FROM ISSUER
|
35 | |||
EXHIBIT F TRANSFER CERTIFICATE
|
37 |
Page I
(1) | CITICORP INTERNATIONAL LIMITED, whose registered office is situated at 50 th Floor, Citibank Tower, Citibank Plaza, 3 Garden Road, Central, Hong Kong acting in its capacity as trustee of the Bondholders (the Trustee ); | |
(2) | The parties set out in Schedule 1 hereof (the Subordinated Creditors ); and | |
(3) | The parties set out in Schedule 2 hereof (the Companies ). |
(A) | Venetian Venture Development Intermediate II (the Issuer ) has (pursuant to a resolution of its Board of Directors dated 1 September 2009) authorised the issue of US$600,000,000 Exchangeable Bonds due 2014 (the Bonds ) exchangeable into fully paid shares of Sands China Ltd. ( Sands China ), to be constituted by a trust deed (the Trust Deed ) dated on or about the date of this Deed between the Trustee and the Issuer. Each of the Subordinated Creditors agrees to subordinate the intercompany and shareholders loans made available by the Subordinated Creditors to the Companies on the terms set out in this Deed. |
(B) | The parties hereto have agreed to enter into this Deed for the purpose of effecting the subordination arrangements referred to in recital (A) above. |
1. | Definitions and Interpretation | |
1.1 | In this Deed, the following expressions shall have the following meanings: |
1.2 | In this Deed unless the context otherwise requires: | |
(a) | clauses shall be construed as references to the clauses of this Deed; | |
(b) | any reference to an enactment or statutory provision is a reference to it as it may have been, or may from time to time be amended, modified, consolidated or re-enacted; | |
(c) | any person shall be construed to include such persons successors in title and assigns; | |
(d) | any document, instrument or agreement shall be construed as to include such document, instrument or agreement as amended, modified, varied, supplemented or novated from time to time; | |
(e) | the headings are inserted for convenience only and shall not affect the construction of this Deed; and | |
(f) | reference to one gender shall include all genders. | |
2. | Subordination | |
2.1 | In consideration of: |
(i) | the Senior Creditors acting under or in connection with the Financing Documents; and | ||
(ii) | the Bondholders subscribing the Bonds, |
each of the Subordinated Creditors agrees that until all moneys, liabilities and obligations whatsoever which now are or at any time hereafter may become due, owing or payable to the Senior Creditors (or any of them) in respect of the Senior Debt have been irrevocably paid and discharged in full: | ||
(a) | the Subordinated Debt is subordinated to the Senior Debt; | |
(b) | any payment of principal, premium, interest, default interest, dividends, distributions or any other amount that would otherwise be due in respect of the |
Bella Deed of Subordination | Page 2 |
Subordinated Debt other than Permitted Payments shall be postponed and deferred to the Senior Debt and shall not become due and payable; and | ||
(c) | the obligations of the Companies to make any payment of principal, premium, interest, default interest, dividends, distributions or any other amount that would otherwise be due in respect of the Subordinated Debt (including Permitted Payments) shall be conditional upon the Companies being solvent at such time taking into account their obligations and liabilities to pay its unsubordinated creditors and such payments (including Permitted Payments) shall only fall due if and to the extent that the Companies could make such payment and still be solvent immediately thereafter and to the extent that they would be able to satisfy all their unsubordinated creditors. |
3. | Turnover Provisions and Set Off |
(a) | promptly notify the Senior Creditors of the receipt of such sum; and | |
(b) | pay such sum to the Trustee immediately upon receiving or recovering the same and pending such payment shall hold the same in trust for the Senior Creditors. |
Bella Deed of Subordination | Page 3 |
4. | Covenants |
(a) | none of the Subordinated Creditors shall demand or receive payment of, and the Companies shall not, and shall not permit the Subsidiaries of the Issuer to, make any payment of any amount or make any distribution in respect of, any of the Subordinated Debt in cash or in kind except for Permitted Payments; | |
(b) | none of the Subordinated Creditors shall assign, sell or dispose of and none of the Companies shall purchase or acquire any of the Subordinated Debt or permit any other person to purchase or acquire any of the Subordinated Debt: |
(i) | unless such assignee or purchaser has first agreed to be bound by the terms of this Deed as a party hereto pursuant to a deed of accession in the form set out in Schedule 3 and upon execution and delivery of such deed of accession by such assignee or purchaser the Subordinated Creditor who assigns, sells or disposes of the relevant Subordinated Debt shall cease to have any further obligations or liabilities under this Deed with respect to the Subordinated Debt assigned, sold or disposed of by it other than obligations and liabilities accrued prior to such assignment, sale or disposal; or | ||
(ii) | other than by means of a Permitted Payment; |
(c) | other than by means of a Permitted Payment, none of the Subordinated Creditors shall claim and the Companies shall not (and shall procure that the Subsidiaries of the Issuer shall not) permit any set-off of the Subordinated Debt against any debt or liability now or thereafter due or owing to any Company by any Subordinated Creditor; |
Bella Deed of Subordination | Page 4 |
(d) | none of the Subordinated Creditors shall create and the Companies shall not (and shall procure that the Subsidiaries of the Issuer shall not) permit to subsist any Lien or any guarantee or other assurance against financial loss in respect of any of the Subordinated Debt other than by means of a Permitted Payment; | |
(e) | none of the Subordinated Creditors shall and the Companies shall not (and shall procure that the Subsidiaries of the Issuer shall not) vary or amend or agree to any variation or amendment of or waive or agree to any waiver of: |
(i) | any of its rights under or in respect of any of the Subordinated Debt, except where after such variation, amendment, waiver or agreement (including such variation or amendment as may be required in connection with, or to facilitate, the Qualified IPO (as defined in the terms and conditions of the Bonds) or as may be required by the Listing Rules (as defined in the terms and conditions of the Bonds)), such Subordinated Debt remains subject to this Deed (including without limitation, clauses 2 hereof); or | ||
(ii) | any provision of this Deed; |
(f) | none of the Subordinated Creditors shall: |
(i) | accelerate any of the Subordinated Debt or otherwise declare any of the Subordinated Debt prematurely due and payable other than in relation to a Permitted Payment; | ||
(ii) | initiate or support or take any steps with a view to: |
(A) | any insolvency, liquidation, reorganisation, administration or dissolution proceedings; | ||
(B) | any voluntary arrangement or assignment for the benefit of creditors; or | ||
(C) | any similar proceedings, |
involving any Company, whether by petition, convening a meeting, voting for a resolution or otherwise, other than in relation to a Permitted Payment; | |||
(iii) | exercise or enforce any right against any Company or any other right under any Subordinated Document or any other document, agreement or instrument in relation to (or given in support of) all or any of the Subordinated Debt other than in relation to a Permitted Payment; | ||
(iv) | bring or support any legal proceedings against any Company other than in relation to a Permitted Payment; or | ||
(v) | otherwise exercise any remedy for the recovery of the Subordinated Debt other than in relation to a Permitted Payment; |
Bella Deed of Subordination | Page 5 |
(g) | none of the Subordinated Creditors and the Companies shall allow any Subordinated Debt to be: |
(i) | discharged; | ||
(ii) | evidenced by a negotiable instrument; or | ||
(iii) | subordinated to any person |
other than in accordance with this Deed; and | ||
(h) | none of the Subordinated Creditors and the Companies shall take or omit to take any action which might impair the priority or subordination achieved or intended to be achieved by this Deed. | |
5. | Permitted Payments |
(a) | a payment of the amounts permitted to be made under Condition 3.4 of the terms and conditions of the Bonds; or | |
(b) | a payment in respect of intercompany trade payables incurred by any Company in the ordinary course of business of such Company, |
6. | Consents |
Bella Deed of Subordination | Page 6 |
7. | Representations and Warranties |
7.1 | Due Incorporation |
7.2 | Capacity and Authority |
7.3 | Legal, Valid, Binding and Enforceable Obligations |
7.4 | No Violation |
7.5 | No Consent Required | |
(i) | All consents, authorisations, approvals, licences, exemptions, filings, registrations, notarisations and other requirements of governmental, judicial and public bodies and authorities; and | |
(ii) | all consents, authorisations, approvals, licences, exemptions, filings, registrations, notarisations and other requirements under any agreement or other instrument to which any it is a party or which is binding on it or any of its assets, |
7.6 | No Winding-up Proceeding |
(i) | its winding-up or liquidation; |
Bella Deed of Subordination | Page 7 |
(ii) | the enforcement of any Lien or other third party rights over its assets; or | |
(iii) | the appointment of a receiver, administrative receiver, administrator, liquidator, trustee or similar officer of it or of any of its assets, |
7.7 | Solvency |
(i) | it is not insolvent (as defined under any applicable law) and will not become insolvent after the execution and delivery of this Deed or the performance of obligations hereunder; and | |
(ii) | it is able to pay its debts as they fall due and the value of its assets is greater than the amount of its liabilities taking into account its contingent and prospective obligations and liabilities. |
7.8 | Beneficial Ownership of Subordinated Debt |
(i) | it is the sole legal and beneficial owner of the Subordinated Debt owed to it and of the benefits of the Subordinated Documents to which it is a party; and | |
(ii) | the Subordinated Debt owed to it and the benefits of the Subordinated Documents to which it is a party are free from any Lien, option, subordination or other third party rights in favour of any person other than the Senior Creditors. | |
7.9 | Repetition of Representations and Warranties |
(i) | in respect of each Company, other than the representations and warranties set out in sub-clause 7.8; and | |
(ii) | in respect of each Subordinated Creditor, other than the representations and warranties set out in sub-clause 7.7) |
8. | Protection of subordination | |
8.1 | Continuing subordination |
Bella Deed of Subordination | Page 8 |
8.2 | Waiver of defences |
(a) | any time, waiver or consent granted to, or composition with, any Subordinated Creditor, any Company, the Issuer or any other person; | |
(b) | the release of any Subordinated Creditor, any Company, the Issuer or any other person under the terms of any composition or arrangement; | |
(c) | the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Subordinated Creditor, any Company, the Issuer or any other person, or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security or Lien; | |
(d) | any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of any Subordinated Creditor, any Company, the Issuer or any other person; | |
(e) | any amendment, novation, supplement, extension, restatement (however fundamental and whether or not more onerous) or replacement of any Financing Document, any Subordinated Document or any other document or security, including without limitation any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Financing Document or other document or security; | |
(f) | any unenforceability, illegality or invalidity of any obligation of any person under any Financing Document or any other document or security; or | |
(g) | any insolvency or similar proceedings. | |
8.3 | Immediate recourse | |
(a) | Each of the Subordinated Creditors waives any right he or it may have of first requiring any Senior Creditor (or any trustee or other agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming the benefit of this Deed. |
Bella Deed of Subordination | Page 9 |
(b) | This waiver applies irrespective of any provision of a Financing Document to the contrary. |
9. | Power of Attorney |
10. | Amendment |
11. | Further assurance |
12. | Severability |
13. | Notices |
Bella Deed of Subordination | Page 10 |
(a) | in the case of delivery by hand, when delivered; | |
(b) | in the case of fax, at the time of transmission; | |
(c) | in the case of prepaid recorded delivery or registered post, at 10:00 am on the second Business Day following the date of posting, |
Attention: |
Agency & Trust
|
|
Fax no.: | +852 2868 8048 |
Attention: |
J. Alberto Gonzalez-Pita, General Counsel
|
|
Fax: | +1 702 733 5499 |
For: |
Venetian Venture Development Intermediate II;
Venetian Venture Development Intermediate Limited; Venetian Macau Finance Company; Sands China Ltd; and VML US Finance LLC |
Bella Deed of Subordination | Page 11 |
3355 Las Vegas Boulevard South
Corporate Office Third Floor Las Vegas, NV 89109 United States of America |
Attention: |
J. Alberto Gonzalez-Pita, General Counsel
|
|
Fax: | +1 702 733 5499 |
For: |
Venetian Macau Limited;
Venetian Cotai Limited; Cotai Ferry Company Limited; Venetian Orient Limited; Venetian Travel Limited; and Venetian Retail Limited Venetian Macau Limited The Venetian Macao Resort Hotel Executive Offices L2 Estrada da Baía de N. Senhora da Esperança, s/n Taipa, Macau |
Attention: |
Luis Mesquita de Melo, Senior Vice President and General Counsel
|
|
Fax: | +853 2888 3381 |
(a) | the date specified in the notice as the date on which the change is to take place; or | |
(b) | if no date is specified or the date specified is less than five Business Days after the date on which notice is given, the date following five Business Days after notice of any change has been given. |
14. | Waivers |
Bella Deed of Subordination | Page 12 |
15. | Entire Agreement |
16. | Counterparts |
17. | Contracts (rights of third parties) Act 1999 |
18. | Governing Law and Jurisdiction |
19. | Assignment |
Bella Deed of Subordination | Page 13 |
Bella Deed of Subordination | Page 14 |
1. | LAS VEGAS SANDS CORP. | |
2. | LAS VEGAS SANDS, LLC | |
3. | VENETIAN CASINO RESORT, LLC | |
4. | VENETIAN MARKETING, INC. |
Bella Deed of Subordination | Page 15 |
1. | VENETIAN VENTURE DEVELOPMENT INTERMEDIATE II | |
2. | VENETIAN VENTURE DEVELOPMENT INTERMEDIATE LIMITED | |
3. | VENETIAN MACAU LIMITED | |
4. | VENETIAN COTAI LIMITED | |
5. | VML US FINANCE LLC | |
6. | VENETIAN MACAU FINANCE COMPANY | |
7. | SANDS CHINA LTD. | |
8. | COTAI FERRY COMPANY LIMITED | |
9. | VENETIAN ORIENT LIMITED | |
10. | VENETIAN TRAVEL LIMITED | |
11. | VENETIAN RETAIL LIMITED |
Bella Deed of Subordination | Page 16 |
(1) | [Name of new Subordinated Creditor]; | |
(2) | [Name of each existing Subordinated Creditor]; | |
(3) | [Name of each Company]; and | |
(4) | CITICORP INTERNATIONAL LIMITED whose registered office is situated at 50 th Floor, Citibank Tower, Citibank Plaza, 3 Garden Road, Central, Hong Kong |
Bella Deed of Subordination | Page 17 |
EXECUTED AS A DEED
by
|
) | |||||||
CITICORP INTERNATIONAL
|
) | |||||||
LIMITED
:
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | /s/ Terence Yeung | ||||||
|
) |
|
||||||
|
) | |||||||
|
) | Name: Terence Yeung | ||||||
|
) | |||||||
|
) | Title: Vice President | ||||||
|
) |
/s/ Signature illegible | ||||
Signature of Witness | ||||
|
||||
Name:
|
Signature illegible | |||
|
||||
Address:
|
ICBC Tower, Central, HK | |||
|
||||
Occupation:
|
Banking | |||
|
||||
(Note: These details are to be completed in the witnesss own hand writing.) |
Bella Deed of Subordination | Page 18 |
EXECUTED AS A DEED
by
LAS
|
) | |||||||
VEGAS SANDS CORP
:
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | /s/ Kenneth J. Kay | ||||||
|
) |
|
||||||
|
) | |||||||
|
) | Name: Kenneth J. Kay | ||||||
|
) | Senior Vice President and Chief | ||||||
|
) | Title: Financial Officer | ||||||
|
) |
Bella Deed of Subordination | Page 19 |
EXECUTED AS A DEED
by
LAS
|
) | |||||||
VEGAS SANDS, LLC
:
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | /s/ Kenneth J. Kay | ||||||
|
) |
|
||||||
|
) | |||||||
|
) | Name: Kenneth J. Kay | ||||||
|
) | Senior Vice President and Chief | ||||||
|
) | Title: Financial Officer | ||||||
|
) |
Bella Deed of Subordination | Page 20 |
EXECUTED AS A DEED
by
|
) | |||||||
VENETIAN CASINO RESORT, LLC
:
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | /s/ Kenneth J. Kay | ||||||
|
) |
|
||||||
|
) | |||||||
|
) | Name: Kenneth J. Kay | ||||||
|
) | Senior Vice President and Chief | ||||||
|
) | Title: Financial Officer | ||||||
|
) |
Bella Deed of Subordination | Page 21 |
EXECUTED AS A DEED
by
|
) | |||||||
VENETIAN MARKETING INC.
:
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | /s/ Kenneth J. Kay | ||||||
|
) |
|
||||||
|
) | |||||||
|
) | Name: Kenneth J. Kay | ||||||
|
) | Senior Vice President and Chief | ||||||
|
) | Title: Financial Officer | ||||||
|
) |
Bella Deed of Subordination | Page 22 |
EXECUTED AS A DEED
by
|
) | |||||||
VENETIAN VENTURE DEVELOPMENT
|
) | |||||||
INTERMEDIATE II:
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | /s/ Michael A. Leven | ||||||
|
) |
|
||||||
|
) | |||||||
|
) | Name: Michael A. Leven | ||||||
|
) | |||||||
|
) | Title: Director | ||||||
|
) |
/s/ Daniel J. Weinrot | ||||
Signature of Witness | ||||
|
||||
Name:
|
Daniel J. Weinrot | |||
|
3355 Las Vegas Blvd South | |||
Address:
|
Las Vegas, NV 89109 | |||
|
||||
Occupation:
|
Attorney | |||
|
||||
(Note: These details are to be completed in the witnesss own hand writing.) |
Bella Deed of Subordination | Page 23 |
EXECUTED AS A DEED
by
|
) | |||||||
VENETIAN VENTURE
|
) | |||||||
DEVELOPMENT INTERMEDIATE
|
) | |||||||
LIMITED:
|
) | |||||||
|
) | |||||||
|
) | |||||||
|
) | /s/ Kenneth J. Kay | ||||||
|
) |
|
||||||
|
) | |||||||
|
) | Name: Kenneth J. Kay | ||||||
|
) | |||||||
|
) | Title: Director | ||||||
|
) |
/s/ Daniel J. Weinrot | ||||
Signature of Witness | ||||
|
||||
Name:
|
Daniel J. Weinrot | |||
|
3355 Las Vegas Blvd South | |||
Address:
|
Las Vegas, NV 89109 | |||
|
||||
Occupation:
|
Attorney | |||
|
||||
(Note: These details are to be completed in the witnesss own hand writing.) |
Bella Deed of Subordination | Page 24 |
EXECUTED AS A DEED
by
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) | |||||||
VENETIAN MACAU LIMITED:
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) | |||||||
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) | |||||||
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) | /s/ Luis Nuno Mesquita de Melo | ||||||
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) | |||||||
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) | Name: Luis Nuno Mesquita de Melo | ||||||
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) | Title: Director | ||||||
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) |
Bella Deed of Subordination | Page 25 |
EXECUTED AS A DEED
by
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VENETIAN COTAI LIMITED:
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) | |||||||
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) | |||||||
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) | /s/ Luis Nuno Mesquita de Melo | ||||||
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) | Name: Luis Nuno Mesquita de Melo | ||||||
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) | Title: Director | ||||||
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) |
Bella Deed of Subordination | Page 26 |
EXECUTED AS A DEED
by
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VML US FINANCE LLC:
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) | |||||||
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) | /s/ Kenneth J. Kay | ||||||
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) | Name: Kenneth J. Kay | ||||||
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) | Senior Vice President and Chief | ||||||
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) | Title: Financial Officer | ||||||
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/s/ Daniel J. Weinrot | ||||
Signature of Witness | ||||
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Name:
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Daniel J. Weinrot | |||
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3355 Las Vegas Blvd South | |||
Address:
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Las Vegas, NV 89109 | |||
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Occupation:
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Attorney | |||
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(Note: These details are to be completed in the witnesss own hand writing.) |
Bella Deed of Subordination | Page 27 |
EXECUTED AS A DEED
by
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VENETIAN MACAU FINANCE
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) | |||||||
COMPANY:
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) | |||||||
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) | /s/ Kenneth J. Kay | ||||||
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) | Name: Kenneth J. Kay | ||||||
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) | Title: Director | ||||||
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Bella Deed of Subordination | Page 28 |
EXECUTED AS A DEED
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SANDS CHINA LTD.:
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) | |||||||
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) | /s/ Steven Craig Jacobs | ||||||
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) | Name: Steven Craig Jacobs | ||||||
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) | Title: Director | ||||||
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Bella Deed of Subordination | Page 29 |
EXECUTED AS A DEED
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COTAI FERRY COMPANY LIMITED:
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) | |||||||
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) | /s/ Luis Nuno Mesquita de Melo | ||||||
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) | Name: Luis Nuno Mesquita de Melo | ||||||
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) | Title: Director | ||||||
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Bella Deed of Subordination | Page 30 |
EXECUTED AS A DEED
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VENETIAN ORIENT LIMITED:
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) | |||||||
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) | /s/ Luis Nuno Mesquita de Melo | ||||||
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) | Name: Luis Nuno Mesquita de Melo | ||||||
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) | Title: Director | ||||||
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) |
Bella Deed of Subordination | Page 31 |
EXECUTED AS A DEED
by
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VENETIAN TRAVEL LIMITED
:
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) | |||||||
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) | /s/ Luis Nuno Mesquita de Melo | ||||||
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) | Name: Luis Nuno Mesquita de Melo | ||||||
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) | Title: Director | ||||||
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) |
Bella Deed of Subordination | Page 32 |
EXECUTED AS A DEED
by
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VENETIAN RETAIL LIMITED:
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) | |||||||
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) | /s/ Luis Nuno Mesquita de Melo | ||||||
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||||||
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) | |||||||
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) | Name: Luis Nuno Mesquita de Melo | ||||||
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)
) |
Title: Director | ||||||
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) |
Bella Deed of Subordination | Page 33 |
CLAUSE | PAGE | |||
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||||
1. DEFINITIONS AND INTERPRETATION
|
1 | |||
2. SUBORDINATION
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2 | |||
3. TURNOVER PROVISIONS AND SET OFF
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3 | |||
4. COVENANTS
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4 | |||
5. PERMITTED PAYMENTS
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6 | |||
6. CONSENTS
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6 | |||
7. REPRESENTATIONS AND WARRANTIES
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7 | |||
8. PROTECTION OF SUBORDINATION
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8 | |||
9. POWER OF ATTORNEY
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10 | |||
10. AMENDMENT
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10 | |||
11. FURTHER ASSURANCE
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10 | |||
12. SEVERABILITY
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10 | |||
13. NOTICES
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10 | |||
14. WAIVERS
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12 | |||
15. ENTIRE AGREEMENT
|
13 | |||
16. COUNTERPARTS
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13 | |||
17. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
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13 | |||
18. GOVERNING LAW AND JURISDICTION
|
13 |
Bella Deed of Subordination | Page I |
(1) | VENETIAN VENTURE DEVELOPMENT INTERMEDIATE II (the Issuer ); and | |
(2) | GOLDMAN SACHS (ASIA) L.L.C. (the Placement Agent ). |
(a) | Subject as provided herein, the Issuer, relying on the representations and undertakings of the Placement Agent set forth herein, agrees to issue the Bonds and to procure that the Bonds will be validly issued in a form complying with the requirements of the Trust Deed and the Terms and Conditions, and the Issuer appoints the Placement Agent as its agent to use its reasonable endeavours to locate subscribers for the Bonds at an issue price of 100% of the principal amount of the Bonds less the Placement Fee (as defined in Clause 5) and expenses referred to in Clause 6. |
(b) | In addition, the Issuer appoints the Placement Agent to act as its settlement agent with respect to the issuance of the Bonds. The Placement Agent, relying on the representations, warranties and undertakings of the Issuer contained herein, accepts such appointment on the terms and conditions set out in this Agreement. The Issuer confers on the Placement Agent all powers, authorities and discretions on its behalf which are reasonably necessary for, or reasonably incidental to, its appointment and such placing of the Bonds. The Issuer agrees to ratify and confirm everything (other than acts of fraud, gross negligence, bad faith, wilful default or wilful misconduct of which the Placement Agent is guilty of as determined by a court of final appeal) the Placement Agent shall lawfully do or has done pursuant to or in anticipation of such appointment. It is acknowledged and agreed by the Issuer that none of the Placement Agent and its Affiliates (as defined in the Terms and Conditions) is under any obligation to subscribe for or purchase the Bonds and that no guarantee or representation whatsoever has been given or implied by the Placement Agent that the Bonds may be placed. |
Page 2
(a) | a material adverse effect on the condition (financial or otherwise), results of operations, general affairs or properties of the Issuer and its Material Subsidiaries taken as a whole; or |
(b) | any condition or effect which materially and adversely affects the ability of the Issuer or any Subsidiary of the Issuer party to a Contract to perform their respective obligations under the Contracts or the Bonds. |
(a) | each Restricted Subsidiary; and | |
(b) | each other Subsidiary of the Issuer: |
(i) | whose profits from ordinary activities before taxation ( pre-tax profit ) or (in the case of a Subsidiary which itself has Subsidiaries) consolidated pre-tax profit, as shown by its latest audited income statement prepared in accordance with GAAP, are at least five per cent. of the consolidated pre-tax profit as shown by the latest audited consolidated income statement of the Issuer and its Subsidiaries prepared in accordance with GAAP, including, for the avoidance of doubt, the Issuer and its consolidated Subsidiaries share of profits of entities not consolidated and of jointly controlled entities and after adjustments for minority interests; |
(ii) | whose gross assets or (in the case of a Subsidiary which itself has Subsidiaries) gross consolidated assets, as shown by its latest audited balance sheet prepared in accordance with GAAP, are at least five per cent. of the amount which equals the amount included in the consolidated gross assets of the Issuer and its Subsidiaries as shown by the latest audited consolidated balance sheet of the Issuer and its Subsidiaries prepared in accordance with GAAP including, for the avoidance of doubt, the investment of the Issuer in each entity whose |
Page 3
accounts are not consolidated with the consolidated audited accounts of the Issuer and after adjustment for minority interests; or |
(iii) | whose revenues or (in the case of a Subsidiary which itself has Subsidiaries) consolidated revenues, as shown by its latest audited income statement prepared in accordance with GAAP, are at least five per cent. of the consolidated revenues as shown by the latest published audited consolidated income statement of the Issuer and its Subsidiaries prepared in accordance with GAAP including, for the avoidance of doubt, the Issuer and its consolidated Subsidiaries share of revenues of entities not consolidated and of jointly controlled entities and after adjustments for minority interests, |
provided that, in relation to paragraphs (i) to (iii) above: |
(A) | in the case of a corporation or other business entity which became a Subsidiary after the end of the financial period to which the latest consolidated audited accounts of the Issuer relate, the reference to the then latest consolidated audited accounts of the Issuer for the purposes of the calculation above shall be deemed to be a reference to the then latest consolidated audited accounts of the Issuer adjusted to consolidate the latest audited accounts (consolidated in the case of a Subsidiary which itself has Subsidiaries) of such Subsidiary in such accounts; |
(B) | in relation to the Issuer or any Subsidiary which itself has Subsidiaries no consolidated accounts have been prepared and audited, gross assets of the Issuer and/or any such Subsidiary shall be determined on the basis of pro forma consolidated accounts prepared for this purpose by the Issuer in accordance with GAAP; |
(C) | in relation to any Subsidiary no accounts have been audited, its gross assets (consolidated, if appropriate) shall be determined on the basis of pro forma accounts (consolidated, if appropriate) of the relevant Subsidiary prepared for this purpose by the Issuer in accordance with GAAP; and |
(D) | if the accounts of any Subsidiary (not being a Subsidiary referred to in proviso (A) above) are not consolidated with those of the Issuer, then the determination of whether or not such Subsidiary is a Material Subsidiary shall be based on a pro forma consolidation of its accounts (consolidated, if appropriate) with the consolidated accounts (determined on the basis of the foregoing) of the Issuer. |
Page 4
(a) | Organisation, power and authority: |
(i) | each of the Issuer and the Material Subsidiaries: |
(A) | is a company duly organised and validly existing under the laws of its jurisdiction of organisation; |
(B) | is not in liquidation or receivership or subject to any event which under the laws of any relevant jurisdiction has a similar or analogous effect to a liquidation or receivership; |
(C) | has full power and authority to own its properties and to conduct its business as currently conducted; |
(D) | is lawfully qualified to do business in those jurisdictions in which business is conducted by it (including registration of each Material Subsidiary that is a Macau company with the Companies Register of Macau SAR); and |
(E) | has obtained all material authorisations and licenses to enter into Contracts to which it is a party and perform its obligations under such Contracts, and, to the best knowledge of the Issuer and its Material Subsidiaries, there is no reason why any such authorisation or license should be withdrawn, suspended, revoked or cancelled, |
and there has been no petition filed, order made or effective resolution passed for the liquidation or winding up of the Issuer or any Material Subsidiary; |
(ii) | each of the Issuer and the Subsidiaries of the Issuer has (or will, prior to the execution of such Contract, have) full power and authority to enter into and perform its obligations under each Contract to which it is a party; and |
(iii) | the memorandum and articles of association, shareholders agreements (if any) and other constitutional documents of the Issuer and each Material Subsidiary are effective and have not been superseded and all |
Page 5
legal and procedural requirements concerning the adoption of such memorandum and articles of association, shareholders agreements and constitutional documents have been duly and properly complied with in all material respects; |
(b) | Validity of Contracts: this Agreement has been duly authorised, executed and delivered by the Issuer and constitutes, and the other Contracts have been duly authorised by each of the Issuer and each Subsidiary of the Issuer party thereto, as applicable, and upon execution and delivery prior to or on the Closing Date will constitute, valid and legally binding obligations of the Issuer and each such Subsidiary of the Issuer party thereto enforceable in accordance with their terms except as enforcement may be limited by insolvency, bankruptcy, administration, reorganisation, liquidation or similar laws having general applicability to creditors of the Issuer or each such Subsidiary of the Issuer; |
(c) | Validity of the Bonds and the Warrants: without prejudice to Clause 3.1(b) above: |
(i) | the Bonds and the Warrants and the Offering of the Bonds contemplated by this Agreement have been duly authorised by the Issuer; and |
(ii) | the Bonds and Warrants, when duly executed, issued, delivered and (in respect of the Bonds) authenticated, in accordance with this Agreement, the Trust Deed, the Agency Agreement and (in respect of the Warrants) the Terms and Conditions, the Bonds and the Warrants will constitute valid and legally binding obligations of the Issuer enforceable in accordance with their terms except as enforcement may be limited by insolvency, bankruptcy, administration, reorganisation, liquidation or similar laws having general applicability to creditors of the Issuer; |
(d) | Status: the Bonds (when issued) will constitute direct, senior, unconditional, unsecured and unsubordinated obligations of the Issuer and will at all times rank at least pari passu without any preference among themselves and with all other present and future direct, unconditional, unsecured and unsubordinated obligations of the Issuer other than those preferred by statute or applicable law; |
(e) | Authorised Share Capital: Sands China has or, prior to the date of the Qualified IPO will have, sufficient authorised but unissued share capital to satisfy the issue of such number of Shares as would be required to be issued either (x) on exchange of all the Bonds upon the occurrence of a Qualified IPO or (y) upon the exercise of the Warrants (if any) issued in accordance with Condition 8.2 of the Terms and Conditions (in either case, the New Shares ); |
(f) | New Shares: the New Shares have or, immediately prior to the date of the Qualified IPO will have, been duly authorised by Sands China, and when |
Page 6
issued and delivered in the manner contemplated by the Bonds and the Trust Deed: |
(i) | will be duly and validly issued, fully-paid or credited as fully-paid and non-assessable; |
(ii) | will rank pari passu and carry the same rights and privileges in all respects as any other class of share capital of Sands China then outstanding and shall be entitled to all dividends and other distributions declared, paid or made thereon; and |
(iii) | will be freely transferable, free and clear of all Liens; |
(g) | Pre-emptive Rights and Options: the issue of the New Shares will not be subject to any pre-emptive or similar rights; |
(h) | Restrictions: subject to: |
(i) | the right of the directors of Sands China to decline to register a transfer of Shares (which right shall be removed on or prior to the Qualified IPO); and |
(ii) | the statutory limitation that dividends may only be paid by Sands China out of profits or share premium at a time when Sands China is solvent, |
there are no restrictions applicable to the Shares generally upon the voting or transfer of any of the Shares, the payments of dividends or the making of any other distribution with respect to the Shares under Cayman Islands law, pursuant to the memorandum and articles of association of Sands China or pursuant to any agreement or other instrument to which Sands China, the Issuer or any other Subsidiary of the Issuer is a party or by which it may be bound; |
(i) | Capitalisation: |
(i) | the particulars of the issued share capital and other corporate details of the Issuer and each Material Subsidiary set out in Schedule 4 are a true, complete and correct description of the share capital and such corporate details of the Issuer and each Material Subsidiary on the date hereof and on the Closing Date except that, prior to the date of Qualified IPO, all of the shares of Venetian Venture Development Intermediate Limited held by the Issuer will be transferred to Sands China; |
(ii) | the issued shares and equity interests of each of the Issuer and the Material Subsidiaries are duly authorised, validly issued, fully paid or credited as fully-paid and non-assessable; |
Page 7
(iii) | the shares of the Issuer are owned directly by Venetian Venture Development Intermediate I, free and clear of all Liens, restrictions on voting or transfer or claims of any third party; and |
(iv) | all shares owned directly or indirectly by the Issuer, are owned free and clear of all Liens, restrictions on voting or transfer or claims of any third party other than any security interests created in favour of the lenders under the Credit Agreement (as defined in the Terms and Conditions) and the HK$1,209,000,000 Dual Currency Term Secured Facility Agreement between, among others, Cotai Waterjets (Macau) Limited and Banco Nacional Ultramarino S.A. (the Ferry Loan Agreement ); |
(j) | Business: the Issuer and each of the Restricted Subsidiaries are engaged only in the businesses permitted to be engaged pursuant to Condition 3.9 of the Terms and Conditions; |
(k) | Laws : the Issuer and each Material Subsidiary is in compliance with and will comply with all applicable laws and regulations, save for any such non-compliance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; |
(l) | Consents: no action or thing in relation to any governmental agency or body (including, without limitation, the government of Macau SAR and any gaming authority) is required to be taken, fulfilled or done (including, without limitation, the obtaining of any consent, approval, authorisations, orders or license (whether required under the Gaming Concession Contract, the Gaming Concession Guaranty, the Gaming License and the Land Concession Contracts or otherwise), or the making of any filing or registration) for the execution and delivery of the Contracts, the issue of the Bonds, the issue of the Warrants (if any), the issue of the New Shares on exchange of the Bonds or exercise of the Warrants, as the case may be, and any such action or thing or filing or registration to the extent required in relation to the carrying out of the other transactions contemplated by the Contracts and the Bonds, or the compliance by the Issuer or any of its Subsidiaries or any other Subordinated Creditor with the terms of the Bonds and the Contracts, will be taken, fulfilled or done as and when necessary; |
(m) | Compliance: the execution and delivery of the Contracts, the issue, execution, authentication (where appropriate) and delivery of the Bonds and their Offering on the terms and conditions set out in this Agreement, the issue of the Warrants (if any), the issue of the New Shares on exchange of the Bonds or exercise of the Warrants, the carrying out of the other transactions contemplated by the Contracts and the Bonds and compliance with their terms do not and will not: |
(i) | conflict with or result in a breach of any of the terms or provisions of, or constitute a default under the Credit Agreement (and its related security and guarantee documents), the Ferry Loan Agreement (and its related security and guarantee documents) the documents constituting |
Page 8
the Issuer or any Material Subsidiary (as applicable) or any other material indenture or other trust deed or mortgage or other material agreement or instrument to which the Issuer or any Material Subsidiary (as applicable) is a party or by which any of their respective properties are bound; or |
(ii) | infringe any existing applicable law, rule, regulation, judgment, order or decree of any government, governmental body or court, domestic or foreign, having jurisdiction over the Issuer or any Material Subsidiary or any of their respective properties (including such obligations pursuant to the Gaming Concession Contract, the Gaming Concession Consent, the Gaming Concession Guaranty, the Gaming License and the Land Concession Contracts); |
(iii) | infringe any existing rules of the Hong Kong Stock Exchange applicable to or binding upon the Issuer or any Material Subsidiary; or |
(iv) | result in or require the creation or imposition of any Lien upon any of the properties or assets of the Issuer or any Material Subsidiary, |
except, in respect of sub-paragraph (i) or (ii) above only, where such breach or default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; |
(i) | the audited consolidated financial statements of Venetian Macau Limited, its Subsidiaries, Cotai Waterjets (HK) Limited and Cotai Jet Holdings (II) Limited (together, the VML Group , and each of them, a VML Group Member ) for the three years ended 31 December 2008 and the unaudited consolidated financial statements of the VML Group for the six months ended 30 June 2009 provided to the Placement Agent: |
(A) | were prepared in accordance with GAAP, which was consistently applied, and pursuant to the relevant laws of each relevant jurisdiction of incorporation of each VML Group Member; |
(B) | present a true and fair view of the financial position of the VML Group as at such dates, and the results of operations and changes in financial position of the VML Group for the periods in respect of which they have been prepared; |
(C) | in the case of the unaudited consolidated financial statements of the VML Group for the six months ended 30 June 2009, have been prepared and presented on a basis consistent with the accounting policies normally adopted by the VML Group and applied in preparing the audited consolidated financial statements of the VML Group; |
Page 9
(D) | do not include transactions not normally undertaken by the relevant member of the VML Group (save as disclosed in the said relevant financial statements); and |
(E) | disclose all material off-balance sheet transactions, arrangements, and obligations; |
(ii) | since the date of the last audited consolidated financial statements of the VML Group: |
(A) | there has been no change (nor any development or event reasonably likely involving a change of which the Issuer is, or might reasonably be expected to be, aware) which is materially adverse to the condition (financial or other), results of operations or general affairs of the VML Group or the Issuer and the Material Subsidiaries taken as a whole; |
(B) | the Issuer and its Material Subsidiaries, including the VML Group Members, have carried on their business in the ordinary and usual course so as to maintain themselves as a going concern; |
(C) | none of the Issuer and its Material Subsidiaries, including the VML Group Members, have incurred or become subject to any material liability or obligation except liabilities and obligations incurred under contracts entered into in the ordinary course of business; and |
(D) | no further material liability for taxation has arisen, or shall arise, otherwise than as a result of activities in the ordinary course of business of the Issuer and its Material Subsidiaries, including the VML Group Members; |
(o) | Accounting Controls: the Issuer and each of its Material Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurances that: |
(i) | transactions are executed in accordance with managements general or specific authorisations; |
(ii) | transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and the applicable laws of the respective jurisdictions of incorporation of the Issuer and its Material Subsidiaries and to maintain asset accountability; |
(iii) | access to assets is permitted only in accordance with managements general or specific authorisation; |
(iv) | the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with |
Page 10
respect to any differences in accordance with the requirements of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations promulgated thereunder (the FCPA ) and relevant local law; |
(v) | the Issuer and each of its Material Subsidiaries have made and kept books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of assets of such entities and provide a sufficient basis for the preparation of the Issuers consolidated financial statements in accordance with GAAP and the applicable laws of the respective jurisdictions of incorporation of the Issuer and each of its Material Subsidiaries; and |
(vi) | the current management information and accounting control system of the Issuer and its Material Subsidiaries (other than for those Material Subsidiaries formed within the past 12 months) has been in operation for at least 12 months during which time none of the Issuer and its Material Subsidiaries have experienced any material difficulties with regard to (i) through (v) above; |
(p) | Contingent and Other Liabilities: there are no outstanding guarantees or contingent payment obligations in respect of Indebtedness of third parties other than the Issuer and its Material Subsidiaries, liability for taxes, long-term lease or forward or long-term commitments of the Issuer or its Material Subsidiaries except as disclosed in the financial statements referred to in Clause 3.1(n); each of the Issuer and its Material Subsidiaries is, in all material respects, in compliance with all of its obligations under any outstanding guarantees or contingent payment obligations, taxes, long-term lease or forward or long-term commitments as described in such financial statements, except for any such non-compliance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; |
(q) | Liquidity and Capital Resources: none of the Issuer and its Material Subsidiaries has any material relationships with unconsolidated entities (such as structured finance entities and special purpose entities) that restrict or limit the ability of the Issuer or any Material Subsidiary to transfer assets or have access to assets which relationships are reasonably likely to have a material effect on the liquidity of the Issuer or any Material Subsidiary or the availability thereof or the requirements of the Issuer or any Material Subsidiary for capital resources, in each case, other than the Credit Agreement, the Ferry Loan Agreement and their related security documents and guarantees; |
(r) | Auditors: PricewaterhouseCoopers LLP, who audited the financial statements of the VML Group for the three years ended 31 December 2008 and the notes thereto and delivered an audit report thereon, are independent reporting accountants with respect to the VML Group and there is no audit qualification on any audited financial statements of the VML Group; |
Page 11
(s) | Property: the Issuer and its Material Subsidiaries have (I) save as otherwise disclosed in the financial statements referred to in Clause 3.1(n) and the notes thereto, marketable title to (in the case of interests in real property), (II) valid leasehold interests in (in the case of leasehold interests in real or personal property) and (III) good title to (in the case of all personal property), all of their respective material properties and assets reflected in the financial statements referred to in Clause 3.1(n) (the Property ), except for assets disposed of since the financial statements referred to in Clause 3.1(n) in the ordinary course of business of the Issuer or any Material Subsidiary. Except as permitted by the Credit Agreement, the Ferry Loan Agreement, the related security documents and guarantees of the Credit Agreement and the Ferry Loan Agreement, all such properties and assets are held free and clear of Liens; |
(t) | Approvals: the Issuer and its Material Subsidiaries possess all valid certificates, consents, permissions (including planning permissions), authorities, filings, licenses, approvals, registrations or permits (the Approvals ) issued by appropriate governmental agencies or bodies necessary to conduct the business now operated by them (or where the lack of any such Approvals would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect) and have not received any notice of proceedings relating to the revocation or modification of any such Approvals that, if determined adversely to the Issuer or any Material Subsidiary, would individually or in the aggregate reasonably be expected to have a Material Adverse Effect; |
(u) | Payment of Taxes: |
(i) | the Issuer and its Material Subsidiaries have duly filed on time all tax returns that are required to be filed in all jurisdictions or have duly requested extensions thereof and have paid all taxes required to be paid by any of them in all jurisdictions and any related assessments, fines or penalties, to the extent any of the foregoing is due and payable, except for any such tax, assessment, fine or penalty that is being contested in good faith and by appropriate proceedings or where the failure to file or make payment would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and adequate charges, accruals, provisions and reserves have been provided for in the financial statements referred to in Clause 3.1(n) in respect of all taxes for all periods as to which the tax liability of the Issuer or any Material Subsidiary has not been finally determined or remains open to examination by the applicable taxing authority; |
(ii) | each of the Issuer and its Material Subsidiaries has made all deductions and withholdings in respect, or on account, of any tax from any payments made by it which it is obliged or entitled to make and has duly accounted in full to the appropriate authority for all amounts so deducted or withheld or where the failure to make such deductions and |
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withholdings would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; |
(iii) | none of the Issuer and its Material Subsidiaries has entered into or been engaged in or been a party to any transaction which is artificial or fictitious or any transaction or series of transactions or scheme or arrangement of which the main or dominant purpose or one of the main or dominant purposes was the avoidance or deferral of or reduction in the liability to tax of such person; |
(iv) | all exemptions, reductions and rebates of taxes granted to the Issuer and its Material Subsidiaries by any governmental authority or taxing authority are in full force and effect and have not been terminated and the transactions contemplated under the Contracts will not, and, to the best knowledge of the Issuer and its Material Subsidiaries, there is no other circumstance or event that will, result in any such exemption, reduction or rebate being cancelled or terminated, whether retroactively or for the future, other than termination upon expiration, or where such termination or cancellation would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; |
(v) | full provision or reserve has been made in the financial statements referred to in Clause 3.1(n) above for all taxes, including deferred or provisional taxation in respect of the accounting period ended on or before the dates of such financial statements for which the VML Group was then or might at any time thereafter become or has become liable including (without limitation) taxes or where the failure to make such provision or reserve would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and |
(vi) | none of the Issuer and its Material Subsidiaries is the subject of any dispute with the relevant tax, revenue or other authorities and to the best of the knowledge of the Issuer and its Material Subsidiaries, no circumstance exists which is likely to give rise to any such dispute or where such dispute would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; |
(v) | Stamp Duties : |
(i) | no stamp or other duty is assessable or payable (except as set forth in the legal opinion to be delivered under sub-clause 8.2) in; |
(ii) | no withholding or deduction for any taxes, duties, assessment or governmental charges of whatever nature is generally imposed or made for or on account of any income in; and |
(iii) | no registration, transfer or turnover taxes, customs or other duties or taxes of any kind, levied, collected, withheld or assessed by or within, |
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the Cayman Islands, Macau, Hong Kong, the United Kingdom, the United States or any other relevant jurisdiction in connection with the creation, issue, Offering or sale of the Bonds, the issue of the Warrants (if any), the issue of the New Shares or the execution or delivery of the Contracts; |
(w) | Litigation and Solvency: |
(i) | save as disclosed in Schedule 5, there are no pending litigation proceedings, arbitration proceedings, investigations (including police, legal, governmental or regulatory investigations), enquiries, actions, suits or other proceedings by or before a court, government agency, police, or regulatory agency or body, at law or in equity, against or affecting the Issuer or any Material Subsidiary or any of their respective properties or, to the best knowledge of the Issuer and its Material Subsidiaries, against or affecting directors or senior officers of the Issuer or any Material Subsidiary which are reasonably likely to be determined adversely to the Issuer or any Material Subsidiary or any of their respective properties or directors or senior officers and if so determined would individually or in the aggregate reasonably be expected to have a Material Adverse Effect and, to the best knowledge of the Issuer and its Material Subsidiaries, no such litigation, arbitration, investigations, enquiries, actions, suits or proceedings are threatened or contemplated; |
(ii) | no order has been made and no resolution has been passed for the winding up, liquidation or dissolution of the Issuer or any Material Subsidiary; and no distress, execution or other process has been levied on the whole or a substantial part of the assets of the Issuer or any Material Subsidiary; and none of the Issuer and its Material Subsidiaries: |
(A) | is insolvent or unable to pay its debts as they fall due; or |
(B) | will be insolvent or unable to pay its debts as they fall due upon the issue of the Bonds or the execution of the Contracts and performance of their respective obligations thereunder; and |
(iii) | none of the Issuer and its Material Subsidiaries is subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or regulations of any court, any gaming authority, or any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; |
(x) | Insurance: each of the Issuer and its Material Subsidiaries has in place all material policies of insurance sufficient and customary for the conduct of its businesses as currently operated and for compliance with all requirements of law, such policies are in full force and effect, and all premiums with respect thereto have been paid, and no notice of cancellation or termination has been |
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received with respect to any such policy, and each of the Issuer and its Material Subsidiaries has complied in all respects with the terms and conditions of such policies, except where a breach of this representation would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; |
(y) | Intellectual Property: each of the Issuer and its Material Subsidiaries owns or possesses adequate rights to use, or can acquire on reasonable terms, adequate patents, patent rights, licences, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, Intellectual Property ) necessary to carry on the business now operated by it in each country in which it operates, and none of the Issuer and its Material Subsidiaries has received any notice or is otherwise aware of any infringement of or conflict in any jurisdiction with asserted rights of others with respect to any Intellectual Property or of any facts or circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Issuer or any of its Material Subsidiaries therein, and which infringement or conflict (if the subject of any unfavourable decision, ruling or finding) or invalidity or inadequacy, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; |
(z) | Environmental and Construction Laws: without prejudice to the generality of Clause 3.1(k) above: |
(i) | the Issuer and its Material Subsidiaries (i) have received, are in compliance with and will comply with all permits, licenses or other approvals under applicable laws, regulations and judicial and administrative interpretations concerning the environment, construction and construction safety ( Environmental and Construction Laws ) which are at any time binding on the Issuer or any of its Material Subsidiaries and which are required to conduct their respective businesses and (ii) have not received notice of any actual or potential liability under any Environmental and Construction Law, except, in each case, where such non-compliance with Environmental and Construction Law, failure to receive required permits, licenses or other approvals, or liability would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; |
(ii) | each of the Issuer and its Material Subsidiaries which engages in the construction business has (i) all the necessary production and work safety facilities and equipment in accordance with the applicable standards for construction safety and (ii) passed all safety inspections conducted by relevant governmental authorities; |
(iii) | (A) none of the Issuer and its Material Subsidiaries has engaged in or permitted nor, to the best knowledge of the Issuer and its Material Subsidiaries, has any previous owner or occupier engaged in or |
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permitted any operations or activities upon the Property owned or used by the Issuer or any of its Material Subsidiaries (including all buildings and premises used and operated by the Issuer and its Material Subsidiaries) involving any actual or alleged use, manufacture, possession, storage, holding, presence, existence, location, release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of Hazardous Substance or any substance regulated by any Environmental and Construction Law, or any substance regulated by any Environmental and Construction Law; and (B) no discharge, release, leaching, emission or escape into the environment of any Hazardous Substance or any substance regulated by any Environmental and Construction Law has occurred or is occurring in the conduct of the business of the Issuer or any of its Material Subsidiaries or in the conduct by the Issuer or any of its Material Subsidiaries of any former business or in connection with or in relation to any assets of such person while such former assets were in the ownership or under the control of such person and no such discharge, release, leaching, emission or escape has occurred or is occurring for which such person might otherwise be held liable; | |||
for the purposes of this Agreement, Hazardous Substance means all substances of whatever description which may cause or have a harmful effect on the environment or the health of person or any other living organism including, without limitation, all poisonous, toxic, noxious, dangerous and offensive substances; |
(iv) | none of the Issuer and its Material Subsidiaries nor any of their respective properties or operations are subject to any outstanding written order, consent decree or settlement agreement with any person relating to: |
(A) | any Environmental and Construction Law; or | ||
(B) | any Environmental and Construction Claim; |
for the purposes of this Agreement, Environmental and Construction Claim means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any government authority, arising (a) pursuant to or in connection with any actual or alleged violation of any Environmental and Construction Law, (b) in connection with any Hazardous Substance (including any actual or alleged use, manufacture, possession, storage, holding, presence, existence, location, release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of Hazardous Substance or any substance regulated by any Environmental and Construction Law), or (c) in connection with any actual or alleged |
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damage, injury, threat or harm to health, safety, natural resources or the environment; |
(v) | none of the Issuer and its Material Subsidiaries and, to their best knowledge, none of the predecessors of the Issuer and its Material Subsidiaries has filed any notice under any Environmental and Construction Law indicating past or present treatment of Hazardous Substance at any Property of the Issuer or any of its Material Subsidiaries, and none of the operations of the Issuer and its Material Subsidiaries involves the actual or alleged use, manufacture, possession storage, holding, presence, existence, location, release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of Hazardous Substance or any substance regulated by any Environmental and Construction Law in a manner which would result in liability to the Issuer or any of its Material Subsidiaries; |
(vi) | the Projects (other than any Secondary Project that has not yet become an active Project) are (and at all relevant times have been) in compliance in all material respects with Environmental and Construction Laws; |
(vii) | to the best knowledge of the Issuer and its Material Subsidiaries, all factual information provided by them to any governmental, environmental, gaming or construction authority in connection with the environmental assessments are true and correct in all material respects; and |
(viii) | the Issuer and its Material Subsidiaries are in compliance with all current or reasonably foreseeable future requirements pursuant to or under Environmental and Construction Laws, |
provided however that the Issuer shall not be in breach of this Clause 3.1(z) for breaches that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; |
(aa) | Environmental and Construction Laws Review: in the ordinary course of its business the Issuer and its Material Subsidiaries periodically review the effect of Environmental and Construction Laws on its business, operations and properties, in the course of which it identifies and evaluates associated costs and liabilities (including, without limitation, any capital or operating expenditures required for clean-up, closure of properties or compliance with Environmental and Construction Laws, or any permit, licence or approval, any related constraints on operating activities and any potential liabilities to third parties); on the basis of such periodic review, the Issuer has reasonably concluded that such associated costs and liabilities would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; |
(bb) | Events of Default and Validity of Agreement: |
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(i) | no event has occurred or circumstance has arisen which, had the Bonds already been issued, could reasonably be expected (whether or not with the giving of notice and/or the passage of time and/or the fulfilment of any other requirement) to constitute an event described as an Event of Default or a Potential Event of Default under (and as defined in) the Terms and Conditions; |
(ii) | no event has occurred or circumstance has arisen which, had the Bonds already been issued, could reasonably be expected (whether or not with the giving of notice and/or the passage of time and/or the fulfilment of any other requirement) to constitute an event described as an Event of Default or a Potential Event of Default under (and as defined in) the Credit Agreement; |
(iii) | none of the Issuer and its Material Subsidiaries is in default or in breach of (including any event or condition occurred which, with the giving of notice or the lapse of time would result in a default or breach), or has knowledge (actual or constructive) of the invalidity of or grounds or conditions for (including grounds or conditions that with the giving of notice or the lapse of time would entitle any person to claim) rescission, avoidance or repudiation of, any other agreement or other transaction to which the Issuer or any of its Material Subsidiaries is a party (including without limitation, the Gaming Concession Contract, the Gaming Concession Guaranty, the Gaming License and the Land Concession Contracts), nor, to the best knowledge of the Issuer and its Material Subsidiaries, has the Issuer or any of its Material Subsidiaries received notice of any intention to terminate any such agreement or repudiate or disclaim any other transaction where such default, breach, invalidity, rescission, avoidance, termination or repudiation or disclaim of transaction would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; |
(iv) | there are no defaults by any party with whom the Issuer or any of its Material Subsidiaries has entered into any agreement or arrangement (including any lease, tenancy agreement or license agreement in respect of which the Issuer or any of its Material Subsidiaries is the lessor, landlord or licensor) under such agreements or arrangements which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and, to the best knowledge of the Issuer and its Material Subsidiaries, there are no circumstances likely to give rise to any such default; |
(v) | all amounts due and payable on the date of this Agreement and the Closing Date to any material contractors or suppliers (and to the best knowledge of the Issuer and its Material Subsidiaries, all subcontractors) pursuant to agreement or other transaction to which the Issuer or any of its Material Subsidiaries is a party have been paid in full except for the amounts disputed in good faith by the Issuer or any Material Subsidiary and adequate provision has been made for such |
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amounts in the financial statements referred to in Clause 3.1(n) in accordance with GAAP and amounts which, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect; and |
(vi) | the Issuer and its Material Subsidiaries are currently in compliance with all financial covenants in its outstanding Indebtedness and is not in breach or potential breach of any provision of such Indebtedness, nor will be in breach or potential breach of any provision of such Indebtedness following issuance of the Bonds; |
(cc) | Information : |
(i) | all statements of fact contained in any announcement of the Issuer or any Material Subsidiary (including any announcement to be made by the Issuer or any Material Subsidiary in respect of the issue of the Bonds) are or will be true and accurate in all material respects and not misleading when made and all statements of opinion, intention or expectation of the directors of the Issuer or any Material Subsidiary in relation to the Issuer or its Material Subsidiaries contained therein (if any) are or will be truly and honestly held and have been or will be made on reasonable grounds and have been or will be fairly based after due and careful consideration, and there is or will be no other fact or matter omitted therefrom the omission of which would make any statement therein misleading when made; |
(ii) | all information supplied or disclosed in writing or orally including, without limitation, the answers and documents provided at due diligence meetings or calls (and any new or additional information serving to update or amend such information supplied or disclosed by the Issuer or any Material Subsidiary to the Placement Agent or the legal advisers to the Placement Agent) is true and accurate in all material respects and not misleading in any material respect and all forecasts, opinions and estimates relating to the Issuer and its Material Subsidiaries so supplied or disclosed have been made after due, careful and proper consideration, are based on reasonable assumptions and represent reasonable and fair expectations honestly held based on facts known to such persons (or any of them); there has been no development or occurrence relating to the financial or business condition of the Issuer or any Material Subsidiary (including, without limitation, with respect to any corporate event, acquisition, disposal or related matter) which has not been disclosed to the Placement Agent; and no investor meeting or presentation has been conducted or information and materials issued by the Issuer, its Material Subsidiaries and/or their agents (whether with or without the authority of the Issuer or any Material Subsidiary) in respect of the Offering without the prior knowledge and consent of the Placement Agent; |
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(iii) | the answers and documents provided by the Issuer and its Material Subsidiaries in response to any question of the Placement Agent and other potential subscribers of the Bonds, or during conference calls, investor meetings or presentations held by or participated by the Issuer, any Material Subsidiary or their agents, are true and accurate in all material respects and not misleading in any material respect; and |
(iv) | all information (whether oral, written, electronic or in any other form) supplied by or on behalf of the Issuer, any Material Subsidiary or any of their officers, directors, employees, for the purpose of or in connection with the Offering, the Issuer and/or its Material Subsidiaries, and all publicly available information and records of the Issuer or any Material Subsidiary (including information contained in statutory filings and registrations) is and was, when supplied or published, true and accurate in all material respects and not misleading; |
(dd) | No Fiduciary Relationship: the Issuer understands and agrees that (i) the placing of the Bonds pursuant to this Agreement, including the determination of the issue of the Bonds and any related discounts and commissions, is an arms-length commercial transaction between the Issuer, on the one hand, and the Placement Agent, on the other hand; (ii) in connection with the Offering, the Placement Agent is and has been acting solely as principal and is not the agent or fiduciary of any of the Issuer, the Material Subsidiaries or any of their respective stockholders, creditors, employees or any other party; (iii) the Placement Agent has not assumed and will not assume an advisory or fiduciary responsibility in favour of any of the Issuer and the Material Subsidiaries or with respect to the Offering or the process leading thereto (irrespective of whether the relevant Placement Agent has advised or is currently advising the Issuer or any Material Subsidiary on other matters, including the proposed listing of the Shares on the Hong Kong Stock Exchange) and the Placement Agent has no obligation to any of the Issuer and its Material Subsidiaries with respect to the Offering except the obligations expressly set forth in this Agreement, (iv) the Placement Agent and its respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Issuer or any of its Material Subsidiaries; and (v) the Placement Agent has not provided any legal, accounting, regulatory or tax advice with respect to the Offering; the Issuer and its Material Subsidiaries have consulted their own legal, accounting, regulatory and tax advisors to the extent they deemed appropriate; and this Agreement supersedes any prior agreement or understanding (whether written or oral) between the Issuer, the Material Subsidiaries and the Placement Agent with respect to the subject matter of this Clause 3.1(dd); |
(ee) | General Solicitation: neither the Issuer nor any of its affiliates (as defined in Regulation D under the Securities Act ( Regulation D ), nor any person acting on its or their behalf (other than the Placement Agent, its affiliates and any person acting on its or their behalf as to whom no representation, warranty or undertaking is made or given) has engaged in any form of general solicitation |
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or general advertising (within the meaning of Rule 502(c) under the Securities Act) in connection with any offer or sale of the Bonds, the Warrants or the Shares in the United States, or has made or will make offers or sales of any security, or solicited offers to buy, or otherwise negotiated in respect of, any security, under circumstances that would require the registration of the Bonds, the Warrants, the Shares or the New Shares under the Securities Act; |
(ff) | No Registration: assuming the Placement Agent, its affiliates (as defined in Regulation D) and any person acting on its or their behalf have complied with the representations and undertakings herein and the selling restrictions set out in Clause 11, no registration of the Bonds, the Warrants or the New Shares under the Securities Act will be required for the offer, sale and delivery of the Bonds in the manner contemplated by this Agreement; neither the Issuer nor any of its affiliates (as defined in Regulation D) has entered into any contractual arrangement with respect to the distribution of the Bonds other than this Agreement; |
(gg) | Stabilisation Information: none of the Issuer, the Subsidiaries of the Issuer and their respective affiliates has, issued and none of them will issue, without the prior consent of the Placement Agent, any press or other public announcement referring to the proposed issue of the Bonds and the Issuer authorises the Placement Agent to make all appropriate disclosure in relation to any stabilisation instead of the Issuer; |
(hh) | Stabilisation: neither the Issuer nor any of its affiliates (as defined in Rule 501(b) of Regulation D), nor any person acting on its or their behalf (other than the Placement Agent, its affiliates and any person acting on its or their behalf as to whom no representation, warranty or undertaking is made or given) has taken or will take, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to cause or result in, the stabilisation or manipulation in violation of applicable laws of the price of any security to facilitate the sale or resale of the Bonds, the Warrants or the New Shares; |
(ii) | Directed Selling Efforts: neither the Issuer nor any of its affiliates (as defined in Rule 405 under the Securities Act) nor any person acting on its or their behalf (other than the Placement Agent, its affiliates and any person acting on its or their behalf as to whom no representation, warranty or undertaking is made or given) has engaged in any directed selling efforts (as defined in Regulation S) with respect to the Bonds, the Warrants or the New Shares; |
(jj) | Foreign Issuer and US Market Interest: the Issuer is a foreign issuer (as such term is defined in Regulation S) which reasonably believes that there is no substantial U.S. market interest (as such term is defined in Regulation S) in the debt securities of the Issuer or any of its Subsidiaries or in the Shares or any Equity Securities of the Issuer or any of its Subsidiaries and, prior to the occurrence of the Qualified IPO, Sands China will be a foreign issuer (as such term is defined in the Regulation S); |
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(kk) | OFAC and Other Sanctions: none of the Issuer, its Subsidiaries, and the directors, officers, agents, employees and Affiliates of the Issuer and its Subsidiaries is currently subject to: |
(i) | any sanction administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury ( OFAC ); or |
(ii) | any sanction administered by the United Nations, the European Union, Her Majestys Treasury or any other relevant sanctions authority (together with the sanctions referred to in sub-clause (i) above, collectively, the Sanctions ); |
(ll) | Unlawful Payments: to the best knowledge of the Issuer and its Material Subsidiaries, none of the Issuer, its Material Subsidiaries and their officers, directors, supervisors, managers, agents or employees has, directly or indirectly, (i) made or authorised any contribution, payment or gift of funds or property to any official, employee or agent of any governmental agency, authority or instrumentality or any gaming authority or (ii) made any contribution to any candidate for public office, in either case, where either the payment or the purpose of such contribution, payment or gift was, is, or would be prohibited under the applicable law of any locality, including but not limited to the FCPA; |
(mm) | No Brokers Commission: no brokers or finders fee or commission will be payable by the Issuer or any of its Subsidiaries with respect to this Agreement or any of the transactions contemplated hereby (other than fees and expenses payable to the Placement Agent); |
(nn) | Employee Matters and Acts of God: (i) None of the Issuer and its Material Subsidiaries, nor their respective properties and assets, is affected by any fire, explosion, accident, drought, storm, hail, earthquake, embargo, act of God or of the public enemy, or other casualty or other event of force majeure, that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (ii) there are no strikes, lockouts, stoppages, slowdowns or other labour disputes against the Issuer or any Material Subsidiary pending or, to the best knowledge of the Issuer and its Material Subsidiaries, threatened that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (iii) hours worked by and payment made to employees of the Issuer and its Material Subsidiaries have not been in violation of any applicable laws and regulations, except for violations that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iv) all payments due from the Issuer and its Material Subsidiaries on account of employee health and welfare insurance that (individually or in the aggregate) would reasonably be expected to have a Material Adverse Effect if not paid have been paid or accrued as a liability on the financial statements referred to in Clause 3.1(n); |
(oo) | Off-balance Sheet Arrangements : none of the Issuer and its Material Subsidiaries has any material relationships with any entity other than the Issuer and its Material Subsidiaries that are contractually limited to narrow |
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activities that facilitate the transfer of or access to assets by the Issuer, or any of its Material Subsidiaries, such as structured finance entities and special purpose entities that could have a material effect on the liquidity of the Issuer or any Material Subsidiary or the availability thereof or the requirements of the Issuer or any Material Subsidiary for capital resources; |
(pp) | Anti-Money Laundering: the operations of the Issuer and its Material Subsidiaries are and have been conducted at all times in compliance with all applicable financial recordkeeping and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, and the applicable anti-money laundering statutes of jurisdictions where the Issuer or any of its Material Subsidiaries conducts business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Anti-Money Laundering Laws ), except where any non-compliance, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect, and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any Material Subsidiary with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Issuer and its Material Subsidiaries (after due and careful enquiry), threatened; |
(qq) | Immunity: none of the Issuer, the Subsidiaries of the Issuer, the Subordinated Creditors and their respective assets or properties has any immunity in respect of the obligations of the Issuer, the Subsidiaries of the Issuer and the Subordinated Creditors under the Contracts or the Bonds or from the jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment or attachment in aid of execution or otherwise) under the laws of the Cayman Islands, Macau, Hong Kong and the jurisdictions in which such entities are incorporated; |
(rr) | PFIC Status: |
(i) | the Issuer does not believe that it is and does not expect to become (whether as a result of the receipt and application of the proceeds of the sale of the Bonds or otherwise) a passive foreign investment company within the meaning of section 1297 of the US Internal Revenue Code of 1986 (as amended, the Code ); and |
(ii) | Sands China (x) is, as of the time of this Agreement, disregarded as an entity separate from its owner for U.S. federal income tax purposes and (y) does not believe that it will be, as of such time as it may become classified as a corporation for U.S. federal income tax purposes, and does not expect to thereafter become (whether as a result of the receipt and application of the proceeds of the sale of the Bonds or otherwise) a passive foreign investment company within the meaning of section 1297 of the Code; and |
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(ss) | Investment Company Act: the Issuer is not, and immediately after giving effect to the Offering and sale of the Bonds and the application of the proceeds thereof, will not be, an investment company as such term is defined in the US Investment Company Act of 1940. |
(a) | it has not offered or sold and will not offer or sell the Bonds by any form of general solicitation or general advertising, including but not limited to the methods described in Rule 502(c) under the Securities Act, or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; |
(b) | it is an institutional accredited investor within the meaning of Rule 501 under the Securities Act; |
(c) | the Bonds, the Warrants and the New Shares have not been and will not be registered under the Securities Act; it has offered the Bonds and will offer and sell the Bonds outside the United States only in accordance with Rules 903 and 904 of Regulation S and, in the United States to not more than 35 accredited investors (within the meaning of Rule 501 under the Securities Act) in reliance on Section 4(2) of the Securities Act; accordingly, neither the Placement Agent, their respective affiliates nor any persons acting on its or their behalf have engaged or will engage in any directed selling efforts (within the meaning of Regulation S) or any form of general solicitations or general advertising (within the meaning of Section 502(c) under the Securities Act) with respect to the Bonds; and |
(d) | (i) it is aware that Sands China is disregarded as an entity separate from its owner for U.S. federal income tax purposes, (ii) it is aware that as of such time as Sands China may be become classified as a corporation for U.S. federal income tax purposes, Sands China expects to be a controlled foreign corporation within the meaning of Section 957 of the Code and (iii) it is not relying on the Issuer for any assessment of the United States federal income tax consequences of the transactions contemplated by this Agreement. |
(a) | The Issuer shall, on demand of the Placement Agent, to the fullest extent permitted by applicable law, indemnify and hold harmless the Placement Agent and each of its subsidiaries, affiliates (within the meaning of the Securities Act or the United States Securities Exchange Act of 1934 (as amended) and including the partners of any such affiliates) and associated companies, their respective directors, officers, employees and agents |
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(including, but not limited to, controlling persons within the meaning of the Securities Act) as the case may be (together, the Indemnified Parties ) against all or any losses, costs, expenses (including reasonable and documented legal fees as they are incurred), fees, claims, actions, liabilities, demands, proceedings or judgments (including, but not limited to, all such losses, costs or expenses suffered or incurred in disputing or defending any claims, actions, liabilities, demands, proceedings or judgments (the Proceedings ) and/or in establishing its rights to be indemnified pursuant to this Clause 3.4 and/or in seeking advice in relation to any Proceedings) brought or established or threatened to be brought or established against any of the Indemnified Parties: |
(i) | directly or indirectly arising out of or in connection with any breach or alleged breach of any of the representations, warranties and undertakings contained in Clauses 3 and 4; |
(ii) | which are, directly or indirectly, occasioned by or resulting from or are attributable to the performance by the Placement Agent of its obligations under this Agreement in relation to the Offering and which do not in any such case arise from the Placement Agents fraud, gross negligence, bad faith, wilful misconduct or wilful default as determined by final judgment of a court of competent jurisdiction; |
(iii) | in respect of any breach of any applicable laws or regulations of any jurisdiction resulting from the Offering which do not arise from the Placement Agents fraud, gross negligence, bad faith, wilful misconduct or wilful default as determined by final judgment of a court of competent jurisdiction; or |
(iv) | in connection with any untrue statement contained in any document or information authorised by the Issuer or any Subsidiary of the Issuer to be distributed or passed on by such relevant party or any omission or alleged omission to state therein a material fact, necessary to make a statement therein not misleading. |
(b) | The indemnities contained in Clause 3.4(a) shall remain in full force and effect notwithstanding completion of the Offering in accordance with its terms, shall be in addition to any liability which the Issuer may have and shall extend to include all costs and expenses which the Placement Agent and/or any of the Indemnified Parties may reasonably incur or pay in investigating, disputing, settling or compromising any matter to which the indemnity might relate and in establishing the right to indemnification pursuant to this Clause 3.4 in respect of any matter. The Issuer shall not, without the prior written consent of the Placement Agent, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the Indemnified Parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes, where necessary or appropriate, an unconditional release of each |
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Indemnified Party from all liabilities arising out of such claim, action, suit or proceeding. |
(c) | Save as a result of the Placement Agents fraud, gross negligence, bad faith, wilful misconduct or wilful default, neither the Placement Agent nor any of the Indemnified Parties (as defined in Clause 3.4(a)) shall be responsible for and no claim shall be made against the Placement Agent or any of the Indemnified Parties by the Issuer to recover any damage, cost, charge or expense which the Issuer may suffer or incur by reason of or arising out of the carrying out by the Placement Agent or any of the Indemnified Parties of any work pursuant to any of their obligations under this Agreement, or otherwise in connection with the Offering. |
(d) | The Placement Agent shall have no duty or obligation, whether as fiduciary or trustee of any relevant party or otherwise, to recover any such payment or to account for any other person for any amounts paid to it pursuant to the indemnities set forth in this Agreement. |
(a) | use its best efforts to, and procure each of its Subsidiaries to, co-operate and participate in the due diligence procedures required to prepare a prospectus in connection with the proposed listing of Sands China on the Main Board of the Hong Kong Stock Exchange (the Prospectus ); and |
(b) | procure Sands China to prepare the Prospectus in compliance with the requirements of the Rules Governing the Listing of Securities on the Hong Kong Stock Exchange and the Companies Ordinance (Chapter 32 of the Laws of Hong Kong) and satisfactory in form and substance to the Placement Agent; |
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(a) | the Issuer will use the net proceeds received by it from the issue of the Bonds pursuant to this Agreement for general corporate purposes and includes full flexibility to upstream the proceeds from the Issuer to the Parent or to downstream the proceeds to a Subsidiary of the Issuer to be used to repay any Intercompany Loan (as defined below) and intercompany trade payables incurred in the ordinary course of business, and the Issuer agrees that none of the proceeds from the Offering of the Bonds will be used, directly or indirectly, in any business or transaction or to make any investment that is subject to any Sanction; |
(b) | the Issuer covenants and agrees not to use, or to permit any of its Subsidiaries or affiliates to use, directly or indirectly, the proceeds from the sale of the Bonds, for any purpose or activity that would cause any U.S. person participating in the Offering, to be in violations of the U.S. Trading with the Enemy Act (as amended), the U.S. International Emergency Economic Powers Act (as amended), or . any of the foreign assets control regulations of the United States Treasury Department (as codified in 31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto; and |
(c) | the Issuer will not directly or indirectly use the proceeds of the Offering or lend, contribute or otherwise make available such proceeds to any Subsidiary, affiliate, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any Sanction; |
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(i) | neither the Issuer nor any of its affiliates (as defined in Rule 405 of the Securities Act), nor any person acting on behalf of any of them (other than the Placement Agent, its affiliates and any person acting on its or their behalf as to whom no representation, warranty or undertaking is made or given) will take, directly or indirectly, any action designed to cause or to result in or which might reasonably be expected to cause or result in, the stabilisation in violation of applicable laws or manipulation of the price of any security to facilitate the sale or resale of the Bonds; and |
(ii) | the Issuer authorises the Placement Agent to make adequate public disclosure and undertakes to comply with the Securities and Futures (Price Stabilizing) Rules (Cap. 571W of the Laws of Hong Kong); |
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(a) | each Subsidiary of the Issuer that has incurred any Indebtedness, liability or obligation to any Affiliate of the Issuer (other than a Restricted Subsidiary of the Issuer), whether absolute, contingent or otherwise, and in any currency (any such Indebtedness, liability or obligation shall hereinafter be referred to as an Intercompany Loan ), execute the Deed of Subordination as a Company (as defined therein); and |
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(b) | each creditor in respect of an Intercompany Loan execute the Deed of Subordination as a Subordinated Creditor (as defined therein). |
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(a) | the Applicable Exchange Rate where the currencies involved are Hong Kong dollars and United States dollars; or |
(b) | in any other case, the rate at which the Placement Agent are able on the relevant date in Hong Kong to purchase the Contractual Currency with the other currency, |
(i) | the Issuer has received from the Placement Agent an undertaking in the form set out in Schedule 3 duly executed by such person; and |
(ii) | such person and its Affiliate is not engaged in any business activity that competes with the business of the Issuer and the Restricted Subsidiaries and the subscription of the Bonds by such person would not, in the reasonable opinion of the Issuer, have a material adverse effect on the Issuers or any Restricted Subsidiarys ability to comply with applicable gaming regulatory requirements. |
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(a) | a legal opinion, dated the Closing Date of Walkers, in their capacity as legal advisers to the Issuer as to Cayman Islands law; |
(b) | a legal opinion, dated the Closing Date of Conyers, Dill and Pearman, in their capacity as legal advisers to the Placement Agent as to Cayman Islands law; |
(c) | a legal opinion, dated the Closing Date of Freshfields Bruckhaus Deringer, in their capacity as legal advisers to the Placement Agent as to English law and an opinion, dated the Closing Date of Freshfields Bruckhaus Deringer, to the effect that the issue of the Bonds and Warrants does not conflict with the Credit Agreement; |
(d) | an opinion, dated the Closing Date of Freshfields Bruckhaus Deringer, in their capacity as legal advisers to the Placement Agent as to an exemption from the registration requirements of the Securities Act; |
(e) | a legal opinion, dated the Closing Date of Leonel Alves Law Firm; |
(f) | a copy of the letter(s) issued or to be issued by the government of Macau to the effect that: |
(i) | the development period of the parcel of land constituting Site 3 shall be extended on terms reasonably satisfactory to the Placement Agent; and |
(ii) | the government of Macau or other authority of Macau will not forfeit the parcels of land constituting Site 1 and/or Site 2 (or any property erected thereon) in the event that the Issuer and its Subsidiaries shall fail to develop the parcel of land constituting Site 3 within the specified development period (as extended); and |
(g) | a certified copy of: |
(i) | the board resolutions and shareholders resolutions of the Issuer approving the issue of the Bonds and, in the circumstances |
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contemplated by the Terms and Conditions, the Warrants, and the execution, delivery and performance of the Contracts to which it is a party, in form and substance reasonably satisfactory to the Placement Agent; |
(ii) | the board resolutions and shareholders resolutions of Sands China approving: |
(A) | the issue of the Shares upon exchange of the Bonds or exercise of the Warrants; and |
(B) | the execution, delivery and performance of the Contracts to which it is a party, |
in form and substance reasonably satisfactory to the Placement Agent; |
(iii) | the board resolutions of each of: |
(A) | Venetian Venture Development Intermediate Limited; | ||
(B) | Venetian Macau Limited; | ||
(C) | Venetian Cotai Limited; | ||
(D) | VML US Finance LLC; and | ||
(E) | Venetian Macau Finance Company, |
approving the execution, delivery and performance of the Deed of Subordination, in form and substance reasonably satisfactory to the Placement Agent; |
(iv) | the board resolutions of the Subordinated Creditors (other than the Parent) approving the execution, delivery and performance of the Deed of Subordination, in form and substance reasonably satisfactory to the Placement Agent; |
(v) | a certificate signed by the company secretary of the Parent confirming that the execution, delivery and performance of the Deed of Subordination by the Parent has been authorised and approved by the board of directors of the Parent, in form and substance reasonably satisfactory to the Placement Agent; | ||
(vi) | the shareholders resolutions of each of: |
(A) | Cotai Ferry Company Limited; | ||
(B) | Venetian Orient Limited; | ||
(C) | Venetian Retail Limited; |
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(D) | Venetian Travel Limited; | ||
(E) | Venetian Macau Finance Company; and | ||
(F) | Venetian Venture Development Intermediate Limited, |
approving the execution, delivery and performance of the Deed of Subordination, in form and substance reasonably satisfactory to the Placement Agent; |
(vii) | the memorandum and articles of association of the Issuer; and |
(viii) | the memorandum and articles of association of Sands China. |
(a) | is material and adverse in the context of the Offering; or |
(b) | makes it impracticable, inadvisable or inexpedient to market the Bonds on the terms and in the manner contemplated herein; |
(a) | 100% of the issued share capital in Cotai Waterjets (HK) Limited; and |
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(b) | 100% of the issued share capital in CotaiJet Holdings (II) Limited, |
(a) | there develops, occurs or comes into force, in the sole opinion of the Placement Agent: |
(i) | any new law or regulation or any change or development involving a change in existing laws or regulations which in the sole opinion of the Placement Agent has or is likely to have a material adverse effect on the financial position of the Issuer and its Material Subsidiaries as a whole; or |
(ii) | any change (whether or not permanent) or development (whether or not permanent) in local, national or international monetary, economic, financial, political or military conditions or securities market conditions or currency exchange rates or foreign exchange rates or foreign exchange controls which, in the sole opinion of the Placement Agent, is or would be materially adverse to the success of the Offering, the distribution of the Bonds or dealings in the Bonds in the secondary market or makes it impracticable or inadvisable or inexpedient to proceed therewith; or |
(iii) | a general moratorium on commercial banking activities in Hong Kong, London or New York declared by the relevant authorities or a material disruption in commercial banking or securities settlement or clearance services in Hong Kong, the Peoples Republic of China, the United Kingdom or the United States; or |
(iv) | a change or development in taxation adversely affecting the Issuer, any Material Subsidiary, the Bonds or the transfer thereof in accordance with the Terms and Conditions; or |
(v) | any event or series of events (including the occurrence of any local, national or international outbreak or escalation of disaster, hostility, insurrection, armed conflict, act of terrorism, calamity, act of God or epidemic) which in the sole opinion of the Placement Agent is or would be materially adverse to the success of the Offering, the distribution of the Bonds or dealings in the Bonds in the secondary |
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market or makes it impracticable or inadvisable or inexpedient to proceed therewith; or |
(vi) | any moratorium, suspension or material restriction or limitation on trading in shares or securities generally on the Hong Kong Stock Exchange, the London Stock Exchange, the New York Stock Exchange or Nasdaq due to exceptional financial circumstances or otherwise at any time prior to the Closing Date; or |
(b) | any breach of any of the representations, warranties and undertakings by the Issuer set out in Clause 3 or Clause 4 comes to the knowledge of the Placement Agent or any event occurs or any matter arises on or after the date hereof and prior to which if it had occurred or arisen before the date hereof would have rendered any of such representations, warranties and undertakings untrue or incorrect in any respect or any material failure to perform any of the covenants, obligations or agreements of the Issuer, any Subsidiary of the Issuer or any Subordinated Creditor in any Contract; or |
(c) | commencement by any regulatory or political body or organisation of any action against any director of the Issuer or any Material Subsidiary or an announcement by any regulatory or political body or organisation that it intends to take any such action which in the opinion of the Placement Agent is or would be materially adverse to the success of the Offering, the distribution of the Bonds or dealings in the Bonds in the secondary market or makes it impracticable or inadvisable or inexpedient to proceed therewith; or |
(d) | if any of the conditions specified in Clause 8 have not been satisfied or waived by the Placement Agent on or prior to the Closing Date. |
(a) | for obligations and liabilities that have accrued prior to or upon such termination in accordance with the terms of this Agreement; and |
(b) | the Issuer shall remain liable for the payment of all reasonable and documented costs and expenses referred to in Clause 6 and for any obligation to any Indemnified Party arising pursuant to Clause 3.4. |
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(a) | with respect to the warranties, undertakings and indemnities given herein by the Issuer, notwithstanding any due diligence investigation made by or on behalf of the Placement Agent or its actual or constructive knowledge of the matters referred to therein; and |
(b) | with respect to the warranties, undertakings and indemnities given herein by the Placement Agent, notwithstanding any investigation made by or on behalf of the Issuer or its actual or constructive knowledge of the matters referred to therein. |
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(a) | it has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 (the FSMA )) received by it in connection with the issue or sale of any Bond, Warrant or New Share in circumstances in which Section 21(1) of the FSMA does not apply to the Issuer; and |
(b) | it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Bonds, the Warrants and the New Shares in, from or otherwise involving the United Kingdom. |
(a) | it has not offered or sold, and will not offer or sell, in Hong Kong by means of any document, any Bonds, Warrants or New Shares other than (i) to professional investors as defined in the Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules made under that Ordinance, or (ii) in other circumstances which do not result in the document being a prospectus as defined in the Companies Ordinance (Cap. 32) of Hong Kong or which do not constitute an offer to the public within the meaning of that Ordinance; and |
(b) | it has not issued or had in its possession for the purposes of issue and will not issue or have in its possession for the purposes of issue any advertisement, invitation or document relating to the Bonds, the Warrants or the New Shares, whether in Hong Kong or elsewhere, which is directed at, or the contents of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to Bonds, Warrants or New Shares which are or are intended to be disposed of only to persons outside Hong Kong or only to professional investors within the meaning of the Securities and Futures Ordinance (Cap. 571) and any rules made thereunder. |
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(a) | a corporation (which is not an accredited investor (as defined in Section 4A of the Securities and Futures Act)), the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an accredited investor; or |
(b) | a trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an accredited investor, |
(i) | to an institutional investor (for corporations, under Section 274 of the Securities and Futures Act) or to a relevant person defined in Section 275(2) of the Securities and Futures Act, or to any person pursuant to an offer that is made on terms that such shares, debentures and units of shares and debentures of that corporation or such rights or interest are acquired at a consideration of not less than S$200,000 (or its equivalent in a foreign currency) for each transaction, whether such amount is to be paid for in cash or by exchange of securities or other assets, and further for corporations, in accordance with the conditions specified in Section 275 of the Securities and Futures Act; |
(ii) | where no consideration is or will be given for the transfer; or |
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(iii) | where the transfer is by operation of law. |
(a) | to legal entities which are authorised or regulated to operate in the financial markets or, if not so authorised or regulated, whose corporate purpose is solely to invest in securities; |
(b) | to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than 43,000,000; and (3) an annual net turnover of more than 50,000,000, as shown in its last annual or consolidated accounts; |
(c) | to fewer than 100 natural or legal persons other than qualified investors as defined in the Prospectus Directive; or |
(d) | in any other circumstances which do not require the publication by the Issuer of a prospectus pursuant to Article 3 of the Prospectus Directive. |
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(a) |
The Issuer: Venetian Venture Development Intermediate II
c/o Walkers Corporate Services Limited, Walker House 87 Mary Street, George Town Grand Cayman KY1-9005 Cayman Islands fax: +702 733-5303. (Attention: Ms. Bonnie Bruce) |
|
(b) |
The Placement Agent: Goldman Sachs (Asia) L.L.C.
68 th Floor |
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Cheung Kong Center
2 Queens Road Central Hong Kong fax: +852 2978 0440 (Attention: Rita Chan and Ian Fan) |
(a) | In relation to any disputes arising out of or in connection with this Agreement, including, without limitation, disputes relating to any non-contractual obligations arising out of or in connection with this Agreement (the Proceedings ), the Issuer irrevocably submits to the non-exclusive jurisdiction of the courts of England and waives any objection to Proceedings in such courts whether on the grounds that the Proceedings have been brought in an inconvenient forum or otherwise. Nothing in this Clause shall limit the right of the Placement Agent to take Proceedings against the Issuer in any other jurisdiction. |
(b) | The Issuer irrevocably appoints The Law Debenture Corporate Services Limited, now at Fifth Floor, 100 Wood Street, London EC2V 7EX, United Kingdom, as its authorised agent for service of process in England. If for any reason such agent shall cease to be such agent for service of process, the Issuer shall forthwith, on request of the Placement Agent, appoint a new agent for service of process in England and deliver to the Placement Agent, a copy of the new agents acceptance of that appointment within 15 days, and, failing such appointment within 15 days, the Placement Agent shall be entitled to appoint such a person by notice to the Issuer. Nothing in this Agreement shall affect the right to serve process in any other manner permitted by law. |
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By: | /s/ Michael A. Leven | |||
Name: | Michael A. Leven | |||
Title: | Director | |||
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By: | /s/ Eric Greenberg | |||
Name: | Eric Greenberg | |||
Title: | Managing Director | |||
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(a) | a Restricted Certificate (as defined in the Trust Deed); or | |
(b) | a Regulation S Certificate (as defined in the Trust Deed). |
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(a) | a consent by the Bondholders to the creation or assumption of any such Lien which is not a Permitted Lien; and | |
(b) | creating any obligation enforceable against any Restricted Subsidiary which is a Loan Party. |
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(a) | Permitted Subordinated Indebtedness; or |
(b) | Indebtedness up to US$700,000,000 which ranks pari passu in right of payment with the Obligations, |
(i) | the amount of Consolidated Total Debt that would produce a Consolidated Leverage Ratio of 6.5:1; and |
(ii) | US$800,000,000. |
(i) | the Issuer or any Restricted Subsidiary may become and remain liable with respect to Contingent Obligations under Hedging Agreements; |
(ii) |
(A) | the Issuer or any Restricted Subsidiary may become and remain liable with respect to Contingent Obligations for Indebtedness permitted under these Terms and Conditions; and |
(B) | the Issuer or any Restricted Subsidiary may guarantee any Indebtedness otherwise permitted under these Terms and Conditions in lieu of incurring such Indebtedness; |
(iii) | the Issuer or any Restricted Subsidiary may become and remain liable for customary indemnities under the Project Documents; |
(iv) | Investments permitted under these Terms and Conditions to the extent they constitute Contingent Obligations; |
(v) | the Issuer or any Restricted Subsidiary may become liable for Contingent Obligations made on behalf of Excluded Subsidiaries and Joint Ventures in an amount not to exceed US$300,000,000 at any time, so long as both before and after giving effect to the incurrence of such Contingent Obligation, no Potential Event of Default or Event of Default has occurred or is continuing; provided that, notwithstanding the foregoing, the Issuer and the Restricted Subsidiaries may not become liable for Contingent Obligations made on behalf of Joint Ventures in excess of US$50,000,000 in aggregate; |
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(vi) | Contingent Obligations for reimbursement of the Concession Guarantor or other guarantors of payment under the Land Concession Guaranty and/or Gaming Concession Guaranty; |
(vii) | the Issuer or any Restricted Subsidiary may become and remain liable with respect to other Contingent Obligations, provided that the maximum aggregate liability, contingent or otherwise, of the Issuer or any Restricted Subsidiaries in respect of all such Contingent Obligations shall at no time exceed US$25,000,000; and |
(viii) | the Issuer or any Restricted Subsidiary may become and remain liable with respect to Contingent Obligations made on behalf of Affiliates of the Issuer or any Restricted Subsidiary (other than any other Restricted Subsidiary), provided that (a) such Contingent Obligations support Indebtedness incurred for the purpose of financing the acquisition and/or equipping of ferry vessels to provide ferry services to or from Macau SAR, (b) such Indebtedness is not owed to the Issuer, any Restricted Subsidiary or any Affiliate of them, and (c) the maximum aggregate liability, contingent or otherwise, of the Issuer and the Restricted Subsidiaries in respect of such Contingent Obligations shall at no time exceed US$175,000,000. |
(i) | the Issuer and the Restricted Subsidiaries may redeem or repurchase any equity interests in the Issuer or any Restricted Subsidiary held by minority shareholders or any Indebtedness of the Issuer and the Restricted Subsidiaries to the extent such ownership by minority shareholders is no longer required by any legal requirement imposed by Macau SAR or any applicable gaming authority in order to preserve a Gaming License; |
(ii) | if, during any taxable year, the Parent (or any member of the consolidated group of which the Parent is the common parent) has Section 951(a) Income, the Issuer may make cash distributions to its common shareholders, in an annual aggregate amount not to exceed (A) the amount of U.S. Federal income tax payments made by the Parent (or any member of the consolidated group of which the Parent is the common parent) in respect of Section 951(a) Income for the corresponding taxable year, net of (B) applicable federal income credits and/or deductions available to the Parent and any member of the consolidated group of which the Parent is the common parent attributable to the operations of the Issuer and the Restricted Subsidiaries (any such distributions referred to herein as a Tax Distribution ); provided that such Tax Distributions shall be made during the 30-day period preceding the due date for the filing of any tax return with respect to which the Parent (or any member of the consolidated group of which the Parent is the common parent) is required to make a payment described in this Condition 3.4(ii); |
(iii) | the Issuer may make Restricted Payments to Restricted Subsidiaries and the Restricted Subsidiaries may make Restricted Payments to the Issuer or another Restricted Subsidiary; |
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(iv) | to the extent such payments would be Restricted Payments, the Issuer or any Restricted Subsidiary may make regularly scheduled or required payments to Macau SAR pursuant to the Gaming Concession Contract and any Land Concession Contract in accordance with the terms thereof as such are in effect on the date or as amended pursuant to the terms hereof; |
(v) | VML may make payments of interest as and when due and payable (by capitalising such interest, or, so long as no Event of Default or Potential Event of Default shall have occurred and be continuing, with respect to up to US$115,000,000 in principal amount of VVDIL Intercompany Debt in cash) pursuant to the terms of such VVDIL Intercompany Debt; |
(vi) | the Issuer or any Restricted Subsidiary may reimburse its Affiliates for any payments made by such Affiliates for costs incurred by the Issuer or such Restricted Subsidiary after the Closing Date for the development of any Project; |
(vii) | (i) so long as no Potential Event of Default or Event of Default shall have occurred and be continuing and (ii) the Consolidated Leverage Ratio is less than or equal to 5.5 to 1.0, the Issuer and the Restricted Subsidiaries may make Restricted Payments in an unlimited amount; and |
(viii) | so long as no Potential Event of Default or Event of Default shall have occurred and be continuing after giving pro forma effect to such Restricted Payment, the Issuer may make Restricted Payments with the proceeds of issue of the Bonds. |
(i) | the Issuer and the Restricted Subsidiaries may dispose of obsolete, worn out or surplus assets or assets no longer used or useful in the business of the Issuer and the Restricted Subsidiaries in each case to the extent in the ordinary course of business; | |
(ii) | the Issuer and the Restricted Subsidiaries may incur Liens permitted under Condition 3.1; | |
(iii) | the Issuer and the Restricted Subsidiaries may have an Event of Loss; |
(iv) | (a) the Restricted Subsidiaries may issue Equity Securities to the Issuer or to any other Restricted Subsidiary; and (b) without prejudice to Condition 3.2, Sands China may issue Equity Securities in connection with or contemplated by or to facilitate the Qualified IPO (including, without limitation, issuing such Equity Securities to the Issuer); |
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(v) | the Issuer and any Restricted Subsidiary may (a) enter into leases or licenses to use in the ordinary course of business with respect to any space (including any complementary accommodations) on or within a Project or (b) be a party to any lease or license to use in effect on the Closing Date; provided that, in each case, (1) no Event of Default or Potential Event of Default shall exist and be continuing at the time of such lease or license to use or would occur after or as a result of entering into such lease or license to use (or immediately after any renewal or extension thereof at the option of the Issuer and the Restricted Subsidiaries), (2) such lease or license to use will not materially interfere with, impair or detract from the operation of the business of the Issuer and the Restricted Subsidiaries, (3) such lease or license to use is at a fair market rent or value (in light of other similar or comparable prevailing commercial transactions) and contains such other terms such that the lease or license to use, taken as a whole, is commercially reasonable and fair to the Issuer and the Restricted Subsidiaries in light of prevailing or comparable transactions in other casinos, hotels, hotel attractions, convention centers or shopping venues or other applicable venues, (4) no gaming or casino operations may be conducted on any space that is subject to such lease or license to use other than by VML and only in accordance with the Gaming Concession Contract and all other applicable legal requirements, and (5) no lease may provide that the Issuer and the Restricted Subsidiaries may subordinate their fee, condominium or leasehold interest to any lessee or any party financing any lessee (other than lenders financing residential interests in complementary accommodations, to the extent of the interest being financed); |
(vi) | any Restricted Subsidiary may be merged with (or liquidated into) the Issuer or any other Restricted Subsidiary; |
(vii) | (a) subject to Condition 3.5(v)(4), the Issuer and the Restricted Subsidiaries may sell, lease, license or otherwise transfer assets to any other Restricted Subsidiary or the Issuer, as applicable, and (b) the Issuer and the Restricted Subsidiaries may sell, lease, license or otherwise transfer assets pursuant to a Permitted Investment; |
(viii) | the Issuer and the Restricted Subsidiaries may license or sublicense trademarks and trade names in the ordinary course of business; |
(ix) | the Issuer and the Restricted Subsidiaries may enter into licenses and sublicenses of intellectual property in the ordinary course of business; |
(x) | the Issuer and the Restricted Subsidiaries may sell receivables for fair market value in the ordinary course of business; |
(xi) | any Restricted Subsidiary (or the Issuer) that holds direct equity interests in a Cotai Strip Excluded Subsidiary may sell or transfer (a) up to 10% in the aggregate of the equity interests in such Cotai Strip Excluded Subsidiary to the current or intended operator or joint developer of the associated Excluded Casino Hotel Resort (the Permitted 10% Equity Sale ); provided that such sale may be made only with respect to one Cotai Strip Excluded Subsidiary which is either developing Site 5 or Site 6 (but not both), and (b) up to 49% (when aggregated with the Permitted 10% Equity Sale) in the aggregate of the equity interests in such Cotai Strip Excluded Subsidiary to any other Person (the Permitted VOL Equity Sale ); |
(xii) | the Cotai Subsidiary may, following the execution of a Casino Operation Land Concession Contract between Macau SAR and the Cotai Subsidiary, sell, transfer, assign or sublease or license to use such Casino Operation Land Concession Contract |
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to a developer or other Person ( provided that the terms and conditions of such sale include (a) the full release of any further obligations of the Issuer or any Restricted Subsidiary pursuant to or under such Casino Operation Land Concession Contract (except for customary or other reasonably appropriate indemnities, in each case with respect to title representations, and except for obligations arising by law relating to VMLs operation or potential operation of any casino or gaming area to be developed on the Site subject to such Casino Operation Land Concession Contract or VMLs ownership of the casino/showroom/retail shell on such Site and the air parcel within such shell), and (b) a sale price (or other cash reimbursement mechanism) payable by such purchaser in cash, simultaneously with such transfer, in an amount at least equal to all amounts previously expended by the Issuer and any Restricted Subsidiary with regard to such Casino Operation Land Concession Contract and all costs previously expended by the Issuer and any Restricted Subsidiary with respect to the development of the associated property, other than permitting fees, attorneys fees and expenses, architects fees and expenses and other similar fees and expenses in an aggregate amount of less than US$5,000,000) to allow such developer or other Person to build, develop, own and operate an Other Resort Project; |
(xiii) | the Issuer and the Restricted Subsidiaries may sell or otherwise dispose of assets in transactions that do not constitute Asset Sales due to clause (iii) in the parenthetical clause of the definition thereof; |
(xiv) | subject to Condition 3.8, the Issuer and the Restricted Subsidiaries may make Asset Sales of assets having a fair market value not in excess of US$25,000,000 in the aggregate; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof in the judgment of the Issuer; and (2) at least 75% of the consideration received shall be cash or cash equivalents; |
(xv) | the Cotai Subsidiary may transfer immaterial portions of any Site to the government of Macau SAR (so long as such transfer does not impair in any material way the ability of the Issuer and the Restricted Subsidiaries to construct, develop, open, manage and/or operate any active Project) upon the written request of the government of Macau SAR and its stated intent to use such portions in connection with infrastructure, roadway, utility easement, or other public works purposes; |
(xvi) | the Issuer and the Restricted Subsidiaries may transfer any assets leased or acquired with proceeds of any financing permitted under these Terms and Conditions and secured by a Permitted Lien to the lender or lessor providing such financing upon default, expiration or termination of such financing; |
(xvii) | the Issuer or the Cotai Subsidiary may transfer its rights pursuant to a Far East Agreement to a third party or Excluded Subsidiary; |
(xviii) | the Issuer and the Restricted Subsidiaries may (i) sell or abandon immaterial assets not necessary for the development, construction, operation or maintenance of any active Project and (ii) abandon a Secondary Project and sell, abandon or otherwise dispose of any assets no longer needed in connection with a Secondary Project that has been abandoned in accordance with the terms of the Disbursement Agreement; |
(xix) | either or both Immaterial Subsidiaries may be dissolved, liquidated or wound-up; provided that prior to such event, any assets held by the entity to be so dissolved, liquidated or wound up are distributed to the Issuer or any Restricted Subsidiary, and that no such event shall cause the equity interests in any surviving Restricted |
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Subsidiary to be less than wholly-owned by the Issuer and/or another Restricted Subsidiary; |
(xx) | the Issuer and the Restricted Subsidiaries may sell or transfer assets pursuant to a sale-leaseback transaction permitted by Condition 3.6; |
(xxi) | the Issuer or any Restricted Subsidiary may sell its interest in a Joint Venture or a Supplier Joint Venture or in an Additional Development Excluded Subsidiary; |
(xxii) | the Issuer or any Restricted Subsidiary may make Permitted Asset Dispositions; provided that: |
(A) | no Event of Default or Potential Event of Default shall exist and be continuing at the time of the consummation of such Permitted Asset Disposition or would occur as a result thereof; |
(B) | the Trustee and the Administrative Agent under the Credit Agreement shall have received evidence that reciprocal easement arrangements, condominium by-laws or deeds of mutual covenant, shall have been entered into between the Issuer and Restrictive Subsidiaries on one hand and the purchaser of such Project on the other hand; |
(C) | the Trustee shall have received a certificate of VML that such Permitted Asset Disposition will not (other than to a de minimis extent) increase the risk of any loss of or reversion under the Gaming Concession Contract or any relevant Land Concession Contract; and |
(D) | in the case of Permitted Asset Dispositions comprising any portion of the Venetian Macao Overall Project or the Four Seasons Macao Overall Project (1) such sale could not reasonably be expected to materially adversely impact the ability of VML to obtain, or the timing of VMLs receipt of, (x) an occupation certificate regarding such Projects or (y) the final registration of the Venetian Macao Land Concession Contract and (2) except in the case of a Permitted Asset Disposition consisting of a sale of the Four Seasons Macao Mall or the Venetian Macao Mall or any complementary accommodations, there shall be no remaining material obligations necessary to be fulfilled in order to obtain a final registration of the Venetian Macao Land Concession Contract (other than obligations the satisfaction of which are not affected by the lack of ownership or possession of the assets sold in such Permitted Asset Disposition); |
(xxiii) | the Cotai Subsidiary may sell construction equipment having a fair market value not in excess of US$25,000,000 in the aggregate; |
(xxiv) | as permitted under these Terms and Conditions or the Credit Agreement or its related security documents (for this purpose, disregarding any amendment, restatement or supplement to the Credit Agreement or its related security documents entered into on or after the date of the Placing Agreement); and |
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(xxv) | the Issuer and the Restricted Subsidiaries may sell or transfer assets (including equity interests in Excluded Subsidiaries) pursuant to any corporate reorganisation or restructuring required or necessary in connection with or contemplated by or to facilitate the Qualified IPO. |
(a) |
(i) | with assets of a type or types otherwise permitted to be financed under these Terms and Conditions; and |
(ii) | in an aggregate principal amount with respect to any such lease at any one time outstanding, taken together with all Shareholder Subordinated Indebtedness and the sale-leaseback transactions permitted under sub-clause (b) below (without duplication) not to exceed US$500,000,000; or |
(b) | which are permitted under the Credit Agreement (for this purpose, disregarding any amendment, restatement or supplement to the Credit Agreement entered into on or after the date of the Placing Agreement). |
(i) | transactions that are on terms that are not less favourable to the Issuer and the Restricted Subsidiaries than those that might be obtained at the time from Persons who are not such an Affiliate if the Issuer has delivered to the Trustee a certificate executed by two directors of the Issuer certifying that such transaction complies with Condition 3.7 and a board resolution of the Issuer or the relevant Restricted Subsidiary, approving such transaction; |
(ii) | transactions in effect on the Closing Date that are either: |
(A) | required by the Listing Rules; or |
(B) | on terms which are not less favourable than arms length terms, |
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and any replacement or extension of such transactions; |
(iii) | any employment, compensation, indemnification, noncompetition or confidentiality agreement or arrangement entered into by any of the Issuer and the Restricted Subsidiaries with its employees or directors in the ordinary course of business or as approved by a majority of the members of the board of directors of such Restricted Subsidiary or the Issuer in its reasonable determination; |
(iv) | transactions between or among the Issuer and the Restricted Subsidiaries not otherwise expressly prohibited under these Terms and Conditions and the Trust Deed; |
(v) | Shareholder Subordinated Indebtedness; |
(vi) | issuances of Equity Securities by the Issuer and the Restricted Subsidiaries as permitted under these Terms and Conditions and the Trust Deed; |
(vii) | Contingent Obligations permitted by Condition 3.3 and Restricted Payments and Permitted Investments permitted by Condition 3.4; |
(viii) | (i) license agreements with an Excluded Subsidiary (including licenses permitting an Excluded Subsidiary to use intellectual property of the Issuer or any Restricted Subsidiaries) and (ii) any other agreements with an Excluded Subsidiary not specifically prohibited by the Terms and Condition, provided the terms of such other agreement under clause (ii) or any amendment to such agreement are no less favourable to the Issuer and the Restricted Subsidiaries than those that would have been obtained in a comparable transaction by the Issuer or any Restricted Subsidiaries with an unrelated Person; |
(ix) | any agreement not specifically prohibited under these Terms and Conditions and the Trust Deed by an Excluded Subsidiary to pay management fees to the Issuer or any Restricted Subsidiaries directly or indirectly; |
(x) | transactions permitted by Condition 3.5; |
(xi) | purchases of materials or services from a Supplier Joint Venture by the Issuer or any Restricted Subsidiaries in the ordinary course of business on arms length terms; |
(xii) | shared services arrangements and/or agreements among the Issuer and the Restricted Subsidiaries, Cotai Strip Excluded Subsidiaries, Additional Development Excluded Subsidiaries, and/or owners, developers or managers of the Other Resort Projects, so long as the liabilities and obligations of any of the Issuer and the Restricted Subsidiaries thereunder are on commercially reasonable terms and do not represent more than the pro rata share of the Issuer and the Restricted Subsidiaries of the services provided as determined by the Issuer and the Restricted Subsidiaries and certified to the Trustee in writing by a director of the Issuer; |
(xiii) | the contemplated purchase by the Issuer of the casino shell within any Other Resort Project, the operation of which casino is intended to comprise a Casino Operation Project; |
(xiv) | Investments in, and licenses and other agreements with, Joint Ventures and Supplier Joint Ventures; |
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(xv) | the operation of Excluded Casinos and the contemplated purchase by VML of the Excluded Casinos; |
(xvi) | reciprocal easement and other similar agreements (including condominium rules) required to be entered into pursuant to the Credit Agreement and its related security agreements; |
(xvii) | the Intellectual Property License Agreement dated 25 May 2006 between, among others, the Parent and VML and the transactions contemplated thereby; |
(xviii) | agreements and other arrangements entered into in connection with the Qualified IPO in order to facilitate such Qualified IPO that are either: |
(A) | required by the listing rules and procedures of the applicable Qualified Exchange; or |
(B) | on terms which are not less favourable than arms length terms; |
(xix) | the contemplated transfer (the AH Transfer ) by VML of all or substantially all of the apart hotel tower component of the Four Seasons Macau Resort Project to a wholly-owned Excluded Subsidiary in exchange for such Excluded Subsidiary granting to VML (or being obligated to grant to third parties selected by VML) the right of use for each apartment in such tower, provided that the AH Transfer must comply with all of the requirements set forth in Condition 3.5(xxii) above; |
(xxi) | loans or advances to employees of the Issuer or any Restricted Subsidiary permitted under clause (h) of the definition of Permitted Investments; |
(xxii) | transactions required or necessary in connection with or contemplated by the Qualified IPO; and |
(xxiii) | without duplication with items (i) to (xxii) above, any other transaction that is permitted under subsection 7.10 of the Credit Agreement (for this purpose, disregarding any amendment, restatement or supplement to the Credit Agreement entered into on or after the date of the Placing Agreement). |
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(i) | notice to the Bondholders pursuant to Condition 15, the Trustee, the Registrar and the Transfer Agents of listing permission in principle or approval in principle being granted in respect of the Qualified IPO and the amount of issued share capital of Sands China immediately before and after such Qualified IPO no later three days after the date on which such permission in principle or approval in principle is granted; and |
(ii) | notice to the Bondholders pursuant to Condition 15, the Trustee, the Registrar and the Transfer Agents of the proposed date of the Qualified IPO on the Prospectus Date. |
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(i) | as soon as the same become available, but in any event within 105 days after the end of each Fiscal Year of the Issuer, the audited consolidated financial statements of the Issuer and the Subsidiaries for that Fiscal Year prepared in accordance with GAAP; |
(ii) | as soon as the same become available, but in any event within 60 days after the end of the first half of each Fiscal Year of the Issuer, the unaudited consolidated financial statements of the Issuer and the Subsidiaries for that first half of the Fiscal Year prepared in accordance with GAAP; |
(iii) | as soon as the same become available and as permitted by any applicable laws and regulations (including the Listing Rules), all documents, notices and other communications disclosed by Sands China, the Issuer or any Subsidiary of the Issuer to the public in connection with any Qualified IPO or any proposed Qualified IPO; and |
(iv) | in the event that the Issuer incurs any Indebtedness after the date on which the Bonds are issued pursuant to the first proviso set forth in Condition 3.2, the Issuer shall provide a certificate demonstrating the Issuers compliance with the Incurrence Test, together with supporting calculations, as of the most recent date of determination for: (x) if such date is a Quarterly Date, the Fiscal Quarter ending on such date and each of the three immediately preceding Fiscal Quarters, or (y) if such date is not a Quarterly Date, the four full Fiscal Quarters most recently ended, after giving pro forma effect to the incurrence of any such Indebtedness, as certified by a director or officer of the Issuer; provided that such information shall only be furnished to the Bondholder who provided such information request to the Trustee, |
(i) | On or prior to the Closing Date, the Issuer shall deliver (or cause to be delivered) the First Parent L/C to the Trustee. |
(ii) | On or prior to the first Interest Payment Date, the Issuer shall deliver (or cause to be delivered) the Second Parent L/C to the Trustee. |
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(i) | the Certificate issued in respect of that Bond accompanied by a form of transfer duly completed and signed; | |
(ii) | a deed of undertaking in the form set out in Schedule 5 duly executed by the new holder; and |
(iii) | a transfer certificate (in the form set out in the Agency Agreement) duly completed and executed by the existing holder and (if applicable) the new holder, |
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(a) | no additional Certificate shall be issued, nor will any existing Certificate be amended, in respect of the additional principal amount so converted from the interest accrued on the Bonds; and |
(b) | the Registrar shall amend the Bond Register to reflect the increased principal amount of the Bonds. |
(i) | Subject as hereinafter provided, the principal amount of each Bond (including such principal amount converted from interest pursuant to Condition 5.3) shall be automatically exchanged for the Exchange Shares at the Exchange Price on the date of the Qualified IPO (the Exchange Date ). Without prejudice to the obligations of the Issuer under Condition 3.15, the Issuer shall forthwith upon final determination of the date of the Qualified IPO by Sands China, send or procure Sands China to send a |
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written notice to the Bondholders pursuant to Condition 15 advising the Bondholders of: (i) the Exchange Date and (ii) the Exchange Price (if then available). For the avoidance of doubt, if the Exchange Shares are not issued and delivered to the Bondholders pursuant to Condition 6.2(iii) below, or made available for collection pursuant to Condition 6.2(iii) below, on the Exchange Date in accordance with these Terms and Conditions, the Trust Deed and the Agency Agreement, the Issuer and the Bondholders shall continue to possess and be subject to the rights and obligations set forth in these Terms and Conditions, the Trust Deed and the Agency Agreement. | ||
(ii) | Exchange Price: | |
The price at which Exchange Shares will be issued and delivered upon exchange (the Exchange Price ) will be the issue price per Share to be issued or placed out pursuant to the Qualified IPO on the Exchange Date (if denominated in a currency other than HK$, the issue price per share shall be converted to HK$ at the Applicable Exchange Rate on the third day prior to the Exchange Date) multiplied by 90%. The number of Exchange Shares to be issued and delivered will be determined by dividing (x) the principal amount of the Bonds to be exchanged, translated into HK$ at the Applicable Exchange Rate on the third day prior to the Exchange Date (including such additional principal amount of the Bonds converted from accrued interest pursuant to Condition 5.3), by (y) the Exchange Price and, subject to the provisions of Condition 6.1(iii), rounding the resulting number down to the nearest whole number of the Exchange Shares. | ||
If more than one Bond shall be subject to exchange at any one time by the same Bondholder and the Exchange Shares to be issued and delivered on such exchange are to be issued and delivered to or to the order of the same person, the number of Exchange Shares to be issued and delivered and any sum payable to that Bondholder will be calculated on the basis of the aggregate principal amount of the Bonds of that Bondholder to be exchanged. | ||
(iii) | Fractions Arising on Exchange: | |
No fraction of an Exchange Share which is not divisible shall be issued and delivered on exchange of the Bonds and the Issuer shall not be under any obligation to make any payment to Bondholders in respect of any such fractions and any such fraction will be rounded down to the nearest whole multiple of a Share. |
(i) | Exchange Notices: | |
To receive the Exchange Shares, the Bondholder must complete, execute and deposit at such Bondholders expense during the office hours between 9:00 a.m. and 3:00 p.m. at least five Business Days prior to the Exchange Date at the specified office of any Exchange Agent, a notice of exchange (an Exchange Notice ) in the form (for the time being current) obtainable from the specified office of any Exchange Agent and in duplicate, together with the relevant Certificate (and any certificates and other documents as may be required by applicable law). For the avoidance of doubt, each Bondholder shall be entitled to designate a nominee to hold on its behalf the Exchange Shares to be issued and delivered upon exchange under this Condition 6 provided that such designations shall be made in the relevant Exchange Notice and the Bondholder remains the beneficial owner of such Exchange Shares. |
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(ii) | Stamp and Other Duties and Payments: | |
The Issuer must pay directly to the applicable taxing authority all capital, stamp, issue, registration, documentary or similar taxes or duties or transfer costs and expenses (if any) arising in connection with the exchange of a Bond payable in any jurisdiction (which shall be the responsibility of Issuer as discussed below) consequent upon the issue or delivery of Exchange Shares or any other securities, property or cash. If the Issuer fails to pay any such expenses, the relevant Bondholder may (but is not obligated to) tender and pay such expenses. The Issuer shall reimburse each Bondholder in respect of the payment of such taxes, costs and expenses and any penalties paid in respect thereof. Neither the Trustee nor the Exchange Agents shall be under any obligation to determine whether the Issuer is liable to make any payment (and the amount of any payment) under this Condition 6.2(ii). | ||
(iii) | Issue and Delivery of Exchange Shares: | |
The Issuer shall no later than 10:00 am (Hong Kong time) on the Exchange Date cause the Exchange Shares to be issued to each Bondholder by crediting, or procuring the crediting of, such shares to the securities account of each Bondholder specified in the relevant Exchange Notice or as otherwise specified in the Exchange Notice, provided that such Exchange Notice is delivered by the Exchange Agent to the Issuer no later than 12:00 noon (Hong Kong time) on the third Business Day prior to the Exchange Date (the Cut Off Time ). | ||
No Exchange Shares may be allotted and issued to a person other than the Bondholder, its nominee or trustee except with the consent of the Issuer (which consent shall not unreasonably be withheld, it being understood that: (i) consent may not be withheld with respect to allotment and issue to one of the Affiliates of the Bondholder (except such consent may be withheld pursuant to sub-clause (ii) below) provided that such Affiliate remains an Affiliate of such Bondholder after the allotment and issue; and (ii) consent may be withheld with respect to allotment and issue to any Person who or whose Affiliate is engaged in any business activity that competes with the business of the Issuer and the Restricted Subsidiaries or with respect to any allotment which would or might, in the reasonable opinion of the Issuer, have a material adverse effect on the Issuers or any Restricted Subsidiarys ability to comply with applicable gaming regulatory requirements). | ||
In the event the Issuer has not received from the Exchange Agent a duly completed Exchange Notice in respect of the Exchange Shares issuable with respect to a Bond on exchange of the Bonds prior to the Cut Off Time, the Issuer shall nonetheless on the Exchange Date cause such Exchange Shares to be issued and allotted to the Bondholder of such Bond and the certificate(s) of such Exchange Shares to such Bondholder to be made available for collection by such Bondholder on the Exchange Date at the office of the share registrar of Sands China in Hong Kong subject to the deposit of the relevant Certificate(s) by such Bondholder at the specified office of any Exchange Agent. | ||
The relevant Bondholder (or, to the extent permitted by law, the person designated in the relevant Exchange Notice, as the case may be) will with effect from the Exchange Date, be deemed and treated by the Issuer for all purposes as the shareholder of the number of Exchange Shares deliverable upon exchange of the relevant Bonds (and the Issuer shall procure Sands China to treat such relevant Bondholder as shareholder of such Exchange Shares) and, in respect of such number of Exchange Shares, will be |
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entitled to all rights, distributions or payments in respect of such number of Exchange Shares from the Exchange Date, subject to and in accordance with the memorandum and articles of association of Sands China and these Conditions (in particular without limitation Condition 6.3). | ||
(v) | Exchange Shares: | |
All Exchange Shares issued and delivered upon exchange of the Bonds shall be issued and delivered with full title guarantee and free from any and all Liens. The Exchange Shares to be issued and delivered on exchange of the Bonds will be fully paid and will rank pari passu with all fully paid Shares of the same class in issue on the Exchange Date. | ||
(vi) | Cancellation of Bonds | |
All Bonds will be cancelled, the Bondholders name will be removed from the Bond Register and all Certificate(s) will become null and void and cease to have effect on the Exchange Date following delivery of all the Exchange Shares deliverable on exchange of the Bonds in accordance with Condition 6.2(iii), the Trust Deed and the Agency Agreement. |
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(a) | be irrevocable; | |
(b) | specify the Issuer Optional Redemption Date; |
(c) | in the case of a partial redemption, the percentage of the total outstanding principal amount of the Bonds to be redeemed (the Relevant Percentage ); and |
(d) | shall oblige the Issuer to redeem the Bonds at the Early Redemption Amount together with accrued but unpaid interest on the Issuer Optional Redemption Date specified in such notice, |
(i) | on any Issuer Optional Redemption Date the Issuer shall issue to the holder of each Bond a warrant instrument in the form set out in Schedule 4 in respect of each Bond and, for the avoidance of doubt, a Bondholder holding such number of Bonds so redeemed by the Issuer on such Issuer Optional Redemption Date shall be entitled to receive an equivalent number of warrants in the form set out in Schedule 4; and |
(ii) | the Issuer may not issue such notice or designate an Issuer Optional Redemption Date unless the proposed redemption relates to Bonds the total principal amount of which (after being rounded down pursuant to the next sentence) is not less than US$50,000,000. |
(a) | the total number of Bonds held by such Bondholder; by | |
(b) | the Relevant Percentage, |
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(i) | the Change of Control Put Date; | |
(ii) | the date of such Change of Control and, briefly, the events causing such Change of Control; | |
(iii) | the date by which the Redemption Demand (as defined below) must be given; | |
(iv) | the Change of Control Put Price; | |
(v) | the names and addresses of all Paying Agents; |
(vi) | the procedures that Bondholders must follow and the requirements that holders must satisfy in order to exercise their the Change of Control Put Right; and |
(vii) | that a Redemption Demand, once validly given, may not be withdrawn. |
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(1) | Cayman Islands, Macau SAR or any political subdivision or governmental authority thereof or therein having power to tax; |
(2) | any jurisdiction from or through which payment on the Bonds is made, or any political subdivision or governmental authority thereof or therein having the power to tax; or |
(3) | any other jurisdiction in which a Payor is organised or otherwise considered to be a resident for tax purposes, or any political subdivision or governmental authority thereof or therein having the power to tax (each of clause (1), (2) and (3), a Relevant Taxing Jurisdiction ), |
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(i) | any Taxes that would not have been imposed, deducted or withheld but for the Bondholder being or having been connected with a Relevant Taxing Jurisdiction or any political subdivision thereof (including without limitation being a citizen or resident or national of, or carrying on a business or maintaining a permanent establishment in, or being physically present in a Relevant Taxing Jurisdiction) other than merely by holding such Bond or receiving the applicable Redemption Amount, interest or default interest, in respect thereof; or | |
(ii) | any Taxes imposed, deducted or withheld by reason of the failure of a Bondholder to comply with a reasonable request of the Issuer to provide information, documents or other evidence concerning the nationality, residence or identity of the Bondholder pursuant to any requirement or provision under a statute, treaty, regulation or administrative practice to establish entitlement to exemption from or reduction of all or part of any Taxes; or | |
(iii) | any Taxes imposed, deducted or withheld by reason of the failure of a Bondholder to present a Bond (where presentation is required) for payment within 30 days after the Relevant Date except to the extent that the holder thereof would have been entitled to such additional payment on presenting the same for payment on the last day of such 30-day period; for this purpose the Relevant Date in relation to any payments of the applicable Redemption Amount of, interest or default interest, on, any Bond means: (a) the due date for payment thereof, or (b) if the full amount of the monies payable on such date has not been received by the Trustee on or prior to such due date, the date on which, the full amount of such monies having been so received, notice to that effect is duly given to holders of the Bonds in accordance with the Trust Deed; or | |
(iv) | any Taxes that are imposed, deducted or withheld on a payment to an individual pursuant to European Council Directive 2003/48/EC (the Directive ) or pursuant to any law implementing or complying with, or introduced in order to conform to the Directive; or | |
(v) | any Taxes that are imposed, deducted or withheld that a Bondholder could have avoided by presenting (where presentation is required) the relevant Bond to, or otherwise accepting payment from, another paying agent in a member state of the European Union; or | |
(vi) | any combination of (i) through (v) above. |
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(i) | a default is made in the payment of any principal (including the Final Redemption Amount or the Early Redemption Amount) or interest due in respect of the Bonds; |
(ii) | failure by the Issuer to procure the issue and delivery of the Exchange Shares as and when such Exchange Shares are required to be issued and delivered following exchange of a Bond; |
(iii) | the Issuer or any Restricted Subsidiary does not perform or comply with one or more of its other obligations in the Bonds, Trust Deed or the Agency Agreement which default is incapable of remedy or, if capable of remedy, is not remedied within thirty (30) days after written notice of such default shall have been given to the Issuer by the Trustee; |
(iv) | any party to the Deed of Subordination does not perform or comply with one or more of its other obligations under the Deed of Subordination; |
(v) | the Issuer or any Restricted Subsidiary is (or is deemed by law or a court to be) insolvent or bankrupt or unable to pay its debts, stops, suspends or threatens to stop or suspend, payment of all of (or all of a particular type of) its debts, proposes or makes any agreement for the deferral, rescheduling or other readjustment of all of (or all of a particular type of) its debts (or of any part which it will otherwise be unable to pay when due), proposes or makes a general assignment or an arrangement or composition with or for the benefit of the relevant creditors in respect of any of such debts or a moratorium is agreed or declared in respect of or affecting all or any part of (or of a particular type of) the debts of the Issuer or any Restricted Subsidiary; |
(vi) | (i) the Indebtedness under the Credit Agreement becomes or becomes capable of being declared due and payable prior to its stated maturity by reason of any actual or potential default, event of default or the like (howsoever described), or (ii) any steps are taken for the enforcement of any part of the security granted in favour of the lenders under the Credit Agreement; |
(vii) | (i) any other present or future Indebtedness of the Issuer or any Restricted Subsidiary becomes (or becomes capable of being declared) due and payable prior to its stated maturity by reason of any actual or potential default, event of default or the like (howsoever described), or (ii) any such Indebtedness is not paid when due or, as the |
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case may be, within any applicable grace period, or (iii) the Issuer or any Restricted Subsidiary fails to pay when due any amount payable by it under any present or future guarantee for, or indemnity in respect of, any moneys borrowed or raised, provided that the aggregate amount of the relevant Indebtedness, guarantees and indemnities in respect of which one or more of the events mentioned above in this Condition 10(A)(vii) have occurred equals or exceeds US$100 million or its equivalent (if the amount of such Indebtedness, guarantees and indemnities is denominated in: (a) HK dollars, converted to US dollars at the Applicable Exchange Rate; or (b) other currencies, as reasonably determined on the basis of the middle spot rate for the relevant currency against the US dollars as quoted by any leading bank selected by the Issuer and approved by the Trustee, in each case, on the day on which such Indebtedness becomes due and payable or is not paid or any such amount becomes due and payable or is not paid under any such guarantee or indemnity); |
(viii) | a distress, attachment, execution or other legal process is levied, enforced or sued out on or against any material part of the property, assets or revenues of the Issuer or any Restricted Subsidiary of the Issuer, which is material to the Issuer and the Restricted Subsidiaries as a whole, and is not discharged or stayed within fourteen (14) days; |
(ix) | an order is made or an effective resolution passed for the winding-up or dissolution (otherwise than on a solvent basis), judicial management or administration of the Issuer, any Restricted Subsidiary, or the Issuer or any Restricted Subsidiary ceases or threatens to cease to carry on all or substantially all of its business or operations, except for the purpose of and followed by a reconstruction, amalgamation, reorganisation, merger or consolidation on terms approved by an Ordinary Resolution of the Bondholders; |
(x) | an encumbrancer takes possession or an administrative or other receiver or an administrator is appointed of the whole or any substantial part of the property, assets or revenues of the Issuer or any of the Restricted Subsidiary (as the case may be), which is material to the Issuer and the Restricted Subsidiaries as a whole, and is not discharged within fourteen (14) days; |
(xi) | it is or will become unlawful for the Issuer or any Restricted Subsidiary to perform or comply with any one or more of its obligations under any of the Bonds, the Agency Agreement or the Trust Deed; |
(xii) | it is or will become unlawful for any party to the Deed of Subordination to perform or comply with any one or more of its obligations under the Deed of Subordination; |
(xiii) | any step is taken by any person with a view to the seizure, compulsory acquisition, expropriation or nationalisation of all or a material part of the assets of the Issuer or any Restricted Subsidiary, which is material to the Issuer and the Restricted Subsidiaries as a whole and is not discharged within fourteen (14) days; |
(xiv) | any action, condition or thing (including the obtaining or effecting of any necessary consent, approval, authorisation, exemption, filing, licence, order, recording or registration) at any time required to be taken, fulfilled or done in order (a) to enable each of the Issuer and the Restricted Subsidiaries lawfully to exercise its rights and perform and comply with its obligations under the Bonds, the Trust Deed and the Agency Agreement, (b) to ensure that those obligations are legally binding and enforceable and (c) to make the Bonds, the Trust Deed and the Agency Agreement admissible in evidence in the courts of England is not taken, fulfilled or done; |
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(xv) | any action, condition or thing (including the obtaining or effecting of any necessary consent, approval, authorisation, exemption, filing, licence, order, recording or registration) at any time required to be taken, fulfilled or done in order (a) to enable each party to the Deed of Subordination lawfully to exercise its rights and perform and comply with its obligations under the Deed of Subordination, (b) to ensure that those obligations are legally binding and enforceable and (c) to make the Deed of Subordination admissible in evidence in the courts of England is not taken, fulfilled or done; |
(xvi) | the Deed of Subordination is unenforceable or invalid or shall for any reason cease to be in full force and effect with respect to any party thereto or is claimed to be unenforceable, invalid or not in full force and effect by any party thereto; |
(xvii) | any of the Gaming Concession Guaranty, Gaming License and the Gaming Concession Contract (or any amendment or supplement in relation thereto) is revoked or becomes unenforceable or invalid or shall for any reason cease to be in full force and effect; |
(xviii) | Sands China fails to keep available for issue free from pre-emptive rights and Liens sufficient unissued capital of Sands China for exchange of the Bonds pursuant to these Terms and Conditions and the Trust Deed; or |
(xix) | any event occurs which under the laws of any relevant jurisdiction has an analogous effect to any of the events referred to in paragraphs (v) to (x) and (xiii) above, |
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Loan Agreement | Borrower | Amount of Indebtedness | ||||
1.
|
Credit Agreement | VML US | US$3.3 billion | |||
|
||||||
2.
|
Loan Agreement dated 18 March 2008 between VML and Banco Nacional Ultramarino, SA | VML | Approximately US$11 million | |||
|
||||||
3.
|
Various capital leases | Various Restricted Subsidiaries of the Issuer | Approximately $575,000 |
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(a) | for the period from (and including) the Closing Date to (but excluding) 4 September 2010, 9% per annum; |
(b) | for the period from (and including) 4 September 2010 to (but excluding) 4 September 2011, 12% per annum; and |
(c) | for the period from (and including) 4 September 2011 to (but excluding) the Maturity Date, 15% per annum. |
(a) | with respect to the Sands Macao Podium Expansion Project, that certain Architectural Services Agreement dated as of 6 September 2002 between VML and Paul Steelman, Ltd., as supplemented and amended by that certain change order dated as of 4 March |
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2005, and that certain Lead Consultants Agreement dated as of 23 May 2006 between VML and Aedas (Macau) Limited; |
(b) | with respect to the Venetian Macao Overall Project, that certain Lead Consultants Agreement dated as of 14 November 2005, by and among Venetian Cotai Limited, Aedas (Macau) Limited and HKS Architecture, Ltd; and |
(c) | with respect to any other active Project, any other material agreement relating to the provision of architectural or design services for such Project entered into by Sands China, the Issuer or any Restricted Subsidiary. |
(a) | any of the Equity Securities of any of such sellers direct Subsidiaries; |
(b) | substantially all of the assets of any division or line of business of the Issuer or any Restricted Subsidiary; or |
(c) | any other assets (whether tangible or intangible) of the Issuer or any Restricted Subsidiary (other than (i) inventory or goods sold in the ordinary course of business, (ii) sales, transfers or other dispositions permitted by subsections (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix), (x), (xi), (xii), (xviii), (xix) or (xxiii) of Condition 3.5, or (iii) any other assets to the extent that the fair market value of such assets sold during any Fiscal Year is less than or equal to US$3,000,000). |
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(a) | an event of default as defined in the Credit Agreement (which is continuing as of the date of drawing under such Conforming Adelson L/C and has not been waived) set forth in subsection 8.1, 8.2, 8.6, 8.7 or 8.13 of the Credit Agreement or resulting from a breach of any of the covenants set forth in subsection 7.6 of the Credit Agreement; |
(b) | if such Conforming Adelson L/C has a maturity of less than twenty-four months, either (x) the Administrative Agents receipt of notice from the issuer of the Conforming Adelson L/C that such issuer will not renew the Conforming Adelson L/C or (y) the date that is five days prior to the expiration of the Conforming Adelson L/C if the Administrative Agent has not received evidence of the renewal thereof, provided that the Administrative Agent may not draw down on the Conforming Adelson L/C under such circumstances if and only if Sheldon G. Adelson or his Affiliates substitute cash equity in VML in an amount equal to the face amount of the Conforming Adelson L/C in lieu of the Conforming Adelson L/C on or before the date that is five days prior to the expiration thereof (such equity to be substituted for |
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the withdrawn Conforming Adelson L/C in the calculation of Consolidated Adjusted EBITDA); or |
(c) | the Administrative Agents receipt of notice from the issuer of the Conforming Adelson L/C that such issuer intends to revoke, terminate or cancel the Conforming Adelson L/C, provided that the Administrative Agent may not draw down on the Conforming Adelson L/C under such circumstances if and only if Sheldon G. Adelson or his Affiliates substitute cash equity in VML in an amount equal to the face amount of the Conforming Adelson L/C in lieu of the Conforming Adelson L/C on or before the date that is five days prior to the revocation, termination or cancellation thereof (such equity to be substituted for the withdrawn Conforming Adelson L/C in the calculation of Consolidated Adjusted EBITDA). |
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(a) | with respect to the Venetian Macao Overall Project, that certain Construction Management Agreement dated as of 29 April 2005 between Venetian Cotai Limited and Hsin Chong Construction (Macau) Limited; |
(b) | with respect to any other active Project, any agreement relating to the provision of construction management services for such Project entered into by Sands China, the Issuer or any Restricted Subsidiary on or after the Closing Date; and |
(c) | any replacement of the forgoing agreements described in sub-clauses (a) and (b). |
(a) | with respect to the Primary Projects, Hsin Chong Construction (Macau) Limited, a corporation organised under the laws of Macau SAR; and |
(b) | with respect to any other active Project, any construction manager party to any Construction Management Agreement relating to such Project. |
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(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 clause (b) above. |
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(a) | all indebtedness for borrowed money; |
(b) | that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP; |
(c) | notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money; |
(d) | any obligation owed for all or any part of the deferred purchase price of property or services (excluding any trade payables and accruals incurred in the ordinary course of business); and |
(e) | all Indebtedness secured by any Lien on any property or asset owned or held and under contracts by that person regardless of whether the Indebtedness secured thereby shall have been assumed by that person or is nonrecourse to the credit of that person. |
(i) | any amount of the liability in respect of an operating lease that at such time would not be required to be capitalised and reflected as a liability on the balance sheet in accordance with GAAP; |
(ii) | any surety bonds for claims underlying mechanics liens and reimbursement obligations with respect thereto so long as such reimbursement obligations are not then due, or are promptly paid when due; |
(iii) | any Indebtedness that has been either satisfied or discharged or defeased through covenant defeasance or legal defeasance; |
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(iv) | for purposes of determining compliance with the Incurrence Test, Indebtedness permitted by clause (l) and clause (q) of the definition of Permitted Indebtedness; or |
(v) | capitalised interest. |
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(a) | the sale of the assets comprising, or the equity interests in any entity whose sole asset (other than immaterial assets, none of which are reasonably necessary for the ownership or operation of the casino or gaming area portion of any Project, the Sands Macao Podium Expansion Project, the Sands Macao Casino or the Venetian Macao Resort Project) consists of, the Venetian Macao Mall, the Venetian Macao Convention Center, the Four Seasons Macao Mall, the Four Seasons Macao Resort Project and/or any other Project or portion thereof (including the complementary accommodations at the Four Seasons Macao Resort Project or any similar complementary accommodations at any other Project), other than the casino and gaming area portion of any Project (including, without limitation, the Venetian Macao Casino Project and the Four Seasons Macao Casino), the Sands Macao |
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Podium Expansion Project, the Sands Macao Casino and the Venetian Macao Resort Project; and |
(b) | any Permitted Asset Disposition as defined in the Credit Agreement (for this purpose, disregarding any amendment, restatement or supplement to the Credit Agreement entered into on or after the date of the Placing Agreement). |
(a) | the Obligations; |
(b) | Indebtedness of VML US and any Restricted Subsidiary under the Credit Agreement and any Refinancing Indebtedness incurred in respect thereof; |
(c) | without limiting clause (b) above, Indebtedness of the Issuer and its Restricted Subsidiaries existing on the Closing Date as set forth in Schedule 1 and any Refinancing Indebtedness incurred in respect thereof; |
(d) | Indebtedness to be incurred by the Issuer and any Restricted Subsidiary in respect of the reasonable fees, expenses and reimbursements of the Qualified IPO; |
(e) | Permitted Unsecured Indebtedness of the Issuer or any Restricted Subsidiary: |
(i) | if the Consolidated Leverage Ratio (as defined in the Credit Agreement) is equal to or more than 3.0 to 1.0, up to an aggregate principal amount outstanding of US$100,000,000; or |
(ii) | if the Consolidated Leverage Ratio (as defined in the Credit Agreement) is less than 3.0 to 1.0, in an unlimited amount; |
(f) | Contingent Obligations permitted under Condition 3.3 and, upon any matured obligations actually arising pursuant thereto, the Indebtedness corresponding to the Contingent Obligations so extinguished; |
(g) | Indebtedness owed by the Issuer to any Restricted Subsidiary or by any Restricted Subsidiary to the Issuer or any other Restricted Subsidiary; |
(h) | with regard to any Other Resort Project, the incurrence by VML of Permitted Unsecured Indebtedness in connection with the acquisition by VML of the casino shell associated with such Other Resort Project and related infrastructure (in lieu of cash reimbursement of costs or other cash payments to the sellers or developers as consideration for such shell and related infrastructure) in favour of the seller or developer of such acquired property in an aggregate amount not to exceed US$50,000,000 for each such casino shell and related infrastructure; |
(i) | to the extent that such incurrence does not result in the incurrence by the Issuer or any Restricted Subsidiary of any obligation for the payment of borrowed money of others, Indebtedness of the Issuer or any Restricted Subsidiary incurred solely in respect of (x) performance bonds, completion guarantees, standby letters of credit or bankers acceptances, letters of credit in order to provide security for workers compensation claims, payment obligations in connection with self insurance or similar requirements, surety and similar bonds and statutory claims of lessors, licencees, contractors, franchisees or customers, and (y) bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in |
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connection with any order or decree in any legal proceeding; provided that such Indebtedness described in this sub-clause was incurred in the ordinary course of business of the Issuer or any Restricted Subsidiary and all such Indebtedness pursuant to this sub-clause does not exceed in an aggregate principal amount, at any time outstanding, of US$125,000,000; |
(j) | the incurrence by the Issuer or any Restricted Subsidiary of Indebtedness (which may include Capital Lease obligations, mortgage financings or purchase money obligations) for the purpose of financing or refinancing all or any part of the purchase price or cost of construction, installation and/or improvement of property, plant or equipment used in the business of the Issuer and the Restricted Subsidiaries or the construction, installation, purchase or lease of real or personal property or equipment (including Specified FF&E) (including any refinancings thereof), in an aggregate principal amount not to exceed, at any time outstanding, US$50,000,000; |
(k) | Indebtedness arising from any agreement entered into by the Issuer or any Restricted Subsidiary providing for indemnification, purchase price adjustment or similar obligations, in each case incurred or assumed in connection with the disposition of any business, assets or capital stock of direct Subsidiaries; |
(l) | to the extent constituting Indebtedness, the contractual payments required to be made from time to time by the Issuer or any Restricted Subsidiary to the Macau SAR under the Land Concession Contracts and the Gaming Sub-Concession Contract and Indebtedness associated with any guarantees of such payments; |
(m) | to the extent it constitutes Indebtedness, obligations under Hedging Agreements that are incurred (a) with respect to any Indebtedness that is permitted by the terms of these Terms and Conditions to be outstanding, (b) for the purpose of fixing or hedging currency exchange rate risk with respect to any currency exchanges and not for speculative purposes, or (c) for the purpose of fixing or hedging commodities risk in connection with commodities to which the Issuer or any Restricted Subsidiary has actual exposure in connection with its business and operations and not for speculative purposes; |
(n) | Indebtedness of the Issuer or any Restricted Subsidiary under FF&E Facilities in an aggregate principal amount not to exceed US$350,000,000 at any time outstanding for the Issuer and all Restricted Subsidiaries; |
(o) | Shareholder Subordinated Indebtedness (including such Indebtedness incurred for purposes of contributing to Consolidated Adjusted EBITDA as contemplated by the definition of Consolidated Adjusted EBITDA); |
(p) | Indebtedness raised by the Issuer or any Restricted Subsidiary comprising (x) Permitted Unsecured Indebtedness and (y) Indebtedness of a type permitted under sub-clause (j) of this definition (but in addition to the dollar limitation in such sub-clause) or Indebtedness of a type permitted pursuant to sub-clause (n) of this definition (but in addition to the dollar limitation in such sub-clause), up to an aggregate principal amount outstanding at any time for the Issuer and all Restricted Subsidiaries of US$50,000,000; |
(q) | Indebtedness consisting of obligations permitted pursuant to subsection 7.17B(ii) of the Credit Agreement; |
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(r) | Indebtedness permitted to be incurred by VML and other Loan Parties pursuant to section 7.1(xix) of the Credit Agreement (as incorporated pursuant to the Second Amendment to the Credit Agreement dated 12 August 2009); and |
(s) | Indebtedness permitted to be incurred by VML and other Loan Parties pursuant to section 7.1(xx) of the Credit Agreement (as incorporated pursuant to the Second Amendment to the Credit Agreement dated 12 August 2009). |
(a) | an Investment in cash and cash equivalents; |
(b) | an Investment (including the formation or creation of a Subsidiary) by the Issuer or a Restricted Subsidiary in a Restricted Subsidiary or a person which will, upon the making of such Investment, become a Restricted Subsidiary or an investment by a Restricted Subsidiary in the Issuer; |
(c) | any Investment made as a result of the receipt of non-cash consideration from an asset sale that was made in accordance with these Terms and Conditions or the Credit Agreement; |
(d) | an Investment in receivables owing to the Issuer or any Restricted Subsidiary if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms; provided that such trade terms may include such concessionary trade terms as the Issuer or such Restricted Subsidiary deems reasonable under the circumstances; |
(e) | an Investment in the form of payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business; |
(f) | an Investment by the Issuer or a Restricted Subsidiary made in any Excluded Subsidiary, Supplier Joint Venture or Joint Venture solely with cash or other property contributed to the Issuer either (x) in exchange for common equity of the Issuer issued to the Issuers direct or indirect parent or (y) in the form of Permitted Subordinated Indebtedness by Sheldon G. Adelson or any of his Affiliates or Related Parties, in each case for such purpose; |
(g) | an Investment consisting of securities or other obligations received in settlement of debt created in the ordinary course of business and owing to the Issuer or a Restricted Subsidiary or in satisfaction of judgments; |
(h) | an Investment consisting of a loan or advance to an employee or director or former employee or director of the Issuer or any Restricted Subsidiary, provided that the aggregate outstanding principal amount of such loans and advances does not exceed US$2,000,000 at any time; |
(i) | an Investment by the Issuer or a Restricted Subsidiary made with the proceeds of a substantially concurrent sale or issuance of Equity Securities of the Issuer; |
(k) | any other Investment made by the Issuer or any Restricted Subsidiary with the proceeds of the issuance of the Bonds; |
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(l) | so long as no Potential Event of Default or Event of Default shall have occurred and be continuing, Investments in Cotai Strip Excluded Subsidiaries, the proceeds of which Investments are used by such Cotai Strip Excluded Subsidiary, to develop and construct Excluded Casino Hotel Resorts (a Cotai Strip Investment ) in an aggregate amount at any one time outstanding not to exceed the sum of (a) US$ 800,000,000 ( less (x) at any time prior to the satisfaction or waiver of all the conditions precedent set forth in Sections 3.1 and 3.4 of the Disbursement Agreement in order for the Company (as defined in the Disbursement Agreement) to obtain one advance under Section 3.1 of the Disbursement Agreement in respect of the Venetian Macao Overall Project, the amount, if any, disbursed under Section 3.6 of the Disbursement Agreement in excess of (1) $900,000,000 plus (2) any amounts expended on land premiums pursuant to clause (b) of the definition of Maximum Early Advance Amount (as defined in the Disbursement Agreement); and (y) the amount of loans then outstanding, if any, to Excluded Subsidiaries developing Casino Operation Projects made pursuant to subsection 7.3(xxi) of the Credit Agreement ), (b) the aggregate amount of net-after-tax cash dividends received by any Loan Party from such Cotai Strip Excluded Subsidiary (other than the dividends received by the Loan Parties to pay obligations of or related to the Cotai Strip Excluded Subsidiaries or the Excluded Casinos (including for the payment of income taxes payable in respect of the income of such Cotai Strip Excluded Subsidiaries or Excluded Casinos)), the proceeds of which have been deposited into the Term Loan Disbursement Account (as defined in the Disbursement Agreement) and (c) the proceeds, if any, from VMLs issuance of any senior unsecured notes or senior notes secured by a second priority Lien on the Collateral (as defined in the Credit Agreement) in accordance with subsection 7.1(xix) of the Credit Agreement; |
(m) | Investments made by any Loan Party in the form of Consolidated Capital Expenditures (as defined in the Credit Agreement) permitted by subsection 7.14 of the Credit Agreement; |
(n) | so long as no Potential Event of Default or Event of Default shall have occurred and be continuing, Investments made by the Issuer or any Restricted Subsidiary in Excluded Subsidiaries or Joint Ventures consisting of: |
(i) | cash and cash equivalents of up to US$100,000,000 in the aggregate; and |
(ii) | guarantees of up to US$200,000,000 in the aggregate of Indebtedness of, or performance by, any Excluded Subsidiaries or Joint Ventures, |
provided that the Consolidated Leverage Ratio (as defined in the Credit Agreement) is less than 3.0 to 1.0 after giving effect to each such Investment; provided further that notwithstanding the foregoing, no Restricted Subsidiary may make Investments in Joint Ventures pursuant to this clause (n) in excess of US$50,000,000 in the aggregate; |
(o) | Investments made by the Issuer or any Restricted Subsidiary in Excluded Subsidiaries or Joint Ventures, not exceeding US$50,000,000 in the aggregate at any time; |
(p) | Investments made by VML in any Cotai Strip Excluded Subsidiary or Additional Development Excluded Subsidiary, as the case may be, which result solely from such Cotai Strip Excluded Subsidiary or Additional Development Excluded Subsidiary, as the case may be, receiving the Net Casino Cash Flow from an Excluded Bank Account as permitted pursuant to the terms of the Credit Agreement; |
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(r) | any payment made by the Issuer or any Restricted Subsidiary related to the operation or maintenance of an Excluded Casino which payment was made by the Issuer or such Restricted Subsidiary from a source other than an Excluded Bank Account; provided that either: |
(i) | the Issuer or such Restricted Subsidiary shall have been reimbursed for such payment within 10 days of such disbursement from sources other than cash or other assets of the Issuer or a Restricted Subsidiary; or |
(ii) | such payment is otherwise permitted under subsection 7.3 of the Credit Agreement (excluding the provisions of subsection 7.3(xii) and subsection 7.3(xiii) of the Credit Agreement); |
(s) | so long as no Potential Event of Default or Event of Default shall have occurred or be continuing, and so long as the Consolidated Leverage Ratio (as defined in the Credit Agreement) is less than 3.0 to 1.0 after giving effect to each such Investment, cash Investments made by the Issuer or any Restricted Subsidiary in the Excluded Subsidiaries in an aggregate amount at any time outstanding not exceeding the sum of (1) 50% of (A) the Consolidated Net Income of the Loan Parties for the period (taken as one accounting period) from the Closing Date (as defined under the Credit Agreement) to the end of VMLs most recently ended Fiscal Quarter for which internal financial statements are available (or, in the case such Consolidated Net Income for such period is a deficit, minus 100% of such deficit) less (B) the amount paid or to be paid in respect of such period pursuant to subsection 7.5(iv) of the Credit Agreement to shareholders or members other than VML, plus (2) without duplication, 100% of the aggregate net cash proceeds received by VML since the Closing Date (as defined in the Credit Agreement) from capital contributions or the issue or sale of Equity Securities (excluding any such proceeds used for subsection 7.3(vii) or subsection 7.3(xx) of the Credit Agreement) or debt securities of VML that have been converted into or exchanged for such Equity Securities of VML (other than Equity Securities or such debt securities of VML sold to a Loan Party), plus (3) to the extent not otherwise included in the Loan Parties Consolidated Net Income, 100% of the cash dividends or distributions or the amount of cash principal and interest payments (other than dividends or payments received by the Loan Parties to pay obligations of or related to the Cotai Strip Excluded Subsidiaries or the Additional Development Excluded Subsidiaries (including for the payment of income taxes in respect thereof)) received since the Closing Date (as defined in the Credit Agreement) by a Loan Party from any Excluded Subsidiary or in respect of any Joint Venture in which an Investment was made pursuant to any clause of subsection 7.3 of the Credit Agreement other than clauses 7.3(viii) and 7.3(xii) thereof, until the entire amount of the Investment in such Excluded Subsidiary has been received, and 50% of such amounts thereafter; provided in each case that such cash proceeds have not been committed or used for any other purpose; provided , further, however, that in the event that an Excluded Subsidiary is converted into a Restricted Subsidiary, the Loan Parties may add back to this clause the aggregate amount of any Investment in such Subsidiary that was an Investment made pursuant to subsection 7.3 of the Credit Agreement (other than pursuant to clauses 7.3(viii) or 7.3(xii) thereof) at the time of such Investment; |
(t) | any Indebtedness permitted to be incurred by the Issuer and the Restricted Subsidiaries under these Terms and Conditions and any Contingent Obligation permitted to be incurred under Condition 3.3 to the extent such Indebtedness or Contingent Obligation constitutes an Investment; |
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(u) | other Investments made by the Issuer and the Restricted Subsidiaries, not exceeding US$50,000,000 in the aggregate at any time; |
(v) | so long as no Potential Event of Default or Event of Default shall have occurred and be continuing and subject to the terms of the Disbursement Agreement, with regard to each of Site 3, Site 7, and Site 8, Investments made by the Issuer or any Restricted Subsidiary of up to US$50,000,000 per Site constituting a prepayment for the casino and showroom and/or retail shell referred to below to an Excluded Subsidiary developing the Other Resort Project to be located thereon; provided that: |
(i) | such Excluded Subsidiary has obtained all permits and approvals necessary, at the time such Investment is made, from Macau SAR to develop a casino resort on the applicable Site consistent with the Plans and Specifications (as defined in the Disbursement Agreement) relevant to the applicable Casino Operation Project to be located within such Other Resort Project; and |
(ii) | at or prior to the time such Investment is made, such Excluded Subsidiary has executed a binding agreement to deliver to VML the casino and showroom and/or retail shell to be developed within such Other Resort Project upon its completion, prior to an agreed date certain, for no further consideration and free and clear of all Liens other than Permitted Liens; |
(w) |
so long as no Potential Event of Default or Event of Default shall have occurred and be
continuing and subject to the terms of the Disbursement Agreement, Investments made by
the
Issuer or any
Restricted Subsidiary in the form of loans to Affiliates of
the Issuer
or any Restricted Subsidiary
that, in each case,
are not Restricted Subsidiaries,
provided
that:
|
(i)
|
such Indebtedness is incurred for the purpose of financing the acquisition
and/or equipping of ferry vessels to provide ferry service to or from
Macau SAR;
|
||
(ii) |
such loans made by the Restricted Subsidiaries shall be secured on a
first-priority basis by the assets so acquired by such Affiliates; and
|
||
(iii) |
the aggregate outstanding principal amount of such loans, together with
the maximum aggregate amount of all Contingent Obligations then outstanding to
Affiliates pursuant to Condition 3.3(viii), shall at no time exceed $175,000,000;
and
|
(x) | any other Investment that is permitted under subsection 7.3 of the Credit Agreement (for this purpose, disregarding any amendment, restatement or supplement to the Credit Agreement entered into on or after the date of the Placing Agreement). |
(a) | Liens granted to secure Indebtedness under the Credit Agreement or any Refinancing Indebtedness in respect thereof; |
(b) | Liens securing Indebtedness existing on the Closing Date and described in Schedule 1 and any Refinancing Indebtedness in respect thereof; |
(c) | Liens for taxes, assessments or governmental charges or claims that are being contested in good faith by appropriate legal or administrative proceedings promptly |
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instituted and diligently conducted and for which a reserve or other appropriate provision; if any, as shall be required in conformity with GAAP shall have been made; |
(d) | statutory Liens of landlords, statutory Liens of banks and rights of set-off, statutory Liens of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law, in each case incurred in the ordinary course of business (a) for amounts not yet overdue, (b) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of five (5) days) are being contested in good faith by appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as shall be required by GAAP, shall have been made for any such contested amounts, or (c) with respect to Liens of mechanics, repairmen, workmen and materialmen, if such Lien arises in the ordinary course of business, VML has bonded such Lien within a reasonable time after becoming aware of the existence thereof; |
(e) | Liens incurred or deposits made in the ordinary course of business in connection with workers compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money), incurred in the ordinary course of business or in connection with the construction of a Project (a) for amounts not yet overdue, (b) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of five (5) days) are being contested in good faith by appropriate proceedings, so long as such reserves or other appropriate provisions, if any, as may be required by GAAP, shall have been made for any such contested amounts, or (c) with respect to Liens of mechanics, repairmen, workmen and materialmen, if such Lien arises in the ordinary course of business or in the construction of a Project, VML has bonded such Lien within a reasonable time after becoming aware of the existence thereof; |
(f) | any attachment or judgment not constituting an Event of Default; |
(g) | easements, rights-of-way, avagational servitudes, restrictions, encroachments, and other minor defects or irregularities in title and other similar charges or encumbrances, in each case which do not and will not interfere in any material respect with the ordinary conduct of the business of the Issuer or any Restricted Subsidiary; |
(h) | Liens in favour of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods; |
(i) | licenses of patents, trademarks and other intellectual property rights granted by the Issuer or any Restricted Subsidiary in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of the Issuer or such Restricted Subsidiary; |
(j) | Liens incurred in connection with Hedging Agreements in respect of any Indebtedness; provided that such Liens only extend to the collateral securing such Indebtedness with the same priority thereto; |
(k) | Liens on Specified FF&E securing obligations in respect of an FF&E Facility permitted to be incurred hereunder (including any mortgage, deed of trust, or similar encumbrance on real property as may be necessary under applicable law to create a |
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Lien on Specified FF&E that may constitute a fixture appended to such real property); |
(l) | Liens securing Indebtedness permitted pursuant to sub-clause (i), sub-clause (j), subsection (y) of sub-clause (p) and sub-clause (q) of the definition of Permitted Indebtedness; |
(m) | Liens on property of a person existing at the time such person became a Restricted Subsidiary, is merged into or consolidated with or into, or wound up into, the Issuer or any Restricted Subsidiary; provided that such Liens were in existence prior to the consummation of, and were not entered into in contemplation of, such acquisition, merger or consolidation or winding up and do not extend to any other assets other than those of the person acquired by, merged into or consolidated with one of the Issuer or such Restricted Subsidiary; |
(n) | Liens to secure a stay of process in proceedings to enforce a contested liability, or required in connection with the institution of legal proceedings or in connection with any other order or decree in any such proceeding or in connection with any contest of any tax or other governmental charge, or deposits with a governmental agency entitling the Issuer or a Restricted Subsidiary to maintain self-insurance or to participate in other specified insurance arrangements or any attachment or judgment Lien not constituting an Event of Default; |
(o) | leases or subleases, licenses or sublicenses or other types of occupancy agreements granted to third parties in accordance with these Terms and Conditions and not interfering in any material respect with the ordinary conduct of the business of the Issuer or any of its Restricted Subsidiaries; |
(p) | any zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any real property; |
(q) | Liens on property existing at the time of acquisition thereof by the Issuer or any Restricted Subsidiary; provided that such Liens were in existence prior to the consummation of, and were not entered into in contemplation of, such acquisition and do not extend to any other assets other than those so acquired; |
(r) | Liens on the interests of the Issuer or any Restricted Subsidiary in any Land Concession Contract and the property interest granted thereunder, granted in favour of the Concession Guarantor and/or other guarantors of payments under the Land Concession Contracts or the Gaming Concession Contract (or to the collateral agent under the Credit Agreement on behalf of the Concession Guarantor and/or such other guarantors) securing obligations in an aggregate amount of no more than US$250,000,000 at any one time; |
(s) | leases permitted under Conditions 3.5(v) and (vii) and any leasehold mortgage in favour of any party financing the lessee under any lease permitted under Condition 3.5(v), provided that none of the Issuer and the Restricted Subsidiaries is liable for the payment of any principal of, or interest, premiums or fees on, such financing; |
(t) | Liens on Excluded Casino Interests and/or the associated Net Casino Cash Flow granted by any Restricted Subsidiary at the request of the applicable Cotai Strip Excluded Subsidiary or Additional Development Excluded Subsidiary in connection with a Non-Recourse Financing; |
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(u) | Liens arising from filing UCC financing statements or the Macanese equivalent relating solely to leases permitted by these Terms and Conditions or the Credit Agreement (for this purpose, disregarding any amendment, restatement or supplement to the Credit Agreement entered into on or after the date of the Placing Agreement); and |
(v) | any other Lien that is a Permitted Lien as defined in the Credit Agreement (for this purpose, disregarding any amendment, restatement or supplement to the Credit Agreement entered into on or after the date of the Placing Agreement). |
(a) | for which no instalment of principal matures earlier than six months after the Maturity Date; and |
(b) | for which the payment of principal and interest is subordinated in right of payment and ranking to the Obligations pursuant to a deed of subordination, intercreditor agreement or other documents reasonably approved in writing by Bondholders holding not less than 50% of the principal amount of outstanding Bonds or by an Ordinary Resolution (as defined in the Trust Deed) of the Bondholders. |
(a) | for which no instalment of principal matures earlier than twelve months after the latest maturity date of the term loan under the Credit Agreement or any Refinancing Indebtedness in respect of the Credit Agreement; |
(b) | in support of which no Liens are granted on any other assets of the Issuer or any Restricted Subsidiary; and |
(c) | for which the payment of principal and interest is pari passu in right of payment to the loan under the Credit Agreement or any Refinancing Indebtedness in respect of the Credit Agreement. |
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(a) | an initial public offering and the listing of, and dealing in, the shares of Sands China on the Qualified Exchange; and |
(b) | in respect of such initial public offering and the listing of, and dealing in, the shares of Sands China, the amount of newly issued shares to be offered to and held by the public in accordance with the relevant Listing Rules (such newly issued shares shall hereinafter be referred to as the Firm Offer Shares ) would be equivalent to not less than twenty per cent. (20%) of the issued share capital of Sands China immediately after the initial public offering (on a fully diluted basis but excluding the exercise of any over-allotment option resulting in the issue of additional new shares (such additional new shares shall hereinafter be referred to as the Over-allotment Shares ) not exceeding fifteen per cent. (15%) of the amount of the Firm Offer Shares), |
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(a) | any dividend or other distribution, direct or indirect, on account of any shares of any class of Equity Securities of the Issuer now or hereafter outstanding or in respect of options, warrants or other rights to purchase or acquire such Equity Securities of the Issuer (whether of cash, assets or other property, and wherever paid or made and however described and shall include any distribution or repayment of capital, whether upon a reduction in the par value or nominal value of any Equity Securities or otherwise, and howsoever described (and a distribution of assets includes, without limitation, an issue of shares or other securities credited as fully or partly paid up and any rights issue)); |
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(b) | any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Equity Securities of the Issuer now or hereafter outstanding; |
(c) | any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Equity Securities of the Issuer now or hereafter outstanding; |
(d) | any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to Permitted Subordinated Indebtedness; and |
(e) | any Investment in any Person other than a Permitted Investment. |
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(a) | US$250,000 converted into Hong Kong dollars at the Applicable Exchange Rate as at the third day prior to the Qualified IPO; by |
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(b) | the Exchange Price; |
1 | Note a warrant instrument will be executed on each Issuer Optional Redemption Date in respect of the Bonds redeemed on such date. The number of warrants to be issued on each such Issuer Optional Redemption Date will be adjusted pursuant to this formula. |
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(a) | a reference to a clause, paragraph or schedule, unless specifically provided otherwise, is a reference to a clause or paragraph of, or schedule to, this Instrument; |
(b) | a reference to the singular includes the plural and vice versa (unless the context otherwise requires); |
(c) | a time of day is a reference to Hong Kong time; |
(d) | a provision or matter including or which includes shall be construed without limitation to any events, circumstances, conditions, acts or matters specified after those words; and |
(e) | a Warrant is outstanding unless it has: |
(i) | the holder of which has received Warrant Shares in full pursuant to clause 4 below; | ||
(ii) | been purchased by the Company or an Affiliate of the Company; | ||
(iii) | been surrendered in accordance with clause 30; or | ||
(iv) | lapsed in accordance with the provisions of this Instrument. |
(a) | shall be issued in registered form; |
(b) | shall be transferable only with the consent of the Company (which consent shall not unreasonably be withheld, it being understood that: (i) consent may not be withheld to a transfer by a Warrantholder to one of its Affiliates (except such consent may be withheld pursuant to sub-clause (ii) below) provided that such Affiliate remains an Affiliate of such Warrantholder after the transfer; and (ii) consent may be withheld with respect to a transfer to any Person who or whose Affiliate is engaged in any business activity that competes with the business of the Company and the Restricted Subsidiaries or with respect to any transfer which would or might, in the reasonable opinion of the Company, have a material adverse effect on the Companys or any Restricted Subsidiarys ability to comply with applicable gaming regulatory requirements) and in accordance with Schedule 2; and |
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(c) | shall be issued subject to the Articles and on the terms and conditions of this Instrument which are binding upon the Company and each Warrantholder and all persons claiming through or under them. |
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(a) | lodging at the Specified Office the relevant Warrant Certificate together with: |
(i) | a duly completed Warrantholders Notice; |
(ii) | if the Warrant Shares are to be issued to a nominee of, or trustee for, the Warrantholder, the name and address of such nominee or trustee to be set out in such Warrantholders Notice; and |
(iii) | if the Warrant Shares are to be delivered otherwise than to a specified securities account, the address to which the certificate of the Warrant Shares should be dispatched on the date of the Qualified IPO; and |
(b) | paying the Exercise Price to the Companys account (details of which shall be notified to the Warrantholders prior to the fifth Business Day prior to the date of the Qualified IPO pursuant to clause 6.1(e) below), |
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(a) | be free from any Lien or any other third party right and be freely transferable; | |
(b) | be duly and validly allotted and issued fully paid and be non-assessable; | |
(c) | not be subject to calls for further funds; | |
(d) | rank pari passu with the fully paid Shares then in issue; and |
(e) | rank for any dividend or other distribution which has been previously announced or declared if the date by which the holder of shares must be registered to participate in such dividend or other distribution is after the date of the Qualified IPO. |
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(a) | procure that Sands China shall at all times keep available for issue sufficient authorised but unissued share capital to satisfy the Warrants and ensure that the directors of Sands China have all necessary authorisations to authorise them to allot the Warrant Shares upon the occurrence of the Qualified IPO; |
(b) | procure that Sands China shall not vary, amend or modify the rights attached to its Shares in any way which would adversely affect the Warrantholders; |
(c) | procure that Sands China shall not amend or alter its Articles or other constitutional documents of Sands China in any way which would adversely affect the Warrantholders; |
(d) | cause any Warrants purchased by the Company, Sands China or any of the other Affiliates of the Company to be cancelled forthwith and not be available for re-issue or re-sale; |
(e) | upon final determination of the date of the Qualified IPO by Sands China, send or procure Sands China to send a written notice to the Warrantholders pursuant to the provisions of paragraph 3 of Schedule 2 setting out: |
(i) | such date of the Qualified IPO; and |
(ii) | details of the receiving account of the Company for receipt of the Exercise Price; and |
(f) | not dispose of any shares of capital or other Equity Securities of Sands China constituting more than 25% of the issued share capital of Sands China at such time other than: (i) pursuant to the Qualified IPO; (ii) to qualify directors if required by applicable law; or (iii) to the extent required by any legal requirement imposed by Macau SAR or the Macau Gaming Authority or any other applicable gaming authority in order to preserve a material Gaming License. |
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(i) | All consents, authorisations, approvals, licences, exemptions, filings, registrations, notarisations and other requirements of governmental, judicial and public bodies and authorities; and |
(ii) | all consents, authorisations, approvals, licences, exemptions, filings, registrations, notarisations and other requirements under any agreement or other instrument to which any it is a party or which is binding on it or any of its assets, |
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(a) | Sands China has no other class of shares or Equity Securities other than the Shares; |
(b) | Sands China will have sufficient authorised but unissued share capital to satisfy the issue of such number of Shares as would be required to be issued upon the exercise of the Warrants; and |
(c) | the issue of the Shares upon exercise of the Warrants will not be subject to any pre-emptive or similar rights. |
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(a) | agrees that failure by any process agent to give notice of process served to it shall not impair the validity of such service or of any judgment based on that service; and |
(b) | agrees that nothing in this Instrument or the Warrants shall affect the right to serve process in any other manner permitted by law. |
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EXECUTED AS A DEED
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INTERMEDIATE II
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Address:
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(Note: These details are to be completed in the witnesss own hand writing.) |
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2 | Include for warrants issued on redemption of Bonds represented by a Restricted Certificate or, in the case of a transfer of Warrants, a Restricted Warrant Certificate. |
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(a) | it has such knowledge and experience in financial and business matters that: |
(i) | it is capable of evaluating the merits and risks of its investment under the Warrant; and |
(ii) | it is able to bear the economic risk of such investment and is able to sustain a complete loss of its investment under the Warrant; and |
(b) | it has had access to such financial and other information regarding the Company, Sands China Ltd. and the Warrant as it has requested in connection with its investment decision; |
(c) | if it has had any questions regarding the Warrant, the Company or Sands China Ltd. and the affairs of the Company or Sands China Ltd., it has asked these questions of and received answers satisfactory to it from the representatives of the Company; [and] |
(d) | [either: |
(i) | it (A) is acquiring the Warrants in an offshore transaction (within the meaning of Regulation S ( Regulation S ) under the US Securities Act of 1933, as amended (the Securities Act )), (B) is acquiring the Warrants for its own account and will be the beneficial owner of the Warrants, (C) is not an affiliate of the Company or a person acting on behalf of such an affiliate, (D) understands that the Warrants have not been and will not be registered under the Securities Act and that the Warrants are being issued to it in accordance with Regulation S, (E) will not offer, sell, pledge or otherwise transfer the Warrants except in accordance with the Securities Act and any applicable laws of any state of the United States and any other jurisdiction and (F) understands that the Company, its affiliates and others will rely upon |
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the truth and accuracy of such acknowledgments, representations and agreements; or |
(ii) | (A) it is either (x) a qualified institutional buyer (as defined in Rule 144A ( Rule 144A ) under the Securities Act) (a QIB ), acquiring the Warrants for its own account or for the account of another QIB or (y) acquiring the Warrants pursuant to an exemption from the registration requirements of the Securities Act other than Rule 144A and is providing the Company such information as the Company may reasonably request (including, without limitation, an opinion of counsel) to confirm the availability of such exemption, (B) acknowledges that the Warrants issued to it and the related Warrant Shares are restricted securities within the meaning of Rule 144(a)(3) of the Securities Act and are being issued in a transaction not involving any public offering in the United States within the meaning of the Securities Act and that no representation is made as to the availability of the exemption provided by Rule 144 for resales of the Warrants or the related Warrant Shares; (C) understands that neither the Warrants nor the related Warrant Shares have been or will be registered under the Securities Act and neither the Warrants nor the related Warrant Shares may be offered, sold, pledged or otherwise transferred except (i) pursuant to a registration statement that has been declared effective under the Securities Act, (ii) in reliance on Rule 144A to a person that the holder and any person action on its behalf reasonably believes is QIB purchasing for its own account or for the account of another QIB, (iii) in an offshore transaction in accordance with Regulation S, (iv) pursuant to Rule 144 under the Securities Act (if available) or (v) pursuant to any other available exemption from the registration requirements of the Securities Act, in each case in accordance with any applicable securities laws of any state of the United States or any other jurisdiction; (E) understands that any offer, sale, pledge or other transfer of the Warrants or the related Warrant Shares made other than in compliance with such restrictions may not be recognised by the Company; (F) understands that the Warrants will bear a legend to such effect; (G) agrees to give each person to whom it transfers Warrants notice of any restrictions on transfer of such Warrants; and (H) understands that the Warrants will be represented by a restricted certificate and that before any interest in the Warrants may be offered, sold, pledged or otherwise transferred to a person who takes deliver in the form of an interest in an unrestricted certificate, it will be required to provide a transfer agent with a written certification as to compliance with applicable securities laws;] 3 |
(e) | it has made its own assessment concerning the relevant tax, legal and other economic considerations relevant to its investment in the Warrant; and |
(f) | it agrees to be bound by the terms and conditions of the Instrument. |
3 | Include for warrants issued on redemption for Bonds represented by a Restricted Certificate or, in the case of a transfer of Warrants, a Restricted Warrant Certificate. |
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EXECUTED AS A DEED
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INTERMEDIATE II
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(Note: These details are to be completed in the witnesss own hand writing.) |
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Clause | Page | |||
1. ISSUE AND PLACING OF THE BONDS
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2. LISTING
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3. REPRESENTATIONS, WARRANTIES AND INDEMNITY
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4. COVENANTS OF THE ISSUER
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5. FEES
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6. EXPENSES
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7. CLOSING
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8. CONDITIONS PRECEDENT
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9. TERMINATION
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10. SURVIVAL OF REPRESENTATIONS AND OBLIGATIONS
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11. SELLING RESTRICTIONS
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12. ASSIGNMENT
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13. NOTICES
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14. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
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15. GOVERNING LAW AND JURISDICTION
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16. ENTIRE AGREEMENT
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17. TIME OF THE ESSENCE
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18. COUNTERPARTS
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SCHEDULE 1 TERMS AND CONDITIONS
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SCHEDULE 2 FORM OF CERTIFICATE CONFIRMING NO MATERIAL ADVERSE CHANGE
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SCHEDULE 3 FORM OF LOCK-UP UNDERTAKING
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SCHEDULE 4 LIST OF GROUP MEMBERS
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SCHEDULE 5 DISCLOSURE IN RESPECT OF LITIGATION
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By: | /s/ Sheldon G. Adelson | |||
Sheldon G. Adelson | ||||
Chief Executive Officer | ||||
By: | /s/ Kenneth J. Kay | |||
Kenneth J. Kay | ||||
Chief Financial Officer | ||||
By: | /s/ Sheldon G. Adelson | |||
Sheldon G. Adelson | ||||
Chief Executive Officer | ||||
By: | /s/ Kenneth J. Kay | |||
Kenneth J. Kay | ||||
Chief Financial Officer | ||||