UNITED STATES
SECURITIES & EXCHANGE COMMISSION
Washington, D.C.
20549
Form 10-Q
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þ
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the quarterly period ended
September 30, 2008
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the transition period
from to
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Commission file number
001-32373
LAS VEGAS SANDS CORP.
(Exact name of registrant as
specified in its charter)
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Nevada
(State or other jurisdiction
of
incorporation or organization)
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27-0099920
(I.R.S. Employer
Identification No.)
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3355 Las Vegas Boulevard South
Las Vegas, Nevada
(Address of principal
executive offices)
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89109
(Zip
Code)
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(702) 414-1000
(Registrants telephone
number, including area code)
Indicate by check mark whether the Registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the Registrant
was required to file such reports), and (2) has been
subject to such filing requirements for the past
90 days. Yes
þ
No
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large
accelerated
filer
þ
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Accelerated
filer
o
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Non-accelerated
filer
o
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Smaller
reporting
company
o
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(Do not check if a smaller reporting company)
Indicate by check mark whether the registrant is a shell company
(as defined in
Rule 12b-2
of the Exchange
Act). Yes
o
No
þ
Indicate the number of shares outstanding of each of the
Registrants classes of common stock, as of
October 31, 2008.
LAS VEGAS SANDS CORP.
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Class
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Outstanding at October 31, 2008
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Common Stock ($0.001 par value)
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355,476,161 shares
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LAS VEGAS
SANDS CORP.
Table of
Contents
2
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ITEM 1
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FINANCIAL
STATEMENTS
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LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
Condensed Consolidated Balance Sheets
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September 30,
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December 31,
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2008
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2007
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(Unaudited)
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(In thousands, except share data)
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ASSETS
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Current assets:
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Cash and cash equivalents
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$
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1,275,975
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$
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857,150
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Restricted cash
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239,144
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232,944
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Accounts receivable, net
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333,176
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187,195
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Inventories
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27,284
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19,902
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Deferred income taxes
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83,871
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32,471
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Prepaid expenses and other
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37,525
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49,424
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Total current assets
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1,996,975
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1,379,086
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Property and equipment, net
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11,275,621
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8,574,614
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Deferred financing costs, net
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172,186
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107,338
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Restricted cash
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178,824
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Deferred income taxes
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1,821
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Leasehold interests in land, net
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1,077,487
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1,069,609
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Other assets, net
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235,322
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157,046
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Total assets
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$
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14,759,412
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$
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11,466,517
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LIABILITIES AND STOCKHOLDERS EQUITY
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Current liabilities:
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Accounts payable
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$
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96,345
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$
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99,023
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Construction payables
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833,842
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717,541
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Accrued interest payable
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13,305
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11,465
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Other accrued liabilities
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679,176
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610,911
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Current maturities of long-term debt
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99,314
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54,333
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Total current liabilities
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1,721,982
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1,493,273
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Other long-term liabilities
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47,073
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28,674
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Deferred income taxes
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7,145
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1,553
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Deferred proceeds from sale of The Shoppes at The Palazzo
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243,928
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Deferred gain on sale of The Grand Canal Shoppes
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58,602
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61,200
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Deferred rent from mall transactions
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151,195
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103,546
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Long-term debt
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10,251,106
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7,517,997
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Total liabilities
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12,481,031
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9,206,243
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Commitments and contingencies (Note 10)
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Stockholders equity:
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Common stock, $0.001 par value, 1,000,000,000 shares
authorized, 355,465,886 and 355,271,070 shares issued and
outstanding
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355
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355
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Capital in excess of par value
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1,116,755
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1,064,878
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Accumulated other comprehensive income (loss)
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15,975
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(2,493
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)
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Retained earnings
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1,145,296
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1,197,534
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Total stockholders equity
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2,278,381
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2,260,274
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Total liabilities and stockholders equity
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$
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14,759,412
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$
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11,466,517
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The accompanying notes are an integral part of these condensed
consolidated financial statements.
3
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
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Three Months Ended
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Nine Months Ended
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September 30,
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September 30,
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2008
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2007
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2008
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2007
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(In thousands, except share and per share data)
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(Unaudited)
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Revenues:
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Casino
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$
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805,258
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$
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508,522
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$
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2,404,973
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$
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1,433,135
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Rooms
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188,794
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96,718
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575,172
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289,588
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Food and beverage
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91,025
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50,032
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272,315
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162,129
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Convention, retail and other
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123,233
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39,058
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290,791
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113,397
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1,208,310
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694,330
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3,543,251
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1,998,249
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Less-promotional allowances
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(102,876
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)
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(33,380
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)
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(246,680
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)
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(96,155
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)
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Net revenues
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1,105,434
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660,950
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3,296,571
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1,902,094
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Operating expenses:
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Casino
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580,755
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341,975
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1,639,849
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904,440
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Rooms
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36,436
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23,574
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116,663
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67,219
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Food and beverage
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46,035
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28,485
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136,578
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79,011
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Convention, retail and other
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69,013
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22,939
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164,622
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59,511
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Provision for doubtful accounts
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|
8,859
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4,283
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22,960
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|
|
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24,516
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General and administrative
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130,192
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|
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80,244
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421,051
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|
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198,915
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Corporate expense
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23,390
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23,444
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82,529
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66,657
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Rental expense
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8,437
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8,136
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25,573
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|
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23,141
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Pre-opening expense
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|
40,777
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|
|
90,447
|
|
|
|
105,470
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|
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|
153,224
|
|
Development expense
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|
1,153
|
|
|
|
3,621
|
|
|
|
11,504
|
|
|
|
7,227
|
|
Depreciation and amortization
|
|
|
132,239
|
|
|
|
54,309
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|
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|
364,753
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121,262
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(Gain) loss on disposal of assets
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|
|
(47
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)
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|
287
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|
|
|
6,977
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|
|
|
526
|
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
|
|
|
|
|
|
1,077,239
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|
|
|
681,744
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|
|
|
3,098,529
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|
|
|
1,705,649
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|
|
|
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|
|
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|
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|
|
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Operating income (loss)
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28,195
|
|
|
|
(20,794
|
)
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|
198,042
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|
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196,445
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Other income (expense):
|
|
|
|
|
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|
|
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Interest income
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|
|
3,215
|
|
|
|
26,890
|
|
|
|
11,813
|
|
|
|
60,906
|
|
Interest expense, net of amounts capitalized
|
|
|
(90,535
|
)
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|
(72,607
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)
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|
(293,709
|
)
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|
|
(161,628
|
)
|
Other income
|
|
|
7,209
|
|
|
|
17,052
|
|
|
|
11,624
|
|
|
|
7,715
|
|
Loss on early retirement of debt
|
|
|
|
|
|
|
|
|
|
|
(4,022
|
)
|
|
|
(10,705
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes and noncontrolling interest
|
|
|
(51,916
|
)
|
|
|
(49,459
|
)
|
|
|
(76,252
|
)
|
|
|
92,733
|
|
Benefit (provision) for income taxes
|
|
|
19,425
|
|
|
|
952
|
|
|
|
19,533
|
|
|
|
(15,928
|
)
|
Noncontrolling interest
|
|
|
283
|
|
|
|
|
|
|
|
4,481
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
(32,208
|
)
|
|
$
|
(48,507
|
)
|
|
$
|
(52,238
|
)
|
|
$
|
76,805
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
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|
Basic earnings (loss) per share
|
|
$
|
(0.09
|
)
|
|
$
|
(0.14
|
)
|
|
$
|
(0.15
|
)
|
|
$
|
0.22
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted earnings (loss) per share
|
|
$
|
(0.09
|
)
|
|
$
|
(0.14
|
)
|
|
$
|
(0.15
|
)
|
|
$
|
0.22
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average shares outstanding:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
355,393,259
|
|
|
|
354,856,121
|
|
|
|
355,344,306
|
|
|
|
354,716,730
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Diluted
|
|
|
355,393,259
|
|
|
|
354,856,121
|
|
|
|
355,344,306
|
|
|
|
357,094,808
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these condensed
consolidated financial statements.
4
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
|
(In thousands)
|
|
|
|
(Unaudited)
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
(52,238
|
)
|
|
$
|
76,805
|
|
Adjustments to reconcile net income (loss) to net cash provided
by operating activities:
|
|
|
|
|
|
|
|
|
Depreciation and amortization
|
|
|
364,753
|
|
|
|
121,262
|
|
Amortization of leasehold interests in land included in rental
expense
|
|
|
19,982
|
|
|
|
16,117
|
|
Amortization of deferred financing costs and original issue
discount
|
|
|
24,236
|
|
|
|
18,913
|
|
Amortization of deferred gain and rent
|
|
|
(3,792
|
)
|
|
|
(3,519
|
)
|
Deferred rent from mall transactions (Note 7)
|
|
|
48,843
|
|
|
|
|
|
Loss on early retirement of debt
|
|
|
4,022
|
|
|
|
10,705
|
|
Loss on disposal of assets
|
|
|
6,977
|
|
|
|
526
|
|
Stock-based compensation expense
|
|
|
39,219
|
|
|
|
22,814
|
|
Provision for doubtful accounts
|
|
|
22,960
|
|
|
|
24,516
|
|
Foreign exchange gain
|
|
|
(20,432
|
)
|
|
|
(9,960
|
)
|
Excess tax benefits from stock-based compensation
|
|
|
(1,626
|
)
|
|
|
(5,865
|
)
|
Deferred income taxes
|
|
|
(47,629
|
)
|
|
|
(14,761
|
)
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
(168,161
|
)
|
|
|
(3,140
|
)
|
Inventories
|
|
|
(7,339
|
)
|
|
|
(3,623
|
)
|
Prepaid expenses and other
|
|
|
(63,783
|
)
|
|
|
(97,908
|
)
|
Leasehold interests in land
|
|
|
(19,060
|
)
|
|
|
(208,604
|
)
|
Accounts payable
|
|
|
(2,883
|
)
|
|
|
17,080
|
|
Accrued interest payable
|
|
|
1,802
|
|
|
|
198
|
|
Other accrued liabilities
|
|
|
71,292
|
|
|
|
271,979
|
|
Income taxes payable
|
|
|
|
|
|
|
(14,292
|
)
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
217,143
|
|
|
|
219,243
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
Changes in restricted cash
|
|
|
174,297
|
|
|
|
694,682
|
|
Capital expenditures
|
|
|
(2,908,396
|
)
|
|
|
(2,722,067
|
)
|
Acquisition of gaming license included in other assets
|
|
|
|
|
|
|
(50,000
|
)
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities
|
|
|
(2,734,099
|
)
|
|
|
(2,077,385
|
)
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
Proceeds from exercise of stock options
|
|
|
6,833
|
|
|
|
23,862
|
|
Excess tax benefits from stock-based compensation
|
|
|
1,626
|
|
|
|
5,865
|
|
Proceeds from convertible senior notes from related party
|
|
|
475,000
|
|
|
|
|
|
Proceeds from long-term debt (Note 4)
|
|
|
4,002,320
|
|
|
|
4,875,501
|
|
Repayments on long-term debt (Note 4)
|
|
|
(1,713,098
|
)
|
|
|
(1,766,189
|
)
|
Proceeds from the sale of The Shoppes at The Palazzo
(Note 7)
|
|
|
243,928
|
|
|
|
|
|
Payments of deferred financing costs
|
|
|
(92,547
|
)
|
|
|
(72,178
|
)
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing activities
|
|
|
2,924,062
|
|
|
|
3,066,861
|
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate on cash
|
|
|
11,719
|
|
|
|
2,862
|
|
|
|
|
|
|
|
|
|
|
Increase in cash and cash equivalents
|
|
|
418,825
|
|
|
|
1,211,581
|
|
Cash and cash equivalents at beginning of period
|
|
|
857,150
|
|
|
|
468,066
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
1,275,975
|
|
|
$
|
1,679,647
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosure of cash flow information:
|
|
|
|
|
|
|
|
|
Cash payments for interest
|
|
$
|
368,214
|
|
|
$
|
311,516
|
|
|
|
|
|
|
|
|
|
|
Cash payments for taxes
|
|
$
|
290
|
|
|
$
|
60,000
|
|
|
|
|
|
|
|
|
|
|
Non-cash investing and financing activities:
|
|
|
|
|
|
|
|
|
Changes in construction payables
|
|
$
|
116,301
|
|
|
$
|
392,963
|
|
|
|
|
|
|
|
|
|
|
Changes in other accrued liabilities related to property and
equipment asset acquisitions
|
|
$
|
13,000
|
|
|
$
|
62,313
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these condensed
consolidated financial statements.
5
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
(UNAUDITED)
|
|
NOTE 1
|
ORGANIZATION
AND BUSINESS OF COMPANY
|
The accompanying condensed consolidated financial statements
should be read in conjunction with the consolidated financial
statements and notes thereto included in the Current Report on
Form 8-K
of Las Vegas Sands Corp., a Nevada corporation
(LVSC), and its subsidiaries (collectively the
Company) filed on November 6, 2008. The
year-end balance sheet data was derived from audited financial
statements but does not include all disclosures required by
generally accepted accounting principles in the United States of
America. In the opinion of management, all adjustments and
normal recurring accruals considered necessary for a fair
statement of the results for the interim period have been
included. The interim results reflected in the unaudited
condensed consolidated financial statements are not necessarily
indicative of expected results for the full year. The
Companys common stock is traded on the New York Stock
Exchange (NYSE) under the symbol LVS.
Operations
The Company owns and operates The Venetian Resort Hotel Casino
(The Venetian Las Vegas), a Renaissance
Venice-themed resort; The Palazzo Resort Hotel Casino (The
Palazzo), a resort featuring modern European ambience and
design reminiscent of Italian affluent living; and an expo and
convention center of approximately 1.2 million square feet
(the Sands Expo Center). With the opening of The
Palazzo in December 2007, these Las Vegas properties, situated
on or near the Las Vegas Strip, form an integrated resort with
approximately 7,100 suites; approximately 225,000 square
feet of gaming space; a meeting and conference facility of
approximately 1.1 million square feet; an enclosed retail,
dining and entertainment complex located within The Venetian Las
Vegas of approximately 440,000 net leasable square feet
(The Grand Canal Shoppes), which was sold to General
Growth Partners (GGP) in 2004; and an enclosed
retail and dining complex located within The Palazzo of
approximately 400,000 net leasable square feet (The
Shoppes at The Palazzo), which was sold to GGP on
February 29, 2008.
The Company also owns and operates the Sands Macao, the first
Las Vegas-style casino in Macao, China, pursuant to a
20-year
gaming subconcession. The Sands Macao offers over
229,000 square feet of gaming space and a 289-suite hotel
tower, as well as several restaurants, VIP facilities, a
theater, and other high-end services and amenities.
On August 28, 2007, the Company opened The Venetian Macao
Resort Hotel (The Venetian Macao), which anchors the
Cotai
Strip
tm
,
a master-planned development of resort properties in Macao,
China. With a theme similar to that of The Venetian Las Vegas,
The Venetian Macao includes a 39-floor luxury hotel with over
2,900 suites; a casino floor of approximately
550,000 square feet; an approximately 15,000-seat arena;
retail and dining space of approximately 1.0 million square
feet; and a convention center and meeting room complex of
approximately 1.2 million square feet.
On August 28, 2008, the Company opened the Four Seasons
Hotel Macao (the Four Seasons Macao), which is
located adjacent to The Venetian Macao. The Four Seasons Macao
features 360 rooms and suites managed by Four Seasons Hotel
Inc.; approximately 70,000 square feet of gaming space;
several food and beverage offerings; conference and banquet
facilities; and retail space of approximately
211,000 square feet, which is connected to the mall at The
Venetian Macao. The property will also feature 19 Paiza mansions
and the Four Seasons Private Apartments Macao, Cotai
Strip
tm
(the Four Seasons Private Apartments) consisting of
approximately 1.0 million square feet of Four
Seasons-serviced and -branded luxury apartment hotel units,
which are currently expected to open in the third quarter 2009.
Development
Projects
Given current conditions in the capital markets and the global
economy and their impact on the Companys ongoing
operations, the Company has chosen to temporarily or
indefinitely suspend portions of its development projects and
will focus its development efforts on those projects with the
highest rates of expected return on invested capital given the
liquidity and capital resources available to the Company today.
The continuing development plan, as outlined in further detail
below, is dependent on the Company raising additional capital.
If the Company is unable
6
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
to raise additional capital in the near term, the Company would
need to consider further suspending portions, if not all, of its
remaining global development projects.
United
States Development Projects
St. Regis
Residences
The Company has been constructing a St. Regis-branded high-rise
residential condominium tower, the St. Regis Residences at
The Venetian Palazzo (the St. Regis
Residences), which is situated between The Palazzo and The
Venetian Las Vegas on the Las Vegas Strip and is expected to
feature approximately 400 luxury residences. On
November 10, 2008, the Company announced the indefinite
suspension of its construction activities for the project due to
difficulties in the capital markets, reduced demand for Las
Vegas Strip condominiums and the overall decline in general
economic conditions. The Company will consider recommencing
construction when these conditions improve and expects that it
will take approximately 18 months from when construction
recommences to complete the project. The cost to build the St.
Regis Residences was expected to be approximately
$600 million; however, the impact of the suspension on the
estimated overall cost to build is currently not determinable.
As of September 30, 2008, the Company has spent $86.0
million in construction costs and branding-related payments. The
estimated cost to prepare the site for delay and to complete
construction of the podium portion (which is part of The Shoppes
at The Palazzo and includes already leased retail and
entertainment space), which activities are expected to be
completed during the first quarter of 2009, is approximately
$95 million.
Sands
Bethlehem
In August 2007, the Companys indirect majority-owned
subsidiary, Sands Bethworks Gaming LLC (Sands Bethworks
Gaming), was issued a Pennsylvania gaming license by the
Pennsylvania Gaming Control Board. The Company is in the process
of developing a gaming, hotel, retail and dining complex called
Sands Casino Resort Bethlehem (Sands Bethlehem),
located on the site of the Historic Bethlehem Steel Works in
Bethlehem, Pennsylvania, which is approximately 70 miles
from midtown Manhattan, New York. Bethworks Now, LLC, the
Companys joint venture partner, contributed the land on
which Sands Bethlehem is being developed to Sands Bethworks
Gaming and Sands Bethworks Retail, LLC, the owner of the retail
portion of Sands Bethlehem, in September 2008.
On November 10, 2008, the Company announced suspension of
construction of a portion of Sands Bethlehem due to difficulties
in the capital markets and the overall decline in general
economic conditions. The Company will continue construction of
the casino component of the
124-acre
development, which will open with 3,000 slot machines
(increasing to 5,000 six months after the opening date) and a
variety of dining options, as well as the parking garage and
surface parking. Construction activities on the remaining
components, which include a 300-room hotel, an approximate
200,000-square-foot retail facility, a 50,000-square-foot
multipurpose event center and a variety of additional dining
options, have been suspended until capital markets and general
economic conditions improve. The cost to build Sands Bethlehem
was expected to be approximately $600 million (excluding
furniture, fixtures and equipment (FF&E),
pre-opening and other costs), of which $236.9 million had
been spent as of September 30, 2008. The Company has spent
an additional $79.5 million on other costs related to the
project, which includes the gaming license and pre-opening and
other costs, as of September 30, 2008. The Company expects
to incur an additional $282 million to complete the
construction of the casino and parking components, and to
prepare the additional components for delay, which are expected
to be completed during the second quarter of 2009. The Company
also expects to incur $145 million of additional costs to
open the casino component, including FF&E, pre-opening and
other costs. The estimated cost to build the remaining
components of the project is currently not determinable.
Macao
Development Projects
The Company has submitted plans to the Macao government for its
Cotai Strip developments, which represent five integrated resort
developments, in addition to The Venetian Macao and the Four
Seasons Macao on an area of approximately 200 acres (which
are referred to as parcels 3, 5, 6, 7 and 8). The developments
are expected to include hotels, exhibition and conference
facilities, casinos, showrooms, shopping malls, spas,
restaurants, entertainment
7
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
facilities and other amenities. The Company has commenced
construction or pre-construction for these five parcels and
plans to own and operate all of the casinos in these
developments under its Macao gaming subconcession.
On November 10, 2008, the Company announced its revised
development plans for these parcels due to difficulties in the
capital markets and the overall decline in general economic
conditions. The Company plans to temporarily suspend
construction of phase I of parcels 5 and 6, which includes the
Shangri-La and Traders tower and the first Sheraton tower,
along with the podium that encompasses the casino, associated
public areas, portions of the shopping mall and approximately
100,000 square feet of meeting space, while the Company pursues
project-level financing. The Company is targeting to complete
the financing within the next three to six months; however,
there can be no assurance that such financing will be obtained.
Once financing has been obtained, the Company expects it will
take approximately nine months to complete construction of phase
I. Construction of phase II of the project, which includes
the second Sheraton tower and the St. Regis serviced luxury
apartment hotel, has been suspended until conditions in the
capital markets and general economic conditions improve.
Starwood Hotels & Resorts Worldwide, the manager of
the Sheraton hotels and St. Regis serviced luxury apartment
hotel, has the right to terminate its management agreements if
certain construction and opening obligations and deadlines are
not met, and under the Companys revised development plan,
there is a significant risk that it will not meet at least some
of these obligations and deadlines. The impact of the revised
development plan on the estimated overall cost of the project is
currently not determinable. The estimated total cost to build
phase I and prepare the phase II components for delay is
expected to be approximately $3.05 billion (excluding
FF&E, pre-opening and other costs), of which
$1.16 billion had been spent as of September 30, 2008.
If the proposed
project-level
financing is unsuccessful, the Company expects to incur
approximately $900 million in costs to prepare the project
for delay. The Company has commenced pre-construction on parcels
7, 8 and 3, and will not commence construction until government
approvals necessary to commence construction are obtained,
regional and global economic conditions improve, future demand
warrants and additional financing is obtained.
The impact of the delays or significant slow down of
construction of the Cotai Strip developments on the
Companys overall estimated cost to build is currently not
determinable. As of September 30, 2008, the Company has
capitalized $4.33 billion in construction costs on the
Cotai Strip, including The Venetian Macao and Four Seasons
Macao. The Company will need to arrange additional financing to
fund the balance of the Companys Cotai Strip developments
and there is no assurance that it will be able to obtain any of
the additional financing required.
The Company has received a land concession from the Macao
government to build on parcels 1, 2 and 3, including the sites
on which The Venetian Macao (parcel 1) and Four Seasons
Macao (parcel 2) are located. The Company does not own
these land sites in Macao; however, the land concession, which
has an initial term of 25 years and is renewable at the
Companys option, grants it the exclusive use of the land.
As specified in the land concession, the Company is required to
pay premiums, which are payable over four years or are due upon
the completion of the corresponding resort, as well as annual
rent for the term of the land concession. In October 2008, the
Macao government amended the land concession to separate the
retail mall and hotel portions of the Four Seasons Macao parcel,
and allowed the Company to subdivide such parcel into four
separate components, including the Four Seasons Private
Apartments and retail mall portions. In consideration for the
amendment, the Company paid an additional land premium of
approximately $17.8 million and will pay adjusted annual
rent over the remaining term of the concession, which increased
slightly due to the revised allocation of parcel use.
The Company does not yet have all the necessary Macao government
approvals that it will need in order to develop its planned
Cotai Strip developments on parcels 3, 5, 6, 7 and 8. The
Company has received a land concession for parcel 3, as
previously noted, but has not yet been granted land concessions
for parcels 5, 6, 7 and 8. The Company is in the process of
negotiating with the Macao government to obtain the land
concession for parcels 5 and 6, and will subsequently negotiate
the land concession for parcels 7 and 8. Based on historical
experience with the Macao government with respect to the
Companys land concessions for the Sands Macao and parcels
1, 2 and 3, management believes that the land concessions for
parcels 5, 6, 7 and 8 will be granted; however, if the Company
does not obtain these land concessions, it could forfeit all or
a substantial part of its $1.45 billion in capitalized
construction costs related to these developments as of
September 30, 2008.
8
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Under its land concession for parcel 3, the Company is
required to complete the development of this parcel by August
2011. If the Company is unable to meet the August 2011 deadline
and that deadline is not extended, the Company could lose its
right to continue to operate The Venetian Macao, Sands Macao,
Four Seasons Macao or any other facility developed under its
Macao gaming subconcession, and its investment to date on these
developments could be lost. The Company believes that if it is
not able to complete the development of parcel 3 by the
deadline, it will be able to obtain an extension of the
deadline; however, no assurances can be given that an extension
will be granted by the Macao government.
Singapore
Development Project
In August 2006, the Companys wholly-owned subsidiary,
Marina Bay Sands Pte. Ltd. (MBS), entered into a
development agreement (the Development Agreement)
with the Singapore Tourism Board (the STB) to build
and operate an integrated resort called the Marina Bay Sands in
Singapore. The Marina Bay Sands is expected to include three 50+
story hotel towers (totaling approximately 2,600 rooms), a
casino, an enclosed retail, dining and entertainment complex of
approximately 750,000 net leasable square feet, a
convention center and meeting room complex of approximately
1.3 million square feet, theaters and a landmark iconic
structure at the bay-front promenade that will contain an
art/science museum. The Company is continuing to finalize
various design aspects of the integrated resort and is in the
process of finalizing its cost estimates for the project. The
Company expects the cost to build the Marina Bay Sands will be
approximately 7.15 billion Singapore Dollars
(SGD, approximately $4.99 billion at exchange
rates in effect on September 30, 2008), which excludes
FF&E, pre-opening and other costs but includes payments
made in 2006 for land premium, taxes and other fees. As the
Company has obtained Singapore-denominated financing and
primarily pays its costs in Singapore Dollars, exposure to
foreign exchange gains/losses is expected to be minimal. The
Company has spent approximately SGD 2.59 billion
(approximately $1.81 billion at exchange rates in effect on
September 30, 2008) in construction costs as of
September 30, 2008. Based on the Companys current
development plan, it intends to continue construction on its
existing timeline with the majority of the project targeted to
open in late 2009.
Hengqin
Island Development Project
The Company has entered into a non-binding letter of intent with
the Zhuhai Municipal Peoples Government of the
Peoples Republic of China to work together to create a
master plan for, and develop, a leisure and convention
destination resort on Hengqin Island, which is located within
mainland China, approximately one mile from the Cotai Strip. In
January 2007, the Company was informed that the Zhuhai
Government established a Project Coordination Committee to act
as a government liaison empowered to work directly with the
Company to advance the development of the project. On
November 10, 2008, the Company announced the indefinite
suspension of the project because of the difficult global
economic and credit market environment.
Other
Development Projects
The Company is currently exploring the possibility of developing
and operating additional properties, including integrated
resorts, in other Asian and U.S. jurisdictions, and in
Europe. In July 2008, the Company withdrew a previously
submitted application to develop a casino resort in the Kansas
City, Kansas, metropolitan area.
Development
Financing Strategy
The Company held unrestricted and restricted cash and cash
equivalents of approximately $1.28 billion and
$239.1 million, respectively, as of September 30,
2008. As previously described, the Company has a number of
significant development projects in the United States, Macao and
Singapore, some of which it plans to temporarily or indefinitely
suspend due to current conditions in the global capital markets
and overall decline in general economic conditions, which have
had an impact on the Companys ongoing operations. Through
September 30, 2008, the Company has principally funded its
development projects through borrowings under the bank credit
facilities of its operating subsidiaries, operating cash flows
and proceeds from the disposition of non-core assets. In 2007,
the Company began to execute its financing strategy to secure
additional borrowing capacity to fund its existing and future
development projects and operations in Asia, including Macao and
Singapore, and the United
9
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
States. In the near term, the Company will seek to borrow
significant amounts under its existing and potential future bank
credit facilities, if available, or raise equity capital as the
Company funds components of its revised development strategy
and, as further described below, will require additional capital
to fund the completion of its projects. If the Company is unable
to raise additional capital in the near term, the Company would
need to consider further suspending portions, if not all, of its
remaining global development projects.
In April 2007, the Company increased the size of its Macao
credit facility from $2.5 billion to $3.3 billion to
continue funding the development of The Venetian Macao and the
Four Seasons Macao as well as portions of its other Macao
development projects. As of September 30, 2008, the Company
has fully drawn the revolving facility of the Macao credit
facility and had construction payables of approximately
$385.5 million related to its Macao development projects.
The Company expects to incur additional construction costs of
$337 million to complete the Four Seasons Private
Apartments and the remaining portions of the Four Seasons Macao
by the third quarter of 2009. In addition, the Company expects
to incur additional costs, including FF&E, pre-opening,
land premium and other costs, of approximately $126 million
(some of which relates to FF&E costs that will be recouped
in connection with the sale of the Four Seasons Private
Apartments). In the near term, cash balances at the
Companys Macao subsidiaries, operating cash flows from
Sands Macao, The Venetian Macao and Four Seasons Macao, and cash
from LVSC, if available, together with proceeds from borrowings
under the U.S. senior secured credit facility, if
available, will be used to fund these amounts. The Company was
in the process of arranging up to $5.25 billion of secured
bank financing, the proceeds of which would have been used to
refinance the amount currently outstanding under the Macao
credit facility and to provide incremental borrowings to fund
the Four Seasons Private Apartments, the completion of the Four
Seasons Macao and the development of parcels 5 and 6, and to
continue funding its other Cotai Strip development projects;
however, given the conditions in the global credit markets, the
Company was unable to reach arrangements with its prospective
lenders. As a result, the Company plans to temporarily suspend
construction on parcels 5 and 6, until project-level financing
is obtained, which it is currently pursuing and targets to
complete in the next three to six months; however, there can be
no assurance that such financing will be obtained. Additional
financing will be required to complete the development and
construction of parcels 7, 8 and 3, once those construction
activities commence.
In May 2007, the Company entered into a $5.0 billion
U.S. senior secured credit facility with respect to its Las
Vegas operations. A portion of the proceeds from this facility
was used to refinance the indebtedness collateralized by the
Companys Las Vegas integrated resort, including The
Venetian Las Vegas, The Palazzo, The Shoppes at The Palazzo and
Sands Expo Center, and to fund the design, development and
construction costs incurred in connection with the completion of
The Palazzo, The Shoppes at The Palazzo, St. Regis Residences
and Sands Bethlehem. As of September 30, 2008, the Company
had approximately $601.1 million of available borrowing
capacity, net of outstanding letters of credit but including
approximately $7.7 million committed to be funded by Lehman
Brothers Commercial Paper Inc. The U.S. senior secured
credit facility permits the Company to make investments in
certain of its subsidiaries and certain joint ventures not party
to the U.S. senior secured credit facility, including its
foreign subsidiaries and other development projects outside of
Las Vegas, in an amount not to exceed $2.1 billion, and
also permits the Company to invest in its Sands Bethlehem
project so long as no more than 30% of any such investment is in
the form of an equity contribution to the project, with the
balance to be in the form of a secured intercompany loan. As of
September 30, 2008, the Company has invested approximately
$1.7 billion of the permitted $2.1 billion to fund a
portion of its required equity contribution to the Marina Bay
Sands project and investments with respect to its other
development projects, including in Macao. As announced on
November 10, 2008, with the delayed development of the St.
Regis Residences and the Companys focus on the
construction of the casino and parking components of Sands
Bethlehem, the Company expects to incur additional construction
costs of approximately $95 million and $282 million,
respectively. The Company also expects to incur $145 million of
additional costs to open the casino component of Sands
Bethlehem, including FF&E, pre-opening and other costs. The
Company will continue to use excess operating cash flows,
proceeds from the sale of non-core assets, such as The Shoppes
at The Palazzo, cash contributed by LVSC, if available, and
proceeds from borrowings under the U.S. senior secured
credit facility, if available, to fund its revised development
strategy, as well as construction costs incurred in Macao and
its required equity contributions to the Marina Bay Sands.
10
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
In December 2007, the Company entered into a SGD
5.44 billion credit facility (approximately
$3.80 billion at exchange rates in effect on
September 30, 2008) to fund development and
construction costs and expenses at the Marina Bay Sands, which
closed and funded in January 2008. A portion of the proceeds
from this facility, together with a portion of the
Companys initial SGD 800.0 million (approximately
$558.4 million at exchange rates in effect on
September 30, 2008) equity contribution, were used to
repay outstanding borrowings of $1.32 billion under the
Companys Singapore bridge facility. As of
September 30, 2008, the Company had SGD 2.86 billion
(approximately $2.0 billion at exchange rates in effect on
September 30, 2008) available for borrowing under the
Singapore credit facility, net of outstanding bankers
guarantees and undrawn amounts committed to be funded by Lehman
Brothers Finance Asia Pte. Ltd., which will be used to fund a
significant portion of the design, development and construction
costs of the Marina Bay Sands project. Subsequent to
September 30, 2008, the Company has drawn an additional SGD
161.5 million (approximately $112.7 million at
exchange rates in effect on September 30, 2008) under
the Singapore credit facility and has contributed additional
equity of SGD 100.0 million (approximately
$69.8 million at exchange rates in effect on
September 30, 2008). Under the terms of the Singapore
credit facility, the Company is obligated to fund at least 20%
of the total costs and expenses incurred in connection with the
design, development and construction of the Marina Bay Sands
project with equity contributions or subordinated intercompany
loans, with the remaining 80% funded with debt, including debt
under the Singapore credit facility. Through September 30,
2008, the Company has funded its equity contribution requirement
through borrowings under the U.S. senior secured credit
facility and operating cash flows generated from the
Companys Las Vegas operations. Based on current
development plans, the Company intends to continue construction
on Marina Bay Sands on its existing timeline. Additional
financings are planned to complete the development and
construction of the Marina Bay Sands; however, there can be no
assurance that such financing will be obtained when planned.
Commencing September 30, 2008, the U.S. senior secured
credit facility and FF&E financings require the
Companys Las Vegas operations to comply with certain
financial covenants at the end of each quarter, including to
maintain a maximum leverage ratio of net debt, as defined, to
trailing twelve-month adjusted earnings before interest, income
taxes, depreciation and amortization, as defined (Adjusted
EBITDA). In order to comply with the maximum leverage
ratio covenant as of December 31, 2008, and subsequent
quarterly periods, the Company will need to (i) achieve
increased levels of Adjusted EBITDA at its Las Vegas properties;
(ii) decrease the rate of spending on its global
development projects; (iii) obtain additional financing at
the parent company level, the proceeds from which could be used
to reduce the Companys Las Vegas operations net
debt; (iv) elect to contribute up to $50.0 million of
capital from cash on hand to the Las Vegas operations (such
contribution having the effect of increasing Adjusted EBITDA by
up to $50.0 million per quarter for purposes of calculating
maximum leverage (the EBITDA
true-up));
or in some cases (v) a combination thereof.
As the Companys Las Vegas properties did not achieve the
levels of Adjusted EBITDA necessary to maintain compliance with
the maximum leverage ratio for the quarterly period ending
September 30, 2008, the Company completed a private
placement of $475.0 million in convertible senior notes
with the Companys principal stockholder and his family and
used a portion of the proceeds to exercise the EBITDA
true-up
provision. The EBITDA
true-up,
by
itself, would not have been sufficient to maintain compliance
with the maximum leverage ratio as of September 30, 2008.
Accordingly, the entire proceeds from the offering were
immediately contributed to Las Vegas Sands, LLC
(LVSLLC) to reduce the net debt of the parties to
the domestic credit facilities in order to maintain compliance
with the maximum leverage ratio for the quarterly period ending
September 30, 2008.
Based upon current Las Vegas operating estimates for the quarter
ending December 31, 2008 and quarterly periods during 2009,
as well as the fact that the Company has continued to fund its
development projects outside of Las Vegas, in whole or in part,
with borrowings under the U.S. senior secured credit
facility, the Company expects the amount of its material
domestic subsidiaries indebtedness will be beyond the
level allowed under the maximum leverage ratio. If the
Companys Las Vegas Adjusted EBITDA levels do not increase
sufficiently, reduced spending on the Companys revised
global development projects, as described above, is not
sufficient, and the EBITDA
true-up
is
not sufficient or available to enable the Company to maintain
compliance under the maximum leverage ratio, the Company will
need to obtain significant additional capital at the parent
level. As previously announced, the Company has been working
with its financial advisor to develop and implement a capital
raising program that the Company believes would be sufficient to
address the Companys current and anticipated funding
needs;
11
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
however, no assurance can be given that the program will be
successful. If none of the foregoing occurs, the Company would
need to obtain waivers or amendments under its domestic credit
facilities, and no assurances can be given that the Company will
be able to obtain these waivers or amendments. If the Company is
unable to obtain waivers or amendments if and when necessary,
the Company would be in default under its domestic credit
facilities, which would trigger cross-defaults under its
airplane financings and convertible senior notes. If such
defaults or cross-defaults were to occur and the respective
lenders chose to accelerate the indebtedness outstanding under
these agreements, it would result in a default under the
Companys senior notes. Any defaults or cross-defaults
under these agreements would allow the lenders, in each case, to
exercise their rights and remedies as defined under their
respective agreements. If the lenders were to exercise their
right to accelerate the indebtedness outstanding, there can be
no assurance that the Company would be able to refinance any
amounts that may become accelerated under such agreements. Under
the terms of the U.S. senior secured credit facility, if a
default or a material adverse change, as defined in the
agreement, were to occur or exist at the time of borrowing, it
would preclude the Companys domestic subsidiaries from
accessing any available borrowings (including the
$400.0 million under the Delayed Draw II Facility,
which expires November 23, 2008, and $201.1 million
under the Revolving Facility). If the Company is not able to
access these borrowings and raise sufficient additional capital,
(i) the Company will not be able to fund its ongoing equity
contributions under its Singapore credit facility, and as a
result, will not be able to borrow any additional amounts under
that facility which may limit its ability to complete
construction of the project, (ii) as the Company has fully
drawn the revolving portion of its Macao credit facility, the
Company will not be able to pay the remaining construction costs
of the Four Seasons Macao and Four Seasons Private Apartments if
free cash flow from the Sands Macao, The Venetian Macao and Four
Season Macao is not sufficient to pay those costs,
(iii) the Company may be unable to comply with the maximum
leverage ratio covenant under its Macao credit facility at the
end of the first quarter of 2009, which would result in a
default under the agreement and would allow the lenders to
exercise their rights and remedies under the agreement including
acceleration of the indebtedness outstanding, (iv) the
Company may not be able to continue providing working capital to
its ferry operations, and (v) the Company would need to
immediately suspend portions, if not all, of its remaining
global development projects. These factors raise a substantial
doubt about the Companys ability to continue as a going
concern. The accompanying condensed consolidated financial
statements do not include any adjustments that might result from
the outcome of this uncertainty.
Recent
Accounting Pronouncements
In September 2006, the Financial Accounting Standards Board
(FASB) issued Statement of Financial Accounting
Standards (SFAS) No. 157, Fair Value
Measurements, which defines fair value, establishes a
framework for measuring fair value and expands disclosures about
fair value measurements. SFAS No. 157 applies under
other accounting pronouncements that require or permit fair
value measurement. SFAS No. 157 does not require any
new fair value measurements. The provisions of
SFAS No. 157 are effective for financial statements
issued for fiscal years beginning after November 15, 2007,
and interim periods within those fiscal years. In January 2008,
the FASB deferred the effective date for one year for certain
non-financial assets and non-financial liabilities, except those
that are recognized or disclosed at fair value in the financial
statements on a recurring basis (at least annually). The Company
has adopted the provisions of this standard and such application
did not have a material effect on its financial condition,
results of operations or cash flows. See
Note 9 Fair Value
Measurements for disclosures required by this standard.
In February 2007, the FASB issued SFAS No. 159,
The Fair Value Option for Financial Assets and Liabilities
Including an Amendment of FASB Statement No. 115.
Under SFAS No. 159, the Company may elect to measure
many financial instruments and certain other items at fair
value, which are not otherwise currently required to be measured
at fair value. The decision to measure items at fair value is
made at specific election dates on an irrevocable
instrument-by-instrument
basis and requires recognition of the changes in fair value in
earnings and expensing upfront costs and fees associated with
the item for which the fair value option is elected. Fair value
instruments for which the fair value option has been elected and
similar instruments measured using another measurement attribute
are to be distinguished on the face of the statement of
financial position. SFAS No. 159 is
12
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
effective for financial statements beginning after
November 15, 2007. The Company has adopted the provisions
of this standard and did not elect the fair value option for
eligible items that existed at January 1, 2008.
In December 2007, the FASB issued SFAS No. 141R,
Business Combinations, which requires an acquirer to
recognize the identifiable assets acquired, the liabilities
assumed, any noncontrolling interest in the acquiree at the
acquisition date, measured at their fair values as of that date,
with limited exceptions specified in the statement.
SFAS No. 141R applies prospectively to business
combinations for which the acquisition date is on or after the
beginning of an entitys fiscal year that begins after
December 15, 2008. The Company is in the process of
evaluating the impact of this standard; however, the Company
does not expect the adoption of SFAS No. 141R will
have a material effect on its financial condition, results of
operations or cash flows.
In December 2007, the FASB issued SFAS No. 160,
Noncontrolling Interests in Consolidated Financial
Statements An Amendment of ARB No. 51,
which establishes accounting and reporting standards for the
noncontrolling interest in a subsidiary and for the
deconsolidation of a subsidiary. Specifically, this statement
requires the recognition of a noncontrolling interest (minority
interest) as equity in the consolidated financial statements and
separate from the parents equity. The amount of net income
attributable to the noncontrolling interest will be included in
consolidated net income on the face of the income statement.
SFAS No. 160 clarifies that changes in a parents
ownership interest in a subsidiary that do not result in
deconsolidation are equity transactions if the parent retains
its controlling financial interest. In addition, this statement
requires that a parent recognize a gain or loss in net income
when a subsidiary is deconsolidated and also requires expanded
disclosures regarding the interests of the parent and the
interests of the noncontrolling owners. SFAS No. 160
is effective for fiscal years, and interim periods within those
fiscal years, beginning on or after December 15, 2008. The
Company is in the process of evaluating the impact of this
standard; however, the Company does not expect the adoption of
SFAS No. 160 will have a material effect on its
financial condition, results of operations or cash flows.
In March 2008, the FASB issued SFAS No. 161,
Disclosures about Derivative Instruments and Hedging
Activities, which requires enhanced disclosures about an
entitys derivative and hedging activities and thereby
improves the transparency of financial reporting. The objective
of the guidance is to provide users of financial statements
with: an enhanced understanding of how and why an entity uses
derivative instruments; how derivative instruments and related
hedged items are accounted for; and how derivative instruments
and related hedged items affect an entitys financial
position, financial performance, and cash flows.
SFAS No. 161 also requires several added quantitative
disclosures in financial statements. SFAS No. 161 is
effective for fiscal years beginning after November 15,
2008. The Company is in the process of evaluating the impact of
this standard; however, the Company does not expect the adoption
of SFAS No. 161 will have a material effect on its
disclosures.
In April 2008, FASB issued Staff Position (FSP)
No. 142-3,
Determination of the Useful Life of Intangible
Assets, which amends the factors that should be considered
in developing renewal or extension assumptions used to determine
the useful life of a recognized intangible asset under
SFAS No. 142, Goodwill and Other Intangible
Assets. The intent of this FSP is to improve the
consistency between the useful life of a recognized intangible
asset under SFAS No. 142 and the period of expected
cash flows used to measure the fair value of the asset under
SFAS No. 141R. FSP
No. 142-3
is effective for fiscal years, and interim periods within those
fiscal years, beginning on or after December 15, 2008. The
Company is in the process of evaluating the impact of this
standard; however, the Company does not expect the adoption of
FSP
No. 142-3
will have a material effect on its financial condition, results
of operations or cash flows.
In May 2008, FASB issued FSP Accounting Principles Board
(APB)
No. 14-1,
Accounting for Convertible Debt Instruments That May Be
Settled in Cash Upon Conversion (Including Partial Cash
Settlement), which applies to convertible debt
instruments, that by their stated terms, may be settled in cash
(or other assets) upon conversion, including partial cash
settlement of the conversion option. FSP APB
No. 14-1
requires bifurcation of the instrument into a debt component
that is initially recorded at fair value and an equity
component. The difference between the fair value of the debt
component and the initial proceeds from issuance of the
instrument is recorded as a component of equity. The liability
component of the debt instrument is accreted to par using the
effective yield method; accretion is reported as a component of
interest expense. The equity component is not subsequently
re-valued as long as it continues to qualify for equity
treatment. FSP APB
No. 14-1
must be applied retrospectively to
13
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
previously issued cash-settleable convertible instruments as
well as prospectively to newly issued instruments. FSP APB
No. 14-1
is effective for fiscal years beginning after December 31,
2008, and interim periods within those fiscal years. The Company
is in the process of evaluating the impact of this standard.
Other
First Quarter Charges
During the three months ended March 31, 2008, the Company
recorded a net charge of $3.3 million to properly account
for $3.9 million of convention, retail and other,
pre-opening and general and administrative expenses that had not
been accrued, offset by $0.6 million of convention, retail
and other revenues that had not been recorded as of
December 31, 2007. Because the amounts involved were not
material to the Companys financial statements in any
individual prior period, and the cumulative amount is not
material to the estimated results of operations for the year
ending December 31, 2008, the Company recorded the
cumulative effect of correcting these items during the three
months ended March 31, 2008.
|
|
NOTE 2
|
STOCKHOLDERS
EQUITY AND EARNINGS (LOSS) PER SHARE
|
Changes in stockholders equity for the nine months ended
September 30, 2008, were as follows (in thousands):
|
|
|
|
|
Balance at December 31, 2007
|
|
$
|
2,260,274
|
|
Net loss
|
|
|
(52,238
|
)
|
Stock-based compensation
|
|
|
43,413
|
|
Proceeds from exercise of stock options
|
|
|
6,833
|
|
Tax benefit from stock-based compensation
|
|
|
1,631
|
|
Change in accumulated other comprehensive income
|
|
|
18,468
|
|
|
|
|
|
|
Balance at September 30, 2008
|
|
$
|
2,278,381
|
|
|
|
|
|
|
At September 30, 2008 and December 31, 2007, the
accumulated other comprehensive income (loss) balance consisted
solely of foreign currency translation adjustments. For the
three and nine months ended September 30, 2008,
comprehensive loss amounted to $44.7 million and
$33.8 million, respectively. For the three and nine months
ended September 30, 2007, comprehensive income (loss)
amounted to $(43.7) million and $76.9 million,
respectively.
The weighted average number of common and common equivalent
shares used in the calculation of basic and diluted earnings
(loss) per share consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
|
Weighted-average common shares outstanding (used in the
calculation of basic earnings (loss) per share)
|
|
|
355,393,259
|
|
|
|
354,856,121
|
|
|
|
355,344,306
|
|
|
|
354,716,730
|
|
Potential dilution from stock options and restricted stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,378,078
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-average common and common equivalent shares (used in
the calculations of diluted earnings (loss) per share)
|
|
|
355,393,259
|
|
|
|
354,856,121
|
|
|
|
355,344,306
|
|
|
|
357,094,808
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Antidilutive stock options and restricted stock excluded from
calculation of diluted earnings (loss) per share
|
|
|
10,580,996
|
|
|
|
6,974,935
|
|
|
|
10,580,996
|
|
|
|
965,900
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
NOTE 3
|
PROPERTY
AND EQUIPMENT
|
Property and equipment consists of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Land and improvements
|
|
$
|
339,098
|
|
|
$
|
297,678
|
|
Building and improvements
|
|
|
6,375,097
|
|
|
|
4,435,934
|
|
Furniture, fixtures, equipment and leasehold improvements
|
|
|
1,415,860
|
|
|
|
1,013,138
|
|
Transportation
|
|
|
316,235
|
|
|
|
176,897
|
|
Construction in progress
|
|
|
3,786,115
|
|
|
|
3,258,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,232,405
|
|
|
|
9,182,397
|
|
Less accumulated depreciation and amortization
|
|
|
(956,784
|
)
|
|
|
(607,783
|
)
|
|
|
|
|
|
|
|
|
|
|
|
$
|
11,275,621
|
|
|
$
|
8,574,614
|
|
|
|
|
|
|
|
|
|
|
Construction in progress consists of the following (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
The Venetian Macao
|
|
$
|
27,782
|
|
|
$
|
110,759
|
|
Four Seasons Macao
|
|
|
211,805
|
|
|
|
359,889
|
|
Other Macao Development Projects (principally Cotai Strip
parcels 5 and 6)
|
|
|
1,657,261
|
|
|
|
714,701
|
|
Marina Bay Sands
|
|
|
1,189,218
|
|
|
|
552,850
|
|
The Palazzo and The Shoppes at The Palazzo
|
|
|
214,625
|
|
|
|
1,363,045
|
|
Sands Bethlehem
|
|
|
312,810
|
|
|
|
66,898
|
|
St. Regis Residences
|
|
|
71,768
|
|
|
|
5,436
|
|
Other
|
|
|
100,846
|
|
|
|
85,172
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
3,786,115
|
|
|
$
|
3,258,750
|
|
|
|
|
|
|
|
|
|
|
As of September 30, 2008, portions of The Venetian Macao,
The Palazzo and The Shoppes at The Palazzo remain under
construction and are scheduled to be completed during 2008.
Approximately $380.2 million in building and improvements,
$30.2 million in furniture, fixtures, equipment and
leasehold improvements (with total accumulated depreciation of
$10.5 million) and $197.6 million in construction in
progress as of September 30, 2008, related to The Shoppes
at The Palazzo, which was sold to GGP (see
Note 7 Mall Sale). The
$100.8 million in other construction in progress consists
primarily of projects in Las Vegas and airplane and other
related refurbishment costs at corporate.
As of September 30, 2008, the cost of property and
equipment that the Company is leasing to tenants as part of its
Macao mall operations was $271.5 million with accumulated
depreciation of $15.7 million.
During the three and nine months ended September 30, 2008,
and the three and nine months ended September 30, 2007, the
Company capitalized interest expense of $38.4 million,
$100.6 million, $64.2 million and $169.0 million,
respectively.
As described in Note 1
Organization and Business of Company, on November 10,
2008, the Company announced its plan to temporarily or
indefinitely suspend portions of its development projects given
the current conditions in the capital markets and the global
economy and their impact on the Companys ongoing
operations. If circumstances change, the Company may be required
to record impairment charges related to these developments in
the future.
15
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Long-term debt consists of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Corporate and U.S. Related:
|
|
|
|
|
|
|
|
|
New Senior Secured Credit Facility Term B
|
|
$
|
2,962,500
|
|
|
$
|
2,985,000
|
|
New Senior Secured Credit Facility Delayed Draw I
|
|
|
598,500
|
|
|
|
|
|
New Senior Secured Credit Facility Revolving
|
|
|
775,860
|
|
|
|
|
|
Convertible Senior Notes
|
|
|
475,000
|
|
|
|
|
|
6.375% Senior Notes
|
|
|
248,551
|
|
|
|
248,380
|
|
FF&E Financings
|
|
|
150,300
|
|
|
|
61,416
|
|
Airplane Financings
|
|
|
86,719
|
|
|
|
89,484
|
|
Other
|
|
|
5,917
|
|
|
|
6,857
|
|
Macao Related:
|
|
|
|
|
|
|
|
|
Macao Credit Facility Term B
|
|
|
1,800,000
|
|
|
|
1,800,000
|
|
Macao Credit Facility Term B Delayed
|
|
|
700,000
|
|
|
|
700,000
|
|
Macao Credit Facility Revolving
|
|
|
693,732
|
|
|
|
251,000
|
|
Macao Credit Facility Local Term
|
|
|
100,408
|
|
|
|
100,000
|
|
Ferry Financing
|
|
|
176,739
|
|
|
|
|
|
Other
|
|
|
11,034
|
|
|
|
6,434
|
|
Singapore Related:
|
|
|
|
|
|
|
|
|
Singapore Permanent Facility A and B
|
|
|
1,565,160
|
|
|
|
|
|
Singapore Bridge Facility Term Loan
|
|
|
|
|
|
|
594,404
|
|
Singapore Bridge Facility Floating Rate Notes
|
|
|
|
|
|
|
729,355
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,350,420
|
|
|
|
7,572,330
|
|
Less current maturities
|
|
|
(99,314
|
)
|
|
|
(54,333
|
)
|
|
|
|
|
|
|
|
|
|
Total long-term debt
|
|
$
|
10,251,106
|
|
|
$
|
7,517,997
|
|
|
|
|
|
|
|
|
|
|
Corporate
and U.S. Related Debt
New
Senior Secured Credit Facility
During the nine months ended September 30, 2008, the
Company has drawn $775.9 million, net of repayments, under
the Revolving Facility, which matures in May 2012 and has no
interim amortization, and $598.5 million, net of
repayments, under the Delayed Draw I Facility, which matures in
May 2014 and is subject to quarterly principal amortization
payments in an amount equal to 0.25% of the aggregate principal
amount outstanding and a balloon payment of $566.4 million
due May 2014. As of September 30, 2008, the Company had
$201.1 million of available borrowing capacity under the
Revolving Facility, net of outstanding letters of credit and
including approximately $7.7 million committed to be funded
by Lehman Brothers Commercial Paper Inc. No amount has been
drawn under the $400.0 million Delayed Draw II
Facility, which is available until November 23, 2008. Refer
to Note 1 Organization and
Business of Company regarding potential limitations on
future borrowings under the facility.
Convertible
Senior Notes
In September 2008, the Company sold, in a private placement
transaction, $475.0 million of its 6.5% convertible senior
notes due 2013 (the Convertible Senior Notes). The
Convertible Senior Notes are subject to quarterly interest
payments, commencing January 1, 2009, and will mature on
October 1, 2013, unless earlier converted or repurchased by
the Company. The initial conversion rate is 20.141 shares
of common stock per $1,000
16
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
principal amount (equivalent to a conversion price of
approximately $49.65 per share of common stock). The initial
conversation rate will be subject to adjustment under certain
circumstances. Following any fundamental change, as defined in
the agreement, that occurs prior to the maturity date, the
Company will be required to make an offer to purchase the
Convertible Senior Notes. The Companys principal
stockholder and his family were granted pre-emptive rights with
respect to any future proposed issuance or sale by the Company
of equity interests (including convertible or exchangeable
securities), pursuant to which they will be able to purchase a
portion of the offered equity interests based on their fully
diluted common stock ownership in the Company.
The Convertible Senior Notes will not be convertible until all
necessary approvals have been obtained, including listing of the
Companys common stock issuable upon conversion of the
Convertible Senior Notes on the NYSE and until the stockholder
approval of the issuance of the common stock upon conversion of
the Convertible Senior Notes is effective. If the Company does
not obtain all required approvals within 120 days of the
issuance of the Convertible Senior Notes, the Company will pay a
fee based on a rate of 2.0% per annum on the aggregate amount of
Convertible Senior Notes outstanding thereafter and until the
Company receives all required approvals.
The Convertible Senior Notes were issued pursuant to an
indenture, which contains covenants that, subject to certain
exceptions and conditions, limit the ability of the Company to
enter into sale and leaseback transactions in respect of its
principal properties, create liens on its principal properties
and consolidate, merge or sell all or substantially all of its
directly held assets and includes certain default and
cross-default provisions.
Macao
Related Debt
Ferry
Financing
In January 2008, in order to finance the purchase of ten
ferries, the Company entered into a 1.21 billion
Hong Kong dollar (HKD, approximately
$155.7 million at exchange rates in effect on
September 30, 2008) secured credit facility, which is
available for borrowing for up to 18 months after closing.
The proceeds from the secured credit facility were used to
reimburse the Company for cash spent to date on the construction
of the ferries and to finance the completion of the remaining
ferries. The facility is collateralized by the ferries and is
guaranteed by Venetian Macau Limited (VML). The
facility matures in January 2018 and is subject to 34 quarterly
payments commencing at the end of the
18-month
availability period. Borrowings under the facility bear interest
at the Hong Kong Interbank Offer Rate (HIBOR) plus
2.0% if borrowings are made in Hong Kong Dollars (5.7% as of
September 30, 2008) or the London Interbank Offer Rate
(LIBOR) plus 2.0% if borrowings are made in
U.S. Dollars. All borrowings under the facility, which was
fully drawn as of September 30, 2008, were made in Hong
Kong Dollars.
In July 2008, the Company exercised the accordion option on the
secured credit facility agreement that financed the
Companys original ten ferries and executed a supplement to
the secured credit facility agreement. The supplement increased
the secured credit facility by an additional HKD
561.6 million (approximately $72.3 million at exchange
rates in effect on September 30, 2008), of which the
Company has drawn HKD 163.3 million (approximately
$21.0 million at exchange rates in effect on
September 30, 2008) as of September 30, 2008. The
proceeds from this supplemental facility are being used to
reimburse the Company for cash spent to date on construction of
four additional ferries and to finance the remaining progress
payments on those ferries. The supplemental facility is secured
by the additional ferries and is guaranteed by VML.
Singapore
Related Debt
MBS entered into the Singapore bridge facility in August 2006 to
pay the land premium to the STB under the Development Agreement
and to commence construction of the Marina Bay Sands. As the
facility was to mature in August 2008, the Company entered into
the Singapore permanent facility agreement in December 2007.
Upon closing in January 2008, a portion of the borrowings under
the Singapore permanent facilities, as well as equity
contributions made by the Company to MBS, were used to repay the
outstanding balances on the Singapore bridge facility, and to
pay fees, costs and expenses related to entering into the
Singapore permanent facility agreement. The Company incurred a
charge of approximately $4.0 million for loss on early
retirement of debt in January 2008 as a result of refinancing
the Singapore bridge facility.
17
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Singapore
Permanent Facilities
In December 2007, MBS signed a facility agreement (the
Singapore Permanent Facility Agreement) providing
for a SGD 2.0 billion (approximately $1.40 billion at
exchange rates in effect on September 30, 2008) term
loan (Singapore Permanent Facility A) that was
funded in January 2008, a SGD 2.75 billion (approximately
$1.92 billion at exchange rates in effect on
September 30, 2008) term loan (Singapore
Permanent Facility B) that is available on a delayed draw
basis until December 31, 2010, a SGD 192.6 million
(approximately $134.4 million at exchange rates in effect
on September 30, 2008) bankers guarantee
facility (Singapore Permanent Facility C) to provide
the bankers guarantees in favor of the STB required under
the Development Agreement that was fully drawn in January 2008,
and a SGD 500.0 million (approximately $349.0 million
at exchange rates in effect on September 30,
2008) revolving credit facility (Singapore Permanent
Facility D and collectively, the Singapore Permanent
Facilities) that is available until February 28,
2015. As of September 30, 2008, the Company had SGD
2.86 billion (approximately $2.0 billion at exchange
rates in effect on September 30, 2008) available for
borrowing, net of outstanding bankers guarantees and
undrawn amounts committed to be funded by Lehman Brothers
Finance Asia Pte. Ltd., under the Singapore Permanent Facilities.
The indebtedness under the Singapore Permanent Facility
Agreement is collateralized by a first-priority security
interest in substantially all of MBSs assets, other than
capital stock and similar ownership interests, certain
furniture, fixtures, fittings and equipment and certain other
excluded assets.
The Singapore Permanent Facilities mature on March 31,
2015, with MBS required to repay or prepay the Singapore
Permanent Facilities under certain circumstances. Commencing
March 31, 2011, and at the end of each quarter thereafter,
MBS is required to repay the outstanding Singapore Permanent
Facility A and Facility B loans on a pro rata basis in an
aggregate amount equal to SGD 125.0 million (approximately
$87.2 million at exchange rates in effect on
September 30, 2008) per quarter. In addition,
commencing at the end of the third full quarter of operations of
the Marina Bay Sands, MBS is required to further prepay the
outstanding Singapore Permanent Facility A and Facility B loans
on a pro rata basis with a percentage of excess free cash flow
(as defined by the Singapore Permanent Facility Agreement).
Borrowings under the Singapore Permanent Facilities bear
interest at the Singapore Swap Offer Rate plus a spread of 2.25%
per annum (3.5% as of September 30, 2008). MBS is required
to pay standby interest fees of 1.125% per annum and 0.90% per
annum on the undrawn amounts under Singapore Permanent Facility
B and Facility D, respectively. MBS is required to pay a
commission of 2.25% per annum on the bankers guarantees
outstanding under the Singapore Permanent Facilities for the
period during which any bankers guarantees are outstanding.
To meet the requirements of the Singapore Permanent Facility
Agreement, the Company entered into three interest rate cap
agreements in June 2008, with notional amounts of
$300.0 million, $235.0 million and
$150.0 million, all of which expire in June 2011. The
Company entered into four additional interest rate cap
agreements in July and August 2008, with notional amounts of
$200.0 million, $175.0 million, $175.0 million
and $75.0 million, which expire in July or August 2011. The
provisions of the interest rate cap agreements entitle the
Company to receive from the counterparties the amounts, if any,
by which the selected market interest rates exceed the strike
rate (which range from 4.0% to 5.0%) as stated in such
agreements. There was no net effect on interest expense as a
result of the interest rate cap agreements for the three and
nine months ended September 30, 2008.
The Singapore Permanent Facility Agreement contains affirmative
and negative covenants customary for such financings, including,
but not limited to, limitations on liens, annual capital
expenditures other than project costs, indebtedness, loans and
guarantees, investments, acquisitions and asset sales,
restricted payments, affiliate transactions and use of proceeds
from the Singapore Permanent Facilities. The Singapore Permanent
Facility Agreement also requires MBS to comply with financial
covenants as of the end of the first full quarter beginning not
less than 183 days after the commencement of operations of
the Marina Bay Sands, including maximum ratios of total
indebtedness to Adjusted EBITDA, minimum ratios of Adjusted
EBITDA to interest expense, minimum Adjusted EBITDA requirements
and maintaining a positive net worth. The Singapore Permanent
Facility Agreement also contains events of default customary for
such financings.
18
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Cash
Flows from Financing Activities
Cash flows from financing activities related to long-term debt
are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
Proceeds from Singapore Permanent Facility
|
|
$
|
1,558,091
|
|
|
$
|
|
|
Proceeds from Singapore Bridge Facility
|
|
|
|
|
|
|
332,002
|
|
Proceeds from New Senior Secured Credit Facility
Term B and Delayed Draw I
|
|
|
600,000
|
|
|
|
3,000,000
|
|
Proceeds from New Senior Secured Credit Facility
Revolving
|
|
|
1,075,860
|
|
|
|
|
|
Proceeds from Macao Credit Facility
|
|
|
442,732
|
|
|
|
1,300,000
|
|
Proceeds from Ferry Financing
|
|
|
176,739
|
|
|
|
|
|
Proceeds from FF&E Financings and Other Long-Term Debt
|
|
|
148,898
|
|
|
|
37,249
|
|
Proceeds from Airplane Financings
|
|
|
|
|
|
|
92,250
|
|
Proceeds from Senior Secured Credit Facility
Revolving
|
|
|
|
|
|
|
62,000
|
|
Proceeds from The Shoppes at The Palazzo Construction Loan
|
|
|
|
|
|
|
52,000
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
4,002,320
|
|
|
$
|
4,875,501
|
|
|
|
|
|
|
|
|
|
|
Repayments on Singapore Bridge Facility
|
|
$
|
(1,329,737
|
)
|
|
$
|
|
|
Repayments on New Senior Secured Credit Facility
Revolving
|
|
|
(300,000
|
)
|
|
|
|
|
Repayments on New Senior Secured Credit Facility
Term B and Delayed Draw I
|
|
|
(24,000
|
)
|
|
|
(7,500
|
)
|
Repayments on FF&E Financings and Other Long-Term Debt
|
|
|
(56,596
|
)
|
|
|
(7,349
|
)
|
Repayments on Airplane Financings
|
|
|
(2,765
|
)
|
|
|
(1,844
|
)
|
Repayment on Senior Secured Credit Facility Term B
and Term B Delayed
|
|
|
|
|
|
|
(1,170,000
|
)
|
Repayment on Senior Secured Credit Facility Revolving
|
|
|
|
|
|
|
(322,128
|
)
|
Repayment on The Shoppes at The Palazzo Construction Loan
|
|
|
|
|
|
|
(166,500
|
)
|
Repayments on Sands Expo Center Mortgage Loan
|
|
|
|
|
|
|
(90,868
|
)
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(1,713,098
|
)
|
|
$
|
(1,766,189
|
)
|
|
|
|
|
|
|
|
|
|
The Company files income tax returns in the U.S. and
various state and foreign jurisdictions. The Company is subject
to federal, state and local, or foreign income tax examinations
by tax authorities for years after 2002. The Internal Revenue
Service is currently examining the U.S. federal income tax
returns for the years ended December 31, 2005 and 2006. To
date, there are no proposed adjustments that the Company
believes will have a material impact on the Companys
financial condition or results of operations.
The Company recognizes interest and penalties, if any, related
to unrecognized tax positions in the provision for income taxes
on the statement of operations. At September 30, 2008 and
December 31, 2007, the Company had approximately
$0.8 million and $0.6 million, respectively, of
interest accrued. No penalties were accrued for at
September 30, 2008 or December 31, 2007.
19
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
NOTE 6
|
STOCK-BASED
EMPLOYEE COMPENSATION
|
Stock-based compensation activity was as follows for the three
and nine months ended September 30, 2008 and 2007 (in
thousands, except weighted average grant date fair values):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
|
Compensation expense:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock options
|
|
$
|
14,586
|
|
|
$
|
9,139
|
|
|
$
|
36,999
|
|
|
$
|
21,117
|
|
Restricted shares
|
|
|
800
|
|
|
|
683
|
|
|
|
2,220
|
|
|
|
1,697
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
15,386
|
|
|
$
|
9,822
|
|
|
$
|
39,219
|
|
|
$
|
22,814
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Compensation cost capitalized as part of property and equipment
|
|
$
|
1,623
|
|
|
$
|
1,045
|
|
|
$
|
4,194
|
|
|
$
|
2,326
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock options granted
|
|
|
288
|
|
|
|
193
|
|
|
|
4,443
|
|
|
|
3,102
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average grant date fair value
|
|
$
|
18.49
|
|
|
$
|
38.88
|
|
|
$
|
29.82
|
|
|
$
|
31.67
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted shares granted
|
|
|
|
|
|
|
|
|
|
|
27
|
|
|
|
51
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average grant date fair value
|
|
$
|
|
|
|
$
|
|
|
|
$
|
71.67
|
|
|
$
|
86.56
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The fair value of each option grant was estimated on the grant
date using the Black-Scholes option-pricing model with the
following weighted average assumptions:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
|
Weighted average volatility
|
|
|
35.85
|
%
|
|
|
30.17
|
%
|
|
|
35.85
|
%
|
|
|
30.67
|
%
|
Expected term (in years)
|
|
|
6.7
|
|
|
|
6.0
|
|
|
|
6.3
|
|
|
|
6.0
|
|
Risk-free rate
|
|
|
2.96
|
%
|
|
|
4.75
|
%
|
|
|
2.96
|
%
|
|
|
4.53
|
%
|
Expected dividends
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Shoppes at The Palazzo opened on January 18, 2008, with
some tenants not yet open and with construction of certain
portions of the mall not yet completed. The Company contracted
to sell The Shoppes at The Palazzo to GGP pursuant to a purchase
and sale agreement dated as of April 12, 2004, as amended
(the Amended Agreement). The total purchase price to
be paid by GGP for The Shoppes at The Palazzo is determined by
taking The Shoppes at The Palazzos net operating income,
as defined in the Amended Agreement, for months 19 through 30 of
its operations (assuming that the rent and other periodic
payments due from all tenants in month 30 was actually due in
each of months 19 through 30, provided that this 12-month period
can be delayed if certain conditions are satisfied) divided
by a capitalization rate. The capitalization rate is 0.06 for
every dollar of net operating income up to $38.0 million
and 0.08 for every dollar of net operating income above
$38.0 million. On the closing date of the sale,
February 29, 2008, GGP made its initial purchase price
payment of $290.8 million based on projected net operating
income for the first 12 months of operations (only taking
into account tenants open for business or paying rent as of
February 29, 2008). Pursuant to the Amended Agreement,
periodic adjustments to the purchase price (up or down, but
never to less than $250.0 million) are to be made based on
projected net operating income for the then upcoming
12 months. Subject to adjustments for certain audit and
other issues, the final adjustment to the purchase price will be
made on the
30-month
anniversary of the closing date (or later if certain conditions
are satisfied) and will be based on the previously described
formula. For all purchase price and purchase price adjustment
calculations, net operating income will be
calculated by using the accrual method of
20
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
accounting. Pursuant to the Amended Agreement, the Company
received an additional $4.6 million in June 2008,
representing the adjustment payment at the fourth month after
closing. There was another required purchase price adjustment on
October 15, 2008; however, no payment was made by GGP, and
GGP and the Company disagree on this adjustment calculation and
whether it results in an increase or a decrease (in which case
the Company would owe money to GGP) in the purchase price. GGP
and the Company are in discussions to attempt to resolve their
disagreement. Due to the general downturn in national and local
retail, economic and market conditions, there can be no
assurance of what the final purchase price will be, although the
Company currently believes that it will be in excess of costs
incurred in constructing The Shoppes at The Palazzo; however, if
circumstances change, the Company may be required to record an
impairment charge in the future. Based on GGPs current
financial condition, there can be no assurance that GGP will
make its future periodic payments.
In the Amended Agreement, the Company agreed to lease certain
restaurant and retail space on the casino level of The Palazzo
to GGP pursuant to a master lease agreement (the Master
Lease). Under the Master Lease, which was executed
concurrently with, and as a part of, the closing on the sale of
The Shoppes at The Palazzo to GGP on February 29, 2008, The
Palazzo leased nine restaurant and retail spaces on the casino
level of The Palazzo, currently occupied by various tenants, to
GGP for 89 years with annual rent of one dollar per year,
and GGP assumed the various tenant operating leases for those
spaces. Under generally accepted accounting principles, the
Master Lease does not qualify as a sale of the real property
covered by the Master Lease, which real property was not
separately legally demised. Accordingly, $41.8 million of
the mall sale transaction has been deferred as prepaid operating
lease payments to The Palazzo, which is amortized into income on
a straight-line basis over the
89-year
lease term. An additional $7.0 million of the total
proceeds from the mall sale transaction has been deferred as
unearned revenues as of September 30, 2008. This balance
will increase as additional purchase price proceeds are received.
In addition, the Company agreed with GGP to lease certain spaces
located within The Shoppes at The Palazzo for a period of
10 years with total fixed minimum rents of
$0.7 million per year, subject to extension options for a
period of up to 10 years and automatic increases beginning
on the second lease year. Under generally accepted accounting
principles, a gain on the sale has not been recorded as the
Company has 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, which will be
determined in 2010 as previously described. Therefore,
$243.9 million of the mall sale transaction has been
recorded as deferred proceeds from the sale as of
September 30, 2008, which accrues interest at an imputed
interest rate offset by (i) imputed rental income and
(ii) rent payments made to GGP related to those spaces
leased back from GGP. The property sold to GGP will remain as
assets of the Company (of which $597.5 million has been
capitalized as of September 30, 2008) with
depreciation continuing to be recorded until the final sales
price determination has been made.
|
|
NOTE 8
|
LAS VEGAS
RESTAURANT JOINT VENTURES
|
The Company has entered into various joint venture agreements
with independent third parties; whereby these third parties will
operate a variety of restaurants in The Venetian Las Vegas and
The Palazzo. The operations of these restaurants have been
consolidated by the Company in accordance with FASB
Interpretation (FIN) No. 46R,
Consolidation of Variable Interest Entities. The
Company evaluates its investments in joint ventures to assess
the appropriateness of their consolidation into the Company when
events have occurred that would trigger such an analysis.
21
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The joint ventures had total current assets of $5.2 million
and fixed assets of $53.6 million as of September 30,
2008. The following is summarized income statement data for our
consolidated joint ventures for the nine months ended
September 30, 2008 (in thousands):
|
|
|
|
|
Net revenues
|
|
$
|
37,458
|
|
Operating expenses
|
|
|
36,237
|
|
Pre-opening expense
|
|
|
3,442
|
|
Depreciation and amortization
|
|
|
3,797
|
|
|
|
|
|
|
Operating loss
|
|
|
(6,018
|
)
|
Interest expense, net
|
|
|
(398
|
)
|
Noncontrolling interest
|
|
|
4,481
|
|
|
|
|
|
|
Net loss
|
|
$
|
(1,935
|
)
|
|
|
|
|
|
|
|
NOTE 9
|
FAIR
VALUE MEASUREMENTS
|
As discussed in Note 1
Organization and Business of Company, the Company adopted
the provisions of SFAS No. 157 with respect to fair
value measurements of (a) nonfinancial assets and
liabilities that are recognized or disclosed at fair value in
the Companys financial statements on a recurring basis (at
least annually) and (b) all financial assets and
liabilities. Under SFAS No. 157, fair value is defined
as the exit price, or the amount that would be received to sell
an asset or paid to transfer a liability in an orderly
transaction between market participants as of the measurement
date. SFAS No. 157 also establishes a valuation
hierarchy for inputs in measuring fair value that maximizes the
use of observable inputs (inputs market participants would use
based on market data obtained from sources independent of the
Company) and minimizes the use of unobservable inputs (inputs
that reflect the Companys assumptions based upon the best
information available in the circumstances) by requiring that
the most observable inputs be used when available. Level 1
inputs are quoted prices (unadjusted) in active markets for
identical assets or liabilities. Level 2 inputs are quoted
prices for similar assets or liabilities in active markets,
quoted prices for identical or similar assets or liabilities in
markets that are not active, and inputs (other than quoted
prices) that are observable for the assets or liabilities,
either directly or indirectly. Level 3 inputs are
unobservable inputs for the assets or liabilities.
Categorization within the hierarchy is based upon the lowest
level of input that is significant to the fair value measurement.
The following table provides the assets carried at fair value
measured on a recurring basis as of September 30, 2008 (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Carrying
|
|
Fair Value Measurements at September 30, 2008 Using:
|
|
|
Value at
|
|
Quoted Market
|
|
Significant Other
|
|
Significant
|
|
|
September 30,
|
|
Prices in Active
|
|
Observable Inputs
|
|
Unobservable Inputs
|
|
|
2008
|
|
Markets (Level 1)
|
|
(Level 2)
|
|
(Level 3)
|
|
Cash and cash equivalents(1)
|
|
$
|
706,827
|
|
|
$
|
706,827
|
|
|
$
|
|
|
|
$
|
|
|
Interest rate caps(2)
|
|
$
|
2,932
|
|
|
$
|
|
|
|
$
|
2,932
|
|
|
$
|
|
|
|
|
|
(1)
|
|
The Company has short-term investments classified as cash and
cash equivalents as the original maturities are less than
90 days.
|
|
(2)
|
|
The Company has twelve interest rate cap agreements with an
aggregate fair value of approximately $2.9 million, based
on quoted market values from the institutions holding the
agreements as of September 30, 2008.
|
NOTE 10
COMMITMENTS AND CONTINGENCIES
The Company is involved in other litigation in addition to those
noted below, arising in the normal course of business.
Management has made certain estimates for potential litigation
costs based upon consultation with legal
22
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
counsel. Actual results could differ from these estimates;
however, in the opinion of management, such litigation and
claims will not have a material effect on the Companys
financial condition, results of operations or cash flows.
The
Palazzo Construction Litigation
Lido Casino Resort, LLC (Lido), formerly a
wholly-owned subsidiary of the Company and now merged into
Venetian Casino Resort, LLC (VCR), and its
construction manager, Taylor International Corp.
(Taylor), filed suit in March 2006 in the United
States District Court for the District of Nevada (the
District Court) against Malcolm Drilling Company,
Inc. (Malcolm), the contractor on The Palazzo
project responsible for completing certain foundation work (the
District Court Case). Lido and Taylor claim in the
District Court Case that Malcolm was in default of its contract
for performing defective work, failing to correct defective
work, failing to complete its work and causing delay to the
project. Malcolm responded by filing a Notice of a Lien with the
Clerk of Clark County, Nevada in March 2006 in the amount of
approximately $19.0 million (the Lien). In
April 2006, Lido and Taylor moved in the District Court Case to
strike or, in the alternative, to reduce the amount of, the
Lien, claiming, among other things, that the Lien was excessive
for including claims for disruption and delay, which Lido and
Taylor claim are not lienable under Nevada law (the Lien
Motion). Malcolm responded in April 2006 by filing a
complaint against Lido and Taylor in District Court of Clark
County, Nevada seeking to foreclose on the Lien against Taylor,
claiming breach of contract, a cardinal change in the underlying
contract, unjust enrichment against Lido and Taylor and bad
faith and fraud against Taylor (the State Court
Case), and simultaneously filed a motion in the District
Court Case, seeking to dismiss the District Court Case on
abstention grounds (the Abstention Motion). In
response, in June 2006, Lido filed a motion to dismiss the State
Court Case based on the principle of the prior
pending District Court Case (the Motion to
Dismiss). In June 2006, the Abstention Motion was granted
in part by the United States District Court, the District Court
Case was stayed pending the outcome of the Motion to Dismiss in
the State Court Case and the Lien Motion was denied without
prejudice. In January 2008, the parties agreed to the dismissal
of the District Court Case without prejudice. Prior to agreeing
on that dismissal, Lido and Malcolm entered into a stipulation
under which Lido withdrew the Motion to Dismiss, and in July
2006 filed a replacement lien motion in the State Court Case.
The lien motion in the State Court Case was denied in August
2006 and Lido and Taylor filed a permitted interlocutory notice
of appeal to the Supreme Court of Nevada in September 2006. In
April 2007, Malcolm filed an Amended Notice of Lien with the
Clerk of Clark County, Nevada in the amount of approximately
$16.7 million plus interest, costs and attorneys
fees. In August 2007, Malcolm filed a motion for partial summary
judgment, seeking the dismissal of the counterclaim filed in the
State Court Case by Lido to the extent the claim sought lost
profits. After argument, the motion for partial summary judgment
was denied without prejudice on October 23, 2007, and a
conforming order was entered in December 2007. Argument on the
appeal of the denial of the lien motion in the State Court was
heard by the Supreme Court in March 2008, but a decision has not
yet been issued. In January 2008, Malcolm filed a series of
three motions and again sought summary judgment on the
counterclaim filed in the State Court Case and VCR, as successor
in interest to Lido, and Taylor sought summary judgment on
certain of Malcolms claims. The motions for summary
judgment were all denied without prejudice except that claims of
Malcolm totaling approximately $675,000 were dismissed. In May
2008, the Supreme Court vacated the order denying the motion to
strike the mechanics lien and remanded to the trial court
for a decision on the lien during the upcoming trial. The trial
commenced in June 2008, was adjourned in early July 2008 and
resumed on November 3, 2008. Management has determined that
based on proceedings to date, an adverse outcome is not
probable. VCR, as successor in interest to Lido, intends to
defend itself against the claims pending in the State Court Case.
Litigation
Relating to Macao Operations
On October 15, 2004, Richard Suen and Round Square Company
Limited filed an action against LVSC, Las Vegas Sands, Inc.
(LVSI), Sheldon G. Adelson and William P. Weidner in
the District Court of Clark County, Nevada, asserting a breach
of an alleged agreement to pay a success fee of
$5.0 million and 2.0% of the net profit from the
Companys Macao resort operations to the plaintiffs as well
as other related claims. In March 2005, LVSC was dismissed as a
party without prejudice based on a stipulation to do so between
the parties. On May 17, 2005, the plaintiffs filed their
first amended complaint. On February 2, 2006, defendants
filed a motion for partial summary
23
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
judgment with respect to plaintiffs fraud claims against
all the defendants. On March 16, 2006, an order was filed
by the court granting defendants motion for partial
summary judgment. Pursuant to the order filed March 16,
2006, plaintiffs fraud claims set forth in the first
amended complaint were dismissed with prejudice as against all
defendants. The order also dismissed with prejudice the first
amended complaint against defendants Sheldon G. Adelson and
William P. Weidner. On May 24, 2008, the jury returned a
verdict for the plaintiffs in the amount of $43.8 million.
On June 30, 2008, a judgment was entered in this matter in
the amount of $58.6 million (including pre-judgment
interest). The Company has begun the appeals process, including
its filings on July 15, 2008, with the trial court of a
motion for judgment as a matter of law or in the alternative, a
new trial and a motion to strike, alter
and/or
amend
the judgment. The grounds for these motions include
(1) insufficient evidence that Suen conferred a benefit on
LVSI, (2) the improper admission of testimony, (3) the
Courts refusal to give jury instructions that the law
presumes that government officials have performed their duties
regularly, and that the law has been obeyed, and (4) jury
instructions that improperly permitted the plaintiff to recover
for the services of others. These motions were scheduled to be
heard on September 29, 2008, but have been postponed to
December 8, 2008. If the Company is unsuccessful in
obtaining the relief sought from the trial court, it intends to
continue to vigorously pursue available appeals. The Company
believes that it has valid bases in law and fact to overturn or
appeal the verdict. As a result, the Company believes that the
likelihood that the amount of the judgment will be affirmed is
not probable, and, accordingly, that the amount of any loss
cannot be reasonably estimated at this time. Because the Company
believes that this potential loss is not probable or estimable,
it has not recorded any reserves or contingencies related to
this legal matter. In the event that the Companys
assumptions used to evaluate this matter as neither probable nor
estimable change in future periods, it may be required to record
a liability for an adverse outcome.
On January 26, 2006, Clive Basset Jones, Darryl Steven
Turok (a/k/a Dax Turok) and Cheong Jose Vai Chi (a/k/a Cliff
Cheong), filed an action against LVSC, LVSLLC, Venetian Venture
Development, LLC (Venetian Venture Development) and
various unspecified individuals and companies in the District
Court of Clark County, Nevada. The plaintiffs assert breach of
an agreement to pay a success fee in an amount equal to 5% of
the ownership interest in the entity that owns and operates the
Macao gaming subconcession as well as other related claims. In
April 2006, LVSC was dismissed as a party without prejudice
based on a stipulation to do so between the parties. Discovery
has begun in this matter and the case is currently set for trial
in late spring or early summer 2009. Management believes that
the plaintiffs case against the Company is without merit.
The Company intends to defend this matter vigorously.
On February 5, 2007, Asian American Entertainment
Corporation, Limited (AAEC) filed an action against
LVSI, VCR, Venetian Venture Development, William P. Weidner and
David Friedman in the United States District Court for the
District of Nevada. The plaintiffs assert breach of contract by
LVSI, VCR and Venetian Venture Development of an agreement under
which AAEC would work to obtain a gaming license in Macao and,
if successful, AAEC would jointly operate a casino, hotel and
related facilities in Macao with Venetian Venture Development
and Venetian Venture Development would receive fees and a
minority equity interest in the venture and breach of fiduciary
duties by all of the defendants. The plaintiffs have requested
an unspecified amount of actual, compensatory and punitive
damages, and disgorgement of profits related to our Macao gaming
license. The Company filed a motion to dismiss on July 11,
2007. On August 1, 2007, the Court granted defendants
motion to dismiss the complaint against all defendants without
prejudice. The plaintiffs have appealed this decision.
Management believes that the plaintiffs case against the
Company is without merit. The Company intends to defend this
matter vigorously.
Singapore
Development Project
On August 23, 2006, the Company entered into the
Development Agreement with the STB, which requires the Company
to construct and operate the Marina Bay Sands in accordance with
the Companys proposal for the integrated resort and in
accordance with the agreement. The Company is continuing to
finalize various design aspects of the integrated resort and is
in the process of finalizing its cost estimates for the project.
The cost to build the Marina Bay Sands is expected to be in
excess of $4.5 billion, which is inclusive of the land
premium, taxes and other fees previously paid. As discussed in
Note 4 Long-Term
Debt Singapore Related Debt Singapore
Permanent Facilities, the Company entered into the SGD
5.44 billion (approximately $3.80 billion at
24
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
exchange rates in effect on September 30,
2008) Singapore Permanent Facility Agreement to fund a
significant portion of the construction, operating and other
development costs of the Marina Bay Sands.
Other
Commitments
In January 2008, the Company entered into agreements to purchase
an additional four ferries at an aggregate cost of approximately
$72.0 million to be built for the Companys Macao
operations. As of September 30, 2008, the Company was
obligated to make future payments of $52.3 million.
|
|
NOTE 11
|
SEGMENT
INFORMATION
|
The Companys principal operating and developmental
activities occur in three geographic areas: Las Vegas, Macao and
Singapore. The Company reviews the results of operations for
each of its key operating segments: The Venetian Las Vegas,
which includes the Sands Expo Center; The Palazzo; Sands Macao;
The Venetian Macao; Four Seasons Macao; and Other Asia
(comprised primarily of the ferry operations). The Company also
reviews construction and development activities for each of its
primary projects: The Venetian Las Vegas; The Palazzo; Sands
Macao; The Venetian Macao; Four Seasons Macao; Other Asia
(comprised of the ferry operations and various other operations
that are ancillary to the Companys properties in Macao);
Marina Bay Sands in Singapore; Other Development Projects (on
Parcels 3, 5, 6, 7 and 8 of the Cotai Strip); and Corporate and
Other (comprised primarily of the airplanes, St. Regis
Residences and Sands Bethlehem). The Venetian Las Vegas and The
Palazzo operating segments are managed as a single integrated
resort and have been aggregated as one reportable segment, the
Las Vegas Operating Properties, considering their similar
economic characteristics, types of customers, types of service
and products, the regulatory business environment of the
operations within each segment and the Companys
organizational and management reporting structure. The
information as of December 31, 2007, and
25
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
for the three and nine months ended September 30, 2007, has
been reclassified to conform to the current presentation. The
Companys segment information is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
|
Net Revenues
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Las Vegas Operating Properties
|
|
$
|
307,965
|
|
|
$
|
212,103
|
|
|
$
|
1,007,942
|
|
|
$
|
725,459
|
|
Macao:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sands Macao
|
|
|
248,444
|
|
|
|
298,756
|
|
|
|
784,943
|
|
|
|
1,026,544
|
|
The Venetian Macao
|
|
|
522,409
|
|
|
|
150,091
|
|
|
|
1,471,823
|
|
|
|
150,091
|
|
Four Seasons Macao
|
|
|
20,303
|
|
|
|
|
|
|
|
20,303
|
|
|
|
|
|
Other Asia
|
|
|
6,313
|
|
|
|
|
|
|
|
11,560
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
$
|
1,105,434
|
|
|
$
|
660,950
|
|
|
$
|
3,296,571
|
|
|
$
|
1,902,094
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDAR(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Las Vegas Operating Properties
|
|
$
|
73,316
|
|
|
$
|
60,183
|
|
|
$
|
302,497
|
|
|
$
|
255,506
|
|
Macao:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sands Macao
|
|
|
42,591
|
|
|
|
77,574
|
|
|
|
162,283
|
|
|
|
296,463
|
|
The Venetian Macao
|
|
|
135,737
|
|
|
|
26,520
|
|
|
|
386,227
|
|
|
|
26,520
|
|
Four Seasons Macao
|
|
|
2,963
|
|
|
|
|
|
|
|
2,963
|
|
|
|
|
|
Other Asia
|
|
|
(10,848
|
)
|
|
|
|
|
|
|
(34,086
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total adjusted EBITDAR
|
|
|
243,759
|
|
|
|
164,277
|
|
|
|
819,884
|
|
|
|
578,489
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other Operating Costs and Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based compensation expense
|
|
|
(9,615
|
)
|
|
|
(4,827
|
)
|
|
|
(25,036
|
)
|
|
|
(10,007
|
)
|
Corporate expense
|
|
|
(23,390
|
)
|
|
|
(23,444
|
)
|
|
|
(82,529
|
)
|
|
|
(66,657
|
)
|
Rental expense
|
|
|
(8,437
|
)
|
|
|
(8,136
|
)
|
|
|
(25,573
|
)
|
|
|
(23,141
|
)
|
Pre-opening expense
|
|
|
(40,777
|
)
|
|
|
(90,447
|
)
|
|
|
(105,470
|
)
|
|
|
(153,224
|
)
|
Development expense
|
|
|
(1,153
|
)
|
|
|
(3,621
|
)
|
|
|
(11,504
|
)
|
|
|
(7,227
|
)
|
Depreciation and amortization
|
|
|
(132,239
|
)
|
|
|
(54,309
|
)
|
|
|
(364,753
|
)
|
|
|
(121,262
|
)
|
Gain (loss) on disposal of assets
|
|
|
47
|
|
|
|
(287
|
)
|
|
|
(6,977
|
)
|
|
|
(526
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
28,195
|
|
|
|
(20,794
|
)
|
|
|
198,042
|
|
|
|
196,445
|
|
Other Non-Operating Costs and Expenses
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
3,215
|
|
|
|
26,890
|
|
|
|
11,813
|
|
|
|
60,906
|
|
Interest expense, net of amounts capitalized
|
|
|
(90,535
|
)
|
|
|
(72,607
|
)
|
|
|
(293,709
|
)
|
|
|
(161,628
|
)
|
Other income
|
|
|
7,209
|
|
|
|
17,052
|
|
|
|
11,624
|
|
|
|
7,715
|
|
Loss on early retirement of debt
|
|
|
|
|
|
|
|
|
|
|
(4,022
|
)
|
|
|
(10,705
|
)
|
Benefit (provision) for income taxes
|
|
|
19,425
|
|
|
|
952
|
|
|
|
19,533
|
|
|
|
(15,928
|
)
|
Noncontrolling interest
|
|
|
283
|
|
|
|
|
|
|
|
4,481
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
(32,208
|
)
|
|
$
|
(48,507
|
)
|
|
$
|
(52,238
|
)
|
|
$
|
76,805
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Adjusted EBITDAR is net income (loss) before interest, income
taxes, depreciation and amortization, pre-opening expense,
development expense, other income, loss on early retirement of
debt, (gain) loss on disposal of assets, rental expense,
corporate expense, stock-based compensation expense included in
general and administrative expense, and noncontrolling interest.
Adjusted 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 those of its competitors.
|
26
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended,
|
|
|
|
September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
Capital Expenditures
|
|
|
|
|
|
|
|
|
Corporate and Other
|
|
$
|
269,260
|
|
|
$
|
96,161
|
|
Las Vegas Operating Properties
|
|
|
543,162
|
|
|
|
905,437
|
|
Macao:
|
|
|
|
|
|
|
|
|
Sands Macao
|
|
|
30,192
|
|
|
|
86,503
|
|
The Venetian Macao
|
|
|
109,114
|
|
|
|
883,427
|
|
Four Seasons Macao
|
|
|
471,955
|
|
|
|
128,023
|
|
Other Asia
|
|
|
58,021
|
|
|
|
97,341
|
|
Other Development Projects
|
|
|
851,929
|
|
|
|
306,242
|
|
Singapore
|
|
|
574,763
|
|
|
|
218,933
|
|
|
|
|
|
|
|
|
|
|
Total capital expenditures
|
|
$
|
2,908,396
|
|
|
$
|
2,722,067
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
September 30,
|
|
|
December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Total Assets
|
|
|
|
|
|
|
|
|
Corporate and Other
|
|
$
|
653,301
|
|
|
$
|
447,556
|
|
Las Vegas Operating Properties
|
|
|
5,135,133
|
|
|
|
4,139,040
|
|
Macao:
|
|
|
|
|
|
|
|
|
Sands Macao
|
|
|
603,731
|
|
|
|
550,479
|
|
The Venetian Macao
|
|
|
3,137,546
|
|
|
|
3,158,091
|
|
Four Seasons Macao
|
|
|
872,563
|
|
|
|
391,506
|
|
Other Asia
|
|
|
368,244
|
|
|
|
218,419
|
|
Other Development Projects
|
|
|
1,839,197
|
|
|
|
645,138
|
|
Singapore
|
|
|
2,149,697
|
|
|
|
1,916,288
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
14,759,412
|
|
|
$
|
11,466,517
|
|
|
|
|
|
|
|
|
|
|
|
|
NOTE 12
|
CONDENSED
CONSOLIDATING FINANCIAL INFORMATION
|
LVSC is the obligor of the 6.375% Senior Notes (the
Senior Notes) due 2015, issued on February 10,
2005. LVSLLC, VCR, Mall Intermediate Holding Company, LLC,
Venetian Venture Development, Venetian Transport, LLC, Venetian
Marketing, Inc., Lido Intermediate Holding Company, LLC and Lido
Casino Resort Holding Company, LLC (collectively, the
Original Guarantors), have jointly and severally
guaranteed the Senior Notes on a full and unconditional basis.
Effective May 23, 2007, in conjunction with entering into
the New Senior Secured Credit Facility, LVSC, the Original
Guarantors and the trustee entered into a supplemental indenture
related to the Senior Notes, whereby the following subsidiaries
were added as full and unconditional guarantors on a joint and
several basis: Interface Group-Nevada Inc., Palazzo Condo Tower,
LLC, Sands Pennsylvania, Inc., Phase II Mall Holding, LLC
and Phase II Mall Subsidiary, LLC (collectively with the
Original Guarantors, the Guarantor Subsidiaries). 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. As described in
Note 7 Mall Sale, the
sale of The Shoppes at The Palazzo 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 Subsidiary,
LLC subsequent to the sale will continue to be accounted for by
the Guarantor
27
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
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
$350.9 million (consisting of $597.5 million of fixed
assets, offset by $246.6 million of liabilities consisting
primarily of deferred proceeds from the sale) and capital
expenditures of $194.7 million as of September 30,
2008 and a net loss of $4.0 million and $9.1 million
(consisting primarily of depreciation expense) for the three and
nine months ended September 30, 2008, respectively, related
to the mall and are being accounted for by the Guarantor
Subsidiaries; however, 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.
As a result of the supplemental indenture related to the Senior
Notes and the sale of the Phase II Mall Subsidiary, LLC,
there has been a change in the group of subsidiaries that are
the Guarantor Subsidiaries. Accordingly, the Company has
reclassified prior periods to conform to the current
presentation of the Guarantor Subsidiaries.
28
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The condensed consolidating financial information of LVSC, the
Guarantor Subsidiaries and the non-guarantor subsidiaries on a
combined basis as of September 30, 2008 and
December 31, 2007, and for the three and nine months ended
September 30, 2008 and 2007, is as follows (in thousands):
Condensed
Consolidating Balance Sheets
September 30, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Non-Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Cash and cash equivalents
|
|
$
|
4,660
|
|
|
$
|
743,844
|
|
|
$
|
527,471
|
|
|
$
|
|
|
|
$
|
1,275,975
|
|
Restricted cash
|
|
|
|
|
|
|
4,683
|
|
|
|
234,461
|
|
|
|
|
|
|
|
239,144
|
|
Intercompany receivables
|
|
|
24,104
|
|
|
|
2,731
|
|
|
|
9,312
|
|
|
|
(36,147
|
)
|
|
|
|
|
Accounts receivable, net
|
|
|
2,173
|
|
|
|
126,743
|
|
|
|
207,519
|
|
|
|
(3,259
|
)
|
|
|
333,176
|
|
Inventories
|
|
|
970
|
|
|
|
13,475
|
|
|
|
12,839
|
|
|
|
|
|
|
|
27,284
|
|
Deferred income taxes
|
|
|
19,061
|
|
|
|
61,826
|
|
|
|
2,984
|
|
|
|
|
|
|
|
83,871
|
|
Prepaid expenses and other
|
|
|
3,968
|
|
|
|
7,784
|
|
|
|
26,088
|
|
|
|
(315
|
)
|
|
|
37,525
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
54,936
|
|
|
|
961,086
|
|
|
|
1,020,674
|
|
|
|
(39,721
|
)
|
|
|
1,996,975
|
|
Property and equipment, net
|
|
|
164,231
|
|
|
|
4,122,202
|
|
|
|
6,989,188
|
|
|
|
|
|
|
|
11,275,621
|
|
Investment in subsidiaries
|
|
|
2,747,277
|
|
|
|
1,609,607
|
|
|
|
|
|
|
|
(4,356,884
|
)
|
|
|
|
|
Deferred financing costs, net
|
|
|
6,339
|
|
|
|
50,234
|
|
|
|
115,613
|
|
|
|
|
|
|
|
172,186
|
|
Intercompany receivables
|
|
|
79,129
|
|
|
|
1,196,062
|
|
|
|
|
|
|
|
(1,275,191
|
)
|
|
|
|
|
Intercompany notes receivable
|
|
|
74,119
|
|
|
|
93,876
|
|
|
|
|
|
|
|
(167,995
|
)
|
|
|
|
|
Deferred income taxes
|
|
|
5,707
|
|
|
|
1,667
|
|
|
|
172
|
|
|
|
(5,725
|
)
|
|
|
1,821
|
|
Leasehold interests in land, net
|
|
|
|
|
|
|
|
|
|
|
1,077,487
|
|
|
|
|
|
|
|
1,077,487
|
|
Other assets, net
|
|
|
3,152
|
|
|
|
32,533
|
|
|
|
199,637
|
|
|
|
|
|
|
|
235,322
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
3,134,890
|
|
|
$
|
8,067,267
|
|
|
$
|
9,402,771
|
|
|
$
|
(5,845,516
|
)
|
|
$
|
14,759,412
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
8,545
|
|
|
$
|
46,152
|
|
|
$
|
44,907
|
|
|
$
|
(3,259
|
)
|
|
$
|
96,345
|
|
Construction payables
|
|
|
|
|
|
|
112,493
|
|
|
|
721,349
|
|
|
|
|
|
|
|
833,842
|
|
Intercompany payables
|
|
|
2,731
|
|
|
|
9,312
|
|
|
|
24,104
|
|
|
|
(36,147
|
)
|
|
|
|
|
Accrued interest payable
|
|
|
2,230
|
|
|
|
1,893
|
|
|
|
9,182
|
|
|
|
|
|
|
|
13,305
|
|
Other accrued liabilities
|
|
|
6,197
|
|
|
|
186,386
|
|
|
|
486,593
|
|
|
|
|
|
|
|
679,176
|
|
Income taxes payable
|
|
|
|
|
|
|
|
|
|
|
315
|
|
|
|
(315
|
)
|
|
|
|
|
Current maturities of long-term debt
|
|
|
3,688
|
|
|
|
57,399
|
|
|
|
38,227
|
|
|
|
|
|
|
|
99,314
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
23,391
|
|
|
|
413,635
|
|
|
|
1,324,677
|
|
|
|
(39,721
|
)
|
|
|
1,721,982
|
|
Other long-term liabilities
|
|
|
26,536
|
|
|
|
9,999
|
|
|
|
10,538
|
|
|
|
|
|
|
|
47,073
|
|
Deferred income taxes
|
|
|
|
|
|
|
12,870
|
|
|
|
|
|
|
|
(5,725
|
)
|
|
|
7,145
|
|
Deferred amounts related to mall transactions
|
|
|
|
|
|
|
453,725
|
|
|
|
|
|
|
|
|
|
|
|
453,725
|
|
Intercompany payables
|
|
|
|
|
|
|
|
|
|
|
1,275,191
|
|
|
|
(1,275,191
|
)
|
|
|
|
|
Intercompany notes payable
|
|
|
|
|
|
|
|
|
|
|
167,995
|
|
|
|
(167,995
|
)
|
|
|
|
|
Long-term debt
|
|
|
806,582
|
|
|
|
4,429,761
|
|
|
|
5,014,763
|
|
|
|
|
|
|
|
10,251,106
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
856,509
|
|
|
|
5,319,990
|
|
|
|
7,793,164
|
|
|
|
(1,488,632
|
)
|
|
|
12,481,031
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity
|
|
|
2,278,381
|
|
|
|
2,747,277
|
|
|
|
1,609,607
|
|
|
|
(4,356,884
|
)
|
|
|
2,278,381
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity
|
|
$
|
3,134,890
|
|
|
$
|
8,067,267
|
|
|
$
|
9,402,771
|
|
|
$
|
(5,845,516
|
)
|
|
$
|
14,759,412
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Balance Sheets
December 31, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Non-Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Cash and cash equivalents
|
|
$
|
73,489
|
|
|
$
|
129,684
|
|
|
$
|
653,977
|
|
|
$
|
|
|
|
$
|
857,150
|
|
Restricted cash
|
|
|
|
|
|
|
5,088
|
|
|
|
227,856
|
|
|
|
|
|
|
|
232,944
|
|
Intercompany receivables
|
|
|
195,675
|
|
|
|
520,761
|
|
|
|
|
|
|
|
(716,436
|
)
|
|
|
|
|
Accounts receivable, net
|
|
|
1,995
|
|
|
|
113,638
|
|
|
|
71,562
|
|
|
|
|
|
|
|
187,195
|
|
Inventories
|
|
|
132
|
|
|
|
10,086
|
|
|
|
9,684
|
|
|
|
|
|
|
|
19,902
|
|
Deferred income taxes
|
|
|
1,368
|
|
|
|
11,879
|
|
|
|
19,224
|
|
|
|
|
|
|
|
32,471
|
|
Prepaid expenses and other
|
|
|
19,960
|
|
|
|
15,792
|
|
|
|
14,004
|
|
|
|
(332
|
)
|
|
|
49,424
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
292,619
|
|
|
|
806,928
|
|
|
|
996,307
|
|
|
|
(716,768
|
)
|
|
|
1,379,086
|
|
Property and equipment, net
|
|
|
160,524
|
|
|
|
3,360,340
|
|
|
|
5,053,750
|
|
|
|
|
|
|
|
8,574,614
|
|
Investment in subsidiaries
|
|
|
2,105,436
|
|
|
|
1,516,585
|
|
|
|
|
|
|
|
(3,622,021
|
)
|
|
|
|
|
Deferred financing costs, net
|
|
|
1,556
|
|
|
|
58,584
|
|
|
|
47,198
|
|
|
|
|
|
|
|
107,338
|
|
Restricted cash
|
|
|
|
|
|
|
|
|
|
|
178,824
|
|
|
|
|
|
|
|
178,824
|
|
Intercompany notes receivable
|
|
|
73,562
|
|
|
|
55,992
|
|
|
|
|
|
|
|
(129,554
|
)
|
|
|
|
|
Deferred income taxes
|
|
|
|
|
|
|
|
|
|
|
1,581
|
|
|
|
(1,581
|
)
|
|
|
|
|
Leasehold interests in land, net
|
|
|
|
|
|
|
|
|
|
|
1,069,609
|
|
|
|
|
|
|
|
1,069,609
|
|
Other assets, net
|
|
|
116
|
|
|
|
26,885
|
|
|
|
130,045
|
|
|
|
|
|
|
|
157,046
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
2,633,813
|
|
|
$
|
5,825,314
|
|
|
$
|
7,477,314
|
|
|
$
|
(4,469,924
|
)
|
|
$
|
11,466,517
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
4,881
|
|
|
$
|
49,020
|
|
|
$
|
45,122
|
|
|
$
|
|
|
|
$
|
99,023
|
|
Construction payables
|
|
|
|
|
|
|
151,238
|
|
|
|
566,303
|
|
|
|
|
|
|
|
717,541
|
|
Intercompany payables
|
|
|
|
|
|
|
108,707
|
|
|
|
607,729
|
|
|
|
(716,436
|
)
|
|
|
|
|
Accrued interest payable
|
|
|
6,350
|
|
|
|
3,289
|
|
|
|
1,826
|
|
|
|
|
|
|
|
11,465
|
|
Other accrued liabilities
|
|
|
8,141
|
|
|
|
186,985
|
|
|
|
415,785
|
|
|
|
|
|
|
|
610,911
|
|
Income taxes payable
|
|
|
|
|
|
|
|
|
|
|
332
|
|
|
|
(332
|
)
|
|
|
|
|
Current maturities of long-term debt
|
|
|
3,688
|
|
|
|
36,141
|
|
|
|
14,504
|
|
|
|
|
|
|
|
54,333
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
23,060
|
|
|
|
535,380
|
|
|
|
1,651,601
|
|
|
|
(716,768
|
)
|
|
|
1,493,273
|
|
Other long-term liabilities
|
|
|
15,532
|
|
|
|
7,114
|
|
|
|
6,028
|
|
|
|
|
|
|
|
28,674
|
|
Deferred income taxes
|
|
|
770
|
|
|
|
2,364
|
|
|
|
|
|
|
|
(1,581
|
)
|
|
|
1,553
|
|
Deferred amounts related to mall transactions
|
|
|
|
|
|
|
164,746
|
|
|
|
|
|
|
|
|
|
|
|
164,746
|
|
Intercompany notes payable
|
|
|
|
|
|
|
|
|
|
|
129,554
|
|
|
|
(129,554
|
)
|
|
|
|
|
Long-term debt
|
|
|
334,177
|
|
|
|
3,010,274
|
|
|
|
4,173,546
|
|
|
|
|
|
|
|
7,517,997
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
373,539
|
|
|
|
3,719,878
|
|
|
|
5,960,729
|
|
|
|
(847,903
|
)
|
|
|
9,206,243
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity
|
|
|
2,260,274
|
|
|
|
2,105,436
|
|
|
|
1,516,585
|
|
|
|
(3,622,021
|
)
|
|
|
2,260,274
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity
|
|
$
|
2,633,813
|
|
|
$
|
5,825,314
|
|
|
$
|
7,477,314
|
|
|
$
|
(4,469,924
|
)
|
|
$
|
11,466,517
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Statements of Operations
For the Three Months Ended September 30, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Non-Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Casino
|
|
$
|
|
|
|
$
|
113,175
|
|
|
$
|
692,083
|
|
|
$
|
|
|
|
$
|
805,258
|
|
Rooms
|
|
|
|
|
|
|
130,487
|
|
|
|
58,307
|
|
|
|
|
|
|
|
188,794
|
|
Food and beverage
|
|
|
|
|
|
|
46,067
|
|
|
|
44,958
|
|
|
|
|
|
|
|
91,025
|
|
Convention, retail and other
|
|
|
|
|
|
|
45,768
|
|
|
|
79,262
|
|
|
|
(1,797
|
)
|
|
|
123,233
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
335,497
|
|
|
|
874,610
|
|
|
|
(1,797
|
)
|
|
|
1,208,310
|
|
Less-promotional allowances
|
|
|
(224
|
)
|
|
|
(44,115
|
)
|
|
|
(57,780
|
)
|
|
|
(757
|
)
|
|
|
(102,876
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
|
(224
|
)
|
|
|
291,382
|
|
|
|
816,830
|
|
|
|
(2,554
|
)
|
|
|
1,105,434
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Casino
|
|
|
|
|
|
|
80,057
|
|
|
|
501,309
|
|
|
|
(611
|
)
|
|
|
580,755
|
|
Rooms
|
|
|
|
|
|
|
29,093
|
|
|
|
7,343
|
|
|
|
|
|
|
|
36,436
|
|
Food and beverage
|
|
|
|
|
|
|
20,933
|
|
|
|
26,856
|
|
|
|
(1,754
|
)
|
|
|
46,035
|
|
Convention, retail and other
|
|
|
|
|
|
|
19,936
|
|
|
|
49,077
|
|
|
|
|
|
|
|
69,013
|
|
Provision for doubtful accounts
|
|
|
|
|
|
|
4,799
|
|
|
|
4,060
|
|
|
|
|
|
|
|
8,859
|
|
General and administrative
|
|
|
|
|
|
|
68,486
|
|
|
|
61,895
|
|
|
|
(189
|
)
|
|
|
130,192
|
|
Corporate expense
|
|
|
13,537
|
|
|
|
90
|
|
|
|
9,763
|
|
|
|
|
|
|
|
23,390
|
|
Rental expense
|
|
|
|
|
|
|
1,746
|
|
|
|
6,691
|
|
|
|
|
|
|
|
8,437
|
|
Pre-opening expense
|
|
|
595
|
|
|
|
1,637
|
|
|
|
38,545
|
|
|
|
|
|
|
|
40,777
|
|
Development expense
|
|
|
(343
|
)
|
|
|
|
|
|
|
1,496
|
|
|
|
|
|
|
|
1,153
|
|
Depreciation and amortization
|
|
|
2,633
|
|
|
|
58,460
|
|
|
|
71,146
|
|
|
|
|
|
|
|
132,239
|
|
(Gain) loss on disposal of assets
|
|
|
|
|
|
|
(63
|
)
|
|
|
16
|
|
|
|
|
|
|
|
(47
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,422
|
|
|
|
285,174
|
|
|
|
778,197
|
|
|
|
(2,554
|
)
|
|
|
1,077,239
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
(16,646
|
)
|
|
|
6,208
|
|
|
|
38,633
|
|
|
|
|
|
|
|
28,195
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
1,274
|
|
|
|
2,486
|
|
|
|
1,807
|
|
|
|
(2,352
|
)
|
|
|
3,215
|
|
Interest expense, net of amounts capitalized
|
|
|
(6,836
|
)
|
|
|
(50,424
|
)
|
|
|
(35,627
|
)
|
|
|
2,352
|
|
|
|
(90,535
|
)
|
Other income (expense)
|
|
|
|
|
|
|
(873
|
)
|
|
|
8,082
|
|
|
|
|
|
|
|
7,209
|
|
Income (loss) from equity investment in subsidiaries
|
|
|
(12,200
|
)
|
|
|
13,519
|
|
|
|
|
|
|
|
(1,319
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes
|
|
|
(34,408
|
)
|
|
|
(29,084
|
)
|
|
|
12,895
|
|
|
|
(1,319
|
)
|
|
|
(51,916
|
)
|
Benefit for income taxes
|
|
|
2,200
|
|
|
|
16,884
|
|
|
|
341
|
|
|
|
|
|
|
|
19,425
|
|
Noncontrolling interest
|
|
|
|
|
|
|
|
|
|
|
283
|
|
|
|
|
|
|
|
283
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
(32,208
|
)
|
|
$
|
(12,200
|
)
|
|
$
|
13,519
|
|
|
$
|
(1,319
|
)
|
|
$
|
(32,208
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Statements of Operations
For the Three Months Ended September 30, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Casino
|
|
$
|
|
|
|
$
|
83,094
|
|
|
$
|
425,428
|
|
|
$
|
|
|
|
$
|
508,522
|
|
Rooms
|
|
|
|
|
|
|
83,027
|
|
|
|
13,691
|
|
|
|
|
|
|
|
96,718
|
|
Food and beverage
|
|
|
|
|
|
|
27,300
|
|
|
|
22,915
|
|
|
|
(183
|
)
|
|
|
50,032
|
|
Convention, retail and other
|
|
|
12,924
|
|
|
|
28,309
|
|
|
|
11,300
|
|
|
|
(13,475
|
)
|
|
|
39,058
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12,924
|
|
|
|
221,730
|
|
|
|
473,334
|
|
|
|
(13,658
|
)
|
|
|
694,330
|
|
Less-promotional allowances
|
|
|
(211
|
)
|
|
|
(18,674
|
)
|
|
|
(14,495
|
)
|
|
|
|
|
|
|
(33,380
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
|
12,713
|
|
|
|
203,056
|
|
|
|
458,839
|
|
|
|
(13,658
|
)
|
|
|
660,950
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Casino
|
|
|
|
|
|
|
46,487
|
|
|
|
295,625
|
|
|
|
(137
|
)
|
|
|
341,975
|
|
Rooms
|
|
|
|
|
|
|
20,524
|
|
|
|
3,050
|
|
|
|
|
|
|
|
23,574
|
|
Food and beverage
|
|
|
|
|
|
|
15,129
|
|
|
|
13,908
|
|
|
|
(552
|
)
|
|
|
28,485
|
|
Convention, retail and other
|
|
|
|
|
|
|
15,180
|
|
|
|
7,759
|
|
|
|
|
|
|
|
22,939
|
|
Provision for doubtful accounts
|
|
|
|
|
|
|
3,298
|
|
|
|
985
|
|
|
|
|
|
|
|
4,283
|
|
General and administrative
|
|
|
|
|
|
|
58,070
|
|
|
|
35,143
|
|
|
|
(12,969
|
)
|
|
|
80,244
|
|
Corporate expense
|
|
|
23,225
|
|
|
|
82
|
|
|
|
137
|
|
|
|
|
|
|
|
23,444
|
|
Rental expense
|
|
|
|
|
|
|
1,881
|
|
|
|
6,255
|
|
|
|
|
|
|
|
8,136
|
|
Pre-opening expense
|
|
|
2,272
|
|
|
|
3,720
|
|
|
|
84,455
|
|
|
|
|
|
|
|
90,447
|
|
Development expense
|
|
|
2,731
|
|
|
|
|
|
|
|
890
|
|
|
|
|
|
|
|
3,621
|
|
Depreciation and amortization
|
|
|
1,894
|
|
|
|
25,213
|
|
|
|
27,202
|
|
|
|
|
|
|
|
54,309
|
|
Gain (loss) on disposal of assets
|
|
|
|
|
|
|
(32
|
)
|
|
|
319
|
|
|
|
|
|
|
|
287
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30,122
|
|
|
|
189,552
|
|
|
|
475,728
|
|
|
|
(13,658
|
)
|
|
|
681,744
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
(17,409
|
)
|
|
|
13,504
|
|
|
|
(16,889
|
)
|
|
|
|
|
|
|
(20,794
|
)
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
2,602
|
|
|
|
16,622
|
|
|
|
9,464
|
|
|
|
(1,798
|
)
|
|
|
26,890
|
|
Interest expense, net of amounts capitalized
|
|
|
(5,730
|
)
|
|
|
(36,475
|
)
|
|
|
(32,200
|
)
|
|
|
1,798
|
|
|
|
(72,607
|
)
|
Other income (expense)
|
|
|
|
|
|
|
(601
|
)
|
|
|
17,653
|
|
|
|
|
|
|
|
17,052
|
|
Loss from equity investment in subsidiaries
|
|
|
(24,751
|
)
|
|
|
(20,174
|
)
|
|
|
|
|
|
|
44,925
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss before income taxes
|
|
|
(45,288
|
)
|
|
|
(27,124
|
)
|
|
|
(21,972
|
)
|
|
|
44,925
|
|
|
|
(49,459
|
)
|
Benefit (provision) for income taxes
|
|
|
(3,219
|
)
|
|
|
2,373
|
|
|
|
1,798
|
|
|
|
|
|
|
|
952
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss
|
|
$
|
(48,507
|
)
|
|
$
|
(24,751
|
)
|
|
$
|
(20,174
|
)
|
|
$
|
44,925
|
|
|
$
|
(48,507
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
32
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Statements of Operations
For the Nine Months Ended September 30, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Casino
|
|
$
|
|
|
|
$
|
387,495
|
|
|
$
|
2,017,478
|
|
|
$
|
|
|
|
$
|
2,404,973
|
|
Rooms
|
|
|
|
|
|
|
409,153
|
|
|
|
166,019
|
|
|
|
|
|
|
|
575,172
|
|
Food and beverage
|
|
|
|
|
|
|
145,428
|
|
|
|
126,887
|
|
|
|
|
|
|
|
272,315
|
|
Convention, retail and other
|
|
|
|
|
|
|
133,290
|
|
|
|
162,198
|
|
|
|
(4,697
|
)
|
|
|
290,791
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,075,366
|
|
|
|
2,472,582
|
|
|
|
(4,697
|
)
|
|
|
3,543,251
|
|
Less-promotional allowances
|
|
|
(1,437
|
)
|
|
|
(105,516
|
)
|
|
|
(137,645
|
)
|
|
|
(2,082
|
)
|
|
|
(246,680
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
|
(1,437
|
)
|
|
|
969,850
|
|
|
|
2,334,937
|
|
|
|
(6,779
|
)
|
|
|
3,296,571
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Casino
|
|
|
|
|
|
|
235,777
|
|
|
|
1,405,858
|
|
|
|
(1,786
|
)
|
|
|
1,639,849
|
|
Rooms
|
|
|
|
|
|
|
93,371
|
|
|
|
23,292
|
|
|
|
|
|
|
|
116,663
|
|
Food and beverage
|
|
|
|
|
|
|
67,178
|
|
|
|
73,873
|
|
|
|
(4,473
|
)
|
|
|
136,578
|
|
Convention, retail and other
|
|
|
|
|
|
|
61,831
|
|
|
|
102,791
|
|
|
|
|
|
|
|
164,622
|
|
Provision for doubtful accounts
|
|
|
|
|
|
|
17,948
|
|
|
|
5,012
|
|
|
|
|
|
|
|
22,960
|
|
General and administrative
|
|
|
|
|
|
|
203,428
|
|
|
|
218,143
|
|
|
|
(520
|
)
|
|
|
421,051
|
|
Corporate expense
|
|
|
67,913
|
|
|
|
562
|
|
|
|
14,054
|
|
|
|
|
|
|
|
82,529
|
|
Rental expense
|
|
|
|
|
|
|
5,591
|
|
|
|
19,982
|
|
|
|
|
|
|
|
25,573
|
|
Pre-opening expense
|
|
|
2,716
|
|
|
|
7,827
|
|
|
|
94,927
|
|
|
|
|
|
|
|
105,470
|
|
Development expense
|
|
|
1,621
|
|
|
|
|
|
|
|
9,883
|
|
|
|
|
|
|
|
11,504
|
|
Depreciation and amortization
|
|
|
7,230
|
|
|
|
160,517
|
|
|
|
197,006
|
|
|
|
|
|
|
|
364,753
|
|
Loss on disposal of assets
|
|
|
|
|
|
|
5,915
|
|
|
|
1,062
|
|
|
|
|
|
|
|
6,977
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
79,480
|
|
|
|
859,945
|
|
|
|
2,165,883
|
|
|
|
(6,779
|
)
|
|
|
3,098,529
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
(80,917
|
)
|
|
|
109,905
|
|
|
|
169,054
|
|
|
|
|
|
|
|
198,042
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
3,995
|
|
|
|
7,485
|
|
|
|
6,200
|
|
|
|
(5,867
|
)
|
|
|
11,813
|
|
Interest expense, net of amounts capitalized
|
|
|
(15,389
|
)
|
|
|
(150,953
|
)
|
|
|
(133,234
|
)
|
|
|
5,867
|
|
|
|
(293,709
|
)
|
Other income (expense)
|
|
|
(39
|
)
|
|
|
(1,305
|
)
|
|
|
12,968
|
|
|
|
|
|
|
|
11,624
|
|
Loss on early retirement of debt
|
|
|
|
|
|
|
|
|
|
|
(4,022
|
)
|
|
|
|
|
|
|
(4,022
|
)
|
Income from equity investment in subsidiaries
|
|
|
41,848
|
|
|
|
57,759
|
|
|
|
|
|
|
|
(99,607
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes
|
|
|
(50,502
|
)
|
|
|
22,891
|
|
|
|
50,966
|
|
|
|
(99,607
|
)
|
|
|
(76,252
|
)
|
Benefit (provision) for income taxes
|
|
|
(1,736
|
)
|
|
|
18,957
|
|
|
|
2,312
|
|
|
|
|
|
|
|
19,533
|
|
Noncontrolling interest
|
|
|
|
|
|
|
|
|
|
|
4,481
|
|
|
|
|
|
|
|
4,481
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
(52,238
|
)
|
|
$
|
41,848
|
|
|
$
|
57,759
|
|
|
$
|
(99,607
|
)
|
|
$
|
(52,238
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
33
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Statements of Operations
For the Nine Months Ended September 30, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Casino
|
|
$
|
|
|
|
$
|
288,125
|
|
|
$
|
1,145,010
|
|
|
$
|
|
|
|
$
|
1,433,135
|
|
Rooms
|
|
|
|
|
|
|
272,381
|
|
|
|
17,207
|
|
|
|
|
|
|
|
289,588
|
|
Food and beverage
|
|
|
|
|
|
|
105,057
|
|
|
|
57,451
|
|
|
|
(379
|
)
|
|
|
162,129
|
|
Convention, retail and other
|
|
|
38,909
|
|
|
|
100,018
|
|
|
|
14,566
|
|
|
|
(40,096
|
)
|
|
|
113,397
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
38,909
|
|
|
|
765,581
|
|
|
|
1,234,234
|
|
|
|
(40,475
|
)
|
|
|
1,998,249
|
|
Less-promotional allowances
|
|
|
(658
|
)
|
|
|
(55,241
|
)
|
|
|
(40,256
|
)
|
|
|
|
|
|
|
(96,155
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
|
38,251
|
|
|
|
710,340
|
|
|
|
1,193,978
|
|
|
|
(40,475
|
)
|
|
|
1,902,094
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Casino
|
|
|
|
|
|
|
142,619
|
|
|
|
762,105
|
|
|
|
(284
|
)
|
|
|
904,440
|
|
Rooms
|
|
|
|
|
|
|
63,985
|
|
|
|
3,234
|
|
|
|
|
|
|
|
67,219
|
|
Food and beverage
|
|
|
|
|
|
|
52,983
|
|
|
|
27,216
|
|
|
|
(1,188
|
)
|
|
|
79,011
|
|
Convention, retail and other
|
|
|
|
|
|
|
50,068
|
|
|
|
9,443
|
|
|
|
|
|
|
|
59,511
|
|
Provision for doubtful accounts
|
|
|
|
|
|
|
23,643
|
|
|
|
873
|
|
|
|
|
|
|
|
24,516
|
|
General and administrative
|
|
|
|
|
|
|
167,408
|
|
|
|
70,510
|
|
|
|
(39,003
|
)
|
|
|
198,915
|
|
Corporate expense
|
|
|
66,119
|
|
|
|
229
|
|
|
|
309
|
|
|
|
|
|
|
|
66,657
|
|
Rental expense
|
|
|
|
|
|
|
6,158
|
|
|
|
16,983
|
|
|
|
|
|
|
|
23,141
|
|
Pre-opening expense
|
|
|
2,272
|
|
|
|
6,366
|
|
|
|
144,586
|
|
|
|
|
|
|
|
153,224
|
|
Development expense
|
|
|
4,237
|
|
|
|
|
|
|
|
2,990
|
|
|
|
|
|
|
|
7,227
|
|
Depreciation and amortization
|
|
|
4,494
|
|
|
|
66,901
|
|
|
|
49,867
|
|
|
|
|
|
|
|
121,262
|
|
Loss on disposal of assets
|
|
|
|
|
|
|
158
|
|
|
|
368
|
|
|
|
|
|
|
|
526
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
77,122
|
|
|
|
580,518
|
|
|
|
1,088,484
|
|
|
|
(40,475
|
)
|
|
|
1,705,649
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
(38,871
|
)
|
|
|
129,822
|
|
|
|
105,494
|
|
|
|
|
|
|
|
196,445
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
7,127
|
|
|
|
35,074
|
|
|
|
23,983
|
|
|
|
(5,278
|
)
|
|
|
60,906
|
|
Interest expense, net of amounts capitalized
|
|
|
(13,258
|
)
|
|
|
(83,344
|
)
|
|
|
(70,304
|
)
|
|
|
5,278
|
|
|
|
(161,628
|
)
|
Other income (expense)
|
|
|
(6
|
)
|
|
|
(727
|
)
|
|
|
8,448
|
|
|
|
|
|
|
|
7,715
|
|
Loss on early retirement of debt
|
|
|
|
|
|
|
(10,332
|
)
|
|
|
(373
|
)
|
|
|
|
|
|
|
(10,705
|
)
|
Income from equity investment in subsidiaries
|
|
|
115,766
|
|
|
|
70,011
|
|
|
|
|
|
|
|
(185,777
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
70,758
|
|
|
|
140,504
|
|
|
|
67,248
|
|
|
|
(185,777
|
)
|
|
|
92,733
|
|
Benefit (provision) for income taxes
|
|
|
6,047
|
|
|
|
(24,738
|
)
|
|
|
2,763
|
|
|
|
|
|
|
|
(15,928
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
76,805
|
|
|
$
|
115,766
|
|
|
$
|
70,011
|
|
|
$
|
(185,777
|
)
|
|
$
|
76,805
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
34
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Statements of Cash Flows
For the Nine Months Ended September 30, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Net cash provided by operating activities
|
|
$
|
9,241
|
|
|
$
|
71,747
|
|
|
$
|
136,155
|
|
|
$
|
|
|
|
$
|
217,143
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in restricted cash
|
|
|
|
|
|
|
405
|
|
|
|
173,892
|
|
|
|
|
|
|
|
174,297
|
|
Capital expenditures
|
|
|
(10,937
|
)
|
|
|
(555,589
|
)
|
|
|
(2,341,870
|
)
|
|
|
|
|
|
|
(2,908,396
|
)
|
Intercompany notes receivable to non-guarantor subsidiaries
|
|
|
|
|
|
|
(35,317
|
)
|
|
|
|
|
|
|
35,317
|
|
|
|
|
|
Intercompany receivables to Guarantor Subsidiaries
|
|
|
(35,000
|
)
|
|
|
|
|
|
|
|
|
|
|
35,000
|
|
|
|
|
|
Intercompany receivables to non-guarantor subsidiaries
|
|
|
(25,000
|
)
|
|
|
(1,094,467
|
)
|
|
|
|
|
|
|
1,119,467
|
|
|
|
|
|
Repayment of receivables from Guarantor Subsidiaries
|
|
|
92,108
|
|
|
|
|
|
|
|
|
|
|
|
(92,108
|
)
|
|
|
|
|
Repayment of receivables from non-guarantor subsidiaries
|
|
|
|
|
|
|
34,018
|
|
|
|
|
|
|
|
(34,018
|
)
|
|
|
|
|
Capital contributions to subsidiaries
|
|
|
(575,000
|
)
|
|
|
(9,201
|
)
|
|
|
|
|
|
|
584,201
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities
|
|
|
(553,829
|
)
|
|
|
(1,660,151
|
)
|
|
|
(2,167,978
|
)
|
|
|
1,647,859
|
|
|
|
(2,734,099
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from exercise of stock options
|
|
|
6,833
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,833
|
|
Excess tax benefits from stock-based compensation
|
|
|
1,626
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,626
|
|
Capital contributions received
|
|
|
|
|
|
|
575,000
|
|
|
|
9,201
|
|
|
|
(584,201
|
)
|
|
|
|
|
Borrowings from Las Vegas Sands Corp.
|
|
|
|
|
|
|
35,000
|
|
|
|
25,000
|
|
|
|
(60,000
|
)
|
|
|
|
|
Borrowings from Guarantor Subsidiaries
|
|
|
|
|
|
|
|
|
|
|
1,129,784
|
|
|
|
(1,129,784
|
)
|
|
|
|
|
Repayments on borrowings from Las Vegas Sands Corp.
|
|
|
|
|
|
|
(92,108
|
)
|
|
|
|
|
|
|
92,108
|
|
|
|
|
|
Repayments on borrowings from Guarantor Subsidiaries
|
|
|
|
|
|
|
|
|
|
|
(34,018
|
)
|
|
|
34,018
|
|
|
|
|
|
Proceeds from issuance of convertible senior notes from a
related party
|
|
|
475,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
475,000
|
|
Proceeds from Singapore permanent facility
|
|
|
|
|
|
|
|
|
|
|
1,558,091
|
|
|
|
|
|
|
|
1,558,091
|
|
Proceeds from new senior secured credit facility-delayed
draw I
|
|
|
|
|
|
|
600,000
|
|
|
|
|
|
|
|
|
|
|
|
600,000
|
|
Proceeds from new senior secured credit facility-revolving
|
|
|
|
|
|
|
1,075,860
|
|
|
|
|
|
|
|
|
|
|
|
1,075,860
|
|
Proceeds from Macao credit facility
|
|
|
|
|
|
|
|
|
|
|
442,732
|
|
|
|
|
|
|
|
442,732
|
|
Proceeds from ferry financing
|
|
|
|
|
|
|
|
|
|
|
176,739
|
|
|
|
|
|
|
|
176,739
|
|
Proceeds from FF&E financings and other long-term debt
|
|
|
|
|
|
|
105,584
|
|
|
|
43,314
|
|
|
|
|
|
|
|
148,898
|
|
Repayments on Singapore bridge facility
|
|
|
|
|
|
|
|
|
|
|
(1,329,737
|
)
|
|
|
|
|
|
|
(1,329,737
|
)
|
Repayments on new senior secured credit facility-revolving
|
|
|
|
|
|
|
(300,000
|
)
|
|
|
|
|
|
|
|
|
|
|
(300,000
|
)
|
Repayments on new senior secured credit facility-term B
|
|
|
|
|
|
|
(24,000
|
)
|
|
|
|
|
|
|
|
|
|
|
(24,000
|
)
|
Repayments on FF&E financings and other long-term debt
|
|
|
|
|
|
|
(16,700
|
)
|
|
|
(39,896
|
)
|
|
|
|
|
|
|
(56,596
|
)
|
Repayments on airplane financings
|
|
|
(2,765
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(2,765
|
)
|
Proceeds from the sale of The Shoppes at The Palazzo
|
|
|
|
|
|
|
243,928
|
|
|
|
|
|
|
|
|
|
|
|
243,928
|
|
Payments of deferred financing costs
|
|
|
(4,935
|
)
|
|
|
|
|
|
|
(87,612
|
)
|
|
|
|
|
|
|
(92,547
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing activities
|
|
|
475,759
|
|
|
|
2,202,564
|
|
|
|
1,893,598
|
|
|
|
(1,647,859
|
)
|
|
|
2,924,062
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate on cash
|
|
|
|
|
|
|
|
|
|
|
11,719
|
|
|
|
|
|
|
|
11,719
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase (decrease) in cash and cash equivalents
|
|
|
(68,829
|
)
|
|
|
614,160
|
|
|
|
(126,506
|
)
|
|
|
|
|
|
|
418,825
|
|
Cash and cash equivalents at beginning of period
|
|
|
73,489
|
|
|
|
129,684
|
|
|
|
653,977
|
|
|
|
|
|
|
|
857,150
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
4,660
|
|
|
$
|
743,844
|
|
|
$
|
527,471
|
|
|
$
|
|
|
|
$
|
1,275,975
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
35
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Statements of Cash Flows
For the Nine Months Ended September 30, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Net cash provided by (used in) operating activities
|
|
$
|
(104,696
|
)
|
|
$
|
(168,614
|
)
|
|
$
|
492,553
|
|
|
$
|
|
|
|
$
|
219,243
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in restricted cash
|
|
|
50,076
|
|
|
|
410,703
|
|
|
|
233,903
|
|
|
|
|
|
|
|
694,682
|
|
Capital expenditures
|
|
|
(82,095
|
)
|
|
|
(733,507
|
)
|
|
|
(1,906,465
|
)
|
|
|
|
|
|
|
(2,722,067
|
)
|
Acquisition of gaming license included in other assets
|
|
|
|
|
|
|
|
|
|
|
(50,000
|
)
|
|
|
|
|
|
|
(50,000
|
)
|
Intercompany receivable to Guarantor Subsidiaries
|
|
|
(79,902
|
)
|
|
|
|
|
|
|
|
|
|
|
79,902
|
|
|
|
|
|
Intercompany receivable to non-guarantor subsidiaries
|
|
|
(32,068
|
)
|
|
|
(78,990
|
)
|
|
|
|
|
|
|
111,058
|
|
|
|
|
|
Repayment of receivable from Guarantor Subsidiaries
|
|
|
65,974
|
|
|
|
|
|
|
|
|
|
|
|
(65,974
|
)
|
|
|
|
|
Repayment of receivable from non-guarantor subsidiaries
|
|
|
125,464
|
|
|
|
58,521
|
|
|
|
|
|
|
|
(183,985
|
)
|
|
|
|
|
Capital contributions to subsidiaries
|
|
|
|
|
|
|
(704
|
)
|
|
|
|
|
|
|
704
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) investing activities
|
|
|
47,449
|
|
|
|
(343,977
|
)
|
|
|
(1,722,562
|
)
|
|
|
(58,295
|
)
|
|
|
(2,077,385
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from exercise of stock options
|
|
|
23,862
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23,862
|
|
Excess tax benefits from stock-based compensation
|
|
|
5,865
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,865
|
|
Capital contributions received
|
|
|
|
|
|
|
|
|
|
|
704
|
|
|
|
(704
|
)
|
|
|
|
|
Borrowings from Las Vegas Sands Corp.
|
|
|
|
|
|
|
79,902
|
|
|
|
32,068
|
|
|
|
(111,970
|
)
|
|
|
|
|
Borrowings from Guarantor Subsidiaries
|
|
|
|
|
|
|
|
|
|
|
78,990
|
|
|
|
(78,990
|
)
|
|
|
|
|
Repayment on borrowings from Las Vegas Sands Corp.
|
|
|
|
|
|
|
(65,974
|
)
|
|
|
(125,464
|
)
|
|
|
191,438
|
|
|
|
|
|
Repayment on borrowings from Guarantor Subsidiaries
|
|
|
|
|
|
|
|
|
|
|
(58,521
|
)
|
|
|
58,521
|
|
|
|
|
|
Proceeds from Macao credit facility
|
|
|
|
|
|
|
|
|
|
|
1,300,000
|
|
|
|
|
|
|
|
1,300,000
|
|
Proceeds from Singapore credit facility
|
|
|
|
|
|
|
|
|
|
|
332,002
|
|
|
|
|
|
|
|
332,002
|
|
Proceeds from new senior secured credit
facility-term B
|
|
|
|
|
|
|
3,000,000
|
|
|
|
|
|
|
|
|
|
|
|
3,000,000
|
|
Proceeds from senior secured credit facility-revolving
|
|
|
|
|
|
|
62,000
|
|
|
|
|
|
|
|
|
|
|
|
62,000
|
|
Proceeds from airplane financings
|
|
|
92,250
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
92,250
|
|
Proceeds from The Shoppes at The Palazzo construction loan
|
|
|
|
|
|
|
|
|
|
|
52,000
|
|
|
|
|
|
|
|
52,000
|
|
Proceeds from FF&E credit facility and other
long-term
debt
|
|
|
|
|
|
|
23,834
|
|
|
|
13,415
|
|
|
|
|
|
|
|
37,249
|
|
Repayments on senior secured credit facility-term B and term B
delayed
|
|
|
|
|
|
|
(1,170,000
|
)
|
|
|
|
|
|
|
|
|
|
|
(1,170,000
|
)
|
Repayment on senior secured credit facility-revolving
|
|
|
|
|
|
|
(322,128
|
)
|
|
|
|
|
|
|
|
|
|
|
(322,128
|
)
|
Repayment on The Shoppes at The Palazzo construction loan
|
|
|
|
|
|
|
|
|
|
|
(166,500
|
)
|
|
|
|
|
|
|
(166,500
|
)
|
Repayments on airplane financings
|
|
|
(1,844
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,844
|
)
|
Repayments on the Sands Expo Center mortgage loan
|
|
|
|
|
|
|
(90,868
|
)
|
|
|
|
|
|
|
|
|
|
|
(90,868
|
)
|
Repayment on new senior secured credit
facility-term B
|
|
|
|
|
|
|
(7,500
|
)
|
|
|
|
|
|
|
|
|
|
|
(7,500
|
)
|
Repayments on other long-term debt
|
|
|
|
|
|
|
(7,335
|
)
|
|
|
(14
|
)
|
|
|
|
|
|
|
(7,349
|
)
|
Payments of deferred financing costs
|
|
|
(575
|
)
|
|
|
(54,824
|
)
|
|
|
(16,779
|
)
|
|
|
|
|
|
|
(72,178
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing activities
|
|
|
119,558
|
|
|
|
1,447,107
|
|
|
|
1,441,901
|
|
|
|
58,295
|
|
|
|
3,066,861
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of foreign exchange rate on cash
|
|
|
|
|
|
|
|
|
|
|
2,862
|
|
|
|
|
|
|
|
2,862
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase in cash and cash equivalents
|
|
|
62,311
|
|
|
|
934,516
|
|
|
|
214,754
|
|
|
|
|
|
|
|
1,211,581
|
|
Cash and cash equivalents at beginning of period
|
|
|
69,100
|
|
|
|
94,146
|
|
|
|
304,820
|
|
|
|
|
|
|
|
468,066
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
131,411
|
|
|
$
|
1,028,662
|
|
|
$
|
519,574
|
|
|
$
|
|
|
|
$
|
1,679,647
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
36
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
|
|
ITEM 2
|
MANAGEMENTS
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
|
The following discussion should be read in conjunction with, and
is qualified in its entirety by, the condensed consolidated
financial statements, and the notes thereto and other financial
information included in this
Form 10-Q.
Certain statements in this Managements Discussion
and Analysis of Financial Condition and Results of
Operations are forward-looking statements. See
Special Note Regarding Forward-Looking
Statements.
Operations
We view each of our casino properties as an operating segment.
The Venetian Resort Hotel Casino (The Venetian Las
Vegas) and The Palazzo Resort Hotel Casino (The
Palazzo) operating segments are managed as a single
integrated resort and have been aggregated into our Las Vegas
Operating Properties, considering their similar economic
characteristics, types of customers, types of service and
products, the regulatory business environment of the operations
within each segment and the Companys organizational and
management reporting structure. Our Macao operating segments
consist of the Sands Macao, The Venetian Macao Resort Hotel
(The Venetian Macao), the Four Seasons Hotel Macao
(the Four Seasons Macao) and other ancillary
operations in that region (Other Asia).
Las
Vegas
Our Las Vegas Operating Properties, situated on or near the Las
Vegas Strip, consist of The Venetian Las Vegas, a Renaissance
Venice-themed resort; The Palazzo, a resort featuring modern
European ambience and design reminiscent of Italian affluent
living; and an expo and convention center of approximately
1.2 million square feet (the Sands Expo
Center). With the opening of The Palazzo in December 2007,
our Las Vegas Operating Properties represent the worlds
largest integrated resort with approximately 7,100 suites and
approximately 225,000 square feet of gaming space. Our Las
Vegas Operating Properties also feature a meeting and conference
facility of approximately 1.1 million square feet; Canyon
Ranch SpaClub facilities; Paiza
Club
tm
offering services and amenities to premium customers, including
luxurious VIP suites, spa facilities and private VIP gaming room
facilities; an entertainment center; an enclosed retail, dining
and entertainment complex located within The Venetian Las Vegas
of approximately 440,000 net leasable square feet
(The Grand Canal Shoppes), which was sold to General
Growth Partners (GGP) in 2004; and an enclosed
retail and dining complex located within The Palazzo of
approximately 400,000 net leasable square feet (The
Shoppes at The Palazzo), which was sold to GGP on
February 29, 2008.
We have received proceeds of $295.4 million from the sale
of The Shoppes at The Palazzo as of September 30, 2008.
This purchase price will be periodically adjusted after closing
with a final adjustment based on net operating income of The
Shoppes at The Palazzo for months 19 through 30 (see
Item 1 Financial Statements
Notes to Condensed Consolidated Financial
Statements Note 7 Mall Sale).
Due to the general downturn in national and local retail,
economic and market conditions, there can be no assurance of
what the final purchase price will be, although we currently
believe that it will be in excess of costs incurred in
constructing The Shoppes at The Palazzo; however, if
circumstances change, we may be required to record an impairment
charge in the future. Based on GGPs current financial
condition, there can be no assurance that GGP will make its
future periodic payments.
Approximately 65.3% and 63.1% of gross revenue at our Las Vegas
Operating Properties for the nine months ended
September 30, 2008 and 2007, respectively, was derived from
room revenues, food and beverage services, and other non-gaming
sources, and 34.7% and 36.9%, respectively, was derived from
gaming activities. The percentage of non-gaming revenue reflects
the integrated resorts emphasis on the group convention
and trade show business and the resulting high occupancy and
room rates throughout the week, including during mid-week
periods.
Macao
We own and operate the Sands Macao, the first Las Vegas-style
casino in Macao, pursuant to a
20-year
gaming subconcession. The Sands Macao includes approximately
229,000 square feet of gaming space; a 289-suite hotel
tower; several restaurants; a spacious Paiza Club; a theater;
and other high-end services and amenities. Approximately 92.4%
and 95.4% of the gross revenue at the Sands Macao for the nine
months ended September 30, 2008
37
and 2007, respectively, was derived from gaming activities, with
the remainder primarily derived from room revenues and food and
beverage services.
On August 28, 2007, we opened The Venetian Macao, the
anchor property of our master-planned development of integrated
resort properties that we refer to as the Cotai
Strip
tm
in Macao. The Venetian Macao, with a theme similar to that of
The Venetian Las Vegas, features a 39-floor luxury hotel tower
with over 2,900 suites; a casino floor of approximately
550,000 square feet; approximately 1.0 million square
feet of retail and dining offerings; a convention center and
meeting room complex of approximately 1.2 million square
feet; an approximately 15,000-seat arena that has hosted a wide
range of entertainment and sporting events; and an 1,800-seat
theater that features an original production from Cirque du
Soleil. Approximately 79.7% and 85.2% of the gross revenue at
The Venetian Macao for the nine months ended September 30,
2008 and the period ending September 30, 2007,
respectively, was derived from gaming activities, with the
remainder derived from room revenues, food and beverage
services, and other non-gaming sources.
On August 28, 2008, the Company opened the Four Seasons
Hotel Macao (the Four Seasons Macao) which is
adjacent to The Venetian Macao. The Four Seasons Macao, features
360 rooms and suites managed by Four Seasons Inc.; approximately
70,000 square feet of gaming space; several food and
beverage offerings; conference and banquet facilities; and
retail space of approximately 211,000 square feet, which is
connected to the mall at The Venetian Macao. The property will
also feature 19 Paiza mansions and the Four Seasons Private
Apartments Macao, Cotai
Strip
TM
(the Four Seasons Private Apartments) consisting of
approximately 1.0 million square feet of Four
Seasons-serviced and -branded luxury apartment hotel units,
which are currently expected to open in spring 2009.
Approximately 69.1% of the gross revenue at the Four Seasons
Macao for the period ended September 30, 2008, was derived
from gaming activities, with the remainder primarily derived
from retail and other non-gaming sources.
Development
Projects
Given current conditions in the capital markets and the global
economy and their impact on our ongoing operations, we have
chosen to temporarily or indefinitely suspend portions of our
development projects and will focus our development efforts on
those projects with the highest rates of expected return on
invested capital given the liquidity and capital resources
available to us today. The continuing development plan, as
outlined in further detail below, is dependent on our raising
additional capital. If we are unable to raise additional capital
in the near term, we would need to consider suspending portions,
if not all, of our remaining global development projects.
United
States Development Projects
St. Regis
Residences
We have been constructing a St. Regis-branded high-rise
residential condominium tower, the St. Regis Residences at The
Venetian Palazzo (the St. Regis Residences), which
is situated between The Palazzo and The Venetian Las Vegas on
the Las Vegas Strip and is expected to feature approximately 400
luxury residences. On November 10, 2008, we announced the
indefinite suspension of our construction activities for the
project due to difficulties in the capital markets, reduced
demand for Las Vegas Strip condominiums and the overall decline
in general economic conditions. We will consider recommencing
construction when these conditions improve and expect that it
will take approximately 18 months from when construction
recommences to complete the project. The cost to build the St.
Regis Residences was expected to be approximately
$600 million; however, the impact of the suspension on the
estimated overall cost to build is currently not determinable.
As of September 30, 2008, we have spent $86.0 million
in construction costs and branding-related payments. The
estimated cost to prepare the site for delay and to complete
construction of the podium portion (which is part of The Shoppes
at The Palazzo and includes already leased retail and
entertainment space), which activities are expected to be
completed during the first quarter of 2009, is approximately
$95 million.
Sands
Bethlehem
In August 2007, our indirect majority-owned subsidiary, Sands
Bethworks Gaming LLC (Sands Bethworks Gaming), was
issued a Pennsylvania gaming license by the Pennsylvania Gaming
Control Board. We are in the process of developing a gaming,
hotel, retail and dining complex called Sands Casino Resort
Bethlehem (Sands Bethlehem), located on the site of
the Historic Bethlehem Steel Works in Bethlehem, Pennsylvania,
which is approximately 70 miles from midtown Manhattan, New
York. Sands Bethlehem is also expected to be home to the
38
National Museum of Industrial History, an arts and cultural
center, and the broadcast home of the local PBS affiliate. We
own 86% of the economic interest of the gaming, hotel and
entertainment portion of the property through our ownership
interest in Sands Bethworks Gaming and more than 35% of the
economic interest of Sands Bethworks Retail, LLC (Sands
Bethworks Retail), the owner of the retail portion of
Sands Bethlehem. Bethworks Now, LLC, our joint venture partner,
contributed the land on which Sands Bethlehem is being developed
to Sands Bethworks Gaming and Sands Bethworks Retail in
September 2008.
On November 10, 2008, we announced suspension of
construction of a portion of Sands Bethlehem due to difficulties
in the capital markets and the overall decline in general
economic conditions. We will continue construction of the casino
component of the
124-acre
development, which will open with 3,000 slot machines
(increasing to 5,000 six months after the opening date) and a
variety of dining options, as well as the parking garage and
surface parking. Construction activities on the remaining
components, which include a 300-room hotel, an approximate
200,000-square-foot retail facility, a 50,000-square-foot
multipurpose event center and a variety of additional dining
options, have been suspended until capital markets and general
economic conditions improve. The cost to build Sands Bethlehem
was expected to be approximately $600 million (excluding
furniture, fixtures and equipment (FF&E),
pre-opening and other costs), of which $236.9 million had
been spent as of September 30, 2008. We have spent an
additional $79.5 million on other costs related to the
project, which includes the gaming license and pre-opening and
other costs, as of September 30, 2008. We expect to incur
an additional $282 million to complete construction of the
casino and parking components, and to prepare the additional
components for delay, which are expected to be completed in the
second quarter of 2009. We also expect to incur
$145 million of additional costs to open the casino
component, including FF&E, pre-opening and other costs. The
estimated cost to build the remaining components of the project
is currently not determinable.
Macao
Development Projects
We have submitted plans to the Macao government for our Cotai
Strip developments, which represent five integrated resort
developments, in addition to The Venetian Macao and the Four
Seasons Macao on an area of approximately 200 acres (which
we refer to as parcels 3, 5, 6, 7 and 8). The developments are
expected to include hotels, exhibition and conference
facilities, casinos, showrooms, shopping malls, spas,
restaurants, entertainment facilities and other amenities. We
have commenced construction or pre-construction for these five
parcels and plan to own and operate all of the casinos in these
developments under our Macao gaming subconcession. In addition,
we are completing the development of some public areas
surrounding our Cotai Strip properties on behalf of the Macao
government. We intend to develop our other Cotai Strip
properties as follows:
|
|
|
|
|
Parcels 5 and 6 are intended to include multi-hotel complexes
with a total of approximately 6,400 luxury and mid-scale hotel
rooms, a casino, a shopping mall and approximately 320 serviced
luxury apartment hotel units. We will own the entire development
and have entered into management agreements with
Shangri-La Hotels
and Resorts to manage two hotels under its Shangri-La and
Traders brands, and Starwood Hotels & Resorts
Worldwide (Starwood) to manage hotels under its
Sheraton brand and a hotel and serviced luxury apartment hotel
under its St. Regis brand. On November 10, 2008, we
announced our revised development plan to sequence the
construction of the project due to difficulties in the capital
markets and the overall decline in general economic conditions.
Phase I of the project which includes the Shangri-La and
Traders tower and the first Sheraton tower, along with the
podium that encompasses the casino, associated public areas,
portions of the shopping mall and approximately 100,000 square
feet of meeting space. We plan to temporarily suspend
construction of phase I while we pursue project-level financing,
which we target to complete within the next three to six months;
however, there can be no assurance that such financing will be
obtained. Once financing has been obtained, we expect it will
take approximately nine months to complete construction of phase
I. Construction of phase II of the project, which includes
the second Sheraton tower and the St. Regis serviced luxury
apartment hotel, has been suspended until conditions in the
capital markets and general economic conditions improve.
Starwood has the right to terminate its management agreements if
certain construction and opening obligations and deadlines are
not met. Under our revised development plan, there can be no
assurance that we will meet all of these obligations and
deadlines. The impact of the revised development plan on the
estimated overall cost of the project is currently not
determinable. The estimated total cost to build phase I and
prepare the phase II components for delay is expected to be
approximately $3.05 billion (excluding FF&E,
pre-opening and other costs), of which $1.16 billion had
been spent as of September 30, 2008. If the proposed
|
39
|
|
|
|
|
project-level financing is unsuccessful, we expect to incur
approximately $900 million in costs to prepare the project
for delay.
|
|
|
|
|
|
Parcels 7 and 8 are intended to include multi-hotel complexes
with a total of approximately 6,150 luxury and mid-scale hotel
rooms, a casino, shopping malls and approximately 450 serviced
luxury apartment hotel units that are physically connected to
the hotel complexes. We will own the entire development and have
entered into non-binding agreements with Hilton Hotels to manage
Hilton and Conrad brand hotels and serviced luxury apartment
hotels on parcel 7, and Fairmont Raffles Holdings to manage
Fairmont and Raffles brand hotels and serviced luxury apartment
hotels on parcel 8. We are currently negotiating definitive
agreements with Hilton Hotels and Fairmont Raffles Holdings. We
have commenced pre-construction and have capitalized
approximately $122.4 million as of September 30, 2008,
but will not commence construction until government approvals
necessary to commence construction are obtained, regional and
global economic conditions improve, future demand warrants and
additional financing is obtained.
|
|
|
|
For parcel 3, we have signed a non-binding memorandum of
agreement with an independent developer. We are currently
negotiating the definitive agreement pursuant to which we will
partner with the developer to build a multi-hotel complex, which
may include a Cosmopolitan hotel. In addition, we have signed a
non-binding letter of intent with Intercontinental Hotels Group
to manage hotels under the Intercontinental and Holiday Inn
International brands, and approximately 205 serviced luxury
apartment hotel units under the Intercontinental brand, on this
site. We are currently negotiating definitive agreements with
Intercontinental Hotels Group. In total, the multi-hotel complex
is intended to include approximately 3,940 hotel rooms, a
casino, a shopping mall and serviced luxury apartment hotels. We
have commenced pre-construction and have capitalized
approximately $37.2 million as of September 30, 2008,
but will not commence construction until government approvals
necessary to commence construction are obtained, regional and
global economic conditions improve, future demand warrants and
additional financing is obtained.
|
The impact of the delays or significant slow down of
construction of our Cotai Strip developments on our overall
estimated cost to build is currently not determinable. As of
September 30, 2008, we have capitalized $4.33 billion
in construction costs on the Cotai Strip, including The Venetian
Macao and Four Seasons Macao. We will need to arrange additional
financing to fund the balance of our Cotai Strip developments
and there is no assurance that we will be able to obtain any of
the additional financing required.
We have received a land concession from the Macao government to
build on parcels 1, 2 and 3, including the sites on which The
Venetian Macao (parcel 1) and Four Seasons Macao (parcel
2) are located. We do not own these land sites in Macao;
however, the land concession, which has an initial term of
25 years and is renewable at our option, grants us
exclusive use of the land. As specified in the land concession,
we are required to pay premiums, which are payable over four
years or are due upon the completion of the corresponding
resort, as well as annual rent for the term of the land
concession. In October 2008, the Macao government amended the
land concession to separate the retail mall and hotel portions
of the Four Seasons Macao parcel, and allowed us to subdivide
such parcel into four separate components, including the Four
Seasons Private Apartments and retail mall portions. In
consideration for the amendment, we paid an additional land
premium of approximately $17.8 million and will pay
adjusted annual rent over the remaining term of the concession,
which increased slightly due to the revised allocation of parcel
use.
We do not yet have all the necessary Macao government approvals
that we will need in order to develop our planned Cotai Strip
developments on parcels 3, 5, 6, 7 and 8. We have received a
land concession for parcel 3, as previously noted, but have not
yet been granted land concessions for parcels 5, 6, 7 and 8. We
are in the process of negotiating with the Macao government to
obtain the land concession for parcels 5 and 6, and will
subsequently negotiate the land concession for parcels 7 and 8.
Based on historical experience with the Macao government with
respect to our land concessions for the Sands Macao and parcels
1, 2 and 3, management believes that the land concessions for
parcels 5, 6, 7 and 8 will be granted; however, if we do not
obtain these land concessions, we could forfeit all or a
substantial part of our $1.45 billion in capitalized
construction costs related to these developments as of
September 30, 2008.
Under our land concession for parcel 3, we are required to
complete the development of this parcel by August 2011. If we
are unable to meet the August 2011 deadline and that deadline is
not extended, we could lose our right to continue to operate The
Venetian Macao, Sands Macao, Four Seasons Macao or any other
facility developed under
40
our Macao gaming subconcession, and our investment to date on
these developments could be lost. We believe that if we are not
able to complete the development of parcel 3 by the deadline, we
will be able to obtain an extension of the deadline; however, no
assurances can be given that an extension will be granted by the
Macao government.
Singapore
Development Project
In August 2006, our wholly-owned subsidiary, Marina Bay Sands
Pte. Ltd. (MBS), entered into a development
agreement (the Development Agreement) with the
Singapore Tourism Board (the STB) to build and
operate an integrated resort called the Marina Bay Sands in
Singapore. The Marina Bay Sands is expected to include three 50+
story hotel towers (totaling approximately 2,600 rooms), a
casino, an enclosed retail, dining and entertainment complex of
approximately 750,000 net leasable square feet, a
convention center and meeting room complex of approximately
1.3 million square feet, theaters and a landmark iconic
structure at the bay-front promenade that will contain an
art/science museum. We are continuing to finalize various design
aspects of the integrated resort and are in the process of
finalizing our cost estimates for the project. We expect the
cost to build the Marina Bay Sands will be approximately 7.15
Singapore Dollars (SGD, approximately
$4.99 billion at exchange rates in effect on
September 30, 2008), which excludes FF&E, pre-opening
and other costs but includes payments made in 2006 for land
premium, taxes and other fees. As we have obtained
Singapore-denominated financing and primarily pay our costs in
Singapore Dollars, our exposure to foreign exchange gains/losses
is expected to be minimal. We have spent approximately SGD
2.59 billion (approximately $1.81 billion at exchange
rates in effect on September 30, 2008) in construction
costs as of September 30, 2008. Based on our current
development plan, we intend to continue construction on our
existing timeline with the majority of the project targeted to
open in late 2009.
Hengqin
Island Development Project
We have entered into a non-binding letter of intent with the
Zhuhai Municipal Peoples Government of the Peoples
Republic of China to work together to create a master plan for,
and develop, a leisure and convention destination resort on
Hengqin Island, which is located within mainland China,
approximately one mile from the Cotai Strip. In January 2007, we
were informed that the Zhuhai Government established a Project
Coordination Committee to act as a government liaison empowered
to work directly with us to advance the development of the
project. On November 10, 2008, we announced the indefinite
suspension of the project because of the difficult global
economic and credit market environment.
Other
Development Projects
We are currently exploring the possibility of developing and
operating additional properties, including integrated resorts,
in additional Asian and U.S. jurisdictions, and in Europe.
In July 2008, we withdrew our previously submitted application
to develop a casino resort in the Kansas City, Kansas,
metropolitan area.
Recent
Developments
Recent
Corporate Governance Changes
On October 29, 2008, certain members of our management
team, including Sheldon G. Adelson, Chairman of the Board and
Chief Executive Officer, William P. Weidner, President and Chief
Operating Officer, Bradley H. Stone, Executive Vice President,
and Robert G. Goldstein, Senior Vice President (the Senior
Management Members), recommended to our board of directors
that it institute additional corporate policies and procedures.
Upon such recommendation, our board of directors formed an
executive committee (the Executive Committee)
comprised of Irwin Chafetz, Michael A. Leven and Irwin A.
Siegel, with Mr. Leven being the Chairman of the Executive
Committee. The role of the Executive Committee is to exercise
the powers of the board of directors in between scheduled board
meetings, including the power to resolve disagreements among
management. Also, the board of directors gave Mr. Stone the
additional responsibilities of President of Construction and
Operations. The board of directors adopted these measures to
address governance concerns raised by the Senior Management
Members, address a number of outstanding differences between our
Chief Executive Officer and other Senior Management Members and
in response to a loss of confidence by certain Senior Management
Members in the management of the Company and our governance
process.
41
Critical
Accounting Policies and Estimates
The preparation of our condensed consolidated financial
statements in conformity with accounting principles generally
accepted in the United States of America requires our management
to make estimates and judgments that affect the reported amounts
of assets and liabilities, revenues and expenses, and related
disclosures of contingent assets and liabilities. These
estimates are based on historical information, information that
is currently available to us and on various other assumptions
that management believes to be reasonable under the
circumstances. Actual results could vary from those estimates
and we may change our estimates and assumptions in future
evaluations. Changes in these estimates and assumptions may have
a material effect on our results of operations and financial
condition. We believe that these critical accounting policies
affect our more significant judgments and estimates used in the
preparation of our condensed consolidated financial statements.
For a discussion of our significant accounting policies and
estimates, please refer to Managements Discussion
and Analysis of Financial Condition and Results of
Operations presented in our 2007 Annual Report on
Form 10-K
filed on February 29, 2008, and Notes to Consolidated
Financial Statements presented in our Current Report on
Form 8-K
filed on November 6, 2008.
There were no newly identified significant accounting estimates
in the nine months ended September 30, 2008, nor were there
any material changes to the critical accounting policies and
estimates discussed in our 2007 Annual Report, with the
exception of judgments related to the Suen litigation (see
related disclosure at Item 1 Financial
Statements Notes to Condensed Consolidated Financial
Statements Note 10 Commitments and
Contingencies.
Recent
Accounting Pronouncements
See related disclosure at Item 1
Financial Statements Notes to Condensed Consolidated
Financial Statements Note 1
Organization and Business of Company.
Summary
Financial Results
The following table summarizes our results of operations:
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended September 30,
|
|
|
Nine Months Ended September 30,
|
|
|
|
|
|
|
|
|
|
Percent
|
|
|
|
|
|
|
|
|
Percent
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Net revenues
|
|
$
|
1,105,434
|
|
|
$
|
660,950
|
|
|
|
67.2
|
%
|
|
$
|
3,296,571
|
|
|
$
|
1,902,094
|
|
|
|
73.3
|
%
|
Operating expenses
|
|
|
1,077,239
|
|
|
|
681,744
|
|
|
|
58.0
|
%
|
|
|
3,098,529
|
|
|
|
1,705,649
|
|
|
|
81.7
|
%
|
Operating income (loss)
|
|
|
28,195
|
|
|
|
(20,794
|
)
|
|
|
(235.6
|
)%
|
|
|
198,042
|
|
|
|
196,445
|
|
|
|
0.8
|
%
|
Income (loss) before income taxes and noncontrolling interest
|
|
|
(51,916
|
)
|
|
|
(49,459
|
)
|
|
|
5.0
|
%
|
|
|
(76,252
|
)
|
|
|
92,733
|
|
|
|
(182.2
|
)%
|
Net income (loss)
|
|
|
(32,208
|
)
|
|
|
(48,507
|
)
|
|
|
(33.6
|
)%
|
|
|
(52,238
|
)
|
|
|
76,805
|
|
|
|
(168.0
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percent of Net Revenues
|
|
|
|
Three Months Ended
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
2008
|
|
|
2007
|
|
|
Operating expenses
|
|
|
97.4
|
%
|
|
|
103.1
|
%
|
|
|
94.0
|
%
|
|
|
89.7
|
%
|
Operating income (loss)
|
|
|
2.6
|
%
|
|
|
(3.1
|
)%
|
|
|
6.0
|
%
|
|
|
10.3
|
%
|
Income (loss) before income taxes and noncontrolling interest
|
|
|
(4.7
|
)%
|
|
|
(7.5
|
)%
|
|
|
(2.3
|
)%
|
|
|
4.9
|
%
|
Net income (loss)
|
|
|
(2.9
|
)%
|
|
|
(7.3
|
)%
|
|
|
(1.6
|
)%
|
|
|
4.0
|
%
|
Operating
Results
Key
operating revenue measurements
Operating revenues at our Las Vegas properties, The Venetian
Macao and Four Seasons Macao are dependent upon the volume of
customers who stay at the hotel, which affects the price that
can be charged for hotel rooms and the volume of table games and
slot machine play. Hotel revenues are not material for the Sands
Macao as its revenues are principally driven by casino customers
who visit the casino on a daily basis. Visitors to our Macao
42
properties arrive by ferry, automobile, bus, airplane or
helicopter from Hong Kong, cities in China, and other Southeast
Asian cities in close proximity to Macao and elsewhere.
The following are the key measurements we use to evaluate
operating revenue:
Casino revenue measurements for Las
Vegas:
Table games drop (drop) and
slot handle (handle) are volume measurements. Win or
hold percentage represents the percentage of drop or handle that
is won by the casino and recorded as casino revenue. Table games
drop represents the sum of markers issued (credit instruments)
less markers paid at the table, plus cash deposited in the table
drop box. Slot handle is the gross amount wagered or coin placed
into slot machines in aggregate for the period cited. Based upon
our mix of table games, our table games produce a statistical
average win percentage (calculated before discounts) as measured
as a percentage of drop of 20.0% to 22.0% and slot machines
produce a statistical average win percentage (calculated before
slot club cash incentives) as measured as a percentage of handle
generally between 6.0% and 7.0%.
Casino revenue measurements for Macao:
Macao
table games are segregated into two groups, consistent with the
Macao markets convention: Rolling Chip play (all VIP play)
and Non-Rolling Chip play (mostly non-VIP players). The volume
measurement for Rolling Chip play is non-negotiable gaming chips
wagered. The volume measurement for Non-Rolling Chip play is
table games drop as previously described. Rolling Chip volume
and Non-Rolling Chip volume are not equivalent as Rolling Chip
volume is a measure of amounts wagered versus dropped. Rolling
Chip volume is substantially higher than table games drop. Slot
handle is the gross amount wagered or coins placed into slot
machines in aggregate for the period cited.
We view Rolling Chip table games win as a percentage of Rolling
Chip volume and Non-Rolling Chip table games win as a percentage
of drop. Win or hold percentage represents the percentage of
Rolling Chip volume, Non-Rolling Chip drop or slot handle that
is won by the casino and recorded as casino revenue. Based upon
our mix of table games in Macao, our Rolling Chip table games
win percentage (calculated before discounts and commissions) as
measured as a percentage of Rolling Chip volume is expected to
be 3.0% and our Non-Rolling Chip table games are expected to
produce a statistical average win percentage as measured as a
percentage of drop of 18.0% to 20.0%. Similar to Las Vegas, our
Macao slot machines produce a statistical average win percentage
as measured as a percentage of handle of generally between 6.0%
and 7.0%.
Actual win may vary from the statistical
average.
Generally, slot machine play is
conducted on a cash basis. Credit-based wagering for our Las
Vegas properties was approximately 55.8% of table games revenues
for the nine months ended September 30, 2008. Table games
play at our Macao properties is conducted primarily on a cash
basis with only 16.4% credit-based wagering for the nine months
ended September 30, 2008.
Hotel revenue measurements:
Hotel occupancy
rate, which is the average percentage of available hotel rooms
occupied during a period, and average daily room rate, which is
the average price of occupied rooms per day, are used as
performance indicators. Revenue per available room represents a
summary of hotel average daily room rates and occupancy. Because
not all available rooms are occupied, average daily room rates
are normally higher than revenue per available room. Reserved
rooms where the guests do not show up for their stay and lose
their deposit may be re-sold to walk-in guests. These rooms are
considered to be occupied twice for statistical purposes due to
obtaining the original deposit and the walk-in guest revenue. In
cases where a significant number of rooms are resold, occupancy
rates may be in excess of 100% and revenue per available room
may be higher than the average daily room rate.
43
Three
Months Ended September 30, 2008 compared to the Three
Months Ended September 30, 2007
Operating
Revenues
Our net revenues consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended September 30,
|
|
|
|
|
|
|
|
|
|
Percent
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Casino
|
|
$
|
805,258
|
|
|
$
|
508,522
|
|
|
|
58.4
|
%
|
Rooms
|
|
|
188,794
|
|
|
|
96,718
|
|
|
|
95.2
|
%
|
Food and beverage
|
|
|
91,025
|
|
|
|
50,032
|
|
|
|
81.9
|
%
|
Convention, retail and other
|
|
|
123,233
|
|
|
|
39,058
|
|
|
|
215.5
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,208,310
|
|
|
|
694,330
|
|
|
|
74.0
|
%
|
Less promotional allowances
|
|
|
(102,876
|
)
|
|
|
(33,380
|
)
|
|
|
208.2
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
$
|
1,105,434
|
|
|
$
|
660,950
|
|
|
|
67.2
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated net revenues were $1.11 billion for the three
months ended September 30, 2008, an increase of
$444.5 million compared to $661.0 million for the
three months ended September 30, 2007. The increase in net
revenues was due primarily to an increase in casino revenues and
a
34-day
operating period in the prior year due to the opening of the
Venetian Macao in August 2007.
44
Casino revenues for the three months ended September 30,
2008, increased $296.7 million as compared to the three
months ended September 30, 2007. Of the increase,
$301.6 million was attributable to The Venetian Macao,
$30.1 million to our Las Vegas Operating Properties due
primarily to the opening of The Palazzo, offset by a lower than
expected table games win percentage, and $15.9 million
attributable to the opening of Four Seasons Macao, offset by a
decrease of $50.9 million at Sands Macao due primarily to
increased competition, cannibalization by The Venetian Macao and
lower rolling chip win as compared to the three months ended
September 30, 2007. The following table summarizes the
results of our casino revenue activity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Sands Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total casino revenues
|
|
$
|
243,524
|
|
|
$
|
294,467
|
|
|
|
(17.3
|
)%
|
Non-Rolling Chip table games drop
|
|
$
|
652,252
|
|
|
$
|
812,385
|
|
|
|
(19.7
|
)%
|
Non-Rolling Chip table games win percentage
|
|
|
17.9
|
%
|
|
|
18.7
|
%
|
|
|
(0.8
|
)pts
|
Rolling Chip volume
|
|
$
|
7,256,360
|
|
|
$
|
6,287,371
|
|
|
|
15.4
|
%
|
Rolling Chip win percentage
|
|
|
2.35
|
%
|
|
|
2.85
|
%
|
|
|
(0.50
|
)pts
|
Slot handle
|
|
$
|
273,126
|
|
|
$
|
297,910
|
|
|
|
(8.3
|
)%
|
Slot hold percentage
|
|
|
7.3
|
%
|
|
|
6.6
|
%
|
|
|
0.7pts
|
|
The Venetian Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total casino revenues
|
|
$
|
432,628
|
|
|
$
|
130,962
|
|
|
|
230.3
|
%
|
Non-Rolling Chip table games drop
|
|
$
|
930,621
|
|
|
$
|
257,089
|
|
|
|
262.0
|
%
|
Non-Rolling Chip table games win percentage
|
|
|
19.7
|
%
|
|
|
16.7
|
%
|
|
|
3.0
|
pts
|
Rolling Chip volume
|
|
$
|
9,778,702
|
|
|
$
|
4,727,325
|
|
|
|
106.8
|
%
|
Rolling Chip win percentage
|
|
|
3.06
|
%
|
|
|
2.44
|
%
|
|
|
0.62
|
pts
|
Slot handle
|
|
$
|
549,895
|
|
|
$
|
123,211
|
|
|
|
346.3
|
%
|
Slot hold percentage
|
|
|
7.8
|
%
|
|
|
6.6
|
%
|
|
|
1.2
|
pts
|
Four Seasons Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total casino revenues
|
|
$
|
15,931
|
|
|
$
|
|
|
|
|
|
%
|
Non-Rolling Chip table games drop
|
|
$
|
16,748
|
|
|
$
|
|
|
|
|
|
%
|
Non-Rolling Chip table games win percentage
|
|
|
18.4
|
%
|
|
|
|
%
|
|
|
|
pts
|
Rolling Chip volume
|
|
$
|
165,155
|
|
|
$
|
|
|
|
|
|
%
|
Rolling Chip win percentage
|
|
|
8.33
|
%
|
|
|
|
%
|
|
|
|
pts
|
Slot handle
|
|
$
|
7,903
|
|
|
$
|
|
|
|
|
|
%
|
Slot hold percentage
|
|
|
6.4
|
%
|
|
|
|
%
|
|
|
|
pts
|
Las Vegas Operating Properties
|
|
|
|
|
|
|
|
|
|
|
|
|
Total casino revenues
|
|
$
|
113,175
|
|
|
$
|
83,093
|
|
|
|
36.2
|
%
|
Table games drop
|
|
$
|
477,182
|
|
|
$
|
356,353
|
|
|
|
33.9
|
%
|
Table games win percentage
|
|
|
13.8
|
%
|
|
|
14.7
|
%
|
|
|
(0.9
|
)pts
|
Slot handle
|
|
$
|
976,577
|
|
|
$
|
619,845
|
|
|
|
57.6
|
%
|
Slot hold percentage
|
|
|
6.0
|
%
|
|
|
6.2
|
%
|
|
|
(0.2
|
)pts
|
In our experience, average win percentages remain steady when
measured over extended periods of time, but can vary
considerably within shorter time periods as a result of the
statistical variances that are associated with games of chance
in which large amounts are wagered.
Room revenues for the three months ended September 30,
2008, increased $92.1 million as compared to the three
months ended September 30, 2007, due primarily to the
openings of The Venetian Macao and The Palazzo. The increase at
our Las Vegas Operating Properties was offset as the ADR and
occupancy rate were negatively impacted by a reduction of room
rates in order to increase visitation to The Palazzo and excess
suite inventory as the new resort ramps up its operations,
respectively, and the overall decline in general economic
conditions. The suites at Sands Macao are primarily provided to
casino patrons on a complimentary basis and therefore revenues
of
45
$6.7 million and $1.6 million for the three months
ended September 30, 2008 and 2007, respectively, and
related statistics have not been included in the following
table, which summarizes the results of our room revenue activity.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(Room revenues in thousands)
|
|
|
Las Vegas Operating Properties
|
|
|
|
|
|
|
|
|
|
|
|
|
Total room revenues
|
|
$
|
130,486
|
|
|
$
|
83,027
|
|
|
|
57.2
|
%
|
Average daily room rate
|
|
$
|
218
|
|
|
$
|
234
|
|
|
|
(6.8
|
)%
|
Occupancy rate
|
|
|
93.1
|
%
|
|
|
99.6
|
%
|
|
|
(6.5
|
)pts
|
Revenue per available room
|
|
$
|
202
|
|
|
$
|
233
|
|
|
|
(13.3
|
)%
|
The Venetian Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total room revenues
|
|
$
|
51,085
|
|
|
$
|
12,092
|
|
|
|
322.5
|
%
|
Average daily room rate
|
|
$
|
211
|
|
|
$
|
208
|
|
|
|
1.4
|
%
|
Occupancy rate
|
|
|
92.1
|
%
|
|
|
77.5
|
%
|
|
|
14.6
|
pts
|
Revenue per available room
|
|
$
|
194
|
|
|
$
|
161
|
|
|
|
20.5
|
%
|
Four Seasons Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total room revenues
|
|
$
|
517
|
|
|
$
|
|
|
|
|
|
%
|
Average daily room rate
|
|
$
|
440
|
|
|
$
|
|
|
|
|
|
%
|
Occupancy rate
|
|
|
31.4
|
%
|
|
|
|
%
|
|
|
|
pts
|
Revenue per available room
|
|
$
|
138
|
|
|
$
|
|
|
|
|
|
%
|
Food and beverage revenues for the three months ended
September 30, 2008, increased $41.0 million as
compared to the three months ended September 30, 2007. The
increase was primarily attributable to an increase of
$13.2 million at The Venetian Macao and $26.8 million
at the Las Vegas Operating Properties, driven primarily by the
opening of The Palazzo and several joint venture restaurants
that opened in 2008.
Convention, retail and other revenues for the three months ended
September 30, 2008, increased $84.2 million as
compared to the three months ended September 30, 2007. The
increase is primarily attributable to an increase of
$44.9 million at The Venetian Macao, which consisted
primarily of rental revenues from the mall, $18.5 million
at the Las Vegas Operating Properties, driven primarily by the
opening of The Palazzo and $15.3 million in Other Asia,
driven primarily by our passenger ferry operations.
Operating
Expenses
The breakdown of operating expenses is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended September 30,
|
|
|
|
|
|
|
|
|
|
Percent
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Casino
|
|
$
|
580,755
|
|
|
$
|
341,975
|
|
|
|
69.8
|
%
|
Rooms
|
|
|
36,436
|
|
|
|
23,574
|
|
|
|
54.6
|
%
|
Food and beverage
|
|
|
46,035
|
|
|
|
28,485
|
|
|
|
61.6
|
%
|
Convention, retail and other
|
|
|
69,013
|
|
|
|
22,939
|
|
|
|
200.9
|
%
|
Provision for doubtful accounts
|
|
|
8,859
|
|
|
|
4,283
|
|
|
|
106.8
|
%
|
General and administrative
|
|
|
130,192
|
|
|
|
80,244
|
|
|
|
62.2
|
%
|
Corporate expense
|
|
|
23,390
|
|
|
|
23,444
|
|
|
|
(0.2
|
)%
|
Rental expense
|
|
|
8,437
|
|
|
|
8,136
|
|
|
|
3.7
|
%
|
Pre-opening expense
|
|
|
40,777
|
|
|
|
90,447
|
|
|
|
(54.9
|
)%
|
Development expense
|
|
|
1,153
|
|
|
|
3,621
|
|
|
|
(68.2
|
)%
|
Depreciation and amortization
|
|
|
132,239
|
|
|
|
54,309
|
|
|
|
143.5
|
%
|
(Gain) loss on disposal of assets
|
|
|
(47
|
)
|
|
|
287
|
|
|
|
(116.4
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
$
|
1,077,239
|
|
|
$
|
681,744
|
|
|
|
58.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses were $1.08 billion for the three months
ended September 30, 2008, an increase of
$395.5 million as compared to $681.7 million for the
three months ended September 30, 2007. The increase in
operating expenses was primarily attributable to the higher
operating revenues associated with the openings of The
46
Venetian Macao, Four Seasons Macao and The Palazzo, growth of
our operating businesses in Las Vegas, and depreciation and
amortization costs, as more fully described below.
Casino expenses for the three months ended September 30,
2008, increased $238.8 million as compared to the three
months ended September 30, 2007. Of the increase,
$142.7 million was due to the 39.0% gross win tax on casino
revenues of The Venetian Macao, offset by a decrease in gross
win tax at the Sands Macao of $17.4 million due to the
decrease in casino revenues as noted above. An additional
$68.1 million in casino-related expenses (exclusive of the
aforementioned 39.0% gross win tax) were attributable to The
Venetian Macao, primarily related to payroll-related expenses
and commissions paid under the Rolling Chip program. Casino
expenses at our Las Vegas Operating Properties increased
$33.1 million primarily due to the opening of The Palazzo,
consisting principally of payroll-related expenses,
gaming-related taxes and an increase in costs of providing
promotional allowances.
Rooms expense increased $12.9 million and food and beverage
expense increased $17.6 million, as compared to the three
months ended September 30, 2007. These increases were
primarily due to openings of The Venetian Macao and The Palazzo,
and the associated increases in the related revenue categories
described above.
Convention, retail and other expense increased
$46.1 million, as compared to the three months ended
September 30, 2007, of which $18.9 million was
attributable to The Venetian Macao and the remaining increase
primarily attributable to our passenger ferry service operations.
The provision for doubtful accounts was $8.9 million for
the three months ended September 30, 2008, compared to
$4.3 million for the three months ended September 30,
2007. The amount of this provision can vary over short periods
of time because of factors specific to the customers who owe us
money from gaming activities at any given time. We believe that
the amount of our provision for doubtful accounts in the future
will depend upon the state of the economy, our credit standards,
our risk assessments and the judgment of our employees
responsible for granting credit.
General and administrative expenses for the three months ended
September 30, 2008, increased $49.9 million as
compared to the three months ended September 30, 2007. The
increase was attributable to the growth of our operating
businesses in Las Vegas and Macao, with $23.1 million of
the increase being incurred at our Las Vegas Operating
Properties and $28.0 million being incurred at The Venetian
Macao.
Pre-opening and development expenses were $40.8 million and
$1.2 million, respectively, for the three months ended
September 30, 2008, as compared to $90.4 million and
$3.6 million, respectively, for the three months ended
September 30, 2007. Pre-opening expense represents
personnel and other costs incurred prior to the opening of new
ventures, which are expensed as incurred. Pre-opening expenses
for the three months ended September 30, 2008, were
primarily related to activities at our other Cotai Strip
properties, Marina Bay Sands and Sands Bethlehem. Development
expenses include the costs associated with the Companys
evaluation and pursuit of new business opportunities, which are
also expensed as incurred. Development expenses for the three
months ended September 30, 2008, were primarily related to
our activities in Asia, Europe and the U.S.
Depreciation and amortization expense for the three months ended
September 30, 2008, increased $77.9 million as
compared to the three months ended September 30, 2007. The
increase was primarily the result of the openings of The
Venetian Macao (totaling $32.2 million), The Palazzo
(totaling $35.2 million) and Four Seasons Macao
(totaling $4.9 million).
47
Adjusted
EBITDAR
Adjusted EBITDAR is used by management as the primary measure of
the operating performance of our segments. Adjusted EBITDAR is
net income (loss) before interest, income taxes, depreciation
and amortization, pre-opening expense, development expense,
other income, loss on early retirement of debt, (gain) loss on
disposal of assets, rental expense, corporate expense,
stock-based compensation expense included in general and
administrative expense, and noncontrolling interest. The
following table summarizes activity related to our segments (see
Item 1 Financial Statements
Notes to Condensed Consolidated Financial Statements
Note 11 Segment Information for
discussion of our operating segments and a reconciliation of
adjusted EBITDAR to net income (loss)):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended September 30,
|
|
|
|
|
|
|
|
|
|
Percent
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Las Vegas Operating Properties
|
|
$
|
73,316
|
|
|
$
|
60,183
|
|
|
|
21.8
|
%
|
Macao:
|
|
|
|
|
|
|
|
|
|
|
|
|
Sands Macao
|
|
|
42,591
|
|
|
|
77,574
|
|
|
|
(45.1
|
)%
|
The Venetian Macao
|
|
|
135,737
|
|
|
|
26,520
|
|
|
|
411.8
|
%
|
Four Seasons Macao
|
|
|
2,963
|
|
|
|
|
|
|
|
|
%
|
Other Asia
|
|
|
(10,848
|
)
|
|
|
|
|
|
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total adjusted EBITDAR
|
|
$
|
243,759
|
|
|
$
|
164,277
|
|
|
|
48.4
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
With the opening of The Palazzo, adjusted EBITDAR at our Las
Vegas Operating Properties increased $13.1 million, or
21.8%, as compared to the three months ended September 30,
2007. This increase was primarily attributable to an increase of
$95.9 million in net revenue, offset by an increase of
$34.2 million in payroll-related expenses, increased
operating expenses when compared with the related revenue
categories, driven by lower table game win percentages and lower
occupancy rates, and an increase in general and administrative
expenses to support the growth of the Las Vegas Operating
Properties.
Adjusted EBITDAR at Sands Macao decreased $35.0 million, or
45.1%, as compared to the three months ended September 30,
2007. As previously described, the decrease was primarily
attributable to the decrease in casino revenues of
$50.9 million, offset by a $17.4 million decrease in
gross win tax on reduced casino revenues.
Adjusted EBITDAR at The Venetian Macao, Four Seasons Macao and
our Other Asia segments do not have comparable prior-year
periods. Results of the operations of The Venetian Macao and
Four Seasons Macao are as previously described. Our Other Asia
segment is composed primarily of our passenger ferry service
between Macao and Hong Kong, which initiated evening sailings
and increased its frequency of sailings during peak hours in
June 2008.
Interest
Expense
The following table summarizes information related to interest
expense on long-term debt:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
|
(In thousands, except for percentages)
|
|
|
Interest cost (which includes the amortization of deferred
financing costs and original issue discount)
|
|
$
|
128,896
|
|
|
$
|
136,819
|
|
Less capitalized interest
|
|
|
(38,361
|
)
|
|
|
(64,212
|
)
|
|
|
|
|
|
|
|
|
|
Interest expense, net
|
|
$
|
90,535
|
|
|
$
|
72,607
|
|
|
|
|
|
|
|
|
|
|
Cash paid for interest
|
|
$
|
128,254
|
|
|
$
|
139,306
|
|
Average total debt balance
|
|
$
|
9,247,382
|
|
|
$
|
7,202,564
|
|
Weighted average interest rate
|
|
|
5.6
|
%
|
|
|
7.6
|
%
|
48
Interest cost decreased $7.9 million as compared to the
three months ended September 30, 2007, resulting from the
decrease in our weighted average interest rate, offset by the
increase in our average debt balance. The proceeds from
long-term debt were primarily used to fund our various
development projects. See Liquidity and
Capital Resources for further detail of our financing
activities. Interest cost was offset by the capitalization of
$38.4 million of interest during the three months ended
September 30, 2008, as compared to $64.2 million of
capitalized interest during the three months ended
September 30, 2007. The decrease in capitalized interest is
due primarily to the openings of The Venetian Macao and The
Palazzo in 2007. Leasehold interest in land payments made in
Macao and Singapore are not considered qualifying assets and as
such, are not included in the base amount used to determine
capitalized interest.
Other
Factors Effecting Earnings
Interest income for the three months ended September 30,
2008, was $3.2 million, a decrease of $23.7 million as
compared to $26.9 million for the three months ended
September 30, 2007. The decrease was attributable to a
reduction in invested cash balances, primarily from our
borrowings under the U.S. senior secured credit facility
and the Macao credit facility, which were spent on
construction-related activities.
Other income for the three months ended September 30, 2008,
was $7.2 million as compared to $17.1 million for the
three months ended September 30, 2007. The income was
primarily attributable to the foreign exchange gains/losses
associated with U.S. denominated debt held in Macao, offset
by the change in fair value of our Singapore interest rate caps
entered into in 2008.
Our reported income tax rate for the three months ended
September 30, 2008, was (37.4%) as compared to (1.9%) for
the three months ended September 30, 2007. The reported
income tax rate changed due to geographic income mix and the
temporary income tax exemption in Macao on gaming operations,
which is set to expire at the end of 2013.
Nine
Months Ended September 30, 2008 compared to the Nine Months
Ended September 30, 2007
Operating
Revenues
Our net revenues consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30,
|
|
|
|
|
|
|
|
|
|
Percent
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Casino
|
|
$
|
2,404,973
|
|
|
$
|
1,433,135
|
|
|
|
67.8
|
%
|
Rooms
|
|
|
575,172
|
|
|
|
289,588
|
|
|
|
98.6
|
%
|
Food and beverage
|
|
|
272,315
|
|
|
|
162,129
|
|
|
|
68.0
|
%
|
Convention, retail and other
|
|
|
290,791
|
|
|
|
113,397
|
|
|
|
156.4
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,543,251
|
|
|
|
1,998,249
|
|
|
|
77.3
|
%
|
Less promotional allowances
|
|
|
(246,680
|
)
|
|
|
(96,155
|
)
|
|
|
156.5
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
$
|
3,296,571
|
|
|
$
|
1,902,094
|
|
|
|
73.3
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated net revenues were $3.30 billion for the nine
months ended September 30, 2008, an increase of
$1.39 billion compared to $1.90 billion for the nine
months ended September 30, 2007. The increase in net
revenues was due primarily to an increase in casino revenues and
the openings of The Venetian Macao and The Palazzo in August
2007 and December 2007, respectively.
49
Casino revenues for the nine months ended September 30,
2008, increased $971.8 million as compared to the nine
months ended September 30, 2007. Of the increase,
$1.10 billion was primarily attributable to The Venetian
Macao and $99.4 million to our Las Vegas Operating
Properties due primarily to the opening of The Palazzo, offset
by a decrease of $243.9 million at Sands Macao due
primarily to increased competition, as compared to the nine
months ended September 30, 2007. The following table
summarizes the results of our casino revenue activity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Sands Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total casino revenues
|
|
$
|
770,113
|
|
|
$
|
1,014,049
|
|
|
|
(24.1
|
)%
|
Non-Rolling Chip table games drop
|
|
$
|
2,033,529
|
|
|
$
|
2,750,121
|
|
|
|
(26.1
|
)%
|
Non-Rolling Chip table games win percentage
|
|
|
19.2
|
%
|
|
|
18.6
|
%
|
|
|
0.6
|
pts
|
Rolling Chip volume
|
|
$
|
19,046,137
|
|
|
$
|
20,406,862
|
|
|
|
(6.7
|
)%
|
Rolling Chip win percentage
|
|
|
2.56
|
%
|
|
|
3.04
|
%
|
|
|
(0.48
|
)pts
|
Slot handle
|
|
$
|
787,118
|
|
|
$
|
912,364
|
|
|
|
(13.7
|
)%
|
Slot hold percentage
|
|
|
7.9
|
%
|
|
|
6.9
|
%
|
|
|
1.0
|
pts
|
The Venetian Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total casino revenues
|
|
$
|
1,231,434
|
|
|
$
|
130,962
|
|
|
|
840.3
|
%
|
Non-Rolling Chip table games drop
|
|
$
|
2,662,242
|
|
|
$
|
257,089
|
|
|
|
935.5
|
%
|
Non-Rolling Chip table games win percentage
|
|
|
19.8
|
%
|
|
|
16.7
|
%
|
|
|
3.1
|
pts
|
Rolling Chip volume
|
|
$
|
28,378,526
|
|
|
$
|
4,727,325
|
|
|
|
500.3
|
%
|
Rolling Chip win percentage
|
|
|
3.01
|
%
|
|
|
2.44
|
%
|
|
|
0.57
|
pts
|
Slot handle
|
|
$
|
1,369,832
|
|
|
$
|
123,211
|
|
|
|
1,011.8
|
%
|
Slot hold percentage
|
|
|
8.1
|
%
|
|
|
6.6
|
%
|
|
|
1.5
|
pts
|
Four Seasons Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total casino revenues
|
|
$
|
15,931
|
|
|
$
|
|
|
|
|
|
%
|
Non-Rolling Chip table games drop
|
|
$
|
16,748
|
|
|
$
|
|
|
|
|
|
%
|
Non-Rolling Chip table games win percentage
|
|
|
18.4
|
%
|
|
|
|
%
|
|
|
|
pts
|
Rolling Chip volume
|
|
$
|
165,155
|
|
|
$
|
|
|
|
|
|
%
|
Rolling Chip win percentage
|
|
|
8.33
|
%
|
|
|
|
%
|
|
|
|
pts
|
Slot handle
|
|
$
|
7,903
|
|
|
$
|
|
|
|
|
|
%
|
Slot hold percentage
|
|
|
6.4.
|
%
|
|
|
|
%
|
|
|
|
pts
|
Las Vegas Operating Properties
|
|
|
|
|
|
|
|
|
|
|
|
|
Total casino revenues
|
|
$
|
387,495
|
|
|
$
|
288,124
|
|
|
|
34.5
|
%
|
Table games drop
|
|
$
|
1,341,985
|
|
|
$
|
990,460
|
|
|
|
35.5
|
%
|
Table games win percentage
|
|
|
19.8
|
%
|
|
|
21.4
|
%
|
|
|
(1.6
|
)pts
|
Slot handle
|
|
$
|
2,708,860
|
|
|
$
|
1,771,085
|
|
|
|
52.9
|
%
|
Slot hold percentage
|
|
|
5.8
|
%
|
|
|
6.1
|
%
|
|
|
(0.3
|
)pts
|
In our experience, average win percentages remain steady when
measured over extended periods of time, but can vary
considerably within shorter time periods as a result of the
statistical variances that are associated with games of chance
in which large amounts are wagered.
Room revenues for the nine months ended September 30, 2008,
increased $285.6 million as compared to the nine months
ended September 30, 2007, due primarily to the openings of
The Venetian Macao and The Palazzo. The increase at our Las
Vegas Operating Properties was offset as the ADR and occupancy
rate were negatively impacted by a reduction of room rates in
order to increase visitation to The Palazzo and excess suite
inventory as the new resort ramps up its operations,
respectively, and the overall decline in general economic
conditions. The suites at Sands Macao are primarily provided to
casino patrons on a complimentary basis and therefore revenues
of
50
$20.2 million and $5.1 million for the nine months
ended September 30, 2008 and 2007, respectively, and
related statistics have not been included in the following
table, which summarizes the results of our room revenue activity.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(Room revenues in thousands)
|
|
|
Las Vegas Operating Properties
|
|
|
|
|
|
|
|
|
|
|
|
|
Total room revenues
|
|
$
|
409,152
|
|
|
$
|
272,381
|
|
|
|
50.2
|
%
|
Average daily room rate
|
|
$
|
241
|
|
|
$
|
259
|
|
|
|
(6.9
|
)%
|
Occupancy rate
|
|
|
90.5
|
%
|
|
|
99.7
|
%
|
|
|
(9.2
|
)pts
|
Revenue per available room
|
|
$
|
218
|
|
|
$
|
258
|
|
|
|
(15.5
|
)%
|
The Venetian Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total room revenues
|
|
$
|
145,258
|
|
|
$
|
12,092
|
|
|
|
1,101.3
|
%
|
Average daily room rate
|
|
$
|
222
|
|
|
$
|
208
|
|
|
|
6.7
|
%
|
Occupancy rate
|
|
|
83.7
|
%
|
|
|
77.5
|
%
|
|
|
6.2
|
pts
|
Revenue per available room
|
|
$
|
186
|
|
|
$
|
161
|
|
|
|
15.5
|
%
|
Four Seasons Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total room revenues
|
|
$
|
517
|
|
|
$
|
|
|
|
|
|
%
|
Average daily room rate
|
|
$
|
440
|
|
|
$
|
|
|
|
|
|
%
|
Occupancy rate
|
|
|
31.4
|
%
|
|
|
|
%
|
|
|
|
pts
|
Revenue per available room
|
|
$
|
138
|
|
|
$
|
|
|
|
|
|
%
|
Food and beverage revenues for the nine months ended
September 30, 2008, increased $110.2 million as
compared to the nine months ended September 30, 2007. The
increase was primarily attributable to an increase of
$43.3 million at The Venetian Macao and $66.5 million
at the Las Vegas Operating Properties, driven primarily by the
opening of The Palazzo and several of our joint venture
restaurants that opened in 2008.
Convention, retail and other revenues for the nine months ended
September 30, 2008, increased $177.4 million as
compared to the nine months ended September 30, 2007. The
increase is primarily attributable to an increase of
$114.6 million at The Venetian Macao, which consisted
primarily of rental revenues from the mall, and
$34.3 million at the Las Vegas Operating Properties, driven
primarily by the opening of The Palazzo.
Operating
Expenses
The breakdown of operating expenses is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30,
|
|
|
|
|
|
|
|
|
|
Percent
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Casino
|
|
$
|
1,639,849
|
|
|
$
|
904,440
|
|
|
|
81.3
|
%
|
Rooms
|
|
|
116,663
|
|
|
|
67,219
|
|
|
|
73.6
|
%
|
Food and beverage
|
|
|
136,578
|
|
|
|
79,011
|
|
|
|
72.9
|
%
|
Convention, retail and other
|
|
|
164,622
|
|
|
|
59,511
|
|
|
|
176.6
|
%
|
Provision for doubtful accounts
|
|
|
22,960
|
|
|
|
24,516
|
|
|
|
(6.3
|
)%
|
General and administrative
|
|
|
421,051
|
|
|
|
198,915
|
|
|
|
111.7
|
%
|
Corporate expense
|
|
|
82,529
|
|
|
|
66,657
|
|
|
|
23.8
|
%
|
Rental expense
|
|
|
25,573
|
|
|
|
23,141
|
|
|
|
10.5
|
%
|
Pre-opening expense
|
|
|
105,470
|
|
|
|
153,224
|
|
|
|
(31.2
|
)%
|
Development expense
|
|
|
11,504
|
|
|
|
7,227
|
|
|
|
59.2
|
%
|
Depreciation and amortization
|
|
|
364,753
|
|
|
|
121,262
|
|
|
|
200.8
|
%
|
Loss on disposal of assets
|
|
|
6,977
|
|
|
|
526
|
|
|
|
1,226.4
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
$
|
3,098,529
|
|
|
$
|
1,705,649
|
|
|
|
81.7
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses were $3.10 billion for the nine months
ended September 30, 2008, an increase of $1.39 billion
as compared to $1.71 billion for the nine months ended
September 30, 2007. The increase in operating
51
expenses was primarily attributable to the higher operating
revenues associated with the openings of The Venetian Macao and
The Palazzo, growth of our operating businesses in Las Vegas,
and depreciation and amortization costs, as more fully described
below.
Casino expenses for the nine months ended September 30,
2008, increased $735.4 million as compared to the nine
months ended September 30, 2007. Of the increase,
$530.2 million was due to the 39.0% gross win tax on casino
revenues of The Venetian Macao, offset by a decrease in gross
win tax at the Sands Macao of $101.6 million due to the
decrease in casino revenues as noted above. An additional
$214.1 million in casino-related expenses (exclusive of the
aforementioned 39.0% gross win tax) were attributable to The
Venetian Macao, primarily related to payroll-related expenses
and commissions paid under the Rolling Chip program. Casino
expenses at our Las Vegas Operating Properties increased
$91.8 million primarily due to the opening of The Palazzo,
consisting principally of payroll-related expenses,
gaming-related taxes and an increase in costs of providing
promotional allowances.
Rooms expense increased $49.4 million and food and beverage
expense increased $57.6 million, as compared to the nine
months ended September 30, 2007. These increases were
primarily due to openings of The Venetian Macao and The Palazzo
and the associated increases in the related revenue categories
described above.
Convention, retail and other expense increased
$105.1 million, as compared to the nine months ended
September 30, 2007, of which $54.0 million was
attributable to The Venetian Macao and the remaining increase
primarily attributable to our passenger ferry service operations.
The provision for doubtful accounts was $23.0 million for
the nine months ended September 30, 2008, compared to
$24.5 million for the nine months ended September 30,
2007. The amount of this provision can vary over short periods
of time because of factors specific to the customers who owe us
money from gaming activities at any given time. We believe that
the amount of our provision for doubtful accounts in the future
will depend upon the state of the economy, our credit standards,
our risk assessments and the judgment of our employees
responsible for granting credit.
General and administrative expenses for the nine months ended
September 30, 2008, increased $222.1 million as
compared to the nine months ended September 30, 2007. The
increase was attributable to the growth of our operating
businesses in Las Vegas and Macao, with $74.9 million of
the increase being incurred at our Las Vegas Operating
Properties and $128.0 million being incurred at The
Venetian Macao.
Corporate expense for the nine months ended September 30,
2008, increased $15.9 million as compared to the nine
months ended September 30, 2007. The increase was
attributable to increases of $8.7 million in
payroll-related expenses, $4.3 million in professional fees
and $2.9 million of other corporate general and
administrative costs as we continue to build our corporate
infrastructure to support our current and planned growth.
Pre-opening and development expenses were $105.5 million
and $11.5 million, respectively, for the nine months ended
September 30, 2008, as compared to $153.2 million and
$7.2 million, respectively, for the nine months ended
September 30, 2007. Pre-opening expense represents
personnel and other costs incurred prior to the opening of new
ventures, which are expensed as incurred. Pre-opening expenses
for the nine months ended September 30, 2008, were
primarily related to activities at our other Cotai Strip
properties, Marina Bay Sands, Sands Bethlehem, The Palazzo, St.
Regis Residences and our joint venture restaurants. Development
expenses include the costs associated with the Companys
evaluation and pursuit of new business opportunities, which are
also expensed as incurred. Development expenses for the nine
months ended September 30, 2008, were primarily related to
our activities in Hengqin Island, Asia, Europe and the U.S.
Depreciation and amortization expense for the nine months ended
September 30, 2008, increased $243.5 million as
compared to the nine months ended September 30, 2007. The
increase was primarily the result of the openings of The
Venetian Macao (totaling $125.4 million) and The Palazzo
(totaling $92.0 million).
Adjusted
EBITDAR
Adjusted EBITDAR is used by management as the primary measure of
the operating performance of our segments. Adjusted EBITDAR is
net income (loss) before interest, income taxes, depreciation
and amortization, pre-opening expense, development expense,
other income, loss on early retirement of debt, (gain) loss on
disposal of assets, rental expense, corporate expense,
stock-based compensation expense included in general and
administrative expense, and noncontrolling interest. The
following table summarizes information related to our segments
52
(see Item 1 Financial
Statements Notes to Condensed Consolidated Financial
Statements Note 11 Segment
Information for discussion of our operating segments and a
reconciliation of adjusted EBITDAR to net income (loss)):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30,
|
|
|
|
|
|
|
|
|
|
Percent
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Las Vegas Operating Properties
|
|
$
|
302,497
|
|
|
$
|
255,506
|
|
|
|
18.4
|
%
|
Macao:
|
|
|
|
|
|
|
|
|
|
|
|
|
Sands Macao
|
|
|
162,283
|
|
|
|
296,463
|
|
|
|
(45.3
|
)%
|
The Venetian Macao
|
|
|
386,227
|
|
|
|
26,520
|
|
|
|
1,356.4
|
%
|
Four Seasons Macao
|
|
|
2,963
|
|
|
|
|
|
|
|
|
%
|
Other Asia
|
|
|
(34,086
|
)
|
|
|
|
|
|
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total adjusted EBITDAR
|
|
$
|
819,884
|
|
|
$
|
578,489
|
|
|
|
41.7
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
With the opening of The Palazzo, adjusted EBITDAR at our Las
Vegas Operating Properties increased $47.0 million, or
18.4%, as compared to the nine months ended September 30,
2007. This increase was primarily attributable to an increase of
$282.5 million in net revenue, offset by an increase of
$127.4 million in payroll-related expenses, increases in
operating expenses associated with the increase in the related
revenue categories and an increase in general and administrative
expenses to support the growth of the Las Vegas Operating
Properties.
Adjusted EBITDAR at Sands Macao decreased $134.2 million,
or 45.3%, as compared to the nine months ended
September 30, 2007. As previously described, the decrease
was primarily attributable to the decrease in casino revenues of
$243.9 million, offset by an $101.6 million decrease
in gross win tax on reduced casino revenues.
Adjusted EBITDAR at The Venetian Macao, Four Seasons Macao and
our Other Asia segments do not have comparable prior-year
periods. Results of the operations of The Venetian Macao and
Four Seasons Macao are as previously described. Our Other Asia
segment is composed primarily of our passenger ferry service
between Macao and Hong Kong, which initiated evening sailings
and increased its frequency of sailings during peak hours in
June 2008.
Interest
Expense
The following table summarizes information related to interest
expense on long-term debt:
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
|
(In thousands, except for percentages)
|
|
|
Interest cost (which includes the amortization of deferred
financing costs and original issue discount)
|
|
$
|
394,290
|
|
|
$
|
330,627
|
|
Less capitalized interest
|
|
|
(100,581
|
)
|
|
|
(168,999
|
)
|
|
|
|
|
|
|
|
|
|
Interest expense, net
|
|
$
|
293,709
|
|
|
$
|
161,628
|
|
|
|
|
|
|
|
|
|
|
Cash paid for interest
|
|
$
|
368,214
|
|
|
$
|
311,516
|
|
Average total debt balance
|
|
$
|
8,639,652
|
|
|
$
|
5,729,785
|
|
Weighted average interest rate
|
|
|
6.1
|
%
|
|
|
7.7
|
%
|
Interest cost increased $63.7 million as compared to the
nine months ended September 30, 2007, resulting from the
substantial increase in our average long-term debt balances,
which was partially offset by the decrease in our weighted
average interest rate. The proceeds from long-term debt were
primarily used to fund our various development projects. See
Liquidity and Capital Resources for
further detail of our financing activities. The increase in
interest cost was offset by the capitalization of
$100.6 million of interest during the nine months ended
September 30, 2008, as compared to $169.0 million of
capitalized interest during the nine months ended
September 30, 2007. The decrease in capitalized interest is
due primarily to the opening of The Venetian Macao and The
Palazzo in 2007. Leasehold interest in land payments made in
Macao and Singapore are not considered qualifying assets and as
such, are not included in the base amount used to determine
capitalized interest.
53
Other
Factors Effecting Earnings
Interest income for the nine months ended September 30,
2008, was $11.8 million, a decrease of $49.1 million
as compared to $60.9 million for the nine months ended
September 30, 2007. The decrease was attributable to a
reduction in invested cash balances, primarily from our
borrowings under the U.S. senior secured credit facility
and the Macao credit facility, which was spent on
construction-related activities.
Other income for the nine months ended September 30, 2008,
was $11.6 million, an increase of $3.9 million as
compared to other income of $7.7 million for the nine
months ended September 30, 2007. The income was primarily
attributable to foreign exchange gains/losses associated with
U.S. denominated debt held in Macao, offset by the change
in fair value of our Singapore interest rate caps entered into
in 2008.
Our reported income tax rate for the nine months ended
September 30, 2008, was (25.6%) as compared to 17.2% for
the nine months ended September 30, 2007. The reported
income tax rate changed due to geographic income mix and the
temporary income tax exemption in Macao on gaming operations,
which is set to expire at the end of 2013.
Liquidity
and Capital Resources
Cash
Flows Summary
Our cash flows consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
|
|
|
September 30,
|
|
|
|
2008
|
|
|
2007
|
|
|
|
(In thousands)
|
|
|
Net cash provided by operations
|
|
$
|
217,143
|
|
|
$
|
219,243
|
|
|
|
|
|
|
|
|
|
|
Investing cash flows:
|
|
|
|
|
|
|
|
|
Change in restricted cash
|
|
|
174,297
|
|
|
|
694,682
|
|
Capital expenditures
|
|
|
(2,908,396
|
)
|
|
|
(2,722,067
|
)
|
Acquisition of gaming license included in other assets
|
|
|
|
|
|
|
(50,000
|
)
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities
|
|
|
(2,734,099
|
)
|
|
|
(2,077,385
|
)
|
|
|
|
|
|
|
|
|
|
Financing cash flows:
|
|
|
|
|
|
|
|
|
Proceeds from convertible senior notes from related party
|
|
|
475,000
|
|
|
|
|
|
Proceeds from long term-debt
|
|
|
4,002,320
|
|
|
|
4,875,501
|
|
Repayments of long-term debt
|
|
|
(1,713,098
|
)
|
|
|
(1,766,189
|
)
|
Other
|
|
|
159,840
|
|
|
|
(42,451
|
)
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing activities
|
|
|
2,924,062
|
|
|
|
3,066,861
|
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate on cash
|
|
|
11,719
|
|
|
|
2,862
|
|
|
|
|
|
|
|
|
|
|
Net increase in cash and cash equivalents
|
|
$
|
418,825
|
|
|
$
|
1,211,581
|
|
|
|
|
|
|
|
|
|
|
Cash
Flows Operating Activities
Table games play at our Las Vegas properties is conducted on a
cash and credit basis while table games play at our Macao
properties is conducted primarily on a cash basis. Slot machine
play is primarily conducted on a cash basis. The retail hotel
rooms business is generally conducted on a cash basis, the group
hotel rooms business is conducted on a cash and credit basis,
and banquet business is conducted primarily on a credit basis
resulting in operating cash flows being generally affected by
changes in operating income and accounts receivable. Net cash
provided by operating activities for the nine months ended
September 30, 2008, was $217.1 million, a slight
decrease of $2.1 million as compared with
$219.2 million for the nine months ended September 30,
2007. The primary factors contributing to this decrease was the
significant increase in our accounts receivables (due to the
gaming activity at our Las Vegas Operations and an increase in
our granting of casino credit at our Macao properties), offset
by the $208.6 million in land concession payments made for
our Cotai Strip parcels 1, 2 and 3
54
made during the nine months ended September 30, 2007, and
the $48.8 million in deferred rent related to the sale of
The Shoppes at The Palazzo received during the nine months ended
September 30, 2008. .
Cash
Flows Investing Activities
Capital expenditures for the nine months ended
September 30, 2008, totaled $2.91 billion, including
$1.52 billion for construction and development activities
in Macao (including Sands Macao, The Venetian Macao, Four
Seasons Macao and our other Cotai Strip developments);
$543.2 million for construction and development activities
at our Las Vegas Operating Properties; $574.8 million for
construction and development activities in Singapore; and
$269.3 million for corporate and other activities,
primarily for the construction of Sands Bethlehem and the St.
Regis Residences.
Restricted cash decreased $174.3 million due primarily to a
decrease in restricted cash in Singapore as we made construction
payments related to Marina Bay Sands.
Cash
Flows Financing Activities
For the nine months ended September 30, 2008, net cash
flows provided from financing activities were
$2.92 billion. The net increase was primarily attributable
to the net borrowings of $1.35 billion under the new
U.S. senior secured credit facility and $228.4 million
under the Singapore credit facilities, borrowings of
$442.7 million under the Macao credit facilities and
$176.7 million under the ferry financing credit facility,
and $475.0 million and $243.9 million in proceeds
received from the sale of our convertible senior notes and The
Shoppes at The Palazzo, respectively. Refer to
Item 1 Financial Statements
Notes to Condensed Consolidated Financial
Statements Note 7 Mall Sale.
Development
Financing Strategy
We held unrestricted and restricted cash and cash equivalents of
approximately $1.28 billion and $239.1 million,
respectively, as of September 30, 2008. As previously
described, we have a number of significant development projects
in the United States, Macao and Singapore, some of which we plan
to temporarily or indefinitely suspend due to current conditions
in the global capital markets and overall decline in general
economic conditions, which have had an impact on our ongoing
operations. Through September 30, 2008, we have principally
funded our development projects through borrowings under the
bank credit facilities of our operating subsidiaries, operating
cash flows and proceeds from the disposition of non-core assets.
In 2007, we began to execute our financing strategy to secure
additional borrowing capacity to fund our existing and future
development projects and operations in Asia, including Macao and
Singapore, and the United States. In the near term, we will seek
to borrow significant amounts under our existing and potential
future bank credit facilities, if available, or raise equity
capital as we fund components of our revised development
strategy and, as further described below, will require
additional capital to fund the completion of our projects. If we
are unable to raise additional capital in the near term, we
would need to consider further suspending portions, if not all,
of our remaining global development projects.
In April 2007, we increased the size of our Macao credit
facility from $2.5 billion to $3.3 billion to continue
funding the development of The Venetian Macao and the Four
Seasons Macao as well as portions of our other Macao development
projects. As of September 30, 2008, we have fully drawn the
revolving facility of the Macao credit facility and we had
construction payables of approximately $385.5 million
related to our Macao development projects. We expect to incur
additional construction costs of $337 million to complete
the Four Seasons Private Apartments and the remaining portions
of the Four Seasons Macao by the third quarter of 2009. In
addition, we expect to incur additional costs, including
FF&E, pre-opening, land premium and other costs, of
approximately $126 million (some of which relates to
FF&E costs that will be recouped in connection with the
sale of the Four Seasons Private Apartments). In the near term,
cash balances at our Macao subsidiaries, operating cash flows
from Sands Macao, The Venetian Macao and Four Seasons Macao, and
cash from LVSC, if available, together with proceeds from
borrowings under our U.S. senior secured credit facility,
if available, will be used to fund these amounts. We were in the
process of arranging up to $5.25 billion of secured bank
financing, the proceeds of which would have been used to
refinance the amount currently outstanding under the Macao
credit facility and to provide incremental borrowings to fund
the Four Seasons Private Apartments, the completion of the Four
Seasons Macao and the development of parcels 5 and 6, and to
continue funding our other Cotai Strip development projects;
however, given the conditions in the global credit markets, we
were unable to reach arrangements with our
55
prospective lenders. As a result, we plan to temporarily suspend
construction on parcels 5 and 6, until project-level financing
is obtained, which we are currently pursuing and target to
complete in the next three to six months; however, there can be
no assurance that such financing will be obtained. Additional
financing will be required to complete the development and
construction of parcels 7, 8 and 3, once those construction
activities commence.
In May 2007, we entered into a $5.0 billion
U.S. senior secured credit facility with respect to our Las
Vegas operations. A portion of the proceeds from this facility
was used to refinance the indebtedness collateralized by our Las
Vegas integrated resort, including The Venetian Las Vegas, The
Palazzo, The Shoppes at The Palazzo and Sands Expo Center, and
to fund the design, development and construction costs incurred
in connection with the completion of The Palazzo, The Shoppes at
The Palazzo, St. Regis Residences and Sands Bethlehem. As of
September 30, 2008, we had approximately
$601.1 million of available borrowing capacity, net of
outstanding letters of credit but including approximately
$7.7 million committed to be funded by Lehman Brothers
Commercial Paper Inc. The U.S. senior secured credit
facility permits us to make investments in certain of our
subsidiaries and certain joint ventures not party to the
U.S. senior secured credit facility, including our foreign
subsidiaries and our other development projects outside of Las
Vegas, in an amount not to exceed $2.1 billion, and also
permits us to invest in our Sands Bethlehem project so long as
no more than 30% of any such investment is in the form of an
equity contribution to the project, with the balance to be in
the form of a secured intercompany loan. As of
September 30, 2008, we have invested approximately
$1.7 billion of the permitted $2.1 billion to fund a
portion of our required equity contribution to the Marina Bay
Sands project and investments with respect to our other
development projects, including in Macao. As announced on
November 10, 2008, with the delayed development of the St.
Regis Residences and our focus on the construction of the casino
and parking components of Sands Bethlehem, we expect to incur
additional construction costs of approximately $95 million
and $282 million, respectively. We also expect to incur
$145 million in additional costs to open the casino
component of Sands Bethlehem, including FF&E, pre-opening
and other costs. We will continue to use excess operating cash
flows, proceeds from the sale of non-core assets, such as The
Shoppes at The Palazzo, cash contributed by LVSC, if available,
and proceeds from borrowings under the U.S. senior secured
credit facility, if available, to fund our revised development
strategy, as well as construction costs incurred in Macao and
our required equity contributions to the Marina Bay Sands.
In December 2007, we entered into a SGD 5.44 billion credit
facility (approximately $3.80 billion at exchange rates in
effect on September 30, 2008) to fund development and
construction costs and expenses at the Marina Bay Sands, which
closed and funded in January 2008. A portion of the proceeds
from this facility, together with a portion of our initial SGD
800.0 million (approximately $558.4 million at
exchange rates in effect on September 30, 2008) equity
contribution, were used to repay outstanding borrowings of
$1.32 billion under our Singapore bridge facility. As of
September 30, 2008, we had SGD 2.86 billion
(approximately $2.0 billion at exchange rates in effect on
September 30, 2008) available for borrowing, net of
outstanding bankers guarantees and undrawn amounts
committed to be funded by Lehman Brothers Finance Asia Pte.
Ltd., under the Singapore credit facility, which will be used to
fund a significant portion of the design, development and
construction costs of the Marina Bay Sands project. Subsequent
to September 30, 2008, we have drawn an additional SGD
161.5 million (approximately $112.7 million at
exchange rates in effect on September 30, 2008) under
the Singapore credit facility and have contributed additional
equity of SGD 100.0 million (approximately
$69.8 million at exchange rates in effect on
September 30, 2008). Under the terms of the Singapore
credit facility, we are obligated to fund at least 20% of the
total costs and expenses incurred in connection with the design,
development and construction of the Marina Bay Sands project
with equity contributions or subordinated intercompany loans,
with the remaining 80% funded with debt, including debt under
the Singapore credit facility. Through September 30, 2008,
we have funded our equity contribution requirement through
borrowings under our U.S. senior secured credit facility
and operating cash flows generated from our Las Vegas
operations. Based on our current development plans, we intend to
continue construction on Marina Bay Sands on our existing
timeline. Additional financings are planned to complete the
development and construction of the Marina Bay Sands; however,
there can be no assurance that such financing will be obtained
when planned.
Commencing September 30, 2008, the U.S. senior secured
credit facility and FF&E financings require our Las Vegas
operations to comply with certain financial covenants at the end
of each quarter, including to maintain a maximum leverage ratio
of net debt, as defined, to trailing twelve-month adjusted
earnings before interest, income taxes, depreciation and
amortization, as defined (Adjusted EBITDA). In order
to comply with the maximum leverage ratio covenant as of
December 31, 2008, and subsequent quarterly periods, we
will need to (i) achieve
56
increased levels of Adjusted EBITDA at our Las Vegas properties;
(ii) decrease the rate of spending on our global
development projects; (iii) obtain additional financing at
our parent company level, the proceeds from which could be used
to reduce our Las Vegas operations net debt;
(iv) elect to contribute up to $50.0 million of
capital from cash on hand to our Las Vegas operations (such
contribution having the effect of increasing Adjusted EBITDA by
up to $50.0 million per quarter for purposes of calculating
maximum leverage (the EBITDA
true-up));
or in some cases (v) a combination thereof.
As our Las Vegas properties did not achieve the levels of
Adjusted EBITDA necessary to maintain compliance with the
maximum leverage ratio for the quarterly period ending
September 30, 2008, we completed a private placement of
$475.0 million in convertible senior notes with our
principal stockholder and his family and used a portion of the
proceeds to exercise the EBITDA
true-up
provision. The EBITDA
true-up,
by
itself, would not have been sufficient to maintain compliance
with the maximum leverage ratio as of September 30, 2008.
Accordingly, the entire proceeds from the offering were
immediately contributed to Las Vegas Sands, LLC
(LVSLLC) to reduce the net debt of the parties to
the domestic credit facilities in order to maintain compliance
with the maximum leverage ratio for the quarterly period ending
September 30, 2008.
Based upon current Las Vegas operating estimates for the quarter
ending December 31, 2008 and quarterly periods during 2009,
as well as the fact that we have continued to fund our
development projects outside of Las Vegas, in whole or in part,
with borrowings under the U.S. senior secured credit
facility, we expect the amount of our material domestic
subsidiaries indebtedness will be beyond the level allowed
under the maximum leverage ratio. If our Las Vegas Adjusted
EBITDA levels do not increase sufficiently, our reduced spending
on our revised global development projects, as described above,
is not sufficient, and the EBITDA
true-up
is
not sufficient or available to enable us to maintain compliance
under the maximum leverage ratio, we will need to obtain
significant additional capital at the parent level. As
previously announced, we have been working with our financial
advisor to develop and implement a capital raising program that
we believe would be sufficient to address our current and
anticipated funding needs; however, no assurance can be given
that the program will be successful. If none of the foregoing
occurs, we would need to obtain waivers or amendments under our
domestic credit facilities, and no assurances can be given that
we will be able to obtain these waivers or amendments. If we are
unable to obtain waivers or amendments if and when necessary, we
would be in default under our domestic credit facilities, which
would trigger cross-defaults under our airplane financings and
convertible senior notes. If such defaults or cross-defaults
were to occur and the respective lenders chose to accelerate the
indebtedness outstanding under these agreements, it would result
in a default under our senior notes. Any defaults or
cross-defaults under these agreements would allow the lenders,
in each case, to exercise their rights and remedies as defined
under their respective agreements. If the lenders were to
exercise their right to accelerate the indebtedness outstanding,
there can be no assurance that we would be able to refinance any
amounts that may become accelerated under such agreements. Under
the terms of the U.S. senior secured credit facility, if a
default or a material adverse change, as defined in the
agreement, were to occur or exist at the time of borrowing, it
would preclude our domestic subsidiaries from accessing any
available borrowings (including the $400.0 million under
the Delayed Draw II Facility, which expires
November 23, 2008, and $201.1 million under the
Revolving Facility). If we are not able to access these
borrowings and raise sufficient additional capital, (i) we
will not be able to fund our ongoing equity contributions under
our Singapore credit facility, and as a result, will not be able
to borrow any additional amounts under that facility, which may
limit our ability to complete construction of the project,
(ii) as we have fully drawn the revolving portion of our
Macao credit facility, we will not be able to pay the remaining
construction costs of the Four Seasons Macao and Four Seasons
Private Apartments if free cash flow from the Sands Macao, The
Venetian Macao and Four Season Macao is not sufficient to pay
those costs, (iii) we may be unable to comply with the
maximum leverage ratio covenant under we Macao credit facility
at the end of the first quarter of 2009, which would result in a
default under the agreement and would allow the lenders to
exercise their rights and remedies under the agreement including
acceleration of the indebtedness outstanding, (iv) we may
not be able to continue providing working capital to our ferry
operations, and (v) we would need to immediately suspend
portions, if not all, of our ongoing global development
projects. These factors raise a substantial doubt about our
ability to continue as a going concern. The accompanying
condensed consolidated financial statements do not include any
adjustments that might result from the outcome of this
uncertainty.
57
Aggregate
Indebtedness and Other Known Contractual Obligations
As of September 30, 2008, there had been no material
changes to our aggregated indebtedness and other known
contractual obligations, which are set forth in the table
included in our Annual Report on
Form 10-K
for the year ended December 31, 2007, with the exception of
the following changes:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments Due by Period Ending September 30, 2008(12)
|
|
|
|
Less than
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1 Year
|
|
|
1-3 Years
|
|
|
3-5 Years
|
|
|
Thereafter
|
|
|
Total
|
|
|
|
(In thousands)
|
|
|
Singapore bridge facility(1)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
(691,229
|
)
|
|
$
|
(632,530
|
)
|
|
$
|
(1,323,759
|
)
|
Singapore permanent facility(2)
|
|
|
|
|
|
|
271,483
|
|
|
|
723,956
|
|
|
|
569,721
|
|
|
|
1,565,160
|
|
New senior secured credit facility-revolving(3)
|
|
|
|
|
|
|
|
|
|
|
775,860
|
|
|
|
|
|
|
|
775,860
|
|
New senior secured credit facility-delayed draw I(4)
|
|
|
5,963
|
|
|
|
11,748
|
|
|
|
11,514
|
|
|
|
569,275
|
|
|
|
598,500
|
|
Convertible senior notes(5)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
475,000
|
|
|
|
475,000
|
|
FF&E financings(6)
|
|
|
13,553
|
|
|
|
81,473
|
|
|
|
|
|
|
|
|
|
|
|
95,026
|
|
Macao credit facility(7)
|
|
|
|
|
|
|
442,732
|
|
|
|
|
|
|
|
|
|
|
|
442,732
|
|
Ferry financing(8)
|
|
|
5,198
|
|
|
|
41,585
|
|
|
|
41,586
|
|
|
|
88,370
|
|
|
|
176,739
|
|
Fixed interest payments(9)
|
|
|
30,875
|
|
|
|
61,750
|
|
|
|
61,750
|
|
|
|
2,573
|
|
|
|
156,948
|
|
Variable interest payments(10)
|
|
|
117,808
|
|
|
|
216,169
|
|
|
|
84,906
|
|
|
|
17,302
|
|
|
|
436,185
|
|
Ferries purchase commitment(11)
|
|
|
52,305
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
52,305
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
225,702
|
|
|
$
|
1,126,940
|
|
|
$
|
1,008,343
|
|
|
$
|
1,089,711
|
|
|
$
|
3,450,696
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Amount represents the payment of $1.32 billion during 2008.
|
|
(2)
|
|
Amount represents the fully drawn Singapore Permanent Facility A
and the additional SGD 242.2 million (approximately
$169.2 million at exchange rates in effect on
September 30, 2008) borrowed during 2008 under the
Singapore Permanent Facility B. The Singapore Permanent Facility
A and Facility B mature on March 31, 2015, with MBS
required to repay or prepay the Singapore Permanent Facility A
and Facility B under certain circumstances. Commencing
March 31, 2011, and at the end of each quarter thereafter,
MBS is required to repay the outstanding Singapore Permanent
Facility A and Facility B loans on a pro rata basis in an
aggregate amount equal to SGD 125.0 million (approximately
$87.2 million at exchange rates in effect on
September 30, 2008) per quarter. In addition,
commencing at the end of the third full quarter of operations of
the Marina Bay Sands, MBS is required to further prepay the
outstanding Singapore Permanent Facility A and Facility B loans
on a pro rata basis with a percentage of excess free cash flow
(as defined by the Singapore Permanent Facility Agreement).
|
|
(3)
|
|
Amount represents $775.9 million borrowed, net of
repayments, during 2008 under the Revolving Facility of the New
Senior Secured Credit Facility. The Revolving Facility matures
on May 23, 2012, and has no interim amortization.
|
|
(4)
|
|
Amount represents $598.5 million borrowed, net of
repayments, during 2008 under the Delayed Draw I Facility of the
New Senior Secured Credit Facility. The Delayed Draw I Facility
matures on May 23, 2014, and is subject to quarterly
principal payments, in an amount equal to 0.25% of the aggregate
principal amount outstanding, with a balloon payment of the
remaining balance due on May 23, 2014.
|
|
(5)
|
|
Amount represents $475.0 million provided by the
Convertible Senior Notes sold in September 2008. The Convertible
Senior Notes mature in 2013 and are initially convertible into
common stock at a price of $49.65.
|
|
(6)
|
|
Amount represents the additional $95.0 million borrowed,
net of repayments, under the FF&E Financings. The FF&E
Financings mature in June 2011, and are subject to quarterly
principal payments in an amount equal to 5.0% of the aggregate
principal outstanding, with the remaining amount due in four
equal quarterly installments ending on the maturity date.
|
|
(7)
|
|
Amount represents the additional $442.7 million borrowed
during 2008 under the Macao Revolving Facility. The Macao
Revolving Facility matures in May 2011, and has no interim
amortization.
|
58
|
|
|
(8)
|
|
Amount represents the ferry financing borrowed during 2008,
subject to 34 quarterly payments commencing at the end of the
18-month
availability period and matures in January 2018.
|
|
(9)
|
|
Amount represents the estimated fixed interest payments on the
Convertible Senior Notes.
|
|
(10)
|
|
Amount represents the incremental increase in estimated variable
interest payments based on the changes in long-term debt
obligations noted herein. Based on September 30, 2008,
London Interbank Offer Rate (LIBOR), Hong Kong
Interbank Offer Rate (HIBOR) and Singapore Swap
Offer Rate of 4.1%, 3.7% and 1.7%, respectively, plus the
applicable interest rate margin in accordance with the
respective debt agreements.
|
|
(11)
|
|
In January 2008, we entered into agreements to purchase an
additional four ferries at an aggregate cost of approximately
$72.0 million to be built for our Macao operations.
|
|
(12)
|
|
As of September 30, 2008, we had a $26.5 million
liability related to unrecognized tax benefits and related
interest expense. We are unable to reasonably estimate the
timing of the Financial Accounting Standards Board
Interpretation No. 48, Accounting for Uncertainty in
Income Taxes an interpretation of FASB Statement
No. 109, liability and interest payments in
individual years beyond 12 months due to uncertainties in
the timing of the effective settlement of tax positions.
|
Restrictions
on Distributions
We are a parent company with limited business operations. Our
main assets are the stock and membership interests of our
subsidiaries. The debt instruments of our U.S., Macao and
Singapore subsidiaries contain certain restrictions that, among
other things, limit the ability of certain subsidiaries to incur
additional indebtedness, issue disqualified stock or equity
interests, pay dividends or make other distributions, repurchase
equity interests or certain indebtedness, create certain liens,
enter into certain transactions with affiliates, enter into
certain mergers or consolidations or sell our assets of our
company without prior approval of the lenders or noteholders.
Inflation
We believe that inflation and changing prices have not had a
material impact on our net sales, revenues or income from
continuing operations during the past year.
Special
Note Regarding Forward-Looking Statements
This report contains forward-looking statements that are made
pursuant to the Safe Harbor Provisions of the Private Securities
Litigation Reform Act of 1995. These forward-looking statements
include the discussions of our business strategies and
expectations concerning future operations, margins,
profitability, liquidity, and capital resources. In addition, in
certain portions included in this report, the words:
anticipates, believes,
estimates, seeks, expects,
plans, intends and similar expressions,
as they relate to our company or its management, are intended to
identify forward-looking statements. Although we believe that
these forward-looking statements are reasonable, we cannot
assure you that any forward-looking statements will prove to be
correct. These forward-looking statements involve known and
unknown risks, uncertainties and other factors, which may cause
our actual results, performance or achievements to be materially
different from any future results, performance or achievements
expressed or implied by these forward-looking statements. These
factors include, among others, the risks associated with:
|
|
|
|
|
our substantial leverage, debt service and debt covenant
compliance (including sensitivity to fluctuations in interest
rates and other capital markets trends);
|
|
|
|
our ability to continue as a going concern;
|
|
|
|
recent disruptions in the global financing markets and our
ability to obtain sufficient funding for our current and future
developments, including our Cotai Strip developments;
|
|
|
|
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 delays and suspensions of certain of our
development projects;
|
|
|
|
the uncertainty of tourist behavior related to spending and
vacationing at casino-resorts in Las Vegas, Macao and Singapore;
|
59
|
|
|
|
|
potential visa restrictions limiting the number of visits and
the length of stay for visitors from mainland China to our Macao
properties;
|
|
|
|
our dependence upon properties in Las Vegas and Macao for all of
our cash flow;
|
|
|
|
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 Phase II Mall purchase and sale
agreement, 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 Macao, 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;
|
|
|
|
outbreaks of infectious diseases, such as severe acute
respiratory syndrome or avian flu, in our market areas;
|
|
|
|
government regulation of the casino industry, including gaming
license regulation, the legalization of gaming in certain
domestic jurisdictions, including Native American reservations,
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;
|
|
|
|
the popularity of Las Vegas and Macao as convention and trade
show destinations;
|
|
|
|
new taxes or changes to existing tax rates;
|
|
|
|
our ability to meet certain development deadlines in Macao and
Singapore;
|
|
|
|
our ability to maintain our gaming subconcession in Macao;
|
|
|
|
the completion of infrastructure projects in Macao and Singapore;
|
|
|
|
increased competition and other planned construction projects in
Macao and Singapore; and
|
|
|
|
the outcome of any ongoing and future litigation.
|
All future written and verbal forward-looking statements
attributable to us or any person acting on our behalf are
expressly qualified in their entirety by the cautionary
statements contained or referred to in this section. New risks
and uncertainties arise from time to time, and it is impossible
for us to predict these events or how they may affect us.
Readers are cautioned not to place undue reliance on these
forward-looking statements. We assume no obligation to update
any forward-looking statements after the date of this report as
a result of new information, future events or developments,
except as required by federal securities laws.
|
|
ITEM 3
|
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
Market risk is the risk of loss arising from adverse changes in
market rates and prices, such as interest rates, foreign
currency exchange rates and commodity prices. Our primary
exposure to market risk is interest rate risk associated with
our long-term debt. We attempt to manage our interest rate risk
by managing the mix of our long-term fixed-rate borrowings and
variable-rate borrowings, and by use of interest rate cap
agreements. The ability to enter into interest rate cap
agreements allows us to manage our interest rate risk associated
with our variable-rate debt. We do not hold or issue financial
instruments for trading purposes and do not enter into
derivative transactions that would be considered speculative
positions. Our derivative financial instruments consist
exclusively of interest rate cap agreements, which do not
qualify for hedge accounting. Interest differentials resulting
from these agreements are recorded on an accrual basis as an
adjustment to interest expense.
60
To manage exposure to counterparty credit risk in interest rate
cap agreements, we enter into agreements with highly-rated
institutions that can be expected to fully perform under the
terms of such agreements. Frequently, these institutions are
also members of the bank group providing our credit facilities,
which management believes further minimizes the risk of
nonperformance.
The table below provides information about our financial
instruments that are sensitive to changes in interest rates. For
debt obligations, the table presents notional amounts and
weighted average interest rates by contractual maturity dates.
Notional amounts are used to calculate the contractual payments
to be exchanged under the contract. Weighted average variable
rates are based on September 30, 2008, LIBOR, HIBOR and
Singapore Swap Offer Rate plus the applicable interest rate
spread in accordance with the respective debt agreements. The
information is presented in U.S. dollar equivalents, which
is the Companys reporting currency, for the years ending
September 30:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair
|
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|
2013
|
|
|
Thereafter
|
|
|
Total
|
|
|
Value(1)
|
|
|
|
(In millions, except for percentages)
|
|
|
LIABILITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed rate(2)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
725.0
|
|
|
$
|
725.0
|
|
|
$
|
656.7
|
|
Average interest rate(3)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6.5
|
%
|
|
|
6.5
|
%
|
|
|
8.2
|
%
|
Variable rate
|
|
$
|
99.3
|
|
|
$
|
136.1
|
|
|
$
|
1,397.3
|
|
|
$
|
2,161.1
|
|
|
$
|
1,724.9
|
|
|
$
|
4,108.1
|
|
|
$
|
9,626.8
|
|
|
$
|
9,626.8
|
|
Average interest rate(3)
|
|
|
6.0
|
%
|
|
|
5.9
|
%
|
|
|
5.8
|
%
|
|
|
5.6
|
%
|
|
|
5.8
|
%
|
|
|
5.5
|
%
|
|
|
5.7
|
%
|
|
|
5.7
|
%
|
ASSETS
|
Cap agreements(4)
|
|
$
|
0.1
|
|
|
$
|
|
|
|
$
|
2.8
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
2.9
|
|
|
$
|
2.9
|
|
|
|
|
(1)
|
|
The fair values are based on the borrowing rates currently
available for debt instruments with similar terms and maturities
and market quotes of our publicly traded debt.
|
|
(2)
|
|
In September 2008, we sold $475.0 million of our 6.5%
convertible senior notes due October 1, 2013.
|
|
(3)
|
|
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, 2008, an assumed 100 basis
point change in LIBOR, HIBOR and Singapore Swap Offer Rate would
cause our annual interest cost to change approximately
$96.7 million.
|
|
(4)
|
|
As of September 30, 2008, we had twelve interest rate cap
agreements with an aggregate fair value of approximately
$2.9 million, based on quoted market values from the
institutions holding the agreements.
|
Borrowings under the $5.0 billion senior secured credit
facility bear interest at our election, at either an adjusted
Eurodollar rate or at an alternative base rate plus a credit
spread. The revolving facility and term loans bear interest at
the alternative base rate plus 0.5% or 0.75% per annum,
respectively, or at the adjusted Eurodollar rate plus 1.5% per
annum or 1.75% per annum, respectively, subject to downward
adjustments based upon our credit rating. Borrowings under the
Macao credit facility bear interest at our election, at either
an adjusted Eurodollar rate (or in the case of the Local Term
Loan, adjusted HIBOR) plus 2.25% per annum or at an alternative
base rate plus 1.25% per annum, and is subject to a downward
adjustment of 0.25% per annum from the beginning of the first
interest period following the substantial completion of The
Venetian Macao. Borrowings under the Singapore permanent
facility bear interest at the Singapore Swap Offer Rate plus a
spread of 2.25% per annum. $67.7 million and
$19.0 million of the borrowings under the airplane
financings bear interest at LIBOR plus 1.5% and 1.25% per annum,
respectively. Borrowings under the ferry financing bear interest
at HIBOR plus 2.0% if borrowings are made in Hong Kong Dollars
or LIBOR plus 2.0% if borrowings are made in U.S. Dollars.
All borrowings under the ferry financing were made in Hong Kong
Dollars as of September 30, 2008.
Foreign currency transaction gains for the nine months ended
September 30, 2008, were $19.5 million primarily due
to U.S. denominated debt held in Macao. We may be
vulnerable to changes in the U.S. dollar/pataca exchange
rate. Based on balances as of September 30, 2008, an
assumed 1% change in the U.S. dollar/pataca exchange rate
would cause a foreign currency transaction gain/loss of
approximately $36.4 million. We do not hedge our exposure
to foreign currencies; however, we maintain a significant amount
of our operating funds in the same currencies in which we have
obligations thereby reducing our exposure to currency
fluctuations.
See also Liquidity and Capital Resources.
61
|
|
ITEM 4
|
CONTROLS
AND PROCEDURES
|
Evaluation
of Disclosure Controls and Procedures
Disclosure controls and procedures are designed to ensure that
information required to be disclosed in the reports that the
Company files or submits under the Securities Exchange Act of
1934 is recorded, processed, summarized, and reported within the
time periods specified in the Securities and Exchange
Commissions rules and forms and that such information is
accumulated and communicated to our management, including our
principal executive officer and principal financial officer, as
appropriate, to allow for timely decisions regarding required
disclosure. The Companys Chief Executive Officer and its
Corporate Controller (Principal Financial Officer) have
evaluated the disclosure controls and procedures (as defined in
the Securities Exchange Act of 1934
Rules 13a-15(e)
and
15d-15(e))
of the Company as of September 30, 2008, and have concluded
that they are effective to provide reasonable assurance that the
desired control objectives were achieved.
It should be noted that any system of controls, however well
designed and operated, can provide only reasonable, and not
absolute, assurance that the objectives of the system are met.
In addition, the design of any control system is based in part
upon certain assumptions about the likelihood of future events.
Because of these and other inherent limitations of control
systems, there can be no assurance that any design will succeed
in achieving its stated goals under all potential future
conditions, regardless of how remote.
Changes
in Internal Control over Financial Reporting
The only change in the Companys internal control over
financial reporting that occurred during the fiscal quarter
covered by this Quarterly Report on
Form 10-Q
that had materially affect, or was reasonably likely to
materially affect, the Companys internal control over
financial reporting, was the opening of the Four Seasons Macao
in August 2008. We have implemented controls and procedures at
the Four Seasons Macao similar to those in effect at our other
facilities.
Part II
OTHER INFORMATION
|
|
ITEM 1
|
LEGAL
PROCEEDINGS
|
The Company is party to litigation matters and claims related to
its operations. For more information, see the Companys
Annual Report on
Form 10-K
for the year ended December 31, 2007, and
Part I Item 1 Financial
Statements Notes to Condensed Consolidated Financial
Statements Note 10 Commitments and
Contingencies of this Quarterly Report on
Form 10-Q.
Except for the risk factors set forth below, there have been no
material changes from the risk factors previously disclosed in
the Companys Annual Report on
Form 10-K
for the year ended December 31, 2007.
Recent
disruptions in the financial markets could adversely affect our
ability to raise additional financing. If we are unable to
raise additional capital in the near term, we would need to
consider further suspending portions, if not all, of our
remaining global development projects.
Widely-documented commercial credit market disruptions have
resulted in a tightening of credit markets worldwide. Liquidity
in the global credit markets has been severely contracted by
these market disruptions, making it costly to obtain new lines
of credit or to refinance existing debt. The effects of these
disruptions are widespread and difficult to quantify, and it is
impossible to predict when the global credit markets will
improve or when the credit contraction will stop. In particular,
our business and financing plan is dependent upon completion of
various financings, including additional financings in Macao and
Singapore, as described in Managements Discussion
and Analysis of Financial Condition and Results of
Operations. Given the state of the current credit
environment, it may be difficult to obtain any additional
financing on acceptable terms, which could have an adverse
effect on our ability to complete our planned development
projects, and as a consequence, our results of operations and
business plans. If we are unable to raise additional capital in
the near term, we would need to consider further suspending
portions, if not all, of our remaining global development
projects.
62
In addition, some of our lenders may have suffered losses
related to their lending and other financial dealings,
especially because of the general weakening of the global
economy and increased financial instability of many borrowers.
As a result, some of the lenders under our credit facilities
have become and may become insolvent, which could make it more
difficult for us to borrow under the revolving portion of our
first lien credit facility. Our financial condition and results
of operations could be adversely affected if we were unable to
draw funds under these facilities because of a lender default.
The
terms of our debt instruments may restrict our current and
future operations, particularly our ability to finance
additional growth, respond to changes or take some actions that
may otherwise be in our best interests.
Our current debt instruments contain, and any future debt
instruments likely will contain, a number of restrictive
covenants that impose significant operating and financial
restrictions on us, including restrictions on our ability to:
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incur additional debt, including providing guarantees or credit
support;
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incur liens securing indebtedness or other obligations;
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dispose of assets;
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make certain acquisitions;
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pay dividends or make distributions and make other restricted
payments, such as purchasing equity interests, repurchasing
junior indebtedness or making investments in third parties;
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enter into sale and leaseback transactions;
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engage in any new businesses;
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issue preferred stock; and
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enter into transactions with our stockholders and our affiliates.
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In addition, our U.S., Macao and Singapore credit agreements
contain various financial covenants. For example, our domestic
credit facilities require our Las Vegas operations to maintain a
maximum leverage ratio of net debt to trailing twelve month
Adjusted EBITDA for the quarter ending September 30, 2008
and at the end of each subsequent quarterly period. In order to
comply with this maximum leverage ratio, we will need to achieve
increased levels of Adjusted EBITDA at our Las Vegas operations,
decrease the rate of spending on our development projects, raise
additional financing and use the proceeds to reduce our Las
Vegas operations net debt, elect to contribute up to
$50.0 million of capital to our Las Vegas operations, which
contribution would have the effect of increasing Adjusted EBITDA
for purposes of calculating maximum leverage, or any combination
thereof.
As our Las Vegas properties did not achieve the levels of
Adjusted EBITDA necessary to maintain compliance with the
maximum leverage ratio for the quarterly period ending
September 30, 2008, we completed a private placement of
$475.0 million in convertible senior notes with our
principal stockholder and his family and used a portion of the
proceeds to exercise the EBITDA
true-up
provision. The EBITDA
true-up,
by
itself, would not have been sufficient to maintain compliance
with the maximum leverage ratio as of September 30, 2008.
Accordingly, the entire proceeds from the offering were
immediately contributed to LVSLLC to reduce the net debt of the
parties to the domestic credit facilities in order to maintain
compliance with the maximum leverage ratio for the quarterly
period ending September 30, 2008.
Based upon current Las Vegas operating estimates for the quarter
ending December 31, 2008 and quarterly periods during 2009,
as well as the fact that we have continued to fund our
development projects outside of Las Vegas, in whole or in part,
with borrowings under the U.S. senior secured credit
facility, we expect the amount of our material domestic
subsidiaries indebtedness will be beyond the level allowed
under the maximum leverage ratio permitted under these domestic
credit facilities. If our Las Vegas Adjusted EBITDA levels do
not increase sufficiently, our reduced spending on our global
development projects is not sufficient, and the EBITDA
true-up
is
not sufficient or available to enable us to maintain compliance
under the maximum leverage ratio, we will need to obtain
significant additional capital at the parent level. As
previously announced, we have been working with our financial
advisor to develop and implement a capital
63
raising program that we believe would be sufficient to address
our current and anticipated funding needs; however, no
assurances can be given that the program will be successful.
If we are unable to do any of the foregoing and we are unable to
obtain a waiver from the lenders under our domestic credit
facilities with respect to compliance under the maximum leverage
ratio, we would be in default under our domestic credit
facilities. If we are unable to obtain waivers or amendments if
and when necessary, we would be in default under our domestic
credit facilities, which would trigger cross-defaults under our
airplane financings and convertible senior notes. If such
defaults or cross-defaults were to occur and the respective
lenders chose to accelerate the indebtedness outstanding under
these agreements, it would result in a default under our senior
notes. Any defaults or cross-defaults under these agreements
would allow the lenders, in each case, to exercise their rights
and remedies as defined under their respective agreements. If
the lenders were to exercise their right to accelerate the
indebtedness outstanding, there can be no assurance that we
would be able to refinance any amounts that may become
accelerated under such agreements. In addition, if we are found
to be in default under the U.S. senior secured credit
facility, we would no longer be able to borrow amounts available
under the U.S. senior secured credit facility and, unless
we are able to raise sufficient additional capital, (i) we
will not be able to fund our ongoing equity contributions under
our Singapore credit facility, and as a result, will not be able
to borrow any additional amounts under that facility, which may
limit our ability to complete construction of the project,
(ii) as we have fully drawn the revolving portion of our
Macao credit facility, we will not be able to pay the remaining
construction costs of the Four Seasons Macao and Four Seasons
Private Apartments if free cash flow from the Sands Macao, The
Venetian Macao and Four Season Macao is not sufficient to pay
those costs, (iii) we may be unable to comply with the
maximum leverage ratio covenant in our Macao credit facility at
the end of the first quarter of 2009, which would result in a
default under the agreement and would allow the lenders to
exercise their rights and remedies under the agreement including
acceleration of the indebtedness outstanding, (iv) we may
not be able to continue providing working capital to our ferry
operations, and (v) we would need to immediately suspend
portions, if not all, of our remaining global development
projects. These factors raise a substantial doubt about our
ability to continue as a going concern.
If the
operating results of The Shoppes at The Palazzo continue to be
worse than we initially expected, if GGP (or any future owner of
The Shoppes at The Palazzo or The Grand Canal Shoppes) breaches
any of its material agreements with us, or if we are unable to
maintain an acceptable working relationship with GGP (or any
future owner), there could be a material adverse effect on our
financial condition, results of operations or cash
flows.
We have entered into agreements with GGP under which, among
other things:
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GGP remains obligated to make payments to us in connection with
their purchase of The Shoppes at The Palazzo, and these payments
are based on projected and, ultimately, actual net operating
income for The Shoppes at The Palazzo;
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leases for The Shoppes at The Palazzo must be jointly approved
by us and GGP; and
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GGP has agreed to operate The Grand Canal Shoppes and The
Shoppes at The Palazzo subject to, and in accordance with, the
cooperation agreement.
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If the local and national economic downturn continues, the net
operating income for The Shoppes at The Palazzo may continue to
be significantly worse than expected at the time the complex was
sold to GGP, and therefore the amounts GGP is obligated to pay
us may also be significantly less than expected. (Several
tenants at The Shoppes at The Palazzo whose sales have been less
than initially expected have already asked for temporary
reductions in base rent, which we and GGP have agreed to.)
Further, as a result of GGPs publicly-disclosed liquidity
and leverage problems, there can be no assurance that GGP will
be able to pay us future amounts owed.
GGP has also announced that (i) the mortgage loan on The
Shoppes at The Palazzo is due November 28, 2008, and GGP
does not expect to be able to pay off or refinance the mortgage
by that date and so is attempting to obtain an extension and
(ii) it is marketing The Shoppes at The Palazzo and The
Grand Canal Shoppes for sale. If GGP sells either of these
properties, or it is unsuccessful at refinancing the loan
against The Shoppes at The Palazzo or extending the maturity
date thereof and its lenders foreclose on The Shoppes at The
Palazzo, the above-described agreements could, as explained
below, be adversely affected in ways that could have a material
adverse effect on our financial condition, results of operations
or cash flows if we are not able to maintain an acceptable
working relationship with the new owner or owners.
64
Each of the above-described agreements with GGP could be
adversely affected in ways that could have a material adverse
effect on our financial condition, results of operations or cash
flows if we do not maintain an acceptable working relationship
with GGP or its successors. For example:
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if we are unable to agree with GGP on leases for remaining
unleased space at The Shoppes at The Palazzo, the purchase price
we will ultimately be paid for The Shoppes at The Palazzo could
be substantially reduced, and there would, at least for a
certain period of time, be empty space within The Shoppes at The
Palazzo; and
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the cooperation agreement that governs the relationships between
The Shoppes at The Palazzo and The Palazzo and The Grand Canal
Shoppes and The Venetian requires that the owners cooperate in
various ways and take various joint actions, which will be more
difficult to accomplish, especially in a cost-effective manner,
if the parties do not have an acceptable working relationship.
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There could be similar material adverse consequences to us if
GGP breaches any of its agreements to us, such as its agreement
under the cooperation agreement to operate The Grand Canal
Shoppes consistent with the standards of first-class restaurant
and retail complexes and the overall Venetian theme, and its
various obligations as our landlord under the leases described
above. Although the various agreements with GGP do provide us
with various remedies in the event of any breaches by GGP and
also include various dispute resolution procedures and
mechanisms, these remedies, procedures and mechanisms may be
inadequate to prevent a material adverse effect on our
operations and financial condition if breaches by GGP occur or
if we do not maintain an acceptable working relationship with
GGP.
We
depend on the continued services of key managers and employees.
If we do not retain our key personnel or attract and retain
other highly skilled employees or if our senior managers cannot
work together effectively, our business will
suffer.
Our ability to maintain our competitive position is dependent to
a large degree on the services of our senior management team,
including Sheldon G. Adelson and our other executive officers.
As described in Item 5 Other
Information Recent Corporate Governance
Changes, our board of directors has instituted additional
corporate policies and procedures to address governance concerns
raised by senior management. The success of our business depends
on the continued cooperation among members of our management
team. Mr. Adelson, William P. Weidner, Bradley H. Stone and
Robert G. Goldstein have each entered into employment
agreements, which are currently scheduled to expire on
December 31, 2009; however, we cannot assure you that any
of our executive officers will remain with us. We currently do
not have a life insurance policy on any of the members of the
senior management team. The death or loss of the services of any
of our senior managers or the inability to attract and retain
additional senior management personnel could have a material
adverse effect on our business.
We are
required to build and open our developments on parcel 3 of the
Cotai Strip by August 2011. Unless we meet this deadline or
obtain an extension, we may lose our right to continue to
operate The Venetian Macao, Sands Macao, Four Seasons Macao and
any other facilities developed under the
subconcession.
The land concession we received from the Macao government covers
parcels 1, 2 and 3. We have developed parcel 1 (The Venetian
Macao) and parcel 2 (Four Seasons Macao). Under the terms of the
concession, we are required to complete development of parcel 3
by August 2011. We have commenced pre-construction on parcel 3,
but will not commence construction until government approvals
necessary to commence construction are obtained, regional and
global economic conditions improve, future demand warrants and
additional financing is obtained. As a result, there is a
significant risk that by the time we are able to commence
construction, we will not be able to complete it by the
deadline. See Recent disruptions in the
financial markets could adversely affect our ability to raise
additional financing and, in our Annual Report on
10-K,
Risk Factors Risks Related to Our
Business There are significant risks associated with
our planned construction projects, which could adversely affect
our financial condition, results of operations or cash flows
from these planned facilities. Although we believe that if
we are not able to complete the development of parcel 3 by the
deadline, we will be able to obtain an extension of the
deadline, if we fail to do so, the Macao government has the
right, after consultation with our concessionaire, Galaxy Casino
Company Limited, to unilaterally terminate our subconcession to
operate Sands Macao, The Venetian Macao, Four Seasons Macao and
any of our other casino operations in Macao, without
compensation to us. The loss of our subconcession would prohibit
us from conducting gaming operations in Macao, which could have
a material adverse effect on our results of operations and
financial condition.
65
Our
revised development plan may give one of our hotel managers for
our Cotai Strip developments the right to terminate its
agreements with us.
We have entered into management agreements with Starwood Hotels
& Resorts Worldwide (Starwood) to manage a
hotel under its Sheraton brand and a hotel and serviced luxury
apartment hotel under its St. Regis brand, both of which
are located on our Cotai Strip parcels 5 and 6. Under our
revised development plan, construction of the first Sheraton
tower will be temporarily suspended while we pursue
project-level financing (which we target to complete within the
next three to six months), but there can be no assurance that
such financing will be obtained; and construction of the second
Sheraton tower and the St. Regis serviced luxury apartment
hotel has been suspended until conditions in the capital markets
and general economic conditions improve. Our management
agreements with Starwood impose certain construction and opening
obligations and deadlines on us, and the delays and potential
delays described above create a significant risk that we will
fail to meet some or all of these obligations and deadlines. If
that were to occur, Starwood would have the right to terminate
its agreements with us, which would result in our having to find
new managers and brands for the above-described projects, and
which could have a material adverse effect on our financial
condition and results of operations.
Our
business is particularly sensitive to reductions in
discretionary consumer spending as a result of downturns in the
economy.
Consumer demand for hotel/casino resorts, trade shows and
conventions and for the type of luxury amenities we offer is
particularly sensitive to downturns in the economy and the
corresponding impact on discretionary spending on leisure
activities. Changes in discretionary consumer spending or
consumer preferences brought about by factors such as perceived
or actual general economic conditions, the current housing
crisis and the credit crisis, the impact of high energy and food
costs, the increased cost of travel, the potential for bank
failures, perceived or actual disposable consumer income and
wealth, fears of recession and changes in consumer confidence in
the economy, or fears of war and future acts of terrorism could
reduce customer demand for the luxury amenities and leisure
activities we offer, thus imposing practical limits on pricing
and harming our operations.
The current housing crisis and economic slowdown in the United
States has resulted in a significant decline in the amount of
tourism and spending in Las Vegas. In the eight months ended
August 2008, the latest information available, the occupancy
rates across Las Vegas have declined by approximately 2.4%, room
rates have declined by approximately 7.7% and gaming revenue has
declined approximately 7.1%, compared to the eight months ended
August 2007. If these trends continue, our financial
condition, results of operations and cash flows may be adversely
effected.
The
number of visitors to Macao, particularly visitors from mainland
China, may decline or travel to Macao may be
disrupted.
Our VIP and mass market gaming patrons typically come from
nearby destinations in Asia, including mainland China, South
Korea and Japan. Increasingly, a significant number of gaming
patrons come to our casinos from mainland China.
The large investments that we and our competitors are making in
the construction of new hotels and casinos, are based, in part,
on projections regarding the number of visitors, and in
particular, visitors from mainland China. As a result, general
economic conditions and policies in China could have a
significant impact on our financial prospects. Any slowdown in
economic growth or reversal of Chinas current policies of
liberalizing restrictions on travel and currency movements could
disrupt the number of visitors from mainland China to our
casinos in Macao as well as the amounts they are willing to
spend in the casinos.
In early October 2008, news media reported that certain
additional proposed restrictions were imposed on exit visa
applicants for travel to Macao by Chinese authorities. Under the
measures, residents of mainland China are restricted to making
only one visit every two months instead of one visit per month.
In addition, residents of mainland China visiting Hong Kong may
no longer visit Macao on the same visa, but instead must obtain
a separate visa for any visit to Macao. These developments have,
and any future policy developments that may be implemented may
have, the effect of reducing the number of visitors to Macao
from mainland China, which could adversely impact tourism and
the gaming industry in Macao.
66
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ITEM 4
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SUBMISSION
OF MATTERS TO A VOTE OF SECURITY HOLDERS
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On September 30, 2008, in connection with the private
placement of Convertible Senior Notes, Sheldon G. Adelson and
certain family trusts for the benefit of Mr. Adelson and
his family, who collectively held 244,755,626 shares, or
approximately 68.9% of the outstanding shares of the
Companys common stock as of September 29, 2008,
delivered to the Company an executed written consent of
stockholders approving the issuance of the number of shares of
common stock required to be issued in connection with the
conversion of the Convertible Senior Notes. This action was
taken solely for the purposes of satisfying requirements of the
New York Stock Exchange that require an issuer of listed
securities to obtain the consent of its stockholders prior to
issuing securities to affiliates if the number of shares of
common stock into which the securities may be convertible or
exercisable exceeds one percent of the number of shares of
common stock outstanding before the issuance. Pursuant to the
rules promulgated under the Securities Exchange Act of 1934, the
stockholder consent will become effective 20 calendar days after
we mail an information statement on Schedule 14C to our
stockholders to provide them with notice of the consent. We have
not yet mailed the information statement on Schedule 14C to
our stockholders. See Item 1 Financial
Statements Notes to Condensed Consolidated Financial
Statements
Note 1
Organization and Business of the
Company and Item 1 Financial
Statements Notes to Condensed Consolidated Financial
Statements Note 4
Long Term
Debt for further details regarding this private placement.
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ITEM 5
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OTHER
INFORMATION
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Recent
Corporate Governance Changes
On October 29, 2008, certain members of our management
team, including Sheldon G. Adelson, Chairman of the Board and
Chief Executive Officer, William P. Weidner, President and Chief
Operating Officer, Bradley H. Stone, Executive Vice President,
and Robert G. Goldstein, Senior Vice President (the Senior
Management Members), recommended to our board of directors
that it institute additional corporate policies and procedures.
Upon such recommendation, our board of directors formed an
executive committee (the Executive Committee)
comprised of Irwin Chafetz, Michael A. Leven and Irwin A.
Siegel, with Mr. Leven being the Chairman of the Executive
Committee. The role of the Executive Committee is to exercise
the powers of the board of directors in between scheduled board
meetings, including the power to resolve disagreements among
management. Also, the board of directors gave Mr. Stone the
additional responsibilities of President of Construction and
Operations. The board of directors adopted these measures to
address governance concerns raised by the Senior Management
Members, address a number of outstanding differences between our
Chief Executive Officer and other Senior Management Members and
in response to a loss of confidence by certain Senior Management
Members in the management of the Company and our governance
process.
Appointment
of Chief Financial Officer
We have appointed Kenneth J. Kay, 53, as the Senior Vice
President and Chief Financial Officer of the Company, effective
on December 1, 2008. Mr. Kay will also serve as our
principal financial officer. Mr. Kay will start his new
position with the Company and assume the duties and
responsibilities in connection therewith on December 1,
2008.
Singapore
Update
In November 2008, the Casino Regulatory Authority of Singapore
(the CRA) informed us, following our submission,
that our proposed casino floor plan for the Marina Bay Sands
complies with the CRAs requirements for casino layout.
This floor plan would permit Marina Bay Sands to feature up to
1,000 table games (increasing its original layout from
600). The layout of our final casino floor plan as well as other
casino matters will be subject to final approval from the CRA
when we apply for our casino license next year.
67
LAS VEGAS
SANDS CORP.
List of
Exhibits
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Exhibit No.
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Description of Document
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4
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.1
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Indenture, dated as of September 30, 2008, between Las
Vegas Sands Corp. and U.S. Bank National Association, as Trustee
(incorporated by reference from Exhibit 4.4 to the
Companys Form 3-ASR filed on November 6, 2008).
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4
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.2
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First Supplemental Indenture, dated as of September 30,
2008, between Las Vegas Sands Corp. and U.S. Bank National
Association, as Trustee.
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10
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.1
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Convertible Note Purchase Agreement, dated September 30,
2008, by and among Las Vegas Sands Corp. and the Purchaser named
therein.
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10
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.2
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Amended and Restated Registration Rights Agreement, dated as of
September 30, 2008, by and among Las Vegas Sands Corp.,
Dr. Miriam Adelson, the other Adelson Holders (as defined
therein) and the Other Holders (as defined therein) that are
party to this Agreement from time to time.
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10
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.3
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Investor Rights Agreement, dated as of September 30, 2008,
by and between Las Vegas Sands Corp. and the Investor named
therein.
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10
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.4
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Employment Agreement, dated as of October 1, 2006, by and
between Las Vegas Sands Corporation and Michael Quartieri.
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10
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.5
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Amendment, effective October 24, 2008, to Land Concession
by Lease between Macau Special Administrative Region and
Venetian Cotai Limited.
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31
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.1
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Certification of the Chief Executive Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
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31
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.2
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Certification of the Corporate Controller (Principal Financial
Officer) pursuant to Section 302 of the Sarbanes-Oxley Act
of 2002.
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32
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.1
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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.
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32
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.2
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Certification of Corporate Controller (Principal 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.
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68
LAS VEGAS
SANDS CORP.
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this quarterly report on
Form 10-Q
to be signed on its behalf by the undersigned thereunto duly
authorized.
LAS VEGAS SANDS CORP.
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By:
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/s/ Sheldon
G. Adelson
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Sheldon G. Adelson
Chairman of the Board and
Chief Executive Officer
November 10, 2008
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By:
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/s/
Michael
A. Quartieri
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Michael A. Quartieri
Corporate Controller
(Principal Financial Officer)
November 10, 2008
69
Exhibit 4.1
LAS VEGAS SANDS CORP.
and
U.S. BANK NATIONAL ASSOCIATION,
Trustee
INDENTURE
Dated as of September 30, 2008
Providing for Issuance of Senior Debt Securities in Series
TABLE OF CONTENTS
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Page
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ARTICLE I Definitions and Other Provisions of General Application
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1
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Section 1.01
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Definitions
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1
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Section 1.02
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Compliance Certificates and Opinions
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10
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Section 1.03
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Form of Documents Delivered to Trustee
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11
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Section 1.04
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Acts of Securityholders
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12
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Section 1.05
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Notices, etc., to Trustee and Company
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13
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Section 1.06
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Notices to Securityholders; Waiver
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14
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Section 1.07
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Conflict with Trust Indenture Act
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14
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Section 1.08
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Effect of Headings and Table of Contents
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14
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Section 1.09
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Successors and Assigns
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14
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Section 1.10
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Separability Clause
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14
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Section 1.11
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Benefits of Indenture
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15
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Section 1.12
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Governing Law
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15
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Section 1.13
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Counterparts
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15
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Section 1.14
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Judgment Currency
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15
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ARTICLE II Security Forms
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15
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Section 2.01
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Forms Generally
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15
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Section 2.02
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Forms of Securities
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16
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Section 2.03
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Form of Trustees Certificate of Authentication
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16
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Section 2.04
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Securities Issuable in the Form of a Global Security
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16
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ARTICLE III The Securities
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18
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Section 3.01
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General Title; General Limitations; Issuable in
Series; Terms of Particular Series
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18
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Section 3.02
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Denominations
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21
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Section 3.03
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Execution, Authentication and Delivery and
Dating
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21
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Section 3.04
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Temporary Securities
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23
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Section 3.05
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Registration, Transfer and Exchange
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23
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Section 3.06
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Mutilated, Destroyed, Lost and Stolen Securities
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25
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Section 3.07
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Payment of Interest; Interest Rights Preserved
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25
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Section 3.08
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Persons Deemed Owners
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27
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Section 3.09
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Cancellation
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27
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Section 3.10
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Computation of Interest
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27
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Section 3.11
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Delayed Issuance of Securities
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27
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ARTICLE IV Satisfaction and Discharge; Defeasance
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28
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|
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|
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|
|
Section 4.01
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Satisfaction and Discharge of Indenture
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|
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28
|
|
Section 4.02
|
|
Application of Trust Money
|
|
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29
|
|
Section 4.03
|
|
Defeasance Upon Deposit of Funds or Government
Obligations
|
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30
|
|
i
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Page
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Section 4.04
|
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Reinstatement
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32
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ARTICLE V Remedies
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32
|
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|
|
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|
Section 5.01
|
|
Events of Default
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32
|
|
Section 5.02
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
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34
|
|
Section 5.03
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
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35
|
|
Section 5.04
|
|
Trustee May File Proofs of Claim
|
|
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36
|
|
Section 5.05
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
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37
|
|
Section 5.06
|
|
Application of Money Collected
|
|
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37
|
|
Section 5.07
|
|
Limitation on Suits
|
|
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37
|
|
Section 5.08
|
|
Unconditional Right of Securityholders to Receive Principal,
Premium and Interest
|
|
|
38
|
|
Section 5.09
|
|
Restoration of Rights and Remedies
|
|
|
38
|
|
Section 5.10
|
|
Rights and Remedies Cumulative
|
|
|
38
|
|
Section 5.11
|
|
Delay or Omission Not Waiver
|
|
|
39
|
|
Section 5.12
|
|
Control by Securityholders
|
|
|
39
|
|
Section 5.13
|
|
Waiver of Past Defaults
|
|
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39
|
|
Section 5.14
|
|
Undertaking for Costs
|
|
|
39
|
|
Section 5.15
|
|
Waiver of Stay or Extension Laws
|
|
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40
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|
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|
|
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|
|
|
ARTICLE VI The Trustee
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40
|
|
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|
|
|
|
Section 6.01
|
|
Certain Duties and Responsibilities
|
|
|
40
|
|
Section 6.02
|
|
Notice of Defaults
|
|
|
41
|
|
Section 6.03
|
|
Certain Rights of Trustee
|
|
|
42
|
|
Section 6.04
|
|
Not Responsible for Recitals or Issuance of Securities
|
|
|
43
|
|
Section 6.05
|
|
May Hold Securities
|
|
|
43
|
|
Section 6.06
|
|
Money Held in Trust
|
|
|
43
|
|
Section 6.07
|
|
Compensation and Reimbursement
|
|
|
44
|
|
Section 6.08
|
|
Disqualification; Conflicting Interests
|
|
|
44
|
|
Section 6.09
|
|
Corporate Trustee Required; Eligibility
|
|
|
45
|
|
Section 6.10
|
|
Resignation and Removal
|
|
|
45
|
|
Section 6.11
|
|
Acceptance of Appointment by Successor
|
|
|
47
|
|
Section 6.12
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
48
|
|
Section 6.13
|
|
Preferential Collection of Claims Against Company
|
|
|
48
|
|
Section 6.14
|
|
Appointment of Authenticating Agent
|
|
|
48
|
|
|
|
|
|
|
|
|
ARTICLE VII Securityholders Lists and Reports by Trustee and Company
|
|
|
50
|
|
|
|
|
|
|
|
|
Section 7.01
|
|
Company to Furnish Trustee Names and Addresses of Securityholders
|
|
|
50
|
|
Section 7.02
|
|
Preservation of Information; Communications to Securityholders
|
|
|
50
|
|
Section 7.03
|
|
Reports by Trustee
|
|
|
51
|
|
Section 7.04
|
|
Reports by Company
|
|
|
52
|
|
ii
|
|
|
|
|
|
|
|
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Page
|
|
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|
|
ARTICLE VIII Consolidation, Merger, Conveyance or Transfer
|
|
|
52
|
|
|
|
|
|
|
|
|
Section 8.01
|
|
Consolidation, Merger, Conveyance or Transfer on Certain Terms
|
|
|
52
|
|
Section 8.02
|
|
Successor Person Substituted
|
|
|
53
|
|
|
|
|
|
|
|
|
ARTICLE IX Supplemental Indentures
|
|
|
53
|
|
|
|
|
|
|
|
|
Section 9.01
|
|
Supplemental Indentures Without Consent of Securityholders
|
|
|
53
|
|
Section 9.02
|
|
Supplemental Indentures with Consent of Securityholders
|
|
|
55
|
|
Section 9.03
|
|
Execution of Supplemental Indentures
|
|
|
56
|
|
Section 9.04
|
|
Effect of Supplemental Indentures
|
|
|
56
|
|
Section 9.05
|
|
Conformity with Trust Indenture Act
|
|
|
57
|
|
Section 9.06
|
|
Reference in Securities to Supplemental Indentures
|
|
|
57
|
|
|
|
|
|
|
|
|
ARTICLE X Covenants
|
|
|
57
|
|
|
|
|
|
|
|
|
Section 10.01
|
|
Payment of Principal, Premium and Interest
|
|
|
57
|
|
Section 10.02
|
|
Maintenance of Office or Agency
|
|
|
57
|
|
Section 10.03
|
|
Money for Security Payments to Be Held in Trust
|
|
|
58
|
|
Section 10.04
|
|
Statement as to Compliance
|
|
|
59
|
|
Section 10.05
|
|
Legal Existence
|
|
|
59
|
|
Section 10.06
|
|
Waiver of Certain Covenants
|
|
|
59
|
|
|
|
|
|
|
|
|
ARTICLE XI Redemption of Securities
|
|
|
60
|
|
|
|
|
|
|
|
|
Section 11.01
|
|
Applicability of Article
|
|
|
60
|
|
Section 11.02
|
|
Election to Redeem; Notice to Trustee
|
|
|
60
|
|
Section 11.03
|
|
Selection by Trustee of Securities to Be Redeemed
|
|
|
60
|
|
Section 11.04
|
|
Notice of Redemption
|
|
|
61
|
|
Section 11.05
|
|
Deposit of Redemption Price
|
|
|
62
|
|
Section 11.06
|
|
Securities Payable on Redemption Date
|
|
|
63
|
|
Section 11.07
|
|
Securities Redeemed in Part
|
|
|
63
|
|
Section 11.08
|
|
Provisions with Respect to Any Sinking Funds
|
|
|
63
|
|
Section 11.09
|
|
Rescission of Redemption
|
|
|
64
|
|
Section 11.10
|
|
Mandatory Disposition of Securities Pursuant to Gaming Laws
|
|
|
65
|
|
|
|
|
|
|
|
|
ARTICLE XII Conversion
|
|
|
66
|
|
|
|
|
|
|
|
|
Section 12.01
|
|
Conversion Privilege
|
|
|
66
|
|
Section 12.02
|
|
Conversion Procedure; Rescission of Conversion; Conversion Price;
Fractional Shares
|
|
|
66
|
|
Section 12.03
|
|
Adjustment of Conversion Price for Common Stock or Marketable Securities
|
|
|
69
|
|
Section 12.04
|
|
Consolidation or Merger of the Company
|
|
|
72
|
|
Section 12.05
|
|
Notice of Adjustment
|
|
|
73
|
|
Section 12.06
|
|
Notice in Certain Events
|
|
|
73
|
|
Section 12.07
|
|
Company to Reserve Stock or other Marketable Securities; Registration;
Listing
|
|
|
74
|
|
iii
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
Section 12.08
|
|
Taxes on Conversion
|
|
|
74
|
|
Section 12.09
|
|
Conversion After Record Date
|
|
|
75
|
|
Section 12.10
|
|
Corporate Action Regarding Par Value of Common Stock
|
|
|
75
|
|
Section 12.11
|
|
Company Determination Final
|
|
|
75
|
|
Section 12.12
|
|
Trustees Disclaimer
|
|
|
75
|
|
|
|
|
|
|
|
|
ARTICLE XIII Guarantees
|
|
|
75
|
|
|
|
|
|
|
|
|
Section 13.01
|
|
Guarantees. (a) Any series of Securities may be guaranteed by one or
more of the Subsidiaries of the Company or other Persons. The terms and the form
of any such Guarantee will be established in the manner contemplated by Section
3.01 for the particular series of Securities. Each Guarantor, as primary obligor
and not merely as surety, will fully, irrevocably and unconditionally guarantee,
to each Holder of Securities (including each Holder of Securities issued under
the Indenture after the date of this Indenture) and to the Trustee and its
successors and assigns (i) the full and punctual payment of principal of and
interest on the Securities when due, whether at maturity, by acceleration, by
redemption or otherwise, and all other monetary obligations of the Company under
this Indenture (including obligations to the Trustee) and the Securities and (ii)
the full and punctual performance within applicable grace periods of all other
obligations of the Company under this Indenture and the Securities.
|
|
|
75
|
|
iv
Table Showing Reflection in Indenture of Certain Provisions
of Trust Indenture Act of 1939,
as amended by the Trust Indenture Reform Act of 1990
Reflected in Indenture
|
|
|
|
|
Trust Indenture Act Section
|
|
Indenture Section
|
§ 310
|
|
(a)(1)
|
|
6.09
|
|
|
(a)(2)
|
|
6.09
|
|
|
(a)(3)
|
|
Not Applicable
|
|
|
(a)(4)
|
|
Not Applicable
|
|
|
(a)(5)
|
|
6.09
|
|
|
(b)
|
|
6.08
|
|
|
|
|
|
§ 311
|
|
(a)
|
|
6.13(a)
|
|
|
(b)
|
|
6.13(b)
|
|
|
(b)(2)
|
|
7.03(a)
|
|
|
|
|
7.03(b)
|
|
|
|
|
|
§ 312
|
|
(a)
|
|
7.01
|
|
|
|
|
7.02(a)
|
|
|
(b)
|
|
7.03(b)
|
|
|
(c)
|
|
7.02(c)
|
|
|
|
|
|
§ 313
|
|
(a)
|
|
7.03(a)
|
|
|
(b)
|
|
7.03(b)
|
|
|
(c)
|
|
7.03(a)
|
|
|
|
|
7.03(b)
|
|
|
(d)
|
|
7.03(c)
|
|
|
|
|
|
§ 314
|
|
(a)(1)
|
|
7.04
|
|
|
(a)(2)
|
|
7.04
|
|
|
(a)(3)
|
|
7.04
|
|
|
(a)(4)
|
|
10.04
|
|
|
(b)
|
|
Not Applicable
|
|
|
(c)(1)
|
|
1.02
|
|
|
(c)(2)
|
|
1.02
|
|
|
(c)(3)
|
|
Not Applicable
|
|
|
(d)
|
|
Not Applicable
|
|
|
(e)
|
|
1.02
|
|
|
|
|
|
§ 315
|
|
(a)
|
|
6.01(a)
|
|
|
|
|
6.01(c)
|
|
|
(b)
|
|
6.02
|
|
|
|
|
7.03(a)
|
|
|
(c)
|
|
6.01(b)
|
i
|
|
|
|
|
Trust Indenture Act Section
|
|
Indenture Section
|
|
|
(d)
|
|
6.01
|
|
|
(d)(1)
|
|
6.01(a)
|
|
|
(d)(2)
|
|
6.01(c)(2)
|
|
|
(d)(3)
|
|
6.01(c)(3)
|
|
|
(e)
|
|
5.14
|
|
|
|
|
|
§ 316
|
|
(a)
|
|
1.01
|
|
|
(a)(1)(A)
|
|
5.02
|
|
|
|
|
5.12
|
|
|
(a)(1)(B)
|
|
5.13
|
|
|
(a)(2)
|
|
Not Applicable
|
|
|
(b)
|
|
5.08
|
|
|
(c)
|
|
1.04(d)
|
|
|
|
|
|
§ 317
|
|
(a)(1)
|
|
5.03
|
|
|
(a)(2)
|
|
5.04
|
|
|
(b)
|
|
10.03
|
|
|
|
|
|
§ 318
|
|
(a)
|
|
1.07
|
Note: This table shall not, for any purpose, be deemed to be part of the Indenture.
Section 318(c) of the Trust Indenture Act provides that the provisions of Sections 310 to and
including 317 of the Trust Indenture Act are a part of and govern every qualified indenture,
whether or not physically contained therein.
ii
THIS INDENTURE between LAS VEGAS SANDS CORP., a Nevada corporation (hereinafter called the
Company
) having its principal office at 3355 Las Vegas Boulevard South, Las Vegas, Nevada
89109, and U.S. BANK NATIONAL ASSOCIATION, as trustee (hereinafter called the
Trustee
),
is made and entered into as of September 30, 2008.
Recitals of the Company
The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance of its debentures, notes, bonds or other evidences of indebtedness, in an unlimited
aggregate principal amount, to be issued in one or more fully registered series.
This Indenture is subject to the provisions of the Trust Indenture Act that are deemed to be
incorporated into this Indenture and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid agreement of the Company in accordance
with its terms have been done.
Agreements of the Parties
To set forth or to provide for the establishment of the terms and conditions upon which the
Securities are and are to be authenticated, issued and delivered, and in consideration of the
premises and the purchase of Securities by the Holders thereof, it is mutually agreed as follows,
for the equal and proportionate benefit of all Holders of the Securities or of a series thereof, as
the case may be:
ARTICLE I
Definitions and Other Provisions
of General Application
Section 1.01
Definitions
. For all purposes of this Indenture and of any indenture
supplemental hereto, except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act or by
Commission rule under the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them herein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with GAAP and, except as otherwise herein expressly provided, the term
generally accepted accounting principles with respect to any computation required or
permitted hereunder shall mean such
accounting principles and any accounting rules or interpretations promulgated by the
Commission as are generally accepted in the United States of America at the date of this
Indenture; and
(4) all references in this instrument to designated Articles, Sections and other
subdivisions are to the designated Articles, Sections and other subdivisions of this
instrument as originally executed. The words herein, hereof and hereunder and other
words of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms, used principally in Article VI, are defined in that Article.
Act
, when used with respect to any Securityholder, has the meaning specified in
Section 1.04.
Affiliate
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For the purposes of this definition, control when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms
controlling and controlled have meanings correlative to the foregoing.
Authenticating Agent
means any Person authorized by the Company to authenticate
Securities under Section 6.14.
Board of Directors
means (i) the board of directors of the Company, (ii) any duly
authorized committee of such board, (iii) any committee of officers of the Company or (iv) any
officer of the Company acting, in the case of clauses (iii) or (iv), pursuant to authority granted
by the board of directors of the Company or any committee of such board.
Board Resolution
means a copy of a resolution certified by the Secretary or any
Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the Trustee.
Business Day
means, with respect to any series of Securities, unless otherwise
specified in a Board Resolution, in an indenture supplemental hereto or an Officers Certificate
with respect to a particular series of Securities, each day which is not a Saturday, Sunday or
other day on which banking institutions in the pertinent Place or Places of Payment or the city in
which the Corporate Trust Office is located are authorized or required by law or executive order to
be closed.
Closing Price
of the Common Stock or other Marketable Security, as the case may be,
shall mean the last reported sale price of such stock or other Marketable Security (regular way) as
shown on the Composite Tape of the NYSE (or, if such stock or
2
other Marketable Security is not listed or admitted to trading on the NYSE, on the principal
national securities exchange on which such stock or other Marketable Security is listed or admitted
to trading, including the NASDAQ), or, in case no such sale takes place on such day, the average of
the closing bid and asked prices on the NYSE (or, if such stock or other Marketable Security is not
listed or admitted to trading on the NYSE, on the principal national securities exchange on which
such stock or other Marketable Security is listed or admitted to trading, including the NASDAQ), or
if such stock or other Marketable Security is not so reported, the average of the closing bid and
asked prices as furnished by any member of the Financial Industry Regulatory Authority, selected
from time to time by the Company for that purpose.
Commission
means the Securities and Exchange Commission, as from time to time
constituted, created under the Securities Exchange Act of 1934, or, if at any time after the
execution of this instrument such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing such duties at such time.
Common Stock
shall mean the Common Stock, par value $0.001 per share, of the Company
authorized at the date of this Indenture as originally signed, or any other class of stock
resulting from successive changes or reclassifications of such Common Stock, and in any such case
including any shares thereof authorized after the date of this Indenture.
Company
means the Person named as the Company in the first paragraph of this
instrument until a successor shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter Company shall mean such successor.
Company Request
,
Company Order
and
Company Consent
mean a
written request, order or consent, respectively, signed in the name of the Company by its Chairman
of the Board, Chief Executive Officer, President, Chief Operating Officer, Chief Financial Officer,
Treasurer, any Assistant Treasurer, Controller, any Assistant Controller, General Counsel,
Secretary, any Assistant Secretary or any Vice President, and delivered to the Trustee.
Conversion Agent
means any Person authorized by the Company to receive Securities to
be converted into Common Stock or other Marketable Securities on behalf of the Company. The
Company initially authorizes the Trustee to act as Conversion Agent for the Securities on its
behalf. The Company may at any time and from time to time authorize one or more Persons to act as
Conversion Agent in addition to or in place of the Trustee with respect to any series of Securities
issued under this Indenture.
Conversion Price
means, with respect to any series of Securities which are
convertible into Common Stock or other Marketable Securities, the price per share of Common Stock
or the price per designated unit of other Marketable Security at which the Securities of such
series are so convertible as set forth in the Board Resolution or
3
indenture supplemental hereto with respect to such series (or in any indenture supplemental
hereto entered into pursuant to Section 9.01(9) with respect to such series), as the same may be
adjusted from time to time in accordance with Section 12.03 (or such indenture supplemental
hereto).
Converting Holder
shall have the meaning specified in Section 12.02(c) of this
Indenture.
Corporate Trust Office
means the office of the Trustee at which at any particular
time its corporate trust business shall be principally administered, which office at the date
hereof is located at 60 Livingston Avenue EP-MN-WS3C, St. Paul, Minnesota 55107, Attn: Richard
Prokosch.
Current Market Price
on any date shall mean the average of the daily Closing Prices
per share of Common Stock or of such other Marketable Securities for any 30 consecutive Trading
Days selected by the Company prior to the day in question, which 30 consecutive Trading Day period
shall not commence more than 45 Trading Days prior to the day in question; provided that with
respect to Section 12.03(3), the Current Market Price of the Common Stock or of such other
Marketable Securities shall mean the average of the daily Closing Prices per share of Common Stock
or of such other Marketable Securities for the five consecutive Trading Days ending on the date of
the distribution referred to in Section 12.03(3) (or if such date shall not be a Trading Day, on
the Trading Day immediately preceding such date).
Defaulted Interest
has the meaning specified in Section 3.07.
Depository
means, unless otherwise specified by the Company pursuant to either
Section 2.04 or 3.01, with respect to Securities of any series issuable or issued as a Global
Security, The Depository Trust Company, New York, New York, or any successor thereto registered as
a clearing agency under the Securities Exchange Act of 1934, as amended, or other applicable
statute or regulation.
Discharged
has the meaning specified in Section 4.03.
Event of Default
has the meaning specified in Article V.
Federal Bankruptcy Act
has the meaning specified in Section 5.01(5).
GAAP
means generally accepted accounting principles as such principles are in effect
in the United States as of the date of this Indenture.
Gaming Authority
means any agency, authority, board, bureau, commission, department,
office or instrumentality of any nature whatsoever of the United States or foreign government, any
state, province or any city or other political subdivision, whether now or hereafter existing, or
any officer or official thereof, including without limitation, the Nevada Gaming Commission, the
Nevada State Gaming Control Board, the Clark County Liquor and Gaming Licensing Board, the Macau
4
Gaming Authorities, the Pennsylvania Gaming Control Board, the Singapore Casino Regulatory
Authority and any other agency with authority to regulate any gaming operation (or proposed gaming
operation) owned, managed or operated by the Company or any of its subsidiaries.
Gaming Laws
means the gaming laws of a jurisdiction or jurisdictions to which the
Company or a Subsidiary of the Company is, or may at any time after the date of this Indenture be,
subject, including all applicable provisions of all: (1) constitutions, treatises, statutes or laws
governing gaming operations (including, without limitation, card club casinos and pari-mutuel race
tracks) and rules, regulations and ordinances of any Gaming Authority; (2) any governmental
approval relating to any gaming business (including pari-mutuel betting) or enterprise; and (3)
orders, decisions, judgments, awards and decrees of any Gaming Authority.
Gaming Licenses
means every license, franchise or other authorization required to
own, lease, operate or otherwise conduct activities of the Company or any of its subsidiaries and
the regulations promulgated pursuant thereto, and other applicable federal, state, foreign or local
laws.
Global Security
, when used with respect to any series of Securities issued
hereunder, means a Security which is executed by the Company and authenticated and delivered by the
Trustee to the Depository or pursuant to the Depositorys instruction, all in accordance with this
Indenture and an indenture supplemental hereto, if any, or Board Resolution and pursuant to a
Company Request, which shall be registered in the name of the Depository or its nominee and which
shall represent, and shall be denominated in an amount equal to the aggregate principal amount of,
all of the Outstanding Securities of such series or any portion thereof, in either case having the
same terms, including, without limitation, the same original issue date, date or dates on which
principal is due, and interest rate or method of determining interest.
Guarantee
means the guarantees specified in Section 13.01(a).
Guarantor
means any Person who guarantees any series of Securities issued hereunder
as specified in Section 13.01(a).
Holder
, when used with respect to any Security, means a Securityholder, which means
a Person in whose name a security is registered in the Security Register.
Indenture
or
this Indenture
means this instrument as originally executed
or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by Section 3.01.
Interest
, when used with respect to an Original Issue Discount Security which by its
terms bears interest only after Maturity, means interest payable after Maturity.
5
Interest Payment Date
, when used with respect to any series of Securities, means the
Stated Maturity of any installment of interest on those Securities.
Marketable Security
means any common stock, debt security or other security of a
Person which is (or will, upon distribution thereof, be) listed on the NYSE, the American Stock
Exchange, NASDAQ or any other national securities exchange registered under Section 6 of the
Securities Exchange Act of 1934, as amended, or approved for quotation in any system of automated
dissemination of quotations of securities prices in the United States or for which there is a
recognized market maker or trading market.
Maturity
, when used with respect to any Securities, means the date on which the
principal of any such Security becomes due and payable as therein or herein provided, whether on a
Repayment Date, at the Stated Maturity or by declaration of acceleration, call for redemption or
otherwise.
NASDAQ
shall mean the NASDAQ Global Select Market, the NASDAQ Global Market or the
NASDAQ Capital Market.
NYSE
shall mean the New York Stock Exchange, Inc.
Officers Certificate
means a certificate signed by the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating Officer, the Chief Financial Officer or
any Vice President of the Company, and by the Treasurer, any Assistant Treasurer, the Controller,
any Assistant Controller, the General Counsel, the Secretary or any Assistant Secretary of the
Company, and delivered to the Trustee. Wherever this Indenture requires that an Officers
Certificate be signed also by a financial expert or an accountant or other expert, such financial
expert, accountant or other expert (except as otherwise expressly provided in this Indenture) may
be in the employ of the Company, and shall be acceptable to the Trustee.
Opinion of Counsel
means a written opinion of counsel, who may (except as otherwise
expressly provided in this Indenture) be an employee of or of counsel to the Company, which is
delivered to the Trustee.
Original Issue Discount Security
means (i) any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration of acceleration of
the Maturity thereof, and (ii) any other security which is issued with original issue discount
within the meaning of Section 1273(a) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
Outstanding
, when used with respect to the Securities or Securities of any series,
means, as of the date of determination, all such Securities theretofore authenticated and delivered
under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered to the Trustee
for cancellation;
6
(ii) such Securities for whose payment or redemption money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent in trust for the Holders of
such Securities; provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor reasonably
satisfactory to the Trustee has been made; and
(iii) such Securities in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, or which shall have been paid
pursuant to the terms of Section 3.06 (except with respect to any such Security as to which
proof satisfactory to the Trustee is presented that such Security is held by a Person in
whose hands such Security is a legal, valid and binding obligation of the Company).
In determining whether the Holders of the requisite principal amount of such Securities Outstanding
have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i)
the principal amount of any Original Issue Discount Security that shall be deemed to be Outstanding
shall be the amount of the principal thereof that would be due and payable as of the date of the
taking of such action upon a declaration of acceleration of the Maturity thereof, and (ii)
Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be Outstanding. In
determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer
assigned to the Corporate Trust Department of the Trustee knows to be owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other obligor shall be so
disregarded. Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees right to
act as owner with respect to such Securities and that the pledgee is not the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other obligor.
Paying Agent
means any Person authorized by the Company to pay the principal of (and
premium, if any) or interest on any Securities on behalf of the Company. The Company initially
authorizes the Trustee to act as Paying Agent for the Securities on its behalf. The Company may at
any time and from time to time authorize one or more Persons to act as Paying Agent in addition to
or in place of the Trustee with respect to any series of Securities issued under this Indenture.
Person
means any individual, corporation, limited liability company, partnership,
joint venture, association, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
Place of Payment
means with respect to any series of Securities issued hereunder the
city or political subdivision so designated with respect to the series of Securities in question in
accordance with the provisions of Section 3.01.
7
Predecessor Securities
of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such particular Security; and,
for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in
lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost,
destroyed or stolen Security.
Redemption Date
, when used with respect to any Security to be redeemed, means the
date fixed for such redemption by or pursuant to this Indenture.
Redemption Price
, when used with respect to any Security to be redeemed, means the
price specified in the Security at which it is to be redeemed pursuant to this Indenture.
Redemption Rescission Event
shall mean the occurrence of (a) any general suspension
of trading in, or limitation on prices for, securities on the principal national securities
exchange on which shares of Common Stock or Marketable Securities are registered and listed for
trading (or, if shares of Common Stock or Marketable Securities are not registered and listed for
trading on any such exchange, in the over-the-counter market) for more than six-and-one-half
(6-1/2) consecutive trading hours, (b) any decline in either the Dow Jones Industrial Average or
the S&P 500 Index (or any successor index published by Dow Jones & Company, Inc. or S&P) by either
(i) an amount in excess of 10%, measured from the close of business on any Trading Day to the close
of business on the next succeeding Trading Day during the period commencing on the Trading Day
preceding the day notice of any redemption of Securities is given (or, if such notice is given
after the close of business on a Trading Day, commencing on such Trading Day) and ending at the
time and date fixed for redemption in such notice or (ii) an amount in excess of 15% (or if the
time and date fixed for redemption is more than 15 days following the date on which such notice of
redemption is given, 20%), measured from the close of business on the Trading Day preceding the day
notice of such redemption is given (or, if such notice is given after the close of business on a
Trading Day, from such Trading Day) to the close of business on any Trading Day at or prior to the
time and date fixed for redemption, (c) a declaration of a banking moratorium or any suspension of
payments in respect of banks by Federal or state authorities in the United States or (d) the
occurrence of an act of terrorism or commencement of a war or armed hostilities or other national
or international calamity directly or indirectly involving the United States which in the
reasonable judgment of the Company could have a material adverse effect on the market for the
Common Stock or Marketable Securities.
Regular Record Date
for the interest payable on any Security on any Interest Payment
Date means the date specified in such Security as the Regular Record Date.
Repayment Date
, when used with respect to any Security to be repaid, means the date
fixed for such repayment pursuant to such Security.
Repayment Price
, when used with respect to any Security to be repaid, means the
price at which it is to be repaid pursuant to such Security.
8
Required Currency
, when used with respect to any Security, has the meaning set forth
in Section 1.14.
Responsible Officer
, when used with respect to the Trustee, means any officer of the
Trustee with direct responsibility for the administration of this Indenture and also means, with
respect to a particular corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject. Responsible Officer,
when used with respect to the Company, means any of the Chairman of the Board, Chief Executive
Officer, President, Chief Operating Officer, Chief Financial Officer, Treasurer, any Assistant
Treasurer, Controller, General Counsel, Secretary or any Vice President of the Company (or any
equivalent of the foregoing officers).
S&P
means Standard & Poors Rating Service or any successor to the rating agency
business thereto.
Security
or
Securities
means any note or notes, bond or bonds, debenture
or debentures, or any other evidences of indebtedness, as the case may be, of any series
authenticated and delivered from time to time under this Indenture.
Security Register
shall have the meaning specified in Section 3.05.
Security Registrar
means the Person who keeps the Security Register specified in
Section 3.05. The Company initially appoints the Trustee to act as Security Registrar for the
Securities on its behalf. The Company may at any time and from time to time authorize any Person
to act as Security Registrar in place of the Trustee with respect to any series of Securities
issued under this Indenture.
Securityholder
means a Person in whose name a security is registered in the Security
Register.
Significant Subsidiary
means any Subsidiary which would be a significant
subsidiary as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act of 1933, as in effect on the date of this Indenture.
Special Record Date
for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 3.07.
Stated Maturity
when used with respect to any Security or any installment of
principal thereof or interest thereon means the date specified in such Security as the fixed date
on which the principal of such Security or such installment of principal or interest is due and
payable.
Subsidiary
means, with respect to any Person, any corporation more than 50% of the
voting stock of which is owned directly or indirectly by such Person, and any partnership,
association, joint venture or other entity in which such Person owns
9
more than 50% of the equity interests or has the power to elect a majority of the board of
directors or other governing body.
Trading Day
shall mean, with respect to the Common Stock or a Marketable Security,
so long as the common stock or such Marketable Security, as the case may be, is listed or admitted
to trading on the NYSE, a day on which the NYSE is open for the transaction of business, or, if the
Common Stock or such Marketable Security, as the case may be, is not listed or admitted to trading
on the NYSE, a day on which the principal national securities exchange on which the Common Stock or
such Marketable Security, as the case may be, is listed is open for the transaction of business,
or, if the Common Stock or such Marketable Security, as the case may be, is not so listed or
admitted for trading on any national securities exchange, a day on which the member of the
Financial Industry Regulatory Authority selected by the Company to provide pricing information for
the Common Stock or such Marketable Security is open for the transaction of business.
Trust Indenture Act
or
TIA
means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however, that, in the event
the Trust Indenture Act of 1939 is amended after such date, Trust Indenture Act or TIA means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
Trustee
means the Person named as the Trustee in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter Trustee shall mean and include each Person who is then a
Trustee hereunder. If at any time there is more than one such Person, Trustee as used with
respect to the Securities of any series shall mean the Trustee with respect to Securities of that
series.
Vice President
when used with respect to the Company or the Trustee means any vice
president, whether or not designated by a number or a word or words added before or after the title
vice president, including without limitation, an assistant vice president.
Voting Stock
, as applied to the stock of any corporation, means stock of any class
or classes (however designated) having by the terms thereof ordinary voting power to elect a
majority of the members of the board of directors (or other governing body) of such corporation
other than stock having such power only by reason of the happening of a contingency.
Yield to Maturity
means the yield to maturity on a series of Securities, calculated
by the Company at the time of issuance of such series of Securities, or, if applicable, at the most
recent redetermination of interest on such series, in accordance with accepted financial practice.
Section 1.02
Compliance Certificates and Opinions
. Upon any application or request by
the Company to the Trustee to take any action under any
10
provision of this Indenture, the Company shall furnish to the Trustee an Officers Certificate
stating that all conditions precedent, if any (including any covenants compliance with which
constitutes a condition precedent), provided for in this Indenture relating to the proposed action
have been complied with and an Opinion of Counsel stating that in the opinion of such Counsel all
such conditions precedent, if any (including any covenants compliance with which constitutes a
condition precedent), have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by any provision of
this Indenture relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided
for in this Indenture (other than annual statements of compliance provided pursuant to Section
10.04) shall include:
(1) a statement that each individual signing such certificate or opinion has read such
covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed opinion
as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Section 1.03
Form of Documents Delivered to Trustee
. In any case where several
matters are required to be certified by, or covered by an opinion of, any specified Person, it is
not necessary that all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other such Persons may
certify or give an opinion as to the other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the certificate or opinion
or representations with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the
11
information with respect to such factual matters is in the possession of the Company, unless
such Counsel knows, or in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 1.04
Acts of Securityholders
. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to be given or taken
by Securityholders or Securityholders of any series may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders in person or by an agent
duly appointed in writing or may be embodied in or evidenced by an electronic transmission which
identifies the documents containing the proposal on which such consent is requested and certifies
such Securityholders consent thereto and agreement to be bound thereby; and, except as herein
otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee, and, where it is hereby expressly required, to the
Company. If any Securities are denominated in coin or currency other than that of the United
States, then for the purposes of determining whether the Holders of the requisite principal amount
of Securities have taken any action as herein described, the principal amount of such Securities
shall be deemed to be that amount of United States dollars that could be obtained for such
principal amount on the basis of the spot rate of exchange into United States dollars for the
currency in which such Securities are denominated (as evidenced to the Trustee by an Officers
Certificate) as of the date the taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in the immediately preceding sentence. If any
Securities are Original Issue Discount Securities, then for the purposes of determining whether the
Holders of the requisite principal amount of Securities have taken any action as herein described,
the principal amount of such Original Issue Discount Securities shall be deemed to be the amount of
the principal thereof that would be due and payable upon a declaration of acceleration of the
Maturity thereof as of the date the taking of such action by the Holders of such requisite
principal amount is evidenced to the Trustee as provided in the first sentence of this Section
1.04(a). Such instrument or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the Act of the Securityholders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness to such execution or by the certificate of any notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by an officer of a corporation or a member of a partnership, on behalf of such corporation or
partnership, such certificate or affidavit shall also constitute sufficient proof of his
12
authority. The fact and date of the execution of any such instrument or writing, or the
authority of the person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other action, the Company may, at its option, fix in advance
a record date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the Company shall have no
obligation to do so. Such record date shall be the later of 10 days prior to the first
solicitation of such action or the date of the most recent list of Holders furnished to the Trustee
pursuant to Section 7.01. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other action may be given before or after the record date,
but only the Holders of record at the close of business on the record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite proportion of Securities
outstanding have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other action, and for that purpose the Securities outstanding
shall be computed as of the record date; provided that no such authorization, agreement or consent
by the Holders on the record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the record date, and
that no such authorization, agreement or consent may be amended, withdrawn or revoked once given by
a Holder, unless the Company shall provide for such amendment, withdrawal or revocation in
conjunction with such solicitation of authorizations, agreements or consents or unless and to the
extent required by applicable law.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other action by
the Holder of any Security shall bind the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof, in respect of anything done or
suffered to be done by the Trustee or the Company in reliance thereon whether or not notation of
such action is made upon such Security.
Section 1.05
Notices, etc., to Trustee and Company
. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Securityholders or other document
provided or permitted by this Indenture to be made upon, given or furnished to, or filed with:
(1) the Trustee by any Securityholder or by the Company shall be sufficient for every
purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at
its Corporate Trust Office, Attention: Corporate Trust Administration; or
(2) the Company by the Trustee or by any Securityholder shall be sufficient for every
purpose hereunder (except as provided in Section 5.01(4)
13
or, in the case of a request for repayment, as specified in the Security carrying the
right to repayment) if in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first paragraph of
this instrument, Attention: Office of the General Counsel, or at the address last furnished
in writing to the Trustee by the Company.
Section 1.06
Notices to Securityholders; Waiver
. Where this Indenture or any Security
provides for notice to Securityholders of any event, such notice shall be sufficiently given
(unless otherwise herein or in such Security expressly provided) if in writing and mailed,
first-class postage prepaid, to each Securityholder affected by such event, at his address as it
appears in the Security Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to Securityholders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Securityholder shall affect the sufficiency of such notice with respect to other
Securityholders. Where this Indenture or any Security provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by
Securityholders shall be filed with the Trustee, but such filing shall not be a condition precedent
to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of regular mail service as a result of a strike, work
stoppage or otherwise, it shall be impractical to mail notice of any event to any Securityholder
when such notice is required to be given pursuant to any provision of this Indenture, then any
method of notification as shall be satisfactory to the Trustee and the Company shall be deemed to
be a sufficient giving of such notice.
Section 1.07
Conflict with Trust Indenture Act
. If and to the extent that any
provision hereof limits, qualifies or conflicts with the duties imposed by, or with another
provision (an
incorporated provision
) included in this Indenture by operation of, any of
Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or incorporated
provision shall control.
Section 1.08
Effect of Headings and Table of Contents
. The Article and Section
headings herein and the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 1.09
Successors and Assigns
. All covenants and agreements in this Indenture
by the Company and the Guarantors, if any, shall bind their respective successors and assigns,
whether so expressed or not.
Section 1.10
Separability Clause
. In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
14
Section 1.11
Benefits of Indenture
. Nothing in this Indenture or in any Securities,
express or implied, shall give to any Person, other than the parties hereto and their successors
hereunder, any Authenticating Agent or Paying Agent, the Security Registrar and the Holders of
Securities (or such of them as may be affected thereby), any benefit or any legal or equitable
right, remedy or claim under this Indenture.
Section 1.12
Governing Law
. This Indenture shall be construed in accordance with and
governed by the laws of the State of New York.
Section 1.13
Counterparts
. This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
Section 1.14
Judgment Currency
. The Company agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of, or premium or
interest, if any, on the Securities of any series (the
Required Currency
) into a currency
in which a judgment will be rendered (the
Judgment Currency
), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the Trustee could purchase
in the City of New York the Required Currency with the Judgment Currency on the New York Banking
Day preceding that on which a final unappealable judgment is given and (b) its obligations under
this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the extent that such
tender or recovery shall result in the actual receipt, by the payee, of the full amount of the
Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as
an alternative or additional cause of action for the purpose of recovering in the Required Currency
the amount, if any, by which such actual receipt shall fall short of the full amount of the
Required Currency so expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the foregoing,
New York
Banking Day
means any day except a Saturday, Sunday or a legal holiday in the City of New York
or a day on which banking institutions in the City of New York are authorized or required by law or
executive order to close.
ARTICLE II
Security Forms
Section 2.01
Forms Generally
. The Securities shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture and
may have such letters, numbers or other marks of identification and such legends or endorsements
placed thereon, as may be required to comply with the rules of any securities exchange, or as may,
consistently herewith, be determined by the officers executing such Securities, as evidenced by
their execution of
15
the Securities. Any portion of the text of any Security may be set forth on the reverse
thereof, with an appropriate reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or engraved or produced by any
combination of these methods on steel engraved borders or may be produced in any other manner, all
as determined by the officers executing such Securities, as evidenced by their execution of such
Securities, subject, with respect to the Securities of any series, to the rules of any securities
exchange on which such Securities are listed.
Section 2.02
Forms of Securities
. Each Security shall be in one of the forms approved
from time to time by or pursuant to a Board Resolution, or established in one or more indentures
supplemental hereto. Prior to the delivery of a Security to the Trustee for authentication in any
form approved by or pursuant to a Board Resolution, the Company shall deliver to the Trustee the
Board Resolution by or pursuant to which such form of Security has been approved, which Board
Resolution shall have attached thereto a true and correct copy of the form of Security which has
been approved thereby or, if a Board Resolution authorizes a specific officer or officers to
approve a form of Security, a certificate of such officer or officers approving the form of
Security attached thereto. Any form of Security approved by or pursuant to a Board Resolution must
be acceptable as to form to the Trustee, such acceptance to be evidenced by the Trustees
authentication of Securities in that form or a certificate signed by a Responsible Officer of the
Trustee and delivered to the Company.
Section 2.03
Form of Trustees Certificate of Authentication
. The form of Trustees
Certificate of Authentication for any Security issued pursuant to this Indenture shall be
substantially as follows:
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION
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by
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Authorized Signatory
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Dated
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Section 2.04
Securities Issuable in the Form of a Global Security
. (a) If the Company
shall establish pursuant to Sections 2.02 and 3.01 that the Securities of a particular series are
to be issued in whole or in part in the form of one or more Global Securities, then the Company
shall execute and the Trustee or its agent shall, in accordance with Section 3.03 and the Company
Order delivered to the Trustee or its
16
agent thereunder, authenticate and deliver, such Global Security or Securities, which (i)
shall represent, and shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Securities of such series to be represented by such Global Security or Securities,
or such portion thereof as the Company shall specify in a Company Order, (ii) shall be registered
in the name of the Depository for such Global Security or Securities or its nominee, (iii) shall be
delivered by the Trustee or its agent to the Depository or pursuant to the Depositorys instruction
and (iv) shall bear a legend substantially to the following effect: Unless this certificate is
presented by an authorized representative of the Depository to Issuer or its agent for registration
of transfer, exchange, or payment, and any certificate issued is registered in the name of the
nominee of the Depository or in such other name as is requested by an authorized representative of
the Depository (and any payment is made to the nominee of the Depository or to such other entity as
is requested by an authorized representative of the Depository), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, the nominee of the Depository, has an interest herein.
(b) Notwithstanding any other provision of this Section 2.04 or of Section 3.05, and subject
to the provisions of paragraph (c) below, unless the terms of a Global Security expressly permit
such Global Security to be exchanged in whole or in part for individual Securities, a Global
Security may be transferred, in whole but not in part and in the manner provided in Section 3.05,
only to a nominee of the Depository for such Global Security, or to the Depository, or a successor
Depository for such Global Security selected or approved by the Company, or to a nominee of such
successor Depository.
(c) (i) If at any time the Depository for a Global Security notifies the Company that it is
unwilling or unable to continue as Depository for such Global Security or if at any time the
Depository for the Securities for such series shall no longer be eligible or in good standing under
the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, the
Company shall appoint a successor Depository with respect to such Global Security. If a successor
Depository for such Global Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company will execute, and
the Trustee or its agent, upon receipt of a Company Request for the authentication and delivery of
individual Securities of such series in exchange for such Global Security, will authenticate and
deliver, individual Securities of such series of like tenor and terms in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion determine that the Securities of
any series or portion thereof issued or issuable in the form of one or more Global Securities shall
no longer be represented by such Global Security or Securities. In such event the Company will
execute, and the Trustee, upon receipt of a Company Request for the authentication and delivery of
individual Securities of such series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Securities of such series of like tenor and terms in definitive
form in an
17
aggregate principal amount equal to the principal amount of such Global Security or Securities
representing such series or portion thereof in exchange for such Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 2.02 and 3.02 with respect to Securities
issued or issuable in the form of a Global Security, the Depository for such Global Security may
surrender such Global Security in exchange in whole or in part for individual Securities of such
series of like tenor and terms in definitive form on such terms as are acceptable to the Company
and such Depository. Thereupon the Company shall execute, and the Trustee or its agent shall
authenticate and deliver, without service charge, (1) to each Person specified by such Depository a
new Security or Securities of the same series of like tenor and terms and of any authorized
denomination as requested by such Person in aggregate principal amount equal to and in exchange for
such Persons beneficial interest as specified by such Depository in the Global Security; and (2)
to such Depository a new Global Security of like tenor and terms and in an authorized denomination
equal to the difference, if any, between the principal amount of the surrendered Global Security
and the aggregate principal amount of Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three paragraphs, the Company will
execute and the Trustee or its agent will authenticate and deliver individual Securities in
definitive registered form in authorized denominations. Upon the exchange of the entire principal
amount of a Global Security for individual Securities, such Global Security shall be canceled by
the Trustee or its agent. Except as provided in the preceding paragraph, Securities issued in
exchange for a Global Security pursuant to this Section shall be registered in such names and in
such authorized denominations as the Depository for such Global Security, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the Trustee or the Security
Registrar. The Trustee or the Security Registrar shall deliver at its Corporate Trust Office such
Securities to the Persons in whose names such Securities are so registered.
ARTICLE III
The Securities
Section 3.01
General Title; General Limitations; Issuable in Series; Terms of Particular
Series
. The aggregate principal amount of Securities which may be authenticated and delivered
and Outstanding under this Indenture is not limited.
The Securities may be issued in one or more series as from time to time may be authorized by
the Board of Directors. There shall be established in or pursuant to a Board Resolution or in an
indenture supplemental hereto, subject to Section 3.11, prior to the issuance of Securities of any
such series:
(1) the title of the Securities of such series (which shall distinguish the Securities
of such series from Securities of any other series);
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(2) the Person to whom any interest on a Security of such series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor Securities)
is registered at the close of business on the Regular Record Date for such interest;
(3) the date or dates on which the principal of the Securities of such series is
payable;
(4) the rate or rates at which the Securities of such series shall bear interest, if
any, the date or dates from which such interest shall accrue, the Interest Payment Dates on
which any such interest shall be payable and the Regular Record Date for any interest
payable on any Interest Payment Date;
(5) the place or places where the principal of and any premium and interest on
Securities of such series shall be payable;
(6) the period or periods within which, the Redemption Price or Prices or the
Repayment Price or Prices, as the case may be, at which and the terms and conditions upon
which Securities of such series may be redeemed or repaid (including the applicability of
Section 11.09), as the case may be, in whole or in part, at the option of the Company or
the Holder;
(7) the obligation, if any, of the Company to purchase Securities of such series
pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which and the terms and
conditions upon which Securities of such series shall be purchased, in whole or in part,
pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of such series shall be issuable;
(9) provisions, if any, with regard to the conversion or exchange of the Securities of
such series, at the option of the Holders thereof or the Company, as the case may be, for
or into new Securities of a different series, Common Stock or other securities;
(10) if other than U.S. dollars, the currency or currencies or units based on or
related to currencies in which the Securities of such series shall be denominated and in
which payments of principal of, and any premium and interest on, such Securities shall or
may be payable;
(11) if the principal of (and premium, if any) or interest, if any, on the Securities
of such series are to be payable, at the election of the Company or a Holder thereof, in a
coin or currency (including a composite currency) other than that in which the Securities
are stated to be payable, the period or periods within which, and the terms and conditions
upon which, such election may be made;
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(12) if the amount of payments of principal of (and premium, if any) or interest, if
any, on the Securities of such series may be determined with reference to an index based on
a coin or currency (including a composite currency) other than that in which the Securities
are stated to be payable, the manner in which such amounts shall be determined;
(13) any limit upon the aggregate principal amount of the Securities of such series
which may be authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of such series pursuant to Sections 3.04, 3.05, 3.06, 9.06, 11.07
and 12.02 and except for any Securities which, pursuant to Section 3.03, are deemed never
to have been authenticated and delivered hereunder);
(14) provisions, if any, with regard to the exchange of Securities of such series, at
the option of the Holders thereof, for other Securities of the same series of the same
aggregate principal amount or of a different authorized series or different authorized
denomination or denominations, or both;
(15) provisions, if any, with regard to the appointment by the Company of an
Authenticating Agent in one or more places other than the location of the office of the
Trustee with power to act on behalf of the Trustee and subject to its direction in the
authentication and delivery of the Securities of any one or more series in connection with
such transactions as shall be specified in the provisions of this Indenture or in or
pursuant to such Board Resolution or indenture supplemental hereto;
(16) the portion of the principal amount of Securities of the series, if other than
the principal amount thereof, which shall be payable upon declaration of acceleration of
the Maturity thereof pursuant to Section 5.02 or provable in bankruptcy pursuant to Section
5.04;
(17) any Event of Default with respect to the Securities of such series, if not set
forth herein, and any additions, deletions or other changes to the Events of Default set
forth herein that shall be applicable to the Securities of such series;
(18) any covenant solely for the benefit of the Securities of such series and any
additions, deletions or other changes to the provisions of Article VIII, Article X or
Section 1.01 or any definitions relating to such Article that would otherwise be applicable
to the Securities of such series;
(19) if Section 4.03 of this Indenture shall not be applicable to the Securities of
such series and if Section 4.03 shall be applicable to any covenant or Event of Default
established in or pursuant to a Board Resolution or in an indenture supplemental hereto as
described above that has not already been established herein;
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(20) if the Securities of such series shall be issued in whole or in part in the form
of a Global Security or Securities, the terms and conditions, if any, upon which such
Global Security or Securities may be exchanged in whole or in part for other individual
Securities; and the Depository for such Global Security or Securities;
(21) if the Securities of such series shall be guaranteed, the terms and conditions of
such Guarantees and provisions for the accession of the guarantors to certain obligations
hereunder; and
(22) any other terms of such series, including, without limitations, any restrictions
on transfer related thereto.
all upon such terms as may be determined in or pursuant to such Board Resolution or indenture
supplemental hereto with respect to such series.
The form of the Securities of each series shall be established pursuant to the provisions of
this Indenture in or pursuant to the Board Resolution or in the indenture supplemental hereto
creating such series. The Securities of each series shall be distinguished from the Securities of
each other series in such manner, reasonably satisfactory to the Trustee, as the Board of Directors
may determine.
Unless otherwise provided with respect to Securities of a particular series, the Securities of
any series may only be issuable in registered form, without coupons.
Any terms or provisions in respect of the Securities of any series issued under this Indenture
may be determined pursuant to this Section by providing for the method by which such terms or
provisions shall be determined.
Section 3.02
Denominations
. The Securities of each series shall be issuable in such
denominations and currency as shall be provided in the provisions of this Indenture or in or
pursuant to the Board Resolution or the indenture supplemental hereto creating such series. In the
absence of any such provisions with respect to the Securities of any series, the Securities of that
series shall be issuable only in fully registered form in denominations of $1,000 and any integral
multiple thereof.
Section 3.03
Execution, Authentication and Delivery and Dating
. The Securities shall
be executed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, its
President, its Chief Operating Officer, its Chief Financial Officer, its Treasurer, any Assistant
Treasurer, its Controller, its General Counsel, its Secretary or any Vice President and attested by
its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices
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prior to the authentication and delivery of such Securities or did not hold such offices at
the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities executed by the Company to the Trustee for authentication; and the
Trustee shall, upon Company Order, authenticate and deliver such Securities as in this Indenture
provided and not otherwise.
Prior to any such authentication and delivery, the Trustee shall be provided with the
Officers Certificate and Opinion of Counsel required to be furnished to the Trustee pursuant to
Section 1.02, and the Board Resolution and any certificate relating to the issuance of the series
of Securities required to be furnished pursuant to Section 2.02, an Opinion of Counsel
substantially to the effect that:
(1) all instruments furnished to the Trustee conform to the requirements of the
Indenture and constitute sufficient authority hereunder for the Trustee to authenticate and
deliver such Securities;
(2) the form and terms of such Securities have been established in conformity with the
provisions of this Indenture;
(3) all laws and requirements with respect to the execution and delivery by the
Company of such Securities have been complied with, the Company has the corporate power to
issue such Securities and such Securities have been duly authorized and delivered by the
Company and, assuming due authentication and delivery by the Trustee, constitute legal,
valid and binding obligations of the Company enforceable in accordance with their terms
(subject, as to enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws and legal principles affecting creditors rights
generally from time to time in effect and to general equitable principles, whether applied
in an action at law or in equity) and entitled to the benefits of this Indenture, equally
and ratably with all other Securities, if any, of such series Outstanding;
(4) when applicable, the Indenture is qualified under the Trust Indenture Act; and
(5) such other matters as the Trustee may reasonably request;
and, if the authentication and delivery relates to a new series of Securities created by an
indenture supplemental hereto, also stating that all laws and requirements with respect to the form
and execution by the Company of the supplemental indenture with respect to that series of
Securities have been complied with, the Company has corporate power to execute and deliver any such
supplemental indenture and has taken all necessary corporate action for those purposes and any such
supplemental indenture has been duly executed and delivered and constitutes the legal, valid and
binding obligation of the Company enforceable in accordance with its terms (subject, as to
enforcement of
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remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws and legal
principles affecting creditors rights generally from time to time in effect and to general
equitable principles, whether applied in an action at law or in equity).
The Trustee shall not be required to authenticate such Securities if the issue thereof will
adversely affect the Trustees own rights, duties or immunities under the Securities and this
Indenture.
Unless otherwise provided in the form of Security for any series, all Securities shall be
dated the date of their authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual or facsimile signature, and such
certificate upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if
any Security shall have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in
Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
Section 3.04
Temporary Securities
. Pending the preparation of definitive Securities
of any series, the Company may execute, and, upon receipt of the documents required by Section
3.03, together with a Company Order, the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their execution of such
Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities
of such series to be prepared without unreasonable delay. After the preparation of definitive
Securities, the temporary Securities of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment, without charge to the Holder; and upon surrender for
cancellation of any one or more temporary Securities the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of definitive
Securities of such series of authorized denominations and of like tenor and terms. Until so
exchanged the temporary Securities of such series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
Section 3.05
Registration, Transfer and Exchange
. The Company shall keep or cause to
be kept a register or registers (herein sometimes referred to as the
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Security Register
) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities, or of Securities of a
particular series, and of transfers of Securities or of Securities of such series. Any such
register shall be in written form or in any other form capable of being converted into written form
within a reasonable time. At all reasonable times the information contained in such register or
registers shall be available for inspection by the Trustee at the office or agency to be maintained
by the Company as provided in Section 10.02. There shall be only one Security Register per series
of Securities.
Subject to Section 2.04, upon surrender for registration of transfer of any Security of any
series at the office or agency of the Company maintained for such purpose in a Place of Payment,
the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of such series of any authorized
denominations, of a like aggregate principal amount and Stated Maturity and of like tenor and
terms.
Subject to Section 2.04, at the option of the Holder, Securities of any series may be
exchanged for other Securities of such series of any authorized denominations, of a like aggregate
principal amount and Stated Maturity and of like tenor and terms, upon surrender of the Securities
to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Securityholder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or exchange shall (if so
required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed, by the Holder
thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Security to be registered for transfer or exchanged, no
service charge shall be made on any Securityholder for any registration of transfer or exchange of
Securities, but the Company may (unless otherwise provided in such Security) require payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in connection with
any registration of transfer or exchange of Securities, other than exchanges pursuant to Section
3.04, 9.06 or 11.07 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of or exchange any
Security of any series during a period beginning at the opening of business 15 days before the day
of the mailing of a notice of redemption of Securities of such series selected for redemption under
Section 11.03 and ending at the close of business on
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the date of such mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part.
None of the Company, the Trustee, any agent of the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.
Section 3.06
Mutilated, Destroyed, Lost and Stolen Securities
. If (i) any mutilated
Security is surrendered to the Trustee, or the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and (ii) there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that such Security has been
acquired by a protected purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Security, a new Security of like tenor, series, Stated Maturity and
principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the Company, whether or
not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other
Securities of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all
other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost
or stolen Securities.
Section 3.07
Payment of Interest; Interest Rights Preserved
. Unless otherwise
provided with respect to such Security pursuant to Section 3.01, interest on any Security which is
payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to
the Person in whose name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
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Any interest on any Security which is payable, but is not punctually paid or duly provided
for, on any Interest Payment Date (herein called
Defaulted Interest
) shall forthwith
cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of his
having been such Holder; and, except as hereinafter provided, such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in clause (1) or clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names any such Securities (or their respective Predecessor Securities) are registered
at the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner (the
Special Record Date
).
The Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each such Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements reasonably satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause (1) provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 nor less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be mailed, first class
postage prepaid, to the Holder of each such Security at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities) are registered on such
Special Record Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange on which such Securities
may be listed, and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this clause (2),
such manner of payment shall be deemed practicable by the Trustee.
If any installment of interest the Stated Maturity of which is on or prior to the Redemption
Date for any Security called for redemption pursuant to Article XI is not paid or duly provided for
on or prior to the Redemption Date in accordance with the foregoing provisions of this Section,
such interest shall be payable as part of the Redemption Price of such Securities.
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Subject to the foregoing provisions of this Section, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 3.08
Persons Deemed Owners
. The Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name any Security is registered as the owner
of such Security for the purpose of receiving payment of principal of (and premium, if any), and
(subject to Section 3.07) interest on, such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 3.09
Cancellation
. All Securities surrendered for payment, conversion,
redemption, registration of transfer, exchange or credit against a sinking fund shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee and, if not already
canceled, shall be promptly canceled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Securities so delivered shall be promptly canceled
by the Trustee. No Security shall be authenticated in lieu of or in exchange for any Securities
canceled as provided in this Section, except as expressly permitted by this Indenture. The Trustee
shall dispose of all canceled Securities in accordance with its standard procedures and deliver a
certificate of such disposition to the Company upon its written request therefor.
Section 3.10
Computation of Interest
. Unless otherwise provided as contemplated in
Section 3.01, interest on the Securities shall be calculated on the basis of a 360-day year of
twelve 30-day months.
Section 3.11
Delayed Issuance of Securities
. Notwithstanding any contrary provision
herein, if all Securities of a series are not to be originally issued at one time, it shall not be
necessary for the Company to deliver to the Trustee an Officers Certificate, Board Resolution,
indenture supplemental hereto, opinion of counsel or Company Order otherwise required pursuant to
Sections 1.02, 2.02, 3.01 and 3.03 at or prior to the time of authentication of each Security of
such series if such documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first Security of such series to be issued; provided
that any subsequent request by the Company to the Trustee to authenticate Securities of such series
upon original issuance shall constitute a representation and warranty by the Company that as of the
date of such request, the statements made in the Officers Certificate or other
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certificates delivered pursuant to Sections 1.02 and 2.02 shall be true and correct as if made
on such date.
A Company Order, Officers Certificate or Board Resolution or indenture supplemental hereto
delivered by the Company to the Trustee in the circumstances set forth in the preceding paragraph
may provide that Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time in the aggregate principal amount, if
any, established for such series pursuant to such procedures reasonably acceptable to the Trustee
as may be specified from time to time by Company Order upon the telephonic, electronic or written
order of Persons designated in such Company Order, Officers Certificate, indenture supplemental
hereto or Board Resolution (any such telephonic or electronic instructions to be promptly confirmed
in writing by such Persons) and that such Persons are authorized to determine, consistent with such
Company Order, Officers Certificate, indenture supplemental hereto or Board Resolution, such terms
and conditions of said Securities as are specified in such Company Order, Officers Certificate,
indenture supplemental hereto or Board Resolution.
ARTICLE IV
Satisfaction and Discharge; Defeasance
Section 4.01
Satisfaction and Discharge of Indenture
. Unless pursuant to Section 3.01
provision is made that this Section shall not be applicable to the Securities of any series, this
Indenture shall cease to be of further effect with respect to any series of Securities (except as
to any surviving rights of conversion or registration of transfer or exchange of Securities of such
series expressly provided for herein or in the form of Security for such series), and the Trustee,
on receipt of a Company Request and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series, when:
(1) either
(A) all Securities of that series theretofore authenticated and delivered (other than
(i) Securities of such series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06, and (ii) Securities of such series for whose
payment money in the Required Currency has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.03) have been delivered to the
Trustee canceled or for cancellation; or
(B) all such Securities of that series not theretofore delivered to the Trustee
canceled or for cancellation:
(i) have become due and payable, or
28
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements
reasonably satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose an amount in the Required
Currency sufficient to pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee canceled or for cancellation, for principal (and premium, if any) and
interest to the date of such deposit (in the case of Securities which have become due and payable),
or to the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to the Securities of such series; and
(3) the Company has delivered to the Trustee an Officers Certificate and an Opinion
of Counsel each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the Securities of such series
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee with respect to that series under Section
6.07 shall survive and the obligations of the Company and the Trustee under Sections 3.05, 3.06,
4.02, 10.02 and 10.03 shall survive such satisfaction and discharge.
Section 4.02
Application of Trust Money
. Subject to the provisions of the last
paragraph of Section 10.03, all money, property and securities deposited with the Trustee pursuant
to Section 4.01 or Section 4.03 shall be held in trust and applied by it, in accordance with the
provisions of the series of Securities in respect of which it was deposited and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited with the Trustee; but
such money need not be segregated from other funds except to the extent required by law.
Anything herein to the contrary notwithstanding, the Trustee shall deliver or pay to the
Company from time to time upon Company Request any money, property or securities deposited with and
held by it as provided in Section 4.03 and this Section 4.02 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent
29
satisfaction and discharge, Discharge (as defined below) or covenant defeasance, provided that
the Trustee shall not be required to liquidate any securities in order to comply with the
provisions of this paragraph.
Section 4.03
Defeasance Upon Deposit of Funds or Government Obligations
. Unless
pursuant to Section 3.01 provision is made that this Section shall not be applicable to the
Securities of any series, at the Companys option, either (a) the Company and the Guarantors, if
any, shall be deemed to have been Discharged (as defined below) from its obligations with respect
to any series of Securities after the applicable conditions set forth below have been satisfied or
(b) the Company shall cease to be under any obligation to comply with any term, provision or
condition set forth in Section 10.05 and Article VIII (and any other Sections or covenants
applicable to such Securities that are determined pursuant to Section 3.01 to be subject to this
provision), the Guarantors, if any, shall be released from the Guarantees and clause (4) of Section
5.01 of this Indenture (and any other Events of Default applicable to such Securities that are
determined pursuant to Section 3.01 to be subject to this provision) shall be deemed not to be an
Event of Default with respect to any series of Securities at any time after the applicable
conditions set forth below have been satisfied:
(1) the Company shall have deposited or caused to be deposited irrevocably with the
Trustee as trust funds, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Securities of such series, (i) money in an amount, or (ii)
the equivalent in securities of the government which issued the currency in which the
Securities are denominated or government agencies backed by the full faith and credit of
such government which through the payment of interest and principal in respect thereof in
accordance with their terms will provide freely available funds on or prior to the due date
of any payment, money in an amount, or (iii) a combination of (i) and (ii), sufficient, in
the opinion (with respect to (ii) and (iii)) of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee,
to pay and discharge each installment of principal (including mandatory sinking fund
payments) and any premium of, interest on and any repurchase or redemption obligations with
respect to the outstanding Securities of such series on the dates such installments of
interest or principal or repurchase or redemption obligations are due (before such a
deposit, if the Securities of such series are then redeemable or may be redeemed in the
future pursuant to the terms thereof, in either case at the option of the Company, the
Company may give to the Trustee, in accordance with Section 11.02, a notice of its election
to redeem all of the Securities of such series at a future date in accordance with Article
XI);
(2) no Event of Default or event (including such deposit) which with notice or lapse
of time would become an Event of Default with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit (other than an Event of
Default resulting from the borrowing of funds to be applied to such deposit);
30
(3) the Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that Holders of the Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of the Companys exercise of its option
under this Section 4.03 and will be subject to Federal income tax on the same amount and in
the same manner and at the same times as would have been the case if such option had not
been exercised, and, in the case of Securities being Discharged, accompanied by a ruling to
that effect from the Internal Revenue Service, unless, as set forth in such Opinion of
Counsel, there has been a change in the applicable federal income tax law since the date of
this Indenture such that a ruling from the Internal Revenue Service is no longer required;
(4) the Company shall have delivered to the Trustee an Officers Certificate stating
that the deposit referred to in paragraph (1) above was not made by the Company with the
intent of preferring the Holders over other creditors of the Company or with the intent of
defeating, hindering, delaying or defrauding creditors of the Company or others; and
(5) the Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture with respect to the Securities of such
series have been complied with.
If the Company, at its option, with respect to a series of Securities, satisfies the
applicable conditions pursuant to either clause (a) or (b) of the first sentence of this Section,
then (x), in the event the Company satisfies the conditions to clause (a) and elects clause (a) to
be applicable, each of the Guarantors, if any, shall be deemed to have paid and discharged the
entire indebtedness represented by, and obligations under, its respective guarantee of the
Securities of such series and to have satisfied all the obligations under this Indenture relating
to the Securities of such series and (y) in either case, each of the Guarantors, if any, shall
cease to be under any obligation to comply with any term, provision or condition set forth in any
covenants applicable to such Securities that are determined pursuant to Section 3.01 to be subject
to this provision), and any Events of Default applicable to such series of Securities that are
determined pursuant to Section 3.01 to be subject to this provision shall be deemed not to be an
Event of Default with respect to such series of Securities at any time thereafter.
Discharged
means that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by, and obligations under, the Securities of such series and to
have satisfied all the obligations under this Indenture relating to the Securities of such series
(and the Trustee, on receipt of a Company Request and at the expense of the Company, shall execute
proper instruments acknowledging the same), except (A) the rights of Holders of Securities to
receive, from the trust fund described in clause (1) above, payment of the principal and any
premium of and any interest on such Securities when such payments are due; (B) the Companys
obligations with respect to such Securities under Sections 3.05, 3.06, 4.02, 6.07, 10.02 and 10.03;
(C) the Companys right of redemption, if any, with respect to any Securities of such series
31
pursuant to Article XI, in which case the Company may redeem the Securities of such series in
accordance with Article XI by complying with such Article and depositing with the Trustee, in
accordance with Section 11.05, an amount of money sufficient, together with all amounts held in
trust pursuant to Section 4.02 with respect to Securities of such series, to pay the Redemption
Price of all the Securities of such series to be redeemed; and (D) the rights, powers, trusts,
duties and immunities of the Trustee hereunder. A
Discharge
shall mean the meeting by
the Company of the foregoing requirements.
Section 4.04
Reinstatement
. If the Trustee or Paying Agent is unable to apply any
money, property or securities in accordance with Section 4.02 of this Indenture, by reason of any
legal proceeding or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Companys and, if applicable,
the Guarantors obligations under this Indenture and the Securities shall be revived and reinstated
as though no deposit had occurred pursuant to Section 4.01 or 4.03 of this Indenture, as the case
may be, until such time as the Trustee or Paying Agent is permitted to apply all such money,
property or securities in accordance with Section 4.02 of this Indenture; provided that, if the
Company has made any payment of principal of or interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money, property or securities held by the Trustee
or Paying Agent.
ARTICLE V
Remedies
Section 5.01
Events of Default
.
Event of Default
, wherever used herein,
means with respect to any series of Securities any one of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless such event is either inapplicable to
a particular series or it is specifically deleted or modified in or pursuant to the indenture
supplemental hereto or Board Resolution creating such series of Securities or in the form of
Security for such series:
(1) default in the payment of any interest upon any Security of that series when it
becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any, on) any Security
of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund or analogous obligation
when the same becomes due by the terms of the Securities of such series; or
32
(4) default in the performance, or breach, of any covenant or warranty of the Company
in this Indenture in respect of the Securities of such series (other than a covenant or
warranty in respect of the Securities of such series a default in the performance of which
or the breach of which is elsewhere in this Section specifically dealt with), all of such
covenants and warranties in the Indenture which are not expressly stated to be for the
benefit of a particular series of Securities being deemed in respect of the Securities of
all series for this purpose, and continuance of such default or breach for a period of 90
days after there has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least
33 1/3% in aggregate principal amount of the Outstanding Securities of such series, a written notice specifying
such default or breach and requiring it to be remedied and stating that such notice is a
Notice of Default
hereunder; or
(5) the entry of an order for relief against the Company or any Significant Subsidiary
thereof under Title 11, United States Code (the
Federal Bankruptcy Act
) by a
court having jurisdiction in the premises or a decree or order by a court having
jurisdiction in the premises adjudging the Company or any Significant Subsidiary thereof a
bankrupt or insolvent under any other applicable Federal or State law, or the entry of a
decree or order approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any Significant Subsidiary
thereof under the Federal Bankruptcy Act or any other applicable Federal or State law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary thereof or of any substantial part
of its property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) the consent by the Company or any Significant Subsidiary thereof to the
institution of bankruptcy or insolvency proceedings against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under the Federal Bankruptcy
Act or any other applicable Federal or State law, or the consent by it to the filing of any
such petition or to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Company or any Significant Subsidiary
thereof or of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the Company or any
Significant Subsidiary thereof in furtherance of any such action; or
(7) revocation, termination, suspension or other cessation of effectiveness of any
Nevada or Macau Gaming License, which results in the cessation or suspension of gaming
operations for a period of more than 90 consecutive days; or
33
(8) any other Event of Default provided in the indenture supplemental hereto or Board
Resolution under which such series of Securities is issued or in the form of Security for
such series.
Section 5.02
Acceleration of Maturity; Rescission and Annulment
. If an Event of
Default described in paragraph (1), (2), (3), (4), (7) or (8) (if the Event of Default under clause
(4) or (8) is with respect to less than all series of Securities then Outstanding) of Section 5.01
occurs and is continuing with respect to any series, then and in each and every such case, unless
the principal of all the Securities of such series shall have already become due and payable,
either the Trustee or the Holders of not less than 33 1/3% in aggregate principal amount of the
Securities of such series then Outstanding hereunder (each such series acting as a separate class),
by notice in writing to the Company (and to the Trustee if given by Holders), may declare the
principal amount (or, if the Securities of such series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series) of all the
Securities of such series and all accrued interest thereon to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due and payable, anything
in this Indenture or in the Securities of such series contained to the contrary notwithstanding.
If an Event of Default described in clause (4) or (8) (if the Event of Default under clause (4) or
(8) is with respect to all series of Securities then Outstanding), of Section 5.01 occurs and is
continuing, then and in each and every such case, unless the principal of all the Securities shall
have already become due and payable, either the Trustee or the
Holders of not less than 33 1/3% in
aggregate principal amount of all the Securities then Outstanding hereunder (treated as one class),
by notice in writing to the Company (and to the Trustee if given by Holders), may declare the
principal amount (or, if any Securities are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms thereof) of all the Securities then Outstanding
and all accrued interest thereon to be due and payable immediately, and upon any such declaration
the same shall become and shall be immediately due and payable, anything in this Indenture or in
the Securities contained to the contrary notwithstanding. If an Event of Default of the type set
forth in clause (5) or (6) of Section 5.01 occurs and is continuing, the principal of and any
interest on the Securities then outstanding shall become immediately due and payable.
At any time after such a declaration of acceleration has been made with respect to the
Securities of any or all series, as the case may be, and before a judgment or decree for payment of
the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders
of a majority in principal amount of the outstanding Securities of such series, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to pay:
(A) all overdue installments of interest on the Securities of such series; and
34
(B) the principal of (and premium, if any, on) any Securities of such series which
have become due otherwise than by such declaration of acceleration, and interest thereon at
the rate or rates prescribed therefor by the terms of the Securities of such series, to the
extent that payment of such interest is lawful; and
(C) interest upon overdue installments of interest at the rate or rates prescribed
therefor by the terms of the Securities of such series to the extent that payment of such
interest is lawful; and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel
and all other amounts due the Trustee under Section 6.07; and
(2) all Events of Default with respect to such series of Securities, other than the
nonpayment of the principal of the Securities of such series which have become due solely
by such acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.03
Collection of Indebtedness and Suits for Enforcement by Trustee
. The
Company covenants that if:
(1) default is made in the payment of any installment of interest on any Security of
any series when such interest becomes due and payable; or
(2) default is made in the payment of the principal of (or premium, if any, on) any
Security at the Maturity thereof; or
(3) default is made in the payment of any sinking or purchase fund or analogous
obligation when the same becomes due by the terms of the Securities of any series;
and any such default continues for any period of grace provided with respect to the Securities of
such series, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holder
of any such Security (or the Holders of any such series in the case of clause (3) above), the whole
amount then due and payable on any such Security (or on the Securities of any such series in the
case of clause (3) above) for principal (and premium, if any) and interest, with interest, to the
extent that payment of such interest shall be legally enforceable, upon the overdue principal (and
premium, if any) and upon overdue installments of interest, at such rate or rates as may be
prescribed therefor by the terms of any such Security (or of Securities of any such series in the
case of clause (3) above); and, in addition thereto, such further amount as shall be sufficient to
cover the
35
costs and expenses of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel and all other amounts due the Trustee under
Section 6.07.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Securities of such series and
collect the money adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to any series of Securities occurs and is continuing, the
Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
Section 5.04
Trustee May File Proofs of Claim
. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim for the whole amount of principal (or portion thereof determined
pursuant to Section 3.01(16) to be provable in bankruptcy) (and premium, if any) and interest owing
and unpaid in respect of the Securities and to file such other papers or documents as may be
necessary and advisable in order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel and all other amounts due the Trustee under Section 6.07) and of the Securityholders
allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any
such judicial proceeding is hereby authorized by each Securityholder to make such payment to the
Trustee and in the event that the Trustee shall consent to the making of such payments directly to
the Securityholders, to pay to the Trustee any amount due to it
36
for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Securityholder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding.
Section 5.05
Trustee May Enforce Claims Without Possession of Securities
. All rights
of action and claims under this Indenture or the Securities of any series may be prosecuted and
enforced by the Trustee without the possession of any of the Securities of such series or the
production thereof in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel and any other amounts due the
Trustee under Section 6.07, be for the ratable benefit of the Holders of the Securities of the
series in respect of which such judgment has been recovered.
Section 5.06
Application of Money Collected
. Any money collected by the Trustee with
respect to a series of Securities pursuant to this Article shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of such money on account
of principal (or premium, if any) or interest, upon presentation of the Securities of such series
and the notation thereon of the payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07.
SECOND: To the payment of the amounts then due and unpaid upon the Securities of that
series for principal (and premium, if any) and interest, in respect of which or for the
benefit of which such money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities for principal (and
premium, if any) and interest, respectively.
THIRD: To the Company.
Section 5.07
Limitation on Suits
. No Holder of any Security of any series shall have
any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or
for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to Securities of such series;
37
(2)
the Holders of not less than 33
1
/
3
%% in principal amount of the outstanding
Securities of such series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity reasonably
satisfactory to it against the costs, expenses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of such series;
it being understood and intended that no one or more Holders of Securities of such series shall
have any right in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holders of Securities of such
series, or to obtain or to seek to obtain priority or preference over any other such Holders or to
enforce any right under this Indenture, except in the manner herein provided and for the equal and
proportionate benefit of all the Holders of all Securities of such series.
Section 5.08
Unconditional Right of Securityholders to Receive Principal, Premium and
Interest
. Notwithstanding any other provisions in this Indenture, the Holder of any Security
shall have the right, which is absolute and unconditional, to receive payment of the principal of
(and premium, if any) and (subject to Section 3.07) interest on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of redemption or repayment, on the
Redemption Date or Repayment Date, as the case may be) and to institute suit for the enforcement of
any such payment, and such right shall not be impaired without the consent of such Holder.
Section 5.09
Restoration of Rights and Remedies
. If the Trustee or any Securityholder
has instituted any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, then and in every such case the
Company, the Trustee and the Securityholders shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Securityholders shall continue as though
no such proceeding had been instituted.
Section 5.10
Rights and Remedies Cumulative
. No right or remedy herein conferred upon
or reserved to the Trustee or to the Securityholders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or
38
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11
Delay or Omission Not Waiver
. No delay or omission of the Trustee or of
any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to
the Securityholders may be exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Securityholders, as the case may be.
Section 5.12
Control by Securityholders
. The Holders of a majority in principal
amount of the Outstanding Securities of any series shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee or exercising any
trust or power conferred on the Trustee with respect to the Securities of such series, provided
that:
(1) the Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, determines that the action so directed may not lawfully
be taken or would conflict with this Indenture or if the Trustee in good faith shall, by a
Responsible Officer, determine that the proceedings so directed would involve it in
personal liability or be unjustly prejudicial to the Holders not taking part in such
direction, and
(2) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction.
Section 5.13
Waiver of Past Defaults
. The Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series waive any past default hereunder with respect to such series and its
consequences, except a default not theretofore cured:
(1) in the payment of the principal of (or premium, if any) or interest on any
Security of such series, or in the payment of any sinking or purchase fund or analogous
obligation with respect to the Securities of such series, or
(2) in respect of a covenant or provision hereof which under Article IX cannot be
modified or amended without the consent of the Holder of each Outstanding Security of such
series.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14
Undertaking for Costs
. All parties to this Indenture agree, and each
Holder of any Security by his acceptance thereof shall be deemed to have
39
agreed, that any court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of any series to which the suit relates, or
to any suit instituted by any Securityholder for the enforcement of the payment of the principal of
(or premium, if any) or interest on an Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date, as the case may be).
Section 5.15
Waiver of Stay or Extension Laws
. The Company covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI
The Trustee
Section 6.01
Certain Duties and Responsibilities
. (a) Except during the continuance
of an Event of Default with respect to any series of Securities:
(1) the Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture with respect to the Securities of such series, and
no implied covenants or obligations shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the Trustee may, with respect to
Securities of such series, conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in the case of any
such certificates or opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other facts stated
therein).
40
(b) In case an Event of Default with respect to any series of Securities has occurred and is
continuing, the Trustee shall exercise with respect to the Securities of such series such of the
rights and powers vested in it by this Indenture and any indenture supplemental hereto or Board
Resolution relating to such series of Securities, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own willful misconduct,
except that:
(1) this Subsection shall not be construed to limit the effect of Subsection (a) of
this Section;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture with respect
to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.02
Notice of Defaults
. Within 90 days after the occurrence of any default
hereunder with respect to Securities of any series, the Trustee shall transmit by mail to all
Securityholders of such series, as their names and addresses appear in the Security Register,
notice of such default hereunder known to the Trustee, unless such default shall have been cured or
waived; provided, however, that, except in the case of a default in the payment of the principal of
(or premium, if any) or interest on any Security of such series or in the payment of any sinking or
purchase fund installment or analogous obligation with respect to Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible Officers of the
41
Trustee in good faith determine that the withholding of such notice is in the interests of the
Securityholders of such series; and provided, further, that in the case of any default of the
character specified in Section 5.01(4) with respect to Securities of such series no such notice to
Securityholders of such series shall be given until at least 90 days after the occurrence thereof.
For the purpose of this Section, the term default, with respect to Securities of any series,
means any event which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
Section 6.03
Certain Rights of Trustee
. Except as otherwise provided in Section 6.01:
(a) the Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other paper or
document believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers Certificate;
(d) the Trustee may consult with counsel and the written advice of such counsel or an
Opinion of Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Securityholders
pursuant to this Indenture, unless such Securityholders shall have offered to the Trustee
security or indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further
inquiry or investigation, it shall be
42
entitled to examine the books, records and premises of the Company, personally or by
agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any
duties hereunder either directly or by or through agents or attorneys and the Trustee shall
not be responsible for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any default (as defined in
Section 6.02) or Event of Default with respect to the Securities of any series for which it
is acting as Trustee unless either (1) a Responsible Officer of the Trustee assigned to the
Corporate Trust Department of the Trustee (or any successor division or department of the
Trustee) shall have actual knowledge of such default or Event of Default or (2) written
notice of such default or Event of Default shall have been given to the Trustee by the
Company or any other obligor on such Securities or by any Holder of such Securities;
(i) the Trustee shall not be liable for any action taken, suffered or omitted by it in
good faith and believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder.
Section 6.04
Not Responsible for Recitals or Issuance of Securities
. The recitals
contained herein and in the Securities, except the certificates of authentication, shall be taken
as the statements of the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 6.05
May Hold Securities
. The Trustee, any Authenticating Agent, any Paying
Agent, the Security Registrar, any Conversion Agent or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.08 and 6.13, may otherwise deal with the Company or any Guarantor, if applicable, with
the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar, Conversion Agent or such other agent.
Section 6.06
Money Held in Trust
. Subject to the provisions of Section 10.03 hereof,
all moneys in any currency or currency received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent
43
required by law. The Trustee shall be under no liability for interest on any money received
by it hereunder except as otherwise agreed in writing with the Company.
Section 6.07
Compensation and Reimbursement
. The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for all services
rendered by it hereunder (which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as shall be determined to have been caused by its own
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company under this Section the
Trustee shall have a lien prior to the Securities upon all property and funds held or collected by
the Trustee as such, except funds held in trust for the payment of principal of (and premium, if
any) or interest on particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 5.01(5) or (6), the expenses and the compensation for the services are
intended to constitute expenses of administration under any bankruptcy law.
The Companys obligations under this Section 6.07 and any lien arising hereunder shall survive
the resignation or removal of any Trustee, the discharge of the Companys obligations pursuant to
Article IV of this Indenture and/or the termination of this Indenture.
Section 6.08
Disqualification; Conflicting Interests
. The Trustee for the Securities
of any series issued hereunder shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act during the period of time provided for therein. In determining whether the Trustee
has a conflicting interest as defined in Section 310(b) of the Trust Indenture Act with respect to
the Securities of any series, there shall be excluded this Indenture with respect to Securities of
any particular series of Securities
44
other than that series. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of Section 310(b) of the
Trust Indenture Act.
Section 6.09
Corporate Trustee Required; Eligibility
. There shall at all times be a
Trustee hereunder with respect to each series of Securities, which shall be either:
(i) a corporation organized and doing business under the laws of the United States of America
or of any State, authorized under such laws to exercise corporate trust powers and subject to
supervision or examination by Federal or State authority, or
(ii) a corporation or other Person organized and doing business under the laws of a foreign
government that is permitted to act as Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate trust powers, and subject to
supervision or examination by authority of such foreign government or a political subdivision
thereof substantially equivalent to supervision or examination applicable to United States
institutional trustees;
in either case having a combined capital and surplus of at least $50,000,000. If such corporation
publishes reports of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. Neither the Company nor any Person
directly or indirectly controlling, controlled by, or under common control with the Company shall
serve as trustee for the Securities of any series issued hereunder. If at any time the Trustee
with respect to any series of Securities shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with the effect specified
in Section 6.10.
Section 6.10
Resignation and Removal
. (a) No resignation or removal of the Trustee
and no appointment of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign with respect to any series of Securities at any time by giving
written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series of Securities at any time by Act of
the Holders of a majority in principal amount of the outstanding Securities of that series,
delivered to the Trustee and to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the
45
Trustee within 30 days after the giving of such notice of removal, the removed Trustee may
petition any court of competent jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust Indenture Act
pursuant to Section 6.08 with respect to any series of Securities after written request
therefor by the Company or by any Securityholder who has been a bona fide Holder of a
Security of that series for at least six months, unless the Trustees duty to resign is
stayed in accordance with the provisions of Section 310(b) of the Trust Indenture Act, or
(2) the Trustee shall cease to be eligible under Section 6.09 with respect to any
series of Securities and shall fail to resign after written request therefor by the Company
or by any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any series of
Securities, or
(4) the Trustee shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of rehabilitation, conservation
or liquidation, then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee, with respect to the series, or in the case of clause (4), with respect to all
series, or (ii) subject to Section 5.14, any Securityholder who has been a bona fide Holder
of a Security of such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee with respect to the series, or, in
the case of clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become incapable of acting with respect to any
series of Securities, or if a vacancy shall occur in the office of the Trustee with respect to any
series of Securities for any cause, the Company, by Board Resolution, shall promptly appoint a
successor Trustee for that series of Securities.
If, within one year after such resignation, removal or incapacity, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee with respect to
such series and supersede the successor Trustee appointed by the Company with respect to such
series. If no successor Trustee with respect to such series shall have been so appointed by the
Company or the Securityholders of such series and accepted appointment in the manner hereinafter
provided, subject to Section 5.14, any Securityholder who has been a bona fide Holder of
46
a Security of that series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with
respect to any series and each appointment of a successor Trustee with respect to any series by
mailing written notice of such event by first-class mail, postage prepaid, to the Holders of
Securities of that series as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee and the address of its principal Corporate
Trust Office.
Section 6.11
Acceptance of Appointment by Successor
. Every successor Trustee
appointed hereunder shall execute, acknowledge and deliver to the Company and to the predecessor
Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the
predecessor Trustee shall become effective with respect to any series as to which it is resigning
or being removed as Trustee, and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the predecessor
Trustee with respect to any such series; but, on request of the Company or the successor Trustee,
such predecessor Trustee shall, upon payment of its reasonable charges, if any, execute and deliver
an instrument transferring to such successor Trustee all the rights, powers and trusts of the
predecessor Trustee, and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such predecessor trustee hereunder with respect to all or any such
series, subject nevertheless to its lien, if any, provided for in Section 6.07. Upon request of
any such successor Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the predecessor Trustee and each successor Trustee
with respect to the Securities of any applicable series shall execute and deliver an indenture
supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with respect
to the Securities of any series as to which the predecessor Trustee is not being succeeded shall
continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing herein or in such
indenture supplemental hereto shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts hereunder separate and apart from any trust
or trusts hereunder administered by any other such Trustee.
No successor Trustee with respect to any series of Securities shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified and eligible with
respect to that series under this Article.
47
Section 6.12
Merger, Conversion, Consolidation or Succession to Business
.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided
such corporation shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation to such authenticating Trustee may
adopt such authentication and deliver the Securities so authenticated with the same effect as if
such successor Trustee had itself authenticated such Securities.
Section 6.13
Preferential Collection of Claims Against Company
.
The Trustee shall comply with TIA Section 311(a), excluding any creditor relationship
listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated.
Section 6.14
Appointment of Authenticating Agent
.
At any time when any of the Securities remain Outstanding the Trustee, with the approval of
the Company, may appoint an Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of
such series issued upon original issuance, exchange, registration of transfer or partial redemption
thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustees certificate of authentication, such
reference shall be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at
all times be a corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such laws to act as an
Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and, if
other than the Company itself, subject to supervision or examination by Federal or State authority.
If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of
this Section, such Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party,
48
or any corporation succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall
be otherwise eligible under this Section, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee
and, if other than the Company, to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and, if
other than the Company, to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee, with the approval of the Company, may
appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will serve, as their names
and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance
of its appointment hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the
Securities of such series may have endorsed thereon, in addition to the Trustees certificate of
authentication, an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
[Name of Authenticating Agent]
by
As Authenticating Agent
by
As Authorized Agent
Dated
49
ARTICLE VII
Securityholders Lists and Reports by
Trustee and Company
Section 7.01
Company to Furnish Trustee Names and Addresses of Securityholders
.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not more than 15 days after December 15 and June 15 in each year in
such form as the Trustee may reasonably require, a list of the names and addresses of the
Holders of Securities of each series as of such December 15 and June 15, as applicable, and
(2) at such other times as the Trustee may request in writing, within 30 days after
the receipt by the Company of any such request, a list of similar form and content as of a
date not more than 15 days prior to the time such list is furnished; provided, however,
that if and so long as the Trustee shall be the Security Registrar for Securities of a
series, no such list need be furnished with respect to such series of Securities.
Section 7.02
Preservation of Information; Communications to Securityholders
.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders of Securities contained in the most recent list furnished to the
Trustee as provided in Section 7.01 and the names and addresses of Holders of Securities received
by the Trustee in its capacity as Security Registrar, if so acting. The Trustee may destroy any
list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
(b) If three or more Holders of Securities of any series (hereinafter referred to as
applicants
) apply in writing to the Trustee, and furnish to the Trustee reasonable proof
that each such applicant has owned a Security of such series for a period of at least six months
preceding the date of such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders of all Securities
with respect to their rights under this Indenture or under such Securities and is accompanied by a
copy of the form of proxy or other communication which such applicants propose to transmit, then
the Trustee shall, within five Business Days after the receipt of such application, at its
election, either:
(1) afford such applicants access to the information preserved at the time by the
Trustee in accordance with Section 7.02(a), or
(2) inform such applicants as to the approximate number of Holders of Securities of
such series or all Securities, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section 7.02(a), and as
to the approximate cost of
50
mailing to such Securityholders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to such information, the
Trustee shall, upon the written request of such applicants, mail to each Holder of a Security of
such series or to all Securityholders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section 7.02(a), a copy of the
form of proxy or other communication which is specified in such request, with reasonable promptness
after a tender to the Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless, within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such
mailing would be contrary to the best interests of the Holders of Securities of such series or all
Securityholders, as the case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall enter an order
refusing to sustain any of such objections or if, after the entry of an order sustaining one or
more of such objections, the Commission shall find, after notice and opportunity for hearing, that
all the objections so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all Securityholders of such series or all Securityholders, as
the case may be, with reasonable promptness after the entry of such order and the renewal of such
tender; otherwise the Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders of Securities in
accordance with Section 7.02(b), regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a
request made under Section 7.02(b).
Section 7.03
Reports by Trustee
. (a) Within 60 days after May 15 of each year commencing with the first May 15 after the
issuance of Securities, the Trustee shall transmit by mail, at the Companys expense, to all
Holders as their names and addresses appear in the Security Register, as provided in Trust
Indenture Act 313(c), a brief report dated as of May 15 in accordance with and with respect to the
matters required by Trust Indenture Act Section 313(a).
(b) The Trustee shall transmit by mail, at the Companys expense, to all Holders as their
names and addresses appear in the Security Register, as provided in Trust Indenture Act 313(c), a
brief report in accordance with and with respect to the matters required by Trust Indenture Act
Section 313(b).
51
(c) A copy of each such report shall, at the time of such transmission to Holders, be
furnished to the Company and, in accordance with Trust Indenture Act Section 313(d), be filed by
the Trustee with each stock exchange upon which the Securities are listed, and also with the
Commission.
Section 7.04
Reports by Company
. The Company shall file with the Trustee, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission pursuant to Section 13
or 15(d) of the Securities Exchange Act of 1934 shall be filed with the Trustee within 15 days
after the same is so required to be filed with the Commission. The Company also shall comply with
the other provisions of Trust Indenture Act Section 314(a). Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the Trustees receipt of such
shall not constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Companys compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
ARTICLE VIII
Consolidation, Merger, Conveyance or Transfer
Section 8.01
Consolidation, Merger, Conveyance or Transfer on Certain Terms
. Except as otherwise set forth in an indenture supplemental hereto or Board Resolution
creating such series of Securities or in the form of security for such Series, the Company shall
not consolidate with or merge into any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer the properties and assets of the Company
substantially as an entirety shall be organized and existing under the laws of the United
States of America or any State thereof or the District of Columbia, and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Securities and the performance of every
covenant of this Indenture (as supplemented from time to time) on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time, or both, would become an Event of Default,
shall have happened and be continuing;
52
(3) such transaction will not result in the loss or suspension or material impairment
of any material Gaming License of the Company or its Subsidiaries;
(4) such transaction would not require any Holder of Securities (other than any Person
acquiring the Company or its assets and any affiliate thereof) to obtain a Gaming License
or be qualified under the law of any applicable gaming jurisdiction; provided that such
Holder would not have been required to obtain a Gaming License or be qualified under the
laws of any applicable gaming jurisdiction in the absence of such transaction; and
(5) the Company has delivered to the Trustee an Officers Certificate and an Opinion
of Counsel each stating that such consolidation, merger, conveyance or transfer and such
indenture supplemental hereto comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
Section 8.02
Successor Person Substituted
. Upon any consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section 8.01, the successor
Person formed by such consolidation or into which the Company is merged or to which such conveyance
or transfer is made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such successor had been named
as the Company herein. In the event of any such conveyance or transfer, the Company as the
predecessor shall be discharged from all obligations and covenants under this Indenture and the
Securities and may be dissolved, wound up or liquidated at any time thereafter.
ARTICLE IX
Supplemental Indentures
Section 9.01
Supplemental Indentures Without Consent of Securityholders
. Except as otherwise set forth in an indenture supplemental hereto or Board Resolution
creating such series of Securities or in the form of Security for such series, without the consent
of the Holders of any Securities, the Company, when authorized by a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation or Person to the Company or any
Guarantor, if any, and the assumption by any such successor of the respective covenants of
the Company or any Guarantor herein and in the Securities contained; or
(2) to add to the covenants of the Company or any Guarantor, if any, or to surrender
any right or power herein conferred upon the Company or
53
any Guarantor, for the benefit of the Holders of the Securities of any or all series
(and if such covenants or the surrender of such right or power are to be for the benefit of
less than all series of Securities, stating that such covenants are expressly being
included or such surrenders are expressly being made solely for the benefit of one or more
specified series); or
(3) to cure any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions with respect
to matters or questions arising under this Indenture; or
(4) to add to this Indenture such provisions as may be expressly permitted by the TIA,
excluding, however, the provisions referred to in Section 316(a)(2) of the TIA as in effect
at the date as of which this instrument was executed or any corresponding provision in any
similar federal statute hereafter enacted; or
(5) to establish any form of Security, as provided in Article II, to provide for the
issuance of any series of Securities as provided in Article III and to set forth the terms
thereof, and/or to add to the rights of the Holders of the Securities of any series; or
(6) to evidence and provide for the acceptance of appointment by another corporation
as a successor Trustee hereunder with respect to one or more series of Securities and to
add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one Trustee,
pursuant to Section 6.11; or
(7) to add any additional Events of Default in respect of the Securities of any or all
series (and if such additional Events of Default are to be in respect of less than all
series of Securities, stating that such Events of Default are expressly being included
solely for the benefit of one or more specified series); or
(8) to provide for uncertificated Securities in addition to or in place of
certificated Securities and to provide for bearer Securities; provided that uncertificated
Securities are issued in registered form for purposes of Section 163(f) of the Internal
Revenue Code of 1986, as amended, or in a manner such that the uncertificated Securities
are described in Section 163(f)(2)(B) of such Internal Revenue Code; or
(9) to provide for the terms and conditions of conversion into Common Stock or other
Marketable Securities of the Securities of any series which are convertible into Common
Stock or other Marketable Securities, if different from those set forth in Article XII; or
(10) to secure the Securities of any series; or
54
(11) to add Guarantees in respect of any series or all of the Securities; or
(12) to make any other change that does not adversely affect the rights of the Holders
of any or all series of Securities; or
(13) to make any change necessary to comply with any requirement of the Commission in
connection with the qualification of this Indenture or any supplemental indenture under the
Trust Indenture Act.
No supplemental indenture for the purposes identified in clauses (2), (3) or (5) above may be
entered into if to do so would adversely affect the rights of the Holders of Outstanding Securities
of any series in any material respect.
Section 9.02
Supplemental Indentures with Consent of Securityholders
. Except as otherwise set forth in an indenture supplemental hereto or Board Resolution
creating such series of Securities or in the form of security for such Series, with the consent of
the Holders of not less than a majority in principal amount of the Outstanding Securities of all
series affected by such supplemental indenture or indentures (acting as one class), by Act of said
Holders delivered to the Company and the Trustee (in accordance with Section 1.04 hereof), the
Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of the Securities of each such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Maturity of the principal of, or the Stated Maturity of any premium on,
or any installment of interest on, any Security, or reduce the principal amount thereof or
the interest or any premium thereon, or change the method of computing the amount of
principal thereof or interest thereon on any date or change any Place of Payment where, or
the coin or currency in which, any Security or any premium or interest thereon is payable,
or impair the right to institute suit for the enforcement of any such payment on or after
the Maturity or the Stated Maturity, as the case may be, thereof (or, in the case of
redemption or repayment, on or after the Redemption Date or the Repayment Date, as the case
may be), or alter the provisions of this Indenture so as to affect adversely the terms, if
any, of conversion of any Securities into Common Stock or other securities; or
(2) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their consequences, provided
for in this Indenture; or
55
(3) modify any of the provisions of this Section 9.02, Section 5.13 or Section 10.06,
except to increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby; or
(4) impair or adversely affect the right of any Holder to institute suit for the
enforcement of any payment on, or with respect to, the Securities of any series on or after
the Stated Maturity of such Securities (or in the case of redemption, on or after the
Redemption Date); or
(5) amend or modify Section 13.01 of this Indenture in any manner adverse to the
rights of the Holders of the Outstanding Securities of any series.
For purposes of this Section 9.02, if the Securities of any series are issuable upon the
exercise of warrants, each holder of an unexercised and unexpired warrant with respect to such
series shall be deemed to be a Holder of Outstanding Securities of such series in the amount
issuable upon the exercise of such warrant. For such purposes, the ownership of any such warrant
shall be determined by the Company in a manner consistent with customary commercial practices. The
Trustee for such series shall be entitled to rely on an Officers Certificate as to the principal
amount of Securities of such series in respect of which consents shall have been executed by
holders of such warrants.
A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this
Indenture of Holders of Securities of any other series.
It shall not be necessary for any Act of Securityholders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 9.03
Execution of Supplemental Indentures
. In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article or the modifications thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustees own rights, duties or immunities
under this Indenture or otherwise.
Section 9.04
Effect of Supplemental Indentures
. Upon the execution of any supplemental indenture under this Article, this Indenture shall
be modified in
56
accordance therewith, and such supplemental indenture shall form a part of this
Indenture
for all purposes; and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby to the extent provided therein.
Section 9.05
Conformity with Trust Indenture Act
. Every supplemental indenture executed pursuant to this Article shall conform to the
requirements of TIA as then in effect.
Section 9.06
Reference in Securities to Supplemental Indentures
. Securities authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities.
ARTICLE X
Covenants
Section 10.01
Payment of Principal, Premium and Interest
.
With respect to each series of Securities, the Company will duly and punctually pay the
principal of (and premium, if any) and interest on such Securities in accordance with their terms
and this Indenture, and will duly comply with all the other terms, agreements and conditions
contained in, or made in the Indenture for the benefit of, the Securities of such series.
Section 10.02
Maintenance of Office or Agency
. The Company will maintain an office or agency in each Place of Payment where Securities may
be presented or surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange, where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served and where any Securities with conversion privileges may be
presented and surrendered for conversion. The Company will give prompt written notice to the
Trustee of the location, and of any change in the location, of such office or agency. If at any
time the Company shall fail to maintain such office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee its agent
to receive all such presentations, surrenders, notices and demands.
Unless otherwise set forth in, or pursuant to, a Board Resolution or indenture supplemental
hereto with respect to a series of Securities, the Company hereby initially designates as the Place
of Payment for each series of Securities, the Borough of Manhattan, the City and State of New York,
and initially appoints the Trustee at its Corporate Trust Office as the Companys office or agency
for each such purpose in such city.
57
Section 10.03
Money for Security Payments to Be Held in Trust
. If the Company shall at any time act as its own Paying Agent for any series of Securities,
it will, on or before each due date of the principal of (and premium, if any) or interest on, any
of the Securities of such series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, on or prior to each due date of the principal of (and premium, if any) or interest on, any
Securities of such series, deposit with a Paying Agent a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal (and premium, if any) or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee for any series of Securities
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of principal of (and premium, if any) or
interest on Securities of such series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or any other obligor upon
the Securities of such series) in the making of any such payment of principal (and premium,
if any) or interest on the Securities of such series; and
(3) at any time during the continuance of any such default, upon the written request
of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying
Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture with respect to any series of Securities or for any other purpose, pay, or by
Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company
or such Paying Agent in respect of each and every series of Securities as to which it seeks to
discharge this Indenture or, if for any other purpose, all sums so held in trust by the Company in
respect of all Securities, such sums to be held by the Trustee upon the same trusts as those upon
which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further liability with respect
to such money.
58
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on any Security of any
series and remaining unclaimed for two years after such principal (and premium, if any) or interest
has become due and payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security shall thereafter as
an unsecured general creditor, look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease. The Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company mail to the Holders of the Securities
as to which the money to be repaid was held in trust, as their names and addresses appear in the
Security Register, a notice that such moneys remain unclaimed and that, after a date specified in
the notice, which shall not be less than 30 days from the date on which the notice was first mailed
to the Holders of the Securities as to which the money to be repaid was held in trust, any
unclaimed balance of such moneys then remaining will be paid to the Company free of the trust
formerly impressed upon it.
Section 10.04
Statement as to Compliance
. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year,
a written statement signed by the principal executive officer, principal financial officer or
principal accounting officer of the Company stating that:
(1) a review of the activities of the Company during such year and of performance
under this Indenture and under the terms of the Securities has been made under his
supervision; and
(2) to the best of his knowledge, based on such review, the Company has fulfilled all
its obligations under this Indenture and has complied with all conditions and covenants on
its part contained in this Indenture through such year, or, if there has been a default in
the fulfillment of any such obligation, covenant or condition, specifying each such default
known to him and the nature and status thereof.
For the purpose of this Section 10.04, default and compliance shall be determined without
regard to any grace period or requirement of notice provided pursuant to the terms of this
Indenture.
Section 10.05
Legal Existence
. Subject to Article VIII, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect its legal existence.
Section 10.06
Waiver of Certain Covenants
. The Company may omit in respect of any series of Securities, in any particular instance, to
comply with any covenant or condition set forth in Section 10.05 or set forth in a Board Resolution
or indenture supplemental hereto with respect to the Securities of such series, unless otherwise
specified in such Board Resolution or indenture supplemental hereto, if before or after the time
for such compliance the Holders of not less than a majority in principal
59
amount of the Outstanding Securities of all series affected by such waiver (voting as one
class) shall, by Act of such Securityholders delivered to the Company and the Trustee (in
accordance with Section 1.04 hereof), either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in respect of any such
covenant or condition shall remain in full force and effect. Nothing in this Section 10.06 shall
permit the waiver of compliance with any covenant or condition set forth in such Board Resolution
or indenture supplemental hereto which, if in the form of an indenture supplemental hereto, would
not be permitted by Section 9.02 without the consent of the Holder of each Outstanding Security
affected thereby.
ARTICLE XI
Redemption of Securities
Section 11.01
Applicability of Article
. The Company may reserve the right to redeem and pay before Stated Maturity all or any part
of the Securities of any series, either by optional redemption, sinking or purchase fund or
analogous obligation or otherwise, by provision therefor in the form of Security for such series
established and approved pursuant to Section 2.02 and on such terms as are specified in such form
or in the Board Resolution or indenture supplemental hereto with respect to Securities of such
series as provided in Section 3.01. Redemption of Securities of any series shall be made in
accordance with the terms of such Securities and, to the extent that this Article does not conflict
with such terms, the succeeding Sections of this Article. Notwithstanding anything to the contrary
in this Indenture, except in the case of redemption pursuant to a sinking fund, the Trustee shall
not make any payment in connection with the redemption of Securities until the close of business on
the Redemption Date.
Section 11.02
Election to Redeem; Notice to Trustee
. The election of the Company to redeem any Securities redeemable at the election of the
Company shall be evidenced by, or pursuant to authority granted by, a Board Resolution. In case of
any redemption at the election of the Company of less than all of the Securities of any series, the
Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be reasonably satisfactory to the Trustee), notify the Trustee of such Redemption Date
and of the principal amount of Securities of such series and the Tranche (as defined in Section
11.03) to be redeemed.
In the case of any redemption of Securities (i) prior to the expiration of any restriction on
such redemption provided in the terms of such Securities or elsewhere in this Indenture, or (ii)
pursuant to an election of the Company which is subject to a condition specified in the terms of
such Securities, the Company shall furnish the Trustee with an Officers Certificate evidencing
compliance with such restriction or condition.
Section 11.03
Selection by Trustee of Securities to Be Redeemed
. If less than all the Securities of like tenor and terms of any series (a
Tranche
)
are to be
60
redeemed, the particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such Tranche not
previously called for redemption, by such method as the Trustee shall deem fair and appropriate and
which may include provision for the selection for redemption of portions of the principal of
Securities of such Tranche of a denomination larger than the minimum authorized denomination for
Securities of that series. Unless otherwise provided in the terms of a particular series of
Securities, the portions of the principal of Securities so selected for partial redemption shall be
equal to the minimum authorized denomination of the Securities of such series, or an integral
multiple thereof, and the principal amount which remains outstanding shall not be less than the
minimum authorized denomination for Securities of such series. If less than all the Securities of
unlike tenor and terms of a series are to be redeemed, the particular Tranche of Securities to be
redeemed shall be selected by the Company.
If any convertible Security selected for partial redemption is converted in part before the
termination of the conversion right with respect to the portion of the Security so selected, the
converted portion of such Security shall be deemed (so far as may be) to be the portion selected
for redemption.
Upon any redemption of fewer than all the Securities of a series, the Company and the Trustee
may treat as Outstanding any Securities surrendered for conversion during the period of fifteen
days next preceding the mailing of a notice of redemption, and need not treat as Outstanding any
Security authenticated and delivered during such period in exchange for the unconverted portion of
any Security converted in part during such period.
The Trustee shall promptly notify the Company in writing of the Securities selected for
redemption and, in the case of any Security selected for partial redemption, the principal amount
thereof to be redeemed.
Securities shall be excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in a written statement signed by an authorized
officer of the Company and delivered to the Trustee at least 45 days prior to the Redemption Date
(unless a shorter period shall be reasonably satisfactory to the Trustee) as being owned of record
and beneficially by, and not pledged or hypothecated by either, (a) the Company or (b) an entity
specifically identified in such written statement as being an Affiliate of the Company.
For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Security redeemed or to
be redeemed only in part, to the portion of the principal of such Security which has been or is to
be redeemed.
Section 11.04
Notice of Redemption
. Notice of redemption shall be given by first-class mail, postage prepaid, mailed not less
than 15 (unless otherwise provided in the Board Resolution or indenture supplemental hereto
establishing the
61
relevant series) nor more than 45 days prior to the Redemption Date, to each holder of
Securities to be redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the respective principal amounts)
of the Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due and payable upon
each such Security, and that interest, if any, thereon shall cease to accrue from and after
said date;
(5) the place where such Securities are to be surrendered for payment of the
Redemption Price, which shall be the office or agency of the Company in the Place of
Payment;
(6) that the redemption is on account of a sinking or purchase fund, or other
analogous obligation, if that be the case;
(7) if such Securities are convertible into Common Stock or other securities, the
Conversion Price or other conversion price and the date on which the right to convert such
Securities into Common Stock or other securities will terminate; and
(8) if applicable, that the redemption may be rescinded by the Company, at its sole
option, pursuant to Section 11.09 of this Indenture upon the occurrence of a Redemption
Rescission Event.
Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Companys request, by the Trustee in the name and at the expense of
the Company; provided that if the Trustee is asked to give such notice it shall be given at least
five Business Days prior notice.
Section 11.05
Deposit of Redemption Price
. On or prior to any Redemption Date and subject to Section 11.09, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date. If any Security to
be redeemed is converted into Common Stock or other securities, any money so deposited with the
Trustee or a Paying Agent shall be paid to the Company upon Company Request or, if then so
segregated and held in trust by the Company, shall be discharged from such trust.
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Section 11.06
Securities Payable on Redemption Date
. Notice of redemption having been given as aforesaid, the Securities so to be redeemed
shall, subject to Section 11.09, on the Redemption Date, become due and payable at the Redemption
Price therein specified and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Securities shall cease to bear interest and any rights to
convert such Securities shall terminate. Upon surrender of such Securities for redemption in
accordance with the notice and subject to Section 11.09, such Securities shall be paid by the
Company at the Redemption Price. Unless otherwise provided with respect to such Securities
pursuant to Section 3.01, installments of interest the Stated Maturity of which is on or prior to
the Redemption Date shall be payable to the Holders of such Securities registered as such on the
relevant Regular Record Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate
borne by the Security, or as otherwise provided in such Security.
Section 11.07
Securities Redeemed in Part
. Any Security which is to be redeemed only in part shall be surrendered at the office or
agency of the Company in the Place of Payment with respect to that series (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge, a new Security or Securities of the
same series and Stated Maturity and of like tenor and terms, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
Section 11.08
Provisions with Respect to Any Sinking Funds
. Unless the form or terms of any series of Securities shall provide otherwise, in lieu of
making all or any part of any mandatory sinking fund payment with respect to such series of
Securities in cash, the Company may at its option (1) deliver to the Trustee for cancellation any
Securities of such series theretofore acquired by the Company or converted by the Holder thereof
into Common Stock or other securities, or (2) receive credit for any Securities of such series (not
previously so credited) acquired by the Company (including by way of optional redemption (pursuant
to the sinking fund or otherwise but not by way of mandatory sinking fund redemption) or converted
by the Holder thereof into Common Stock or other securities and theretofore delivered to the
Trustee for cancellation, and if it does so then (i) Securities so delivered or credited shall be
credited at the applicable sinking fund Redemption Price with respect to Securities of such series,
and (ii) on or before the 60th day next preceding each sinking fund Redemption Date with respect to
such series of Securities, the Company will deliver to the Trustee (A) an Officers Certificate
specifying the portions of such sinking fund payment to be satisfied by payment of cash and by
delivery or credit of Securities of such series acquired by the Company or converted by the Holder
thereof, and (B) such Securities, to the extent not previously surrendered. Such Officers
Certificate shall also
63
state the basis for such credit and that the Securities for which the Company elects to
receive credit have not been previously so credited and were not acquired by the Company through
operation of the mandatory sinking fund, if any, provided with respect to such Securities and shall
also state that no Event of Default with respect to Securities of such series has occurred and is
continuing. All Securities so delivered to the Trustee shall be canceled by the Trustee and no
Securities shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional) with respect to any series of
Securities made in cash plus any unused balance of any preceding sinking fund payments with respect
to Securities of such series made in cash shall exceed $50,000 (or a lesser sum if the Company
shall so request), unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect to Securities of
such series next following the date of such payment to the redemption of Securities of such series
at the applicable sinking fund Redemption Price with respect to Securities of such series, together
with accrued interest, if any, to the date fixed for redemption, with the effect provided in
Section 11.06. The Trustee shall select, in the manner provided in Section 11.03, for redemption
on such sinking fund Redemption Date a sufficient principal amount of Securities of such series to
utilize that cash and shall thereupon cause notice of redemption of the Securities of such series
for the sinking fund to be given in the manner provided in Section 11.04 (and with the effect
provided in Section 11.06) for the redemption of Securities in part at the option of the Company.
Any sinking fund moneys not so applied or allocated by the Trustee to the redemption of Securities
of such series shall be added to the next cash sinking fund payment with respect to Securities of
such series received by the Trustee and, together with such payment, shall be applied in accordance
with the provisions of this Section 11.08. Any and all sinking fund moneys with respect to
Securities of any series held by the Trustee at the Maturity of Securities of such series, and not
held for the payment or redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient for the purpose, to
the payment of the principal of the Securities of such series at Maturity.
On or before each sinking fund Redemption Date provided with respect to Securities of any
series, the Company shall pay to the Trustee in cash a sum equal to all accrued interest, if any,
to the date fixed for redemption on Securities to be redeemed on such sinking fund Redemption Date
pursuant to this Section 11.08.
Section 11.09
Rescission of Redemption
. In the event that this Section 11.09 is specified to be applicable to a series of
Securities pursuant to Section 3.01 and a Redemption Rescission Event shall occur following any day
on which a notice of redemption shall have been given pursuant to Section 11.04 hereof but at or
prior to the time and date fixed for redemption as set forth in such notice of redemption, the
Company may, at its sole option, at any time prior to the earlier of (i) the close of business on
that day which is two Trading Days following such Redemption Rescission Event and (ii) the time and
date fixed for redemption as set forth in such notice, rescind the redemption to which such notice
of redemption shall have related by making a public
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announcement of such rescission (the date on which such public announcement shall have been
made being hereinafter referred to as the
Rescission Date
). The Company shall be deemed
to have made such announcement if it shall issue a release to the Dow Jones New Service, Reuters
Information Services or any successor news wire service. From and after the making of such
announcement, the Company shall have no obligation to redeem Securities called for redemption
pursuant to such notice of redemption or to pay the Redemption Price therefor and all rights of
Holders of Securities shall be restored as if such notice of redemption had not been given. As
promptly as practicable following the making of such announcement, the Company shall telephonically
notify the Trustee and the Paying Agent of such rescission. The Company shall give notice of any
such rescission by first-class mail, postage prepaid, mailed as promptly as practicable but in no
event later than the close of business on that day which is five Trading Days following the
Rescission Date to each Holder of Securities at the close of business on the Rescission Date, to
any other Person that was a Holder of Securities and that shall have surrendered Securities for
conversion following the giving of notice of the subsequently rescinded redemption and to the
Trustee and the Paying Agent. Each notice of rescission shall (w) state that the redemption
described in the notice of redemption has been rescinded, (x) state that any Converting Holder
shall be entitled to rescind the conversion of Securities surrendered for conversion following the
day on which notice of redemption was given but on or prior to the date of the mailing of the
Companys notice of rescission, (y) be accompanied by a form prescribed by the Company to be used
by any Converting Holder rescinding the conversion of Securities so surrendered for conversion (and
instructions for the completion and delivery of such form, including instructions with respect to
any payment that may be required to accompany such delivery) and (z) state that such form must be
properly completed and received by the Company no later than the close of business on a date that
shall be 15 Trading Days following the date of the mailing of such notice of rescission.
Section 11.10
Mandatory Disposition of Securities Pursuant to Gaming Laws
. Notwithstanding any other provision in this Indenture, if any Gaming Authority requires
that a Holder or beneficial owner of the Securities must be licensed, qualified or found suitable
under any applicable Gaming Laws in order to maintain any Gaming License or franchise of the
Company or any of its subsidiaries under any applicable Gaming Laws, and the Holder or beneficial
owner fails to apply for a license, qualification or finding of suitability within 30 days after
being requested to do so by the Gaming Authority (or such lesser period that may be required by
such Gaming Authority) or if such Holder or beneficial owner is denied such license or
qualification or found not to be suitable, the Company shall have the right, at its option, (1) to
require such Holder or beneficial owner to dispose of such Holders or beneficial owners
Securities within 30 days of receipt of such finding by the applicable Gaming Authority (or such
earlier date as may be required by the applicable Gaming Authority) or (2) to call for redemption
the Securities of such Holder or beneficial owner at a redemption price equal to (i) the lesser of
(a) 100% of the principal amount thereof, (b) the price at which such Holder or beneficial owner
acquired the Securities or (c) the fair market value of the Securities as determined in good faith
by the Board of Directors of the Company, together with, in each case, accrued and unpaid interest
to the earlier of the date of redemption or such earlier date as may be required by the Gaming
Authority or the date of the finding of
65
unsuitability by such Gaming Authority, which may be less than 30 days following the notice of
redemption, if so ordered by such Gaming Authority or (ii) such other price as may be ordered by
the Gaming Authority. In connection with such redemption, and except as may be required by a
Gaming Authority, the Company shall comply with the procedures contained in the Securities for the
redemption of the Securities. Immediately upon a determination that a Holder or beneficial owner
will not be licensed, qualified or found suitable, the Holder or beneficial owner will have no
further rights (a) to exercise any right conferred by the Securities, directly or indirectly,
through any trustee, nominee or any other Person or (b) to receive any interest or other
distribution or payment with respect to the Securities except the redemption price of the
Securities described in this paragraph; provided, however, such Holder or beneficial owner may, to
the extent permitted by such Gaming Authority, transfer the Securities to any unaffiliated third
party, who shall then be entitled to exercise all rights of a Holder or beneficial owner under the
Securities. Under this Indenture, the Company is not required to pay or reimburse any Holder of
the Securities or beneficial owner who is required to apply for such license, qualification or
finding of suitability for the costs of the licensure or investigation for such qualification or
finding of suitability.
ARTICLE XII
Conversion
Section 12.01
Conversion Privilege
. In the event that this Article XII is specified to be applicable to a series of Securities
pursuant to Section 3.01, the Holder of a Security of such series shall have the right, at such
Holders option, to convert, in accordance with the terms of such series of Securities and this
Article XII, all or any part (in a denomination of, unless otherwise specified in a Board
Resolution or indenture supplemental hereto with respect to Securities of such series, $1,000 in
principal amount or any integral multiple thereof) of such Security into shares of Common Stock or
other Marketable Securities specified in such Board Resolution or any indenture supplement hereto
at any time or, as to any Securities called for redemption, at any time prior to the time and date
fixed for such redemption (unless the Company shall default in the payment of the Redemption Price,
in which case such right shall not terminate at such time and date).
Section 12.02
Conversion Procedure; Rescission of Conversion; Conversion Price; Fractional
Shares
. (a) Each Security to which this Article is applicable shall be convertible at the office
of the Conversion Agent, and at such other place or places, if any, specified in a Board Resolution
with respect to the Securities of such series, into fully paid and nonassessable shares (calculated
to the nearest 1/100th of a share) of Common Stock or other Marketable Securities. The Securities
will be converted into shares of Common Stock or such other Marketable Securities at the Conversion
Price therefor. No payment or adjustment shall be made in respect of dividends on the Common Stock
or such other Marketable Securities, or accrued interest on a converted Security except as
described in Section 12.09. The Company may, but shall not be required, in connection with any
conversion of Securities, to issue a fraction of a share of Common Stock or of such other
Marketable Security, and, if the Company
66
shall determine not to issue any such fraction, the Company shall, subject to Section
12.03(4), make a cash payment (calculated to the nearest cent) equal to such fraction multiplied by
the Closing Price of the Common Stock or such other Marketable Security on the last Trading Day
prior to the date of conversion.
(b) Before any Holder of a Security shall be entitled to convert the same into Common Stock or
other Marketable Securities, such Holder shall surrender such Security duly endorsed to the Company
or in blank, at the office of the Conversion Agent or at such other place or places, if any,
specified in a Board Resolution or indenture supplemental hereto with respect to the Securities of
such series, and shall give written notice to the Company at said office or place that he elects to
convert the same and shall state in writing therein the principal amount of Securities to be
converted and the name or names (with addresses) in which he wishes the certificate or certificates
for Common Stock or for such other Marketable Securities to be issued; provided, however, that no
Security or portion thereof shall be accepted for conversion unless the principal amount of such
Security or such portion, when added to the principal amount of all other Securities or portions
thereof then being surrendered by the Holder thereof for conversion, exceeds the then effective
Conversion Price with respect thereto. If more than one Security shall be surrendered for
conversion at one time by the same Holder, the number of full shares of Common Stock or such other
Marketable Securities which shall be deliverable upon conversion shall be computed on the basis of
the aggregate principal amount of the Securities (or specified portions thereof to the extent
permitted thereby) so surrendered. Subject to the next succeeding sentence, the Company will, as
soon as practicable thereafter, issue and deliver at said office or place to such Holder of a
Security, or to his nominee or nominees, certificates for the number of full shares of Common Stock
or other Marketable Security to which he shall be entitled as aforesaid, together, subject to the
last sentence of paragraph (a) above, with cash in lieu of any fraction of a share to which he
would otherwise be entitled. The Company shall not be required to deliver certificates for shares
of Common Stock or other Marketable Securities while the stock transfer books for such stock or the
transfer books for such Marketable Securities, as the case may be, or the Security Register are
duly closed for any purpose, but certificates for shares of Common Stock or other Marketable
Securities shall be issued and delivered as soon as practicable after the opening of such books or
Security Register. A Security shall be deemed to have been converted as of the close of business
on the date of the surrender of such Security for conversion as provided above, and the person or
persons entitled to receive the Common Stock or other Marketable Securities issuable upon such
conversion shall be treated for all purposes as the record Holder or Holders of such Common Stock
or other Marketable Securities as of the close of business on such date. In case any Security
shall be surrendered for partial conversion, the Company shall execute and the Trustee shall
authenticate and deliver to or upon the written order of the Holder of the Securities so
surrendered, without charge to such Holder (subject to the provisions of Section 12.08), a new
Security or Securities in authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Security.
(c) Notwithstanding anything to the contrary contained herein, in the event the Company shall
have rescinded a redemption of Securities pursuant to
67
Section
11.09 hereof, any Holder of Securities that shall have surrendered Securities for conversion
following the day on which notice of the subsequently rescinded redemption shall have been given
but prior to the later of (a) the close of business on the Trading Day next succeeding the date on
which public announcement of the rescission of such redemption shall have been made and (b) the
date of the mailing of the notice of rescission required by Section 11.09 hereof (a
Converting
Holder
) may rescind the conversion of such Securities surrendered for conversion by (i)
properly completing a form prescribed by the Company and mailed to Holders of Securities (including
Converting Holders) with the Companys notice of rescission, which form shall provide for the
certification by any Converting Holder rescinding a conversion on behalf of any beneficial owner
(within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of Securities that the
beneficial ownership (within the meaning of such Rule) of such Securities shall not have changed
from the date on which such Securities were surrendered for conversion to the date of such
certification and (ii) delivering such form to the Company no later than the close of business on
that date which is fifteen Trading Days following the date of the mailing of the Companys notice
of rescission. The delivery of such form by a Converting Holder shall be accompanied by (x) any
certificates representing shares of Common Stock or other securities issued to such Converting
Holder upon a conversion of Securities that shall be rescinded by the proper delivery of such form
(the
Surrendered Securities
), (y) any securities, evidences of indebtedness or assets
(other than cash) distributed by the Company to such Converting Holder by reason of such Converting
Holder being a record holder of Surrendered Securities and (z) payment in New York Clearing House
funds or other funds acceptable to the Company of an amount equal to the sum of (I) any cash such
Converting Holder may have received in lieu of the issuance of fractional Surrendered Securities
and (II) any cash paid or payable by the Company to such Converting Holder by reason of such
Converting Holder being a record holder of Surrendered Securities. Upon receipt by the Company of
any such form properly completed by a Converting Holder and any certificates, securities, evidences
of indebtedness, assets or cash payments required to be returned by such Converting Holder to the
Company as set forth above, the Company shall instruct the transfer agent or agents for shares of
Common Stock or other securities to cancel any certificates representing Surrendered Securities
(which Surrendered Securities shall be deposited in the treasury of the Company) and shall instruct
the Registrar to reissue certificates representing Securities to such Converting Holder (which
Securities shall be deemed to have been outstanding at all times during the period following their
surrender for conversion). The Company shall, as promptly as practicable, and in no event more
than five Trading Days following the receipt of any such properly completed form and any such
certificates, securities, evidences of indebtedness, assets or cash payments required to be so
returned, pay to the Holder of Securities surrendered to the Company pursuant to a rescinded
conversion or as otherwise directed by such Holder any interest paid or other payment made to
Holders of Securities during the period from the time such Securities shall have been surrendered
for conversion to the rescission of such conversion. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any form submitted to the Company to
rescind the conversion of Securities, including questions as to the proper
68
completion or execution of any such form or any certification contained therein, shall be
resolved by the Company, whose determination shall be final and binding.
Section 12.03
Adjustment of Conversion Price for Common Stock or Marketable Securities
. The Conversion Price with respect to any Security which is convertible into Common Stock or
other Marketable Securities shall be adjusted from time to time as follows:
(1) In case the Company shall, at any time or from time to time while any of such
Securities are outstanding, (i) pay a dividend in shares of its Common Stock or other
Marketable Securities, (ii) combine its outstanding shares of Common Stock or other
Marketable Securities into a smaller number of shares or securities, (iii) subdivide its
outstanding shares of Common Stock or other Marketable Securities or (iv) issue by
reclassification of its shares of Common Stock or other Marketable Securities any shares of
stock or other Marketable Securities of the Company, then the Conversion Price in effect
immediately before such action shall be adjusted so that the Holders of such Securities,
upon conversion thereof into Common Stock or other Marketable Securities immediately
following such event, shall be entitled to receive the kind and amount of shares of capital
stock of the Company or other Marketable Securities which they would have owned or been
entitled to receive upon or by reason of such event if such Securities had been converted
immediately before the record date (or, if no record date, the effective date) for such
event. An adjustment made pursuant to this Section 12.03(1) shall become effective
retroactively immediately after the record date in the case of a dividend or distribution
and shall become effective retroactively immediately after the effective date in the case
of a subdivision, combination or reclassification. For the purposes of this Section
12.03(1), each Holder of Securities shall be deemed to have failed to exercise any right to
elect the kind or amount of securities receivable upon the payment of any such dividend,
subdivision, combination or reclassification (provided that if the kind or amount of
securities receivable upon such dividend, subdivision, combination or reclassification is
not the same for each nonelecting share, then the kind and amount of securities or other
property receivable upon such dividend, subdivision, combination or reclassification for
each nonelecting share shall be deemed to be the kind and amount so receivable per share by
a plurality of the nonelecting shares).
(2) In case the Company shall, at any time or from time to time while any of such
Securities are outstanding, issue rights or warrants to all holders of shares of its Common
Stock or other Marketable Securities entitling them (for a period expiring within 45 days
after the record date for such issuance) to subscribe for or purchase shares of Common
Stock or other Marketable Securities (or securities convertible into shares of Common Stock
or other Marketable Securities) at a price per share less than the Current Market Price of
the Common Stock or other Marketable Securities at such record date (treating the price per
share of the securities convertible into Common Stock or other Marketable Securities as
equal to (x) the sum of (i) the price for a unit of the security
69
convertible into Common Stock or other Marketable Securities plus (ii) any additional
consideration initially payable upon the conversion of such security into Common Stock or
other Marketable Securities divided by (y) the number of shares of Common Stock or other
Marketable Securities initially underlying such convertible security), the Conversion Price
with respect to such Securities shall be adjusted so that it shall equal the price
determined by dividing the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by a fraction, the numerator of which shall be the
number of shares of Common Stock or other Marketable Securities outstanding on the date of
issuance of such rights or warrants plus the number of additional shares of Common Stock or
other Marketable Securities offered for subscription or purchase (or into which the
convertible securities so offered are initially convertible), and the denominator of which
shall be the number of shares of Common Stock or other Marketable Securities outstanding on
the date of issuance of such rights or warrants plus the number of shares or securities
which the aggregate offering price of the total number of shares or securities so offered
for subscription or purchase (or the aggregate purchase price of the convertible securities
so offered plus the aggregate amount of any additional consideration initially payable upon
conversion of such Securities into Common Stock or other Marketable Securities) would
purchase at such Current Market Price of the Common Stock or other Marketable Securities.
Such adjustment shall become effective retroactively immediately after the record date for
the determination of stockholders entitled to receive such rights or warrants.
(3) In case the Company shall, at any time or from time to time while any of such
Securities are outstanding, distribute to all holders of shares of its Common Stock or
other Marketable Securities (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing corporation and the Common
Stock or other Marketable Securities are not changed or exchanged) cash, evidences of its
indebtedness, securities or assets (excluding (i) regular periodic cash dividends in
amounts, if any, determined from time to time by the Board of Directors, (ii) in dividends
payable in shares of Common Stock or other Marketable Securities for which adjustment is
made under Section 12.03(1) or (iii) rights or warrants to subscribe for or purchase
securities of the Company (excluding those referred to in Section 12.03(2)), then in each
such case the Conversion Price with respect to such Securities shall be adjusted so that it
shall equal the price determined by dividing the Conversion Price in effect immediately
prior to the date of such distribution by a fraction, the numerator of which shall be the
Current Market Price of the Common Stock or other Marketable Securities on the record date
referred to below, and the denominator of which shall be such Current Market Price of the
Common Stock or other Marketable Securities less the then fair market value (as determined
by the Board of Directors of the Company, whose determination shall be conclusive) of the
portion of the cash or assets or evidences of indebtedness or securities so distributed or
of such subscription rights or warrants applicable to one share of Common Stock or one
other Marketable Security (provided that such denominator shall never be less than 1.0);
provided, however, that no adjustment shall be made
70
with respect to any distribution of rights to purchase securities of the Company if a
Holder of Securities would otherwise be entitled to receive such rights upon conversion at
any time of such Securities into Common Stock or other Marketable Securities unless such
rights are subsequently redeemed by the Company, in which case such redemption shall be
treated for purposes of this Section as a dividend on the Common Stock or other Marketable
Securities. Such adjustment shall become effective retroactively immediately after the
record date for the determination of stockholders or holders of Marketable Securities
entitled to receive such distribution; and in the event that such distribution is not so
made, the Conversion Price shall again be adjusted to the Conversion Price which would then
be in effect if such record date had not been fixed.
(4) The Company shall be entitled to make such additional adjustments in the
Conversion Price, in addition to those required by subsections 12.03(1), 12.03(2) and
12.03(3), as shall be necessary in order that any dividend or distribution of Common Stock
or other Marketable Securities, any subdivision, reclassification or combination of shares
of Common Stock or other Marketable Securities or any issuance of rights or warrants
referred to above shall not be taxable to the holders of Common Stock or other Marketable
Securities for United States Federal income tax purposes.
(5) In any case in which this Section 12.03 shall require that any adjustment be made
effective as of or retroactively immediately following a record date, the Company may elect
to defer (but only for five Trading Days following the filing of the statement referred to
in Section 12.05) issuing to the Holder of any Securities converted after such record date
the shares of Common Stock and other capital stock of the Company or other Marketable
Securities issuable upon such conversion over and above the shares of Common Stock and
other capital stock of the Company or other Marketable Securities issuable upon such
conversion on the basis of the Conversion Price prior to adjustment; provided, however,
that the Company shall deliver to such Holder a due bill or other appropriate instrument
evidencing such Holders right to receive such additional shares upon the occurrence of the
event requiring such adjustment.
(6) All calculations under this Section 12.03 shall be made to the nearest cent or
one-hundredth of a share or security, with one-half cent and.005 of a share, respectively,
being rounded upward. Notwithstanding any other provision of this Section 12.03, the
Company shall not be required to make any adjustment of the Conversion Price unless such
adjustment would require an increase or decrease of at least 1% of such price. Any lesser
adjustment shall be carried forward and shall be made at the time of and together with the
next subsequent adjustment which, together with any adjustment or adjustments so carried
forward, shall amount to an increase or decrease of at least 1% in such price. Any
adjustments under this Section 12.03 shall be made successively whenever an event requiring
such an adjustment occurs.
71
(7) In the event that at any time, as a result of an adjustment made pursuant to this
Section 12.03, the Holder of any Security thereafter surrendered for conversion shall
become entitled to receive any shares of stock of or other Marketable Securities of the
Company other than shares of Common Stock or Marketable Securities into which the
Securities originally were convertible, the Conversion Price of such other shares or
Marketable Securities so receivable upon conversion of any such Security shall be subject
to adjustment from time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to Common Stock and Marketable Securities
contained in subparagraphs (1) through (6) of this Section 12.03, and the provision of
Sections 12.01, 12.02 and 12.04 through 12.09 with respect to the Common Stock or other
Marketable Securities shall apply on like or similar terms to any such other shares or
Marketable Securities and the determination of the Board of Directors as to any such
adjustment shall be conclusive.
(8) No adjustment shall be made pursuant to this Section (i) if the effect thereof
would be to reduce the Conversion Price below the par value (if any) of the Common Stock or
other Marketable Security, if any, or (ii) subject to Section 12.03(5) hereof, with respect
to any Security that is converted prior to the time such adjustment otherwise would be
made.
Section 12.04
Consolidation or Merger of the Company
. In case of either (a) any consolidation or merger to which the Company is a party, other
than a merger or consolidation in which the Company is the surviving or continuing corporation and
which does not result in a reclassification of, or change (other than a change in par value or from
par value to no par value or from no par value to par value, as a result of a subdivision or
combination) in, outstanding shares of Common Stock or other Marketable Securities or (b) any sale
or conveyance of all or substantially all of the property and assets of the Company to another
Person, then each Security then Outstanding shall be convertible from and after such merger,
consolidation, sale or conveyance of property and assets into the kind and amount of shares of
stock or other securities and property (including cash) receivable upon such consolidation, merger,
sale or conveyance by a holder of the number of shares of Common Stock or other Marketable
Securities into which such Securities would have been converted immediately prior to such
consolidation, merger, sale or conveyance, subject to adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article XII (and assuming
such holder of Common Stock or other Marketable Securities failed to exercise his rights of
election, if any, as to the kind or amount of securities, cash or other property (including cash)
receivable upon such consolidation, merger, sale or conveyance (provided that, if the kind or
amount of securities, cash or other property (including cash) receivable upon such consolidation,
merger, sale or conveyance is not the same for each nonelecting share, then the kind and amount of
securities, cash or other property (including cash) receivable upon such consolidation, merger,
sale or conveyance for each nonelecting share, shall be deemed to be the kind and amount so
receivable per share by a plurality of the nonelecting shares or securities)). The Company shall
not enter into any of the transactions referred to in clause (a) or (b) of the preceding sentence
unless effective provision shall be made so as to give effect to the provisions set forth in this
72
Section 12.04. The provisions of this Section 12.04 shall apply similarly to successive
consolidations, mergers, sales or conveyances.
Section 12.05
Notice of Adjustment
. Whenever an adjustment in the Conversion Price with respect to a series of Securities is
required:
(1) the Company shall forthwith place on file with the Trustee and any Conversion
Agent for such Securities a certificate of the Treasurer of the Company, stating the
adjusted Conversion Price determined as provided herein and setting forth in reasonable
detail such facts as shall be necessary to show the reason for and the manner of computing
such adjustment, such certificate to be conclusive evidence that the adjustment is correct;
and
(2) a notice stating that the Conversion Price has been adjusted and setting forth the
adjusted Conversion Price shall forthwith be mailed, first class postage prepaid, by the
Company to the Holders of record of such Outstanding Securities.
Section 12.06
Notice in Certain Events
. In case:
(1) of a consolidation or merger to which the Company is a party and for which
approval of any stockholders of the Company is required, or of the sale or conveyance to
another person or entity or group of persons or entities acting in concert as a
partnership, limited partnership, syndicate or other group (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of all or substantially all of the
property and assets of the Company; or
(2) of the voluntary or involuntary dissolution, liquidation or winding up of the
Company; or
(3) of any action triggering an adjustment of the Conversion Price pursuant to this
Article XII;
then, in each case, the Company shall cause to be filed with the Trustee and the Agent for the
applicable Securities, and shall cause to be mailed, first class postage prepaid, to the Holders of
record of applicable Securities, at least fifteen (15) days prior to the applicable date
hereinafter specified, a notice stating (x) the date on which a record is to be taken for the
purpose of any distribution or grant of rights or warrants triggering an adjustment to the
Conversion Price pursuant to this Article XII, or, if a record is not to be taken, the date as of
which the holders of record of Common Stock or other Marketable Securities entitled to such
distribution, rights or warrants are to be determined, or (y) the date on which any
reclassification, consolidation, merger, sale, conveyance, dissolution, liquidation or winding up
triggering an adjustment to the Conversion Price pursuant to this Article XII is expected to become
effective, and the date as of which it is expected that holders of Common Stock or other Marketable
Securities of record shall be entitled to exchange their Common Stock or other Marketable
Securities for securities or other property deliverable upon such reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up.
73
Failure to give such notice or any defect therein shall not affect the legality or validity of
the proceedings described in clause (1), (2) or (3) of this Section.
Section 12.07
Company to Reserve Stock or other Marketable Securities; Registration;
Listing
. (a) The Company shall at all times reserve and keep available, free from preemptive rights,
out of its authorized but unissued shares of Common Stock or other Marketable Securities, for the
purpose of effecting the conversion of the Securities, such number of its duly authorized shares of
Common Stock or number or principal amount of other Marketable Securities as shall from time to
time be sufficient to effect the conversion of all applicable outstanding Securities into such
Common Stock or other Marketable Securities at any time (assuming that, at the time of the
computation of such number of shares or securities, all such Securities would be held by a single
Holder); provided, however, that nothing contained herein shall preclude the Company from
satisfying its obligations in respect of the conversion of the Securities by delivery of purchased
shares of Common Stock or other Marketable Securities which are held in the treasury of the
Company. The Company shall from time to time, in accordance with the laws of the State of
Delaware, use its commercially reasonable efforts to cause the authorized amount of the Common
Stock or other Marketable Securities to be increased if the aggregate of the authorized amount of
the Common Stock or other Marketable Securities remaining unissued and the issued shares of such
Common Stock or other Marketable Securities in its treasury (other than any such shares reserved
for issuance in any other connection) shall not be sufficient to permit the conversion of all
Securities.
(b) If any shares of Common Stock or other Marketable Securities which would be issuable upon
conversion of Securities hereunder require registration with or approval of any governmental
authority before such shares or securities may be issued upon such conversion, the Company will in
good faith and as expeditiously as possible endeavor to cause such shares or securities to be duly
registered or approved, as the case may be. The Company will endeavor to list the shares of Common
Stock or other Marketable Securities required to be delivered upon conversion of the Securities
prior to such delivery upon the principal national securities exchange upon which the outstanding
Common Stock or other Marketable Securities is listed at the time of such delivery.
Section 12.08
Taxes on Conversion
. The Company shall pay any and all documentary, stamp or similar issue or transfer taxes
that may be payable in respect of the issue or delivery of shares of Common Stock or other
Marketable Securities on conversion of Securities pursuant hereto. The Company shall not, however,
be required to pay any such tax which may be payable in respect of any transfer involved in the
issue or delivery of shares of Common Stock or other Marketable Securities or the portion, if any,
of the Securities which are not so converted in a name other than that in which the Securities so
converted were registered, and no such issue or delivery shall be made unless and until the person
requesting such issue has paid to the Company the amount of such tax or has established to the
satisfaction of the Company that such tax has been paid.
74
Section 12.09
Conversion After Record Date
. If any Securities are surrendered for conversion subsequent to the record date preceding an
Interest Payment Date but on or prior to such Interest Payment Date (except Securities called for
redemption on a Redemption Date between such record date and Interest Payment Date), the Holder of
such Securities at the close of business on such record date shall be entitled to receive the
interest payable on such securities on such Interest Payment Date notwithstanding the conversion
thereof. Securities surrendered for conversion during the period from the close of business on any
record date next preceding any Interest Payment Date to the opening of business on such Interest
Payment Date shall (except in the case of Securities which have been called for redemption on a
Redemption Date within such period) be accompanied by payment in New York Clearing House funds or
other funds acceptable to the Company of an amount equal to the interest payable on such Interest
Payment Date on the Securities being surrendered for conversion. Except as provided in this
Section 12.09, no adjustments in respect of payments of interest on Securities surrendered for
conversion or any dividends or distributions or interest on the Common Stock or other Marketable
Securities issued upon conversion shall be made upon the conversion of any Securities.
Section 12.10
Corporate Action Regarding Par Value of Common Stock
. Before taking any action which would cause an adjustment reducing the applicable Conversion
Price below the then par value (if any) of the shares of Common Stock or other Marketable
Securities deliverable upon conversion of the Securities, the Company will take any corporate
action which may, in the opinion of its counsel, be necessary in order that the Company may validly
and legally issue fully paid and nonassessable shares of Common Stock or other Marketable
Securities at such adjusted Conversion Price.
Section 12.11
Company Determination Final
. Any determination that the Company or the Board of Directors must make pursuant to this
Article is conclusive.
Section 12.12
Trustees Disclaimer
. The Trustee has no duty to determine when an adjustment under this Article should be made,
how it should be made or what it should be. The Trustee makes no representation as to the validity
or value of any securities or assets issued upon conversion of Securities. The Trustee shall not
be responsible for the Companys failure to comply with this Article. Each Conversion Agent other
than the Company shall have the same protection under this Section as the Trustee.
ARTICLE XIII
Guarantees
Section 13.01
Guarantees.
(a) Any series of Securities may be guaranteed by one or
more of the Subsidiaries of the Company or other Persons. The terms and the form of any such
Guarantee will be established in the manner contemplated by Section 3.01 for the particular series
of Securities. Each Guarantor, as primary obligor
75
and not merely as surety, will fully, irrevocably and unconditionally guarantee, to each
Holder of Securities (including each Holder of Securities issued under the Indenture after the date
of this Indenture) and to the Trustee and its successors and assigns (i) the full and punctual
payment of principal of and interest on the Securities when due, whether at maturity, by
acceleration, by redemption or otherwise, and all other monetary obligations of the Company under
this Indenture (including obligations to the Trustee) and the Securities and (ii) the full and
punctual performance within applicable grace periods of all other obligations of the Company under
this Indenture and the Securities.
(b) Each of the Guarantors further agrees that its obligations hereunder shall be
unconditional irrespective of the absence or existence of any action to enforce the same, the
recovery of any judgment against the Company or any other Guarantor (except to the extent such
judgment is paid) or any waiver or amendment of the provisions of this Indenture or the Securities
to the extent that any such action or any similar action would otherwise constitute a legal or
equitable discharge or defense of a guarantor (except that each such waiver or amendment shall be
effective in accordance with its terms).
(c) Each of the Guarantors further agrees that each Guarantee constitutes a guarantee of
payment, performance and compliance and not merely of collection.
(d) Each of the Guarantors further agrees to waive presentment to, demand of payment from and
protest to the Company or any other Person, and also waives diligence, notice of acceptance of its
Guarantee, presentment, demand for payment, notice of protest for nonpayment, the filing of claims
with a court in the event of merger or bankruptcy of the Company or any other Person and any right
to require a proceeding first against the Company or any other Person. The obligations of the
Guarantors shall not be affected by any failure or policy on the part of the Trustee to exercise
any right or remedy under this Indenture or the Securities of any series.
(e) The obligation of each Guarantor to make any payment hereunder may be satisfied by causing
the Company or any other Person to make such payment. If any Holder of any Security or the Trustee
is required by any court or otherwise to return to the Company or any Guarantor, or any custodian,
trustee, liquidator or other similar official acting in relation to any of the Company or any
Guarantor, any amount paid by any of them to the Trustee or such Holder, the Guarantee of such
Guarantor, to the extent theretofore discharged, shall be reinstated in full force and effect.
(f) Each Guarantor also agrees to pay any and all reasonable costs and expenses (including
reasonable attorneys fees) incurred by the Trustee or any Holder of Securities in enforcing any of
their respective rights under its Guarantees.
(g) Any term or provision of this Indenture to the contrary notwithstanding, the maximum
aggregate amount of each of the Guarantees shall not exceed the maximum amount that can be
guaranteed by the relevant Guarantor without rendering the relevant Guarantee under this Indenture
voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar
laws affecting the rights of creditors generally.
76
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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LAS VEGAS SANDS CORP.
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By:
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/s/ William P. Weidner
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Name:
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William P. Weidner
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Title:
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President, Chief Operating
Officer and Secretary
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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/s/ Richard Prokosch
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Name:
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Richard Prokosch
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Title:
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Vice President
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Signature Page: Indenture
Exhibit 4.2
Execution Version
LAS VEGAS SANDS CORP.
ISSUER
U.S. BANK NATIONAL ASSOCIATION
TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
Dated as of September 30, 2008
To
INDENTURE
Dated as of September 30, 2008
6
1
/
2
% CONVERTIBLE SENIOR NOTES DUE 2013
LAS VEGAS SANDS CORP.
Certain Sections of this Supplemental Indenture relating to Sections 310 through 318
of the Trust Indenture Act of 1939:
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Trust Indenture
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Supplemental
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Act Section
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Indenture Section
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§ 310(a)(1)
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Not Applicable
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(a)(2)
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Not Applicable
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(a)(3)
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Not Applicable
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(a)(4)
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Not Applicable
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(b)
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Not Applicable
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Not Applicable
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§ 311(a)
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Not Applicable
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(b)
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Not Applicable
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§ 312(a)
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9.01
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9.02(a)
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(b)
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9.02(b)
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(c)
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9.02(c)
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§ 313(a)
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Not Applicable
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(b)
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Not Applicable
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(c)
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Not Applicable
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(d)
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Not Applicable
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§ 314(a)
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10.06
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(b)
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Not Applicable
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(c)(1)
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Not Applicable
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(c)(2)
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Not Applicable
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(c)(3)
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Not Applicable
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(d)
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Not Applicable
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(e)
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Not Applicable
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§ 315(a)
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Not Applicable
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(b)
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Not Applicable
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(c)
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Not Applicable
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(d)
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Not Applicable
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(e)
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5.15
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§ 316(a)(1)(A)
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5.06
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(a)(1)(B)
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5.04
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(a)(2)
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Not Applicable
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(b)
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5.03
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(c)
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Not Applicable
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§ 317(a)(1)
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5.07
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(a)(2)
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5.08
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(b)
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10.05
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§ 318(a)
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Not Applicable
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Note:
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This reconciliation and tie shall not, for any purpose, be deemed to be a part of this
Supplemental Indenture.
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i
TABLE OF CONTENTS
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Page
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ARTICLE 1.
Definitions and Other Provisions of General Application
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SECTION 1.01.
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Definitions
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4
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SECTION 1.02.
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Effect of Headings and Table of Contents
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20
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SECTION 1.03.
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Conflict With Trust Indenture Act
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20
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SECTION 1.04.
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Successors and Assigns
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20
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SECTION 1.05.
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Separability Clause
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20
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SECTION 1.06.
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Benefits of Indenture
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20
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SECTION 1.07.
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Governing Law
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20
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SECTION 1.08.
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Legal Holidays
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20
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SECTION 1.09.
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Relationship with Base Indenture
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21
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ARTICLE 2.
Note Forms
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SECTION 2.01.
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Form Generally
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21
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SECTION 2.02.
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Form of Note
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23
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SECTION 2.03.
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Form of Notice of Conversion
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35
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SECTION 2.04.
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Form of Assignment
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36
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ARTICLE 3.
The Notes
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SECTION 3.01.
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Title And Terms
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40
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SECTION 3.02.
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Interest
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40
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SECTION 3.03.
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Additional Notes
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40
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SECTION 3.04.
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[Reserved]
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41
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SECTION 3.05.
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Denominations
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41
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SECTION 3.06.
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Execution, Authentication, Delivery and Dating
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41
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SECTION 3.07.
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Global Notes; Non-Global Notes; Book-entry Provisions
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41
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SECTION 3.08.
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Registration; Registration of Transfer and Exchange;
Restrictions on Transfer
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43
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SECTION 3.09.
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Persons Deemed Owners
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49
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SECTION 3.10.
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Mutilated, Destroyed, Lost and Stolen Notes
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49
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SECTION 3.11.
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Payment of Interest; Interest Rights Preserved
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50
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SECTION 3.12.
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Cancellation
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51
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SECTION 3.13.
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Computation of Interest
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51
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SECTION 3.14.
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Further Assurances
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51
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1
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Page
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ARTICLE 4.
Discharge
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SECTION 4.01.
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Discharge of Liability on Notes
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52
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SECTION 4.02.
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Reinstatement
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53
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SECTION 4.03.
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Officers Certificate; Opinion of Counsel
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53
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ARTICLE 5.
Remedies
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SECTION 5.01.
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Events of Default
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53
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SECTION 5.02.
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Acceleration of Maturity
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55
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SECTION 5.03.
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Unconditional Right of Holders to Receive Principal and
Interest and to Convert
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56
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SECTION 5.04.
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Waiver of Past Defaults and Rescission of Acceleration
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56
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SECTION 5.05.
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Waiver of Stay, Usury or Extension Laws
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56
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SECTION 5.06.
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Control by Holders
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56
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SECTION 5.07.
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Collection of Indebtedness and Suits for Enforcement by
Trustee
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57
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SECTION 5.08.
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Trustee May File Proofs of Claim
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57
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SECTION 5.09.
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Trustee May Enforce Claims Without Possession of Notes
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58
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SECTION 5.10.
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Application of Money Collected
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58
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SECTION 5.11.
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Limitation on Suits
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58
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SECTION 5.12.
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Restoration of Rights and Remedies
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59
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SECTION 5.13.
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Rights and Remedies Cumulative
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59
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SECTION 5.14.
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Delay or Omission Not Waiver
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59
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SECTION 5.15.
|
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Undertaking for Costs
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60
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ARTICLE 6.
[Reserved.]
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ARTICLE 7.
Consolidation, Merger, Conveyance, Transfer or Lease
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SECTION 7.01.
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Company May Consolidate, Etc., Only on Certain Terms
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60
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SECTION 7.02.
|
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Successor Substituted
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61
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ARTICLE 8.
Supplemental Indentures
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SECTION 8.01.
|
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Supplemental Indentures Without Consent of Holders
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61
|
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SECTION 8.02.
|
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Supplemental Indentures With Consent of Holders
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63
|
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SECTION 8.03.
|
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Notice of Supplemental Indentures
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64
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SECTION 8.04.
|
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Effect of Supplemental Indentures
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64
|
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SECTION 8.05.
|
|
Conformity with Trust Indenture Act
|
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64
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2
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Page
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ARTICLE 9.
Holders Lists by Trustee and Company
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SECTION 9.01.
|
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Company to Furnish Trustee Names and Addresses of Holders
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64
|
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SECTION 9.02.
|
|
Preservation of Information
|
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65
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ARTICLE 10.
Covenants
|
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SECTION 10.01.
|
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Payment of Principal and Interest
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65
|
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SECTION 10.02.
|
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Maintenance of Offices or Agencies
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65
|
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SECTION 10.03.
|
|
Existence
|
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66
|
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SECTION 10.04.
|
|
Annual Statement by Officers
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66
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SECTION 10.05.
|
|
Money for Note Payments to Be Held in Trust
|
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66
|
|
SECTION 10.06.
|
|
Reports by Company
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|
67
|
|
SECTION 10.07.
|
|
Lien
|
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68
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SECTION 10.08.
|
|
Limitation on Sale and Lease-Back Transactions
|
|
|
68
|
|
SECTION 10.09.
|
|
Delivery of Opinions
|
|
|
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|
ARTICLE 11.
Redemption and Repurchase of Notes
|
|
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|
|
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SECTION 11.01.
|
|
Mandatory Gaming Redemption
|
|
|
69
|
|
SECTION 11.02.
|
|
Right to Require Repurchase Upon a Fundamental Change
|
|
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70
|
|
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|
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|
|
ARTICLE 12.
Conversion of Notes
|
|
|
|
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|
|
SECTION 12.01.
|
|
Conversion Privilege and Conversion Rate
|
|
|
73
|
|
SECTION 12.02.
|
|
Exercise of Conversion Privilege
|
|
|
75
|
|
SECTION 12.03.
|
|
Fractions of Shares
|
|
|
77
|
|
SECTION 12.04.
|
|
Adjustment of Conversion Rate
|
|
|
77
|
|
SECTION 12.05.
|
|
Notice of Adjustments of Conversion Rate
|
|
|
87
|
|
SECTION 12.06.
|
|
Company to Reserve Common Stock
|
|
|
87
|
|
SECTION 12.07.
|
|
Taxes on Conversions
|
|
|
87
|
|
SECTION 12.08.
|
|
Certain Covenants
|
|
|
88
|
|
SECTION 12.09.
|
|
Cancellation of Converted Notes
|
|
|
88
|
|
SECTION 12.10.
|
|
Provision in Case of Effect of Reclassification,
Consolidation, Merger or Sale
|
|
|
88
|
|
SECTION 12.11.
|
|
Company Responsible for Making Calculations
|
|
|
90
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SECTION 12.12.
|
|
Responsibility of Trustee for Conversion Provisions
|
|
|
90
|
|
3
FIRST SUPPLEMENTAL INDENTURE, dated as of September 30, 2008 (this
Supplemental Indenture
,
together with the Base Indenture (as defined below), the
Indenture
), between
LAS VEGAS SANDS
CORP.
, a corporation duly organized and existing under the laws of the State of Nevada, having its
principal office at 3355 Las Vegas Boulevard South, Las Vegas, Nevada 89109 (herein called the
"
Company
), and
U.S. BANK NATIONAL ASSOCIATION
, as Trustee hereunder (herein called the
Trustee
).
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the Trustee an Indenture, dated as of
September 30, 2008 (the
Base Indenture
).
The Company desires and has requested the Trustee pursuant to Section 9.01 of the Base
Indenture to join with it in the execution and delivery of this Supplemental Indenture in order to
supplement the Base Indenture as and to the extent set forth herein to provide for the issuance and
the terms of the Companys 6
1
/
2
% Convertible Senior Notes due 2013 (herein called the
Notes
).
Section 9.01 of the Base Indenture provides that a supplemental indenture may be entered into
by the Company and the Trustee without the consent of any Holders to establish the form or terms of
Securities (as defined in the Base Indenture) of any series as permitted by Sections 2.01 and 3.01
of the Base Indenture.
The execution and delivery of this Supplemental Indenture has been duly authorized by a Board
Resolution of the Company, and all things necessary to make the Notes, when the Notes are executed
by the Company and authenticated and delivered hereunder, the valid obligations of the Company have
been done. Further, all things necessary to duly authorize the issuance of the Common Stock
issuable upon the conversion of the Notes, and to duly reserve for issuance the number of shares of
Common Stock issuable upon such conversion, have been done.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes by the Holders thereof,
it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the
Notes, as follows:
ARTICLE 1.
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01.
Definitions.
For all purposes of this Supplemental Indenture, except as otherwise expressly provided or
unless the context otherwise requires:
4
(a) capitalized terms used but not defined herein shall have the respective meanings
assigned to them in the Trust Indenture Act or the Base Indenture;
provided
,
however
, that capitalized terms used and defined in both the Base Indenture and the
Supplemental Indenture shall have the meanings ascribed to them in this Supplemental
Indenture;
(b) the terms defined in this ARTICLE 1 have the meanings assigned to them in this
ARTICLE 1 and include the plural as well as the singular;
(c) all accounting terms not otherwise defined herein have the meanings assigned to
them in accordance with generally accepted accounting principles in the United States, and,
except as otherwise herein expressly provided, the term generally accepted accounting
principles with respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted at the date of such computation; and
(d) all other terms used in this Supplemental Indenture, which are defined in the
Trust Indenture Act or which are by reference therein defined in the Securities Act (except
as herein otherwise expressly provided or unless the context otherwise requires), shall
have the meanings assigned to such terms in the Trust Indenture Act and in the Securities
Act as in force at the date of the execution of this Supplemental Indenture. The words
herein, hereof and hereunder and other words of similar import refer to this
Supplemental Indenture as a whole and not to any particular Article, Section or other
subdivision.
Additional Notes
means an unlimited amount of Notes (other than the Initial Notes) issued
under this Supplemental Indenture in accordance with Section 3.06, as part of the same series as
the Initial Notes.
Additional Shares
has the meaning specified in Section 12.01(d).
Adjustment Determination Date
has the meaning specified in Section 12.04(i).
Adjustment Event
has the meaning specified in Section 12.04(i).
Agent Member
means any member of, or participant in, the Depositary.
Aircraft Financings
means, collectively, the following notes and agreements entered into by
the Company to purchase new, and refinance existing, airplanes: (i) the Balloon Promissory Note
(S/N 1290) dated as of February 14, 2007 issued by the Company in favor of Merrill Lynch Business
Financial Services, Inc., Merrill Lynch Capital Division, in an amount of $12,500,000, (ii) the
Amortizing Promissory Note (S/N 1290) dated as of February 14, 2007 issued by the Company in favor
of Merrill Lynch Business Financial Services, Inc., Merrill Lynch Capital Division, in an amount of
$8,500,000, (iii) the Aircraft Security Agreement (GIV-SP S/N 1290) entered into as of February 14,
2007 by and between Merrill Lynch Business Financial Services, Inc., Merrill Lynch Capital
Division, as secured party on behalf of the lenders, and the Company, (iv) the Balloon Promissory
Note (S/N 1280) dated as of February 14, 2007 issued by the Company in favor of Merrill Lynch
Business Financial Services, Inc., Merrill
5
Lynch Capital Division, in an amount of $11,825,000, (v) the Amortizing Promissory Note (S/N
1280) dated as of February 14, 2007 issued by the Company in favor of Merrill Lynch Business
Financial Services, Inc., Merrill Lynch Capital Division, in an amount of $8,175,000, (vi) Aircraft
Security Agreement (GIV-SP S/N 1280) entered into as of February 14, 2007 by and between Merrill
Lynch Business Financial Services, Inc., Merrill Lynch Capital Division, as secured party on behalf
of the lenders, and the Company, (vii) the Balloon Promissory Note (S/N 544) dated as of February
14, 2007 issued by the Company in favor of Merrill Lynch Business Financial Services, Inc., Merrill
Lynch Capital Division, in an amount of $18,900,000, (viii) the Amortizing Promissory Note (S/N
544) dated as of February 14, 2007 issued by the Company in favor of Merrill Lynch Business
Financial Services, Inc., Merrill Lynch Capital Division, in an amount of $12,100,000, (ix) the
Aircraft Security Agreement (G-V S/N 544) entered into as of February 14, 2007 by and between
Merrill Lynch Business Financial Services, Inc., a Merrill Lynch Capital Division, as secured party
for the lenders, and the Company, (x) the Subsidiary Guaranty dated as of February 14, 2007 by
Venetian Casino Resort, LLC in favor of Merrill Lynch Business Financial Services, Inc., Merrill
Lynch Capital Division, (xi) the Balloon Promissory Note (S/N 1245) dated as of April 13, 2007
issued by the Company in favor of CFT Investments 1 LLC in an amount of $12,150,000, (xii) the
Amortizing Promissory Note (S/N 1245) dated as of April 13, 2007 issued by the Company in favor of
CFT Investments 1 LLC in an amount of $8,100,000, (xiii) the Aircraft Security Agreement (GIV-SP
S/N 1245) entered into as of April 13, 2007, by and between CFT Investments 1 LLC, as secured party
on behalf of the lenders and the Company, and (xiv) the Subsidiary Guaranty dated as of April 13,
2007 by Venetian Casino Resort, LLC in favor of Merrill Lynch Business Financial Services, Inc.,
Merrill Lynch Capital Division.
Applicable Procedures
means, with respect to any transfer or transaction involving a Global
Note or beneficial interest therein, the rules and procedures of DTC or any successor Depositary,
in each case to the extent applicable to such transaction and as in effect from time to time.
Base Indenture
has the meaning ascribed to it in the first paragraph under the caption
Recitals of the Company.
Board of Directors
means either the board of directors of the Company or any duly authorized
committee of that board.
Board Resolution
means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification, and delivered to the Trustee.
Capital Stock
means, for any entity, any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interests in (however designated)
stock issued by that entity.
Capitalized Lease-Back Obligation
means the total net rental obligations of the Company
under any lease entered into as part of a Sale and Lease-Back Transaction involving a Principal
Property that would, at the time any determination is to be made, be required to be capitalized on
a balance sheet in accordance with GAAP.
6
Code
means the Internal Revenue Code of 1986 as in effect on the date hereof.
Commission
means the United States Securities and Exchange Commission, or its successor.
Common Stock
means the Common Stock, par value $0.001 per share, of the Company authorized
at the date of this instrument as originally executed or as such stock may be constituted from time
to time. Subject to the provisions of Section 12.10, shares issuable upon conversion of Notes
shall include only shares of Common Stock or shares of any class or classes of common stock
resulting from any reclassification or reclassifications thereof;
provided
,
however
, that if at any
time there shall be more than one such resulting class, the shares so issuable on conversion of
Notes shall include shares of all such classes, and the shares of each such class then so issuable
shall be substantially in the proportion which the total number of shares of such class resulting
from all such reclassifications bears to the total number of shares of all such classes resulting
from all such reclassifications.
common stock
includes any stock of any class of Capital Stock which has no preference in
respect of dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the issuer thereof and which is not subject to redemption
by the issuer thereof.
Company
means the Person named as the Company in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Supplemental Indenture, and thereafter Company shall mean such successor Person.
Consolidated Net Tangible Assets
means the total of all assets appearing on a consolidated
balance sheet of the Company and its Subsidiaries prepared in accordance with GAAP as of a date not
more than 90 days prior to the date as of which Consolidated Net Tangible Assets are to be
determined, but excluding (i) the book amount of all intangible assets, (ii) all depreciation,
valuation and other reserves, (iii) current liabilities, (iv) any minority interest in the stock
and surplus of the Companys Subsidiaries, and (v) deferred income and deferred liabilities.
Credit Agreement
means the Credit and Guarantee Agreement, dated as of May 23, 2007, by and
among Las Vegas Sands, LLC, the affiliates of Las Vegas Sands, LLC named therein as guarantors, the
lenders party hereto from time to time, The Bank of Nova Scotia, as administrative agent for the
Lenders and as collateral agent, Goldman Sachs Credit Partners L.P., Lehman Brothers Inc. and
Citigroup Global Markets Inc., as joint lead arrangers and joint bookrunners and as syndication
agents, and JPMorgan Chase Bank, as documentation agent and Commerzbank AG, as documentation
agents, including any related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended, modified, renewed, refunded,
replaced or refinanced, in whole or in part, from time to time, including any agreement extending
the maturity of, refinancing, replacing or otherwise restructuring all or any portion of the
Indebtedness and other obligations under such agreement or agreements or any successor or
replacement agreement or agreements, and whether by the same or any other agent, lender or group of
lenders (collectively any such transactions, a
Refinancing
), which Refinancing may increase the
aggregate principal amount that may be borrowed under the
7
Credit Agreement (which may be more than one agreement or facility with the same or different
lenders),
provided
that the aggregate principal amount that may be borrowed under the Credit
Agreement shall not be increased in connection with a Refinancing by an amount more than the sum of
(i) the principal amount of any additional amounts that may be borrowed if the proceeds thereof
will be used to (x) acquire, develop, construct or improve property of the Company or any of its
Subsidiaries (including by way of acquiring any Person who is merged or consolidated into the
Company or any of its Subsidiaries or who becomes a Subsidiary of the Company) or (y) repay, redeem
or otherwise retire any secured Indebtedness of the Company or any of its Subsidiaries (other than
under the Credit Agreement) so long as the assets that were securing the Indebtedness so repaid,
redeemed or retired are directly owned by the Company after such Refinancing (for purposes of
clarity, it is understood that the Indebtedness secured by the Sands Expo and Convention Center may
be refinanced if the Sands Expo and Convention Center is owned by the Company after such
Refinancing);
provided
, that for purposes of clause (x) the proceeds of Indebtedness up to the cost
of the acquisition, development, construction or improvement of property which is incurred within
24 months after such acquisition, development, construction or improvement will be deemed to have
been for the purpose of acquiring, constructing or improving such property and may therefore be
part of the Credit Agreement, (ii) the amount of the fees and expenses of such Refinancing
(including any prepayment penalties or premium or accrued and unpaid interest on Indebtedness
refinanced by such Refinancing), (iii) any amount required to provide for revolving credit
facilities and term loans under the Credit Agreement with an aggregate maximum borrowing capacity
of up to $1 billion for revolving credit facilities and with an aggregate maximum borrowing
capacity for term loans not more than $4 billion, and (iv) $250 million.
Continuing Directors
means (a) individuals who on the Original Issue Date constituted the
Board of Directors and (b) any new directors whose election to the Board of Directors or whose
nomination for election by the stockholders of the Company was approved by at least a majority of
the directors then still in office (or a duly constituted committee thereof), either who were
directors on the Original Issue Date or whose election or nomination for election was previously so
approved.
Conversion Agent
means any Person authorized by the Company to convert Notes in accordance
with ARTICLE 12. The Company has initially appointed the Trustee as its Conversion Agent pursuant
to Section 10.02.
Conversion Date
has the meaning specified in Section 12.02(d).
Conversion Obligation
means the obligation of the Company to deliver the consideration due
under ARTICLE 12 upon a conversion of the Notes in accordance herewith.
Conversion Price
means at any given time the amount equal to $1,000 divided by the then
current Conversion Rate.
Conversion Rate
has the meaning specified in Section 12.01(a).
corporation
means a corporation, company, association, joint-stock company or business
trust.
8
Custodian
means the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.
Daily Conversion Value
means, for each of the 25 consecutive VWAP Trading Days during the
applicable Observation Period, one-twenty fifth (1/25) of the product of (a) the applicable
Conversion Rate and (b) the Daily VWAP of the Common Stock (or the Reference Property pursuant to
Section 12.10) on such VWAP Trading Day, as determined by the Company. Any such determination
shall be conclusive absent manifest error.
Daily VWAP
of the Common Stock means, for any VWAP Trading Day during the applicable
Observation Period, the per share volume-weighted average price as displayed under the heading
Bloomberg VWAP on Bloomberg page LVS.N <equity> AQR (or any equivalent successor page) in
respect of the period from 9:30 a.m. to 4:00 p.m., New York City time, on such VWAP Trading Day
(without regard to after-hours trading), or if such volume-weighted average price is unavailable,
the market value of one share of Common Stock (or one unit of reference property consisting of
marketable equity securities) on such VWAP Trading Day using a volume-weighted method (or, in the
case of reference property consisting of cash, the amount of such cash or in the case of reference
property other than marketable equity securities or cash, the market value thereof), in each case
as determined by a nationally recognized independent investment banking firm retained for this
purpose by the Company.
Default
means any event which is, or after notice or lapse of time or both would become, an
Event of Default pursuant to Section 5.01.
Defaulted Interest
has the meaning specified in Section 3.11.
Delivery Date
has the meaning specified in Section 12.04(l).
Depositary
means, with respect to Notes issuable in whole or in part in the form of one or
more Global Notes, a clearing agency registered under the Exchange Act that is designated to act as
Depositary for such Notes as contemplated by Section 3.07.
Distributed Property
has the meaning specified in Section 12.04(c).
Distribution Compliance Period
, with respect to any Notes, means the period of 40
consecutive days beginning on and including the later of (i) the day on which such Notes are first
offered to Persons other than distributors (as defined in Regulation S under the Securities Act) in
reliance on Regulation S and (ii) the issue date with respect to such Notes.
DTC
means The Depository Trust Company, a New York corporation, or any successor.
Effective Date
means the date on which a Fundamental Change occurs or becomes effective.
Event of Default
has the meaning specified in Section 5.01.
9
Ex-Date
means, with respect to any distribution on the Common Stock, the first date on which
the shares of Common Stock trade on the relevant exchange or in the relevant market, regular way,
without the right to receive the distribution in question.
Exchange Act
means the Securities Exchange Act of 1934 and any statute successor thereto, in
each case as amended from time to time.
Extension Fee
has the meaning specified in Section 5.02.
Fundamental Change
will be deemed to have occurred at the time after the Original Issue Date
that any of the following occurs:
(1) the Company becomes aware (by way of a report or any other filing pursuant
to Section 13(f) of the Exchange Act, proxy, vote, written notice or otherwise) of
(i) the acquisition by any Person or group, including any group acting for the
purpose of acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act, other than the Principal Stockholder and his
Related Parties, in a single transaction or in a related series of transactions, by
way of a merger, consolidation or other business combination or purchase of
beneficial ownership of 50% or more of the total voting power of all shares of the
Companys Capital Stock entitled to vote generally in elections of directors; or
(2) the Company (i) merges or consolidates with or into any other Person, another
Person merges with or into the Company, or the Company conveys, sells, transfers or leases
all or substantially all of the Companys assets to another Person or (ii) engages in any
recapitalization, reclassification or other transaction in which all or substantially all of
the Common Stock is exchanged for or converted into cash, securities or other property, in
each case, other than a merger or consolidation:
(a) that does not result in a reclassification, conversion, exchange or
cancellation of the Companys outstanding Common Stock; or
(b) which is effected solely to change the Companys jurisdiction of
incorporation and results in a reclassification, conversion or exchange of
outstanding shares of the Companys Common Stock solely into shares of common stock
of the surviving entity;
(3) the first day on which a majority of the members of the Board of Directors do not
consist of Continuing Directors;
(4) the Company is liquidated or dissolved or holders of Common Stock approve any plan
or proposal for the Companys liquidation or dissolution; or
(5) if shares of the Common Stock, or shares of any other common stock into which the
Notes are convertible pursuant to the terms of this Supplemental Indenture, are
10
not listed for trading on any of the New York Stock Exchange, the NASDAQ Global Market
or the NASDAQ Global Select Market (or any of their respective successors);
provided
,
however
that the definition of Fundamental Change shall not include a transaction
described under clause (1) or any event specified under clause (2), in each case, if at
least 90% or more of the consideration for the Common Stock (excluding cash payments for
fractional shares and cash payments made pursuant to dissenters appraisal rights and cash
dividends) in connection with such event consists of shares of common stock or depositary
receipts in respect of shares of common stock traded on any of the New York Stock Exchange,
the NASDAQ Global Market or the NASDAQ Global Select Market (or any of their respective
successors) (or that will be so traded or quoted immediately following the transaction)
and, as a result of such transaction or transactions, the Notes become convertible (to the
extent otherwise convertible into shares of Common Stock) into such shares of common stock
pursuant to Section 12.10.
Fundamental Change Repurchase Date
has the meaning specified in Section 11.02(a).
Fundamental Change Repurchase Notice
has the meaning specified in Section 11.02(a)(i).
Fundamental Change Repurchase Price
has the meaning specified in Section 11.02(a).
Fundamental Change Repurchase Right Notice
has the meaning specified in Section 11.02(b).
Gaming Authority
means any agency, authority, board, bureau, commission, department, office
or instrumentality of any nature whatsoever of the United States or foreign government, any state,
province or any city or other political subdivision, whether now or hereafter existing, or any
officer or official thereof, including without limitation, the Nevada Gaming Commission, the Nevada
State Gaming Control Board, the Clark County Liquor and Gaming Licensing Board, the Macau Gaming
Authorities, the Pennsylvania Gaming Control Board, the Singapore Casino Regulatory Authority and
any other agency with authority to regulate any gaming operation (or proposed gaming operation)
owned, managed or operated by the Company or any of its subsidiaries.
Gaming License
means every license, franchise or other authorization required to own, lease,
operate or otherwise conduct activities of the Company or any of its subsidiaries and the
regulations promulgated pursuant thereto, and other applicable federal, state, foreign or local
laws.
Global Note
means a Note bearing the Global Note Legend that is registered in the Securities
Register in the name of a Depositary or a nominee thereof, including the Rule 144A Global Note, IAI
Global Note, Temporary Regulation S Global Note and the Permanent Regulation S Global Note.
Global Note Legend
means one or more applicable legends set forth in Section 2.02, taken
together, which are required to be placed on all Global Notes issued under this
11
Supplemental Indenture, including such legends as are required to be included on any Rule 144A
Global Note, IAI Global Note or Regulation S Global Note.
Hedging Agreements
means (a) currency exchange or interest rate swap agreements, currency
exchange or interest rate cap agreements and currency exchange or interest rate collar agreements
and (b) other agreements or arrangements designed to protect against fluctuations in currency
exchange or interest rates.
Holder
means the Person in whose name the Note is registered in the Securities Register.
IAI Global Note
has the meaning specified in Section 2.01
Indebtedness
of any Person means, without duplication, (i) the principal of and premium (if
any) in respect of (A) Indebtedness of such Person for money borrowed and (B) Indebtedness
evidenced by notes, debentures, bonds or other similar instruments for the payment of which such
Person is responsible or liable; (ii) all capital lease obligations of such Person; (iii) all
obligations of such Person issued or assumed as the deferred purchase price of property, assets or
services, all conditional sale obligations and all obligations under any title retention agreement
(but excluding operating leases and trade accounts payable arising in the ordinary course of
business); (iv) all obligations of such Person for the reimbursement of any obligor on any letter
of credit, bankers acceptance or similar credit transaction (other than obligations with respect
to letters of credit securing obligations (other than obligations described in (i) through (iii)
above) entered into in the ordinary course of business of such Person to the extent such letters of
credit are not drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no later
than the third Business Day following receipt by such Person of a demand for reimbursement
following payment on the letter of credit); (v) all obligations of the type referred to in clauses
(i) through (iv) of other Persons and all dividends of other Persons for the payment of which, in
either case, such Person is responsible or liable as obligor, guarantor or otherwise; and (vi) all
obligations of the type referred to in clauses (i) through (v) of other Persons secured by any Lien
on any property or asset of such Person (whether or not such obligation is assumed by such Person),
the amount of such obligation being deemed to be the lesser of the value of such property or asset
or the amount of the obligation so secured.
Indenture
has the meaning specified in the first paragraph of this instrument.
Initial Holder
means the initial Holder of the Notes issued on the Original Issue Date.
Initial Notes
means the first $475 million in aggregate principal amount of the Notes issued
under this Supplemental Indenture on the date hereof. The Initial Notes and the Additional Notes
shall be treated as a single class for all purposes under this Supplemental Indenture, and unless
the context otherwise requires, all references to the Notes shall include the Initial Notes and any
Additional Notes.
Interest Payment Date
means January 1, April 1, July 1 and October 1 of each year, beginning
on January 1, 2009.
Interest Period
has the meaning specified in Section 3.02.
12
Last Reported Sale Price
means, with respect to the Common Stock, on any date, the closing
sale price per share (or if no closing sale price is reported, the average of the last bid and ask
prices or, if more than one in either case, the average of the average last bid and the average
last ask prices) on such date as reported in composite transactions for the principal United States
national or regional securities exchange on which the Common Stock is traded, as determined by the
Company. If the Common Stock is not listed for trading on a United States national or regional
securities exchange on the relevant date, the Last Reported Sale Price shall be the average of
the last quoted bid and ask prices per share of Common Stock in the over-the-counter market on the
relevant date, as reported by Pink Sheets LLC or a similar organization. If the Common Stock is
not so quoted, the Last Reported Sale Price shall be the average of the mid-point of the last bid
and ask prices for the Common Stock on the relevant date from each of at least three nationally
recognized independent investment banking firms selected by the Company for that purpose. Any such
determination shall be conclusive absent manifest error. The Last Reported Sale Price shall be
determined without reference to extended or after hours trading.
Liens
means, with respect to any asset, any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law (including any conditional sale or other title retention
agreement or any lease in the nature thereof).
Make-Whole Fundamental Change
means any transaction or event that constitutes a Fundamental
Change pursuant to clauses (1), (2), (4) or (5) under the definition of Fundamental Change (giving
effect to the proviso to such definition).
Make-Whole Reference Date
means with respect to any Make-Whole Fundamental Change, the date
on which such Make-Whole Fundamental Change is publicly announced, occurs or becomes effective.
Market Disruption Event
means the occurrence or existence on any Scheduled Trading Day for
the Common Stock of any suspension or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the stock exchange or otherwise) in the Common Stock or in any
options contracts or futures contracts relating to the Common Stock, and such suspension or
limitation occurs or exists at any time within the 30 minutes prior to the closing time of the
relevant exchange on such day.
Maturity,
when used with respect to any Notes, means the date on which the principal of such
Notes becomes due and payable as therein or herein provided, whether on the Maturity Date or by
declaration of acceleration, exercise of the repurchase right set forth in ARTICLE 11 or otherwise.
Maturity Date
means, with respect to the Notes, October 1, 2013.
Merger Event
has the meaning specified in Section 12.10.
Non-Global Note
means a certificated Note registered in the name of the Holder thereof and
issued in accordance with this Supplemental Indenture, substantially in the form of Section 2.02
hereof, except that such Note will not bear any Global Note Legend.
13
Notes
has the meaning ascribed to it in the first paragraph under the caption Recitals of
the Company. Unless the context otherwise requires, all references to the Notes shall include the
Initial Notes and any Additional Notes.
Notice of Conversion
has the meaning specified in Section 12.02(d).
Opinion of Counsel
means a written opinion of counsel, who may be an employee of or counsel
to the Company, and who shall be reasonably acceptable to the Trustee.
Original Issue Date
means September 30, 2008.
Outstanding,
when used with respect to the Notes, means, as of the date of determination,
all Notes theretofore authenticated and delivered under this Supplemental Indenture, except:
(i) Notes theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Notes for the payment of which money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Notes in accordance with the
terms of this Supplemental Indenture;
(iii) Notes which have been paid pursuant to Section 3.10 or in exchange for or
in lieu of which other Notes have been authenticated and delivered pursuant to this
Supplemental Indenture;
(iv) Notes converted into Common Stock pursuant to ARTICLE 12; and
(v) Notes redeemed or repurchased pursuant to ARTICLE 11;
provided
,
however
, that, in determining whether the Holders of the requisite principal amount of
Outstanding Notes are present at a meeting of Holders for quorum purposes or have given any
request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the
Company or any other obligor upon the Notes or any Affiliate of the Company (except the Principal
Stockholder and his Related Parties) or such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon
any such determination as to the presence of a quorum or upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes which a Responsible Officer of the
Trustee has been notified in writing to be so owned shall be so disregarded. Notes so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee is not the Company or
any other obligor upon the Notes or any Affiliate of the Company or such other obligor, and the
Trustee shall be protected in relying upon an Officers Certificate to such effect.
14
Paying Agent
means any Person authorized by the Company to pay the principal of or interest
on any Notes on behalf of the Company and, except as otherwise specifically set forth herein, such
term shall include the Company if it shall act as its own Paying Agent. The Company has initially
appointed the Trustee as its Paying Agent pursuant to Section 10.02.
Permanent Regulation S Global Note
has the meaning specified in Section 2.01.
Permitted Liens
means:
(1) Liens securing obligations under the Credit Agreement;
(2) Liens on any property acquired, constructed or improved by the Company to
secure or provide for the payment of any part of the purchase price of the property
or the cost of the construction or improvement, or any Lien on any such property
existing at the time of acquisition thereof;
(3) Liens on any property of another company existing at the time such company
is acquired by merger, consolidation or acquisition of substantially all of its
stock or its assets; provided, that such Liens were in existence prior to the
consummation of, and were not entered into in contemplation of, such merger,
consolidation or acquisition and do not extend to any other assets other than those
of the company acquired by, merged into or consolidated with the Company;
(4) Liens incurred or deposits made in the ordinary course of business or in
the construction of any Principal Property 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);
(5) easements, rights-of-way, aviational or navigational servitudes,
restrictions, encroachments, and other 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 Company or any
of its Subsidiaries;
(6) Liens in favor of customs and revenue authorities arising as a matter of
law to secure payment of customs duties in connection with the importation of goods;
(7) Liens in connection with tax assessments or other governmental charges, or
as security required by law or governmental regulation as a condition to the
transaction of any business or the exercise of any privilege or right;
(8) 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
15
proceeding or in connection with any contest of any tax or other governmental
charge, or deposits with a governmental agency entitling the Company or a Subsidiary
of the Company to maintain self-insurance or to participate in other specified
insurance arrangements or any judgment attachment or judgment Lien not constituting
an Event of Default;
(9) warehousemans, suppliers, materialmens, repairmens, mechanics,
carriers, workmens and other like Liens;
(10) 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;
(11) licenses of patents, trademarks and other intellectual property rights
granted by the Company in the ordinary course of business and not interfering in any
material respect with the ordinary conduct of the business of the Company or any of
its Subsidiaries;
(12) Liens incurred in connection with Hedging Agreements;
(13) Liens existing on the date of this Supplemental Indenture with respect to
any property;
(14) Liens in favor of the Company;
(15) Liens with respect to any Aircraft Financings;
(16) the creation of any other Lien, if, after giving effect to the creation
thereof, the total of (i) the aggregate principal amount of Indebtedness of the
Company secured by all Liens created under this clause (16), plus (ii) the aggregate
amount of Capitalized Lease-Back Obligations of the Company under the entire
unexpired terms of all leases entered into in connection with Sale and Lease-Back
Transactions which would have been precluded by the provision for limitations on
such transactions described under Section 10.08 hereof, but for the satisfaction of
the condition referred to in clause (2) of such provision, will not exceed an amount
equal to 15% of Consolidated Net Tangible Assets;
(17) leases or subleases in the nature of a Lien granted to third parties in
compliance with the terms of this Supplemental Indenture and not interfering in any
material respect with the ordinary conduct of the business of the Company or its
Subsidiaries;
(18) Liens securing any extension, renewal, replacement or refinancing of any
Indebtedness secured by a Lien permitted by any of the foregoing clauses (1) through
(17) or this clause (18), provided the amount secured is not increased, plus
reasonable fees and expenses incurred and any prepayment penalties, premiums and
accrued interest paid in connection with any extension, renewal, replacement or
refinancing;
16
(19) Liens securing other Indebtedness, provided that the aggregate outstanding
principal amount of Indebtedness secured by Liens under this clause (18) does not
exceed $150 million at any one time; and
(20) Liens in favor of the Trustee created or contemplated by the terms of this
Supplemental Indenture.
Person
means any individual, corporation, limited liability company, partnership, joint
venture, trust, estate, unincorporated organization or government or any agency or political
subdivision thereof and any syndicate or group that would be deemed a person under Section
13(d)(3) of the Exchange Act.
Predecessor Note
of any particular Note means every previous Note evidencing all or a
portion of the same debt as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 3.10 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Note.
Press Release
means any press release issued by the Company and disseminated to a reputable
national newswire service.
Principal Property
means any single property owned by the Company having a gross book value
in excess of the greater of (x) $25.0 million and (y) 2% of Consolidated Net Tangible Assets.
Notwithstanding the foregoing, Principal Property shall exclude all Capital Stock of the Company
and its Subsidiaries;
provided
,
however
, that if the Company creates any Lien on any Capital Stock
of any Subsidiary of the Company, then Principal Property shall include such Capital Stock. If the
inclusion of any Capital Stock within the definition of Principal Property requires the prior
approval of any Gaming Authority, the Company shall, prior to granting any Lien on such Capital
Stock, obtain the approval of such Gaming Authority for the inclusion of such Capital Stock within
the definition of Principal Property.
Principal Stockholder
means Sheldon G. Adelson.
Purchase Agreement
means that certain Convertible Note Purchase Agreement, dated as of
September 30, 2008, entered into by and between the Company and the purchaser identified therein.
Reference Property
has the meaning specified in Section 12.10.
Registrar
means the Trustee, for the purpose of registering Notes and transfers of Notes.
Registration Rights Agreement
means the Amended and Restated Registration Rights Agreement,
dated as of September 30, 2008, entered into by and among the Company and the stockholders party
thereto, as amended, supplemented or modified from time to time; provided that the term,
Registration Rights Agreement, when used in reference to any issue of Additional Notes, shall be
deemed to mean the registration rights agreement (if any) entered into
17
in respect of the registration of such issue of Additional Notes and the Common Stock into
which such Additional Notes are convertible.
Related Parties
means (1) any spouse and any child, stepchild, sibling or descendant of the
Principal Stockholder; (2) any estate of the Principal Stockholder or any person under clause (1);
(3) any person who receives a beneficial interest in the Company from an estate under clause (2) to
the extent of such interest; (4) any executor, personal administrator or trustee who holds such
beneficial interest in the Company for the benefit of, or as fiduciary for, any person under
clauses (1), (2), or (3) to the extent of such interest; (5) any corporation, partnership, limited
liability company, trust, or similar entity owned or controlled by the Principal Stockholder or any
person referred to in clause (1), (2), (3) or (4) or for the benefit of any person referred to in
clause (1); and (6) the spouse or issue of one or more of the individuals described in clause (1).
Regular Record Date
for interest payable in respect of any Note on any Interest Payment Date
means 5:00 p.m. New York time on the March 15, June 15, September 15 or December 15 (whether or not
a Business Day), as the case may be, next preceding such Interest Payment Date.
Regulation S Global Note
means the Temporary Regulation S Global Note and the Permanent
Regulation S Global Note collectively.
Restricted Notes
means all Notes required pursuant to Section 3.08(c) to bear any Restricted
Securities Legend. Such term includes the Restricted Global Note.
Restricted Global Note
means any Global Note required pursuant to Section 3.08(c) to bear
any Restricted Securities Legend.
Restricted Securities Legends
means, collectively, the legends substantially in the forms of
the legends required in the form of Note set forth in Section 2.02 to be placed on each Restricted
Note.
Rule 144A Global Note
has the meaning specified in Section 2.01.
Sale and Lease-Back Transaction
has the meaning specified in Section 10.08.
Scheduled Trading Day
means a day that is scheduled to be a Trading Day on the principal
United States national or regional securities exchange or market on which the Common Stock is
listed or admitted for trading or, if the Common Stock is not listed or admitted for trading on any
exchange or market, a Business Day.
Securities Act
means the Securities Act of 1933 and any statute successor thereto, in each
case as amended from time to time.
Securities Register
has the meaning specified in Section 3.08(a).
18
Significant Subsidiary
means, with respect to any Person, a subsidiary of such Person that
would constitute a significant subsidiary as such term is defined under Rule 1-02 of Regulation
S-X under the Securities Act and the Exchange Act.
Special Record Date
for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.11.
Spin-Off
has the meaning specified in Section 12.04(c).
Stock Price
means the price per share of Common Stock at the time of a Make-Whole
Fundamental Change pursuant to which Additional Shares shall be added to the Conversion Rate as set
forth in Section 12.01(d), which shall be equal to (i) if holders of Common Stock receive only cash
consideration for their shares of Common Stock in connection with a Make-Whole Fundamental Change,
the cash amount paid per share of Common Stock and (ii) in all other cases, the average of the Last
Reported Sale Price of the Common Stock over the 10 consecutive Trading Day period ending on the
Trading Day preceding the Effective Date of such Make-Whole Fundamental Change.
Successor Note
of any particular Note means every Note issued after, and evidencing all or a
portion of the same debt as that evidenced by, such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 3.10 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same debt as the
mutilated, destroyed, lost or stolen Note.
Supplemental Indenture
has the meaning specified in the first paragraph of this instrument.
Temporary Regulation S Global Note
has the meaning specified in Section 2.01.
Trigger Event
has the meaning specified in Section 12.04(c).
Trust Indenture Act
means the Trust Indenture Act of 1939 as in force at the date as of
which this instrument was executed;
provided, however
, that in the event the Trust Indenture Act of
1939 is amended after such date, Trust Indenture Act means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
Trustee
means the Person named as the Trustee in the first paragraph of this instrument
until a successor Trustee shall have become such pursuant to the applicable provisions of this
Supplemental Indenture, and thereafter Trustee shall mean such successor Trustee.
Uniform Commercial Code
means the New York Uniform Commercial Code as in effect from time to
time.
VWAP Market Disruption Event
means (i) a failure by the principal United States national or
regional securities exchange or market on which the Common Stock is listed or admitted to trading
to open for trading during its regular trading session or (ii) the occurrence or existence prior to
1:00 p.m. New York City time on any Scheduled Trading Day for the Common
19
Stock for an aggregate one half-hour period of any suspension or limitation imposed on trading
(by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in
the Common Stock or in any options contracts or futures contracts relating to the Common Stock.
VWAP Trading Day
means a day during which (i) trading in the Common Stock generally occurs
during the regular trading session on the principal United States national or regional securities
exchange or market on which the Common Stock is listed or admitted for trading and (ii) there is no
VWAP Market Disruption Event. If the Common Stock is not so listed or traded, then VWAP Trading Day
means a Business Day.
SECTION 1.02.
Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.03.
Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under such Act to be a part of and govern this Supplemental Indenture, the
latter provision shall control. If any provision of this Supplemental Indenture modifies or
excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Supplemental Indenture as so modified or to be excluded,
as the case may be.
SECTION 1.04.
Successors and Assigns.
All covenants and agreements in this Supplemental Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
SECTION 1.05.
Separability Clause.
In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 1.06.
Benefits of Indenture.
Nothing in this Supplemental Indenture or in the Notes, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the Holders, any benefit
or any legal or equitable right, remedy or claim under this Supplemental Indenture.
SECTION 1.07.
Governing Law.
This Supplemental Indenture and the Notes shall be governed by and construed in accordance
with the laws of the State of New York.
|
|
SECTION 1.08.
Legal Holidays.
|
20
In any case where any Interest Payment Date, Fundamental Change Repurchase Date or the
Maturity Date of any Note or the last date on which a Holder has the right to convert his Notes
shall not be a Business Day, then (notwithstanding any other provision of this Supplemental
Indenture or of the Notes) payment of interest or principal or conversion of the Notes need not be
made on such date, but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date or Fundamental Change Repurchase Date or at the
Maturity Date, or on such last day for conversion;
provided
that no interest shall accrue for the
period from and after such Interest Payment Date, Fundamental Change Repurchase Date or the
Maturity Date, as the case may be. Notwithstanding the foregoing, the right to convert a Note
shall cease at the close of business on the third Scheduled Trading Day immediately preceding the
Maturity Date.
SECTION 1.09.
Relationship with Base Indenture.
The terms and provisions contained in the Base Indenture shall constitute, and are hereby
expressly made, a part of this Supplemental Indenture and the Company and the Trustee, by their
execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions
and to be bound thereby. However, to the extent any provision of the Base Indenture conflicts with
the express provisions of this Supplemental Indenture, the provisions of this Supplemental
Indenture shall govern and be controlling.
The Trustee accepts the amendment of the Base Indenture effected by this Supplemental
Indenture and agrees to execute the trust created by the Base Indenture as hereby amended, but only
upon the terms and conditions set forth in the Indenture, including the terms and provisions
defining and limiting the liabilities and responsibilities of the Trustee in the performance of the
trust created by the Base Indenture, and without limiting the generality of the foregoing, the
Trustee shall not be responsible in any manner whatsoever for or with respect to any of the
recitals or statements contained herein, all of which recitals or statements are made solely by the
Company, or for or with respect to (1) the validity or sufficiency of this Supplemental Indenture
or any of the terms or provisions hereof, (2) the proper authorization hereof by the Company, (3)
the due execution hereof by the Company or (4) the consequences (direct or indirect and whether
deliberate or inadvertent) of any amendment herein provided for, and the Trustee makes no
representation with respect to any such matters.
ARTICLE 2.
NOTE FORMS
SECTION 2.01.
Form Generally.
The Notes shall be in substantially the form set forth in this ARTICLE 2, with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Supplemental Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply with the rules of any
securities exchange, the Code, and regulations thereunder, or as may, consistent herewith, be
determined by the officers executing such Notes, as evidenced by their
21
execution thereof. The Company shall furnish any such legends and endorsements to the Trustee
in writing. All Notes shall be in fully registered form.
Notices of Conversion shall be in substantially the form set forth in Section 2.03.
The Notes shall be printed, lithographed, typewritten or engraved or produced by any
combination of these methods or may be produced in any other manner permitted by the rules of any
automated quotation system or securities exchange (including on steel engraved borders if so
required by any securities exchange upon which the Notes may be listed) on which the Notes may be
listed for trading, as the case may be, all as determined by the officers executing such Notes, as
evidenced by their execution thereof.
Upon their original issuance, the Initial Notes issued as contemplated by the Purchase
Agreement shall be issued in the form of one or more Non-Global Notes in definitive, fully
registered form without interest coupons and bearing the applicable Restricted Securities Legend.
Such Notes are initially being offered and sold to accredited investor(s) as defined in Rule 501
promulgated under the Securities Act (
Rule 501
). Subject to the limitations imposed by the
federal securities laws, if the rules and procedures of DTC permit, upon written request to the
Trustee by any original Holder of such Non-Global Notes, any such Holder may transfer all or part
of any Non-Global Notes that it holds to a transferee and such transferee may take delivery of such
Notes in the form of beneficial interests in one or more Global Notes, which Notes may be
transferred to domestic transferees, in accordance with Section 3.08, in the form of a
Rule 144A
Global Note
, in the event that such transfer is effected pursuant to Rule 144A promulgated under
the Securities Act (
Rule 144A
), or an
IAI Global Note
, in the event that such transfer is
effected pursuant to Rule 501, in each case, in accordance with the written direction of such
transferor. If any such Initial Notes are transferred in offshore transactions in reliance on
Regulation S under the Securities Act (
Regulation S
) in accordance with the limitations set forth
in Section 2.02, and if the rules and procedures of DTC, Clearstream Banking, S.A. (
Clearstream
Luxembourg
) and Euroclear Bank S.A./N.V. (
Euroclear Bank
), as operator of the Euroclear System
(
Euroclear
) permit, upon written request to the Trustee by the transferor, such transferee may
take delivery of such Notes in the form of beneficial interests in one or more Global Notes. In
such circumstances, in the event that a Global Note is issued or transferred (i) during the
Distribution Compliance Period, it shall be referred to as a
Temporary Regulation S Global Note
,
and (ii) following the Distribution Compliance Period, it shall be referred to as the
Permanent
Regulation S Global Note
, it being understood that each such Global Note shall bear the applicable
Restricted Securities Legend set forth in Section 2.02 with respect to Notes offered or transferred
in reliance on Regulation S.
All Global Notes shall be issued in fully registered form without interest coupons and shall
be deposited on behalf of the holders of such Notes represented thereby with the Trustee, at its
Corporate Trust Office, as Custodian for DTC, and registered in the name of its nominee, duly
executed by the Company and authenticated by the Trustee as hereinafter provided. Clearstream
Luxembourg and Euroclear Bank may hold beneficial interests in Global Notes bearing the applicable
Regulation S legend, as set forth in Section 2.02, on behalf of their participants through their
respective depositories. Beneficial interests in Global Notes bearing the applicable Regulation S
legend may also be held through organizations other than Clearstream Luxembourg
22
and Euroclear that are participants in DTC. The aggregate principal amount of each Global
Note may from time to time be increased or decreased by adjustments made on the records of the
Custodian as hereinafter provided, subject in each case to compliance with the Applicable
Procedures.
SECTION 2.02.
Form of Note.
[FORM OF FACE OF NOTE]
[Global Note Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (DTC), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC) ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES
OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSORS NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
SUPPLEMENTAL INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[[FOR REGULATION S GLOBAL NOTE ONLY] UNTIL 40 DAYS AFTER THE LATER OF COMMENCEMENT OR COMPLETION OF
THE OFFERING, AN OFFER OR SALE OF SECURITIES WITHIN THE UNITED STATES BY A DEALER (AS DEFINED IN
THE SECURITIES ACT) MAY VIOLATE THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT IF SUCH OFFER
OR SALE IS MADE OTHERWISE THAN IN ACCORDANCE WITH RULE 144A THEREUNDER.]
[Restricted Note Legend Notes Offered Otherwise than in Reliance on Regulation S, including Rule
144A Global Notes, IAI Global Notes and transfer restricted Non-Global Notes]
THIS NOTE (OR ITS PREDECESSOR) AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE WERE
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT
OF 1933, AS AMENDED (THE SECURITIES ACT), AND THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS NOTE MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS NOTE
23
IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT. THE HOLDER OF THIS NOTE AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE MAY BE OFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) WITHIN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) TO AN ACCREDITED
INVESTOR WITHIN THE MEANING OF RULE 501(A)(1),(2),(3) OR (7) UNDER THE SECURITIES ACT THAT, PRIOR
TO SUCH TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE
TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN
$250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (III) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH
RULE 904 UNDER THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (V) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OR (VI) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
[Restricted Note Legend Regulation S]
THIS NOTE (OR ITS PREDECESSOR) AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE WERE
ORIGINALLY ISSUED IN A TRANSACTION ORIGINALLY EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND MAY NOT BE TRANSFERRED IN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, ANY U.S. PERSON EXCEPT PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND ALL APPLICABLE STATE
SECURITIES LAWS. TERMS USED ABOVE HAVE THE MEANINGS GIVEN TO THEM IN REGULATION S UNDER THE
SECURITIES ACT.
[Temporary Regulation S Global Note Legend]
EXCEPT AS SET FORTH BELOW, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL
NOTE WILL NOT BE EXCHANGEABLE FOR INTERESTS IN THE PERMANENT REGULATION S GLOBAL NOTE OR ANY OTHER
NOTE REPRESENTING AN INTEREST IN THE NOTES REPRESENTED HEREBY
24
WHICH DO NOT CONTAIN A LEGEND CONTAINING RESTRICTIONS ON TRANSFER, UNTIL THE EXPIRATION OF THE
40-DAY DISTRIBUTION COMPLIANCE PERIOD (WITHIN THE MEANING OF RULE 903(b)(2) OF REGULATION S UNDER
THE SECURITIES ACT) AND THEN ONLY UPON CERTIFICATION IN FORM REASONABLY SATISFACTORY TO THE TRUSTEE
THAT SUCH BENEFICIAL INTERESTS ARE OWNED EITHER BY NON-U.S. PERSONS OR U.S. PERSONS WHO PURCHASED
SUCH INTERESTS IN A TRANSACTION THAT DID NOT REQUIRE REGISTRATION UNDER THE SECURITIES ACT. DURING
SUCH 40-DAY DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL OWNERSHIP INTERESTS IN THIS TEMPORARY
REGULATION S GLOBAL NOTE MAY ONLY BE SOLD, PLEDGED OR TRANSFERRED (I) TO THE COMPANY, (II) OUTSIDE
THE UNITED STATES IN A TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, (III) IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT, OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. HOLDERS OF INTERESTS IN THIS
TEMPORARY REGULATION S GLOBAL NOTE WILL NOTIFY ANY PURCHASER OF THIS NOTE OF THE RESALE
RESTRICTIONS REFERRED TO ABOVE, IF THEN APPLICABLE.
BENEFICIAL INTERESTS IN THIS TEMPORARY REGULATION S GLOBAL NOTE MAY BE EXCHANGED FOR INTERESTS IN A
RULE 144A GLOBAL NOTE, WHETHER BEFORE OR AFTER THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE
PERIOD, ONLY IF (1) SUCH EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE NOTES IN COMPLIANCE
WITH RULE 144A AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL NOTE FIRST DELIVERS TO THE TRUSTEE
A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE REGULATION
S GLOBAL NOTE IS BEING TRANSFERRED (A) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES TO BE A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, (B) TO A PERSON WHO IS PURCHASING
FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, AND (C) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES
OF THE UNITED STATES AND OTHER JURISDICTIONS.
AFTER THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE PERIOD, BENEFICIAL INTERESTS IN THIS TEMPORARY
REGULATION S GLOBAL NOTE MAY BE EXCHANGED FOR INTERESTS IN AN IAI GLOBAL NOTE ONLY IF (1) SUCH
EXCHANGE OCCURS IN CONNECTION WITH A TRANSFER OF THE NOTES IN COMPLIANCE WITH AN EXEMPTION UNDER
THE SECURITIES ACT AND (2) THE TRANSFEROR OF THE REGULATION S GLOBAL NOTE FIRST DELIVERS TO THE
TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO THE EFFECT THAT THE
REGULATION S GLOBAL NOTE IS BEING
TRANSFERRED (A) TO AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(A)(1),(2),(3) OR (7)
UNDER THE SECURITIES ACT THAT, PRIOR TO SUCH
25
TRANSFER, FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF
SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS THAN $250,000, AN
OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS.
BENEFICIAL INTERESTS IN A RULE 144A GLOBAL NOTE OR AN IAI GLOBAL NOTE MAY BE TRANSFERRED TO A
PERSON WHO TAKES DELIVERY IN THE FORM OF AN INTEREST IN THE REGULATION S GLOBAL NOTE, WHETHER
BEFORE OR AFTER THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD, ONLY IF THE TRANSFEROR
FIRST DELIVERS TO THE TRUSTEE A WRITTEN CERTIFICATE (IN THE FORM ATTACHED TO THIS CERTIFICATE) TO
THE EFFECT THAT SUCH TRANSFER IS BEING MADE IN ACCORDANCE WITH RULE 903 OR 904 OF REGULATION S OR
RULE 144 (IF AVAILABLE).
[Non-Global Notes Legend]
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH
CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT
THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
[Gaming Legend All Notes]
IF AT ANY TIME ANY GAMING AUTHORITY FINDS THAT AN OWNER OF THIS NOTE IS UNSUITABLE TO CONTINUE TO
HAVE AN INVOLVEMENT IN GAMING IN ANY JURISDICTION, SUCH OWNER MUST DISPOSE OF SUCH NOTE AS PROVIDED
BY THE LAWS OF SUCH JURISDICTION. SUCH LAWS AND REGULATIONS MAY RESTRICT THE RIGHT UNDER CERTAIN
CIRCUMSTANCES: (A) TO PAY OR RECEIVE ANY DIVIDEND OR INTEREST UPON SUCH NOTE; (B) TO EXERCISE,
DIRECTLY OR THROUGH ANY TRUSTEE OR NOMINEE, ANY VOTING RIGHT CONFERRED BY SUCH NOTE; OR (C) RECEIVE
ANY REMUNERATION IN ANY FORM FROM THE COMPANY, FOR SERVICES RENDERED OR OTHERWISE.
26
LAS VEGAS SANDS CORP.
6
1
/
2
% Convertible Senior Notes due 2013
No.
CUSIP No. [
]
LAS VEGAS SANDS CORP., a corporation duly organized and existing under the laws of the State
of Nevada (herein called the
Company
, which term includes any successor Person under the
Supplemental Indenture referred to on the reverse hereof), for value received, hereby promises to
pay to
, or registered assigns, the principal sum of
United States
Dollars (U.S. $
) [
if this Note is a Global Note, then insert
(which principal amount may
from time to time be decreased to such other principal amounts by adjustments made on the records
of the Registrar hereinafter referred to in accordance with the Supplemental Indenture)] on October
1, 2013 (the
Maturity Date
), and to pay interest thereon, from October 1, 2008, or from the most
recent Interest Payment Date (as defined below) to which interest has been paid or duly provided
for, quarterly in arrears on January 1, April 1, July 1 and October 1 of each year (each, an
Interest Payment Date
), commencing January 1, 2009, at the rate of 6
1
/
2
% per annum, except as
otherwise provided below. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date shall, as provided in the Indenture, be paid to the Person in whose name
this Note (or one or more Predecessor Notes) is registered at the close of business on the Regular
Record Date for such interest, which shall be the March 15, June 15, September 15 or December 15
(whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.
Except as otherwise provided in the Supplemental Indenture, any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record
Date and may either be paid to the Person in whose name this Note (or one or more Predecessor
Notes) is registered at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee pursuant to Section 3.11 of the Supplemental
Indenture, notice whereof shall be given to Holders not less than 10 calendar days prior to the
Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the
requirements of any automated quotation system or securities exchange on which the Notes may then
be listed for trading, and upon such notice as may be required by such exchange, all as more fully
provided in the Supplemental Indenture. Payments of principal shall be made upon the surrender of
this Note by the Holder thereof at the Corporate Trust Office of the Trustee, or at such other
office or agency of the Company as may be designated by it for such purpose in such lawful monies
of the United States of America as at the time of payment shall be legal tender for the payment of
public and private debts, or at such other offices or agencies as the Company may designate. The
Company will pay interest on overdue principal at the rate borne by this Note plus 2.0% per annum,
and it will pay interest on Defaulted Interest at the same rate to the extent lawful. In addition,
if this is a Transfer Restricted Note (as such term is defined in the Registration Rights
Agreement) whose holder, by virtue of holding this Note, is a beneficiary of the Registration
Rights Agreement, then, in the event that a Registration Default (as such term is defined in the
Registration Rights Agreement) shall occur, this Note shall accrue Liquidated Damages (as such term
is defined in the Registration Rights Agreement) at a rate of 0.50% per annum (increasing by an
additional 0.50% per annum after each consecutive 90-day period that occurs after the date on which
such Registration Default occurs up to a maximum additional
27
interest rate of 1.00%) from and including the date on which any such Registration Default
occurred to but excluding the date on which all Registration Defaults have been cured, it being
understood that the Liquidated Damages described herein and in the Registration Rights Agreement
are one and the same remedy and shall in no event represent obligations of the Company independent
of one another. All amounts due in cash with respect to the Notes shall be paid (A) in the case
this Note is in global form, by wire transfer of immediately available funds to the account
designated by the Depositary or its nominee; (B) in the case this Note is held, other than in
global form, by a Holder in an aggregate principal amount of $5.0 million or less, by check mailed
to such Holders; and (C) in the case this Note is held, other than in global form, by a Holder in
an aggregate principal amount of more than $5.0 million, either by check mailed to such Holder or,
upon application by such Holder to the Registrar not later than the relevant record date (in the
case of an installment of interest due on an Interest Payment Date) or 15 calendar days prior to
such other date on which such amounts are due, by wire transfer in immediately available funds to
such Holders account within the United States, which application shall remain in effect until the
Holder notifies, in writing, the Registrar to the contrary.
Except as specifically provided herein and in the Supplemental Indenture, the Company shall
not be required to make any payment with respect to any tax, assessment or other governmental
charge imposed by any government or any political subdivision or taxing authority thereof or
therein.
Reference is hereby made to the further provisions of this Note set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof or an Authenticating Agent by the manual signature of one of their respective
authorized signatories, this Note shall not be entitled to any benefit under the Supplemental
Indenture or be valid or obligatory for any purpose.
[Remainder of page intentionally left blank]
28
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
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LAS VEGAS SANDS CORP.
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By:
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Name:
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Title:
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TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Supplemental Indenture.
Dated:
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U.S. BANK NATIONAL ASSOCIATION
,
as Trustee
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By:
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Authorized Signatory
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29
[FORM OF REVERSE OF NOTE]
LAS VEGAS SANDS CORP.
6
1
/
2
% Convertible Senior Notes due 2013
This Note is one of a duly authorized issue of Notes of the Company designated as its
6
1
/
2
%
Convertible Senior Notes due 2013
(herein called the
Notes
) issued and to be issued under the
Indenture (the
Base Indenture
), dated as of September 30, 2008, between the Company and U.S. Bank
National Association, as Trustee (herein called the
Trustee
, which term includes any successor
trustee under the Indenture (as defined below)), as supplemented and modified by the First
Supplemental Indenture (the
Supplemental Indenture
and, together with the Base Indenture, the
Indenture
), dated as of September 30, 2008, between the Company and the Trustee, to which
Indenture and all indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. As provided in the Supplemental Indenture and subject to certain
limitations therein set forth, the Notes are exchangeable for a like aggregate principal amount of
Notes of any authorized denominations as requested by the Holder surrendering the same upon
surrender of the Note or Notes to be exchanged, at the Corporate Trust Office of the Trustee. The
Trustee upon such surrender by the Holder hereof and the satisfaction of any requirements therefor
set forth in the Supplemental Indenture shall issue the new Notes in the requested denominations.
Additional Notes may be issued in an unlimited aggregate principal amount, subject to certain
conditions specified in the Supplemental Indenture.
No sinking fund is provided for in the Notes.
In any case where any Interest Payment Date, Fundamental Change Repurchase Date or the
Maturity Date of any Note or the last date on which a Holder has the right to convert his Notes
shall not be a Business Day, then (notwithstanding any other provision of the Supplemental
Indenture or of the Notes) payment of interest or principal amount or conversion of the Notes need
not be made on such date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the Interest Payment Date or Fundamental Change Repurchase Date, or at the
Maturity Date, or on such last day for conversion;
provided
that no interest shall accrue for the
period from and after such Interest Payment Date, Fundamental Change Repurchase Date or the
Maturity Date, as the case may be.
The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the Holders of the Notes, and in other circumstances, with
the consent of the Holders of not less than a majority in aggregate principal amount of the Notes
at the time outstanding, evidenced as in the Supplemental Indenture provided, to execute
supplemental indentures adding any provisions to or changing in any manner or eliminating any of
the provisions of the Supplemental Indenture or of any supplemental indenture or modifying in any
manner the rights of the Holders of the Notes;
provided
,
however
, that no such supplemental
indenture shall make any of the changes set forth in Section 8.02 of the Supplemental Indenture
without the consent of each Holder of an outstanding Note affected thereby. It is also provided in
the Supplemental Indenture that, prior to any declaration
30
accelerating the maturity of the Notes, the Holders of a majority in principal amount of the
Notes at the time outstanding may on behalf of the Holders of all of the Notes waive any past
Default or Event of Default under the Supplemental Indenture and its consequences except as
provided in the Supplemental Indenture. Any such consent or waiver by the Holder of this Note
(unless revoked as provided in the Supplemental Indenture) shall be conclusive and binding upon
such Holder and upon all future holders and owners of this Note and any Notes which may be issued
in exchange or substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Notes.
No reference herein to the Supplemental Indenture and no provision of this Note or of the
Supplemental Indenture shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay the principal amount of, and accrued and unpaid interest on, this Note, at
the place, at the respective times, at the rate and in the lawful money herein prescribed.
Subject to the provisions of the Supplemental Indenture, upon the occurrence of a Fundamental
Change, the Holder has the right, at such Holders option, to require the Company to repurchase all
of such Holders Notes or any portion thereof (in principal amounts of $1,000 or integral multiples
thereof) on the Fundamental Change Repurchase Date at a price equal to 101% of the principal amount
of the Notes such Holder elects to require the Company to repurchase, together with accrued and
unpaid interest to, but excluding the Fundamental Change Repurchase Date, unless such Fundamental
Change Repurchase Date falls after a Regular Record Date and on or prior to the corresponding
Interest Payment Date, in which case the Company shall pay the full amount of accrued and unpaid
interest payable on such Interest Payment Date to the Holder of record at the close of business on
the corresponding Regular Record Date. The Company or, at the written request of the Company, the
Trustee shall mail to all Holders of record of the Notes a notice of the occurrence of a
Fundamental Change and of the repurchase right arising as a result thereof after the occurrence of
any Fundamental Change on or before the 10
th
calendar day following the Effective Date
of such Fundamental Change.
The Holder hereof has the right, at its option, at any time prior to the close of business on
the second Scheduled Trading Day immediately preceding the Maturity Date, to convert any Notes or
portion thereof which is $1,000 in principal amount or an integral multiple thereof, into shares of
fully paid Common Stock (or, if applicable, Reference Property) as set forth in Section 12.02 of
the Supplemental Indenture) or Reference Property, in each case at the Conversion Rate specified in
the Supplemental Indenture, as adjusted from time to time as provided in the Supplemental
Indenture, upon satisfaction of certain requirements set forth in the Supplemental Indenture,
including, if applicable, the surrender of this Note, together with a Notice of Conversion, a form
of which is contained under Section 2.03 of the Supplemental Indenture, as provided in the
Supplemental Indenture and this Note, to the Company at the office or agency of the Company
maintained for that purpose, or at the option of such Holder, the Corporate Trust Office, and,
unless the shares of Common Stock (or, if applicable, Reference Property) issuable on conversion
are to be issued in the same name as this Note, duly endorsed by, or accompanied by instruments of
transfer in form satisfactory to the Company duly executed by, the Holder or by his duly authorized
attorney. The initial Conversion Rate shall be 20.1410 shares of Common Stock for each $1,000 in
principal amount of Notes. No fractional shares of Common Stock (or, if applicable, Reference
Property) shall be issued upon any conversion, but an adjustment in cash shall be paid to the
Holder, as provided in the Supplemental Indenture, in respect of any fraction
31
of such share which would otherwise be issuable upon the surrender of any Note or Notes for
conversion. No adjustment shall be made for dividends or any such shares issued upon conversion of
such Notes except as provided in the Supplemental Indenture.
Notwithstanding any other provision herein, if any Gaming Authority requires that a Holder or
beneficial owner of the Notes must be licensed, qualified or found suitable under any applicable
Gaming Laws in order to maintain any Gaming License or franchise of the Company or any of its
subsidiaries under any applicable Gaming Laws, and the Holder or beneficial owner fails to apply
for a license, qualification or finding of suitability within 30 days after being requested to do
so by the Gaming Authority (or such lesser period that may be required by such Gaming Authority) or
if such Holder or beneficial owner is denied such license or qualification or found not to be
suitable, the Company shall have the right, at its option, (1) to require such Holder or beneficial
owner to dispose of such Holders or beneficial owners Notes within 30 days of receipt of such
finding by the applicable Gaming Authority (or such earlier date as may be required by the
applicable Gaming Authority) or (2) to call for redemption the Notes of such Holder or beneficial
owner at a redemption price equal to (i) the least of (a) 100% of the principal amount thereof, (b)
the price at which such Holder or beneficial owner acquired the Notes or (c) the fair market value
of the Notes as determined in good faith by the Board of Directors of the Company, together with,
in each case, accrued and unpaid interest to the earlier of the date of redemption or such earlier
date as may be required by the Gaming Authority or the date of the finding of unsuitability by such
Gaming Authority, which may be less than 30 days following the notice of redemption, if so ordered
by such Gaming Authority or (ii) such other price as may be ordered by the Gaming Authority. In
connection with such redemption, and except as may be required by a Gaming Authority, the Company
shall comply with the procedures contained in the Notes and the Indenture for the redemption of the
Notes. Immediately upon a determination that a Holder or beneficial owner will not be licensed,
qualified or found suitable, the Holder or beneficial owner will have no further rights (a) to
exercise any right conferred by the Notes, directly or indirectly, through any trustee, nominee or
any other Person or (b) to receive any interest or other distribution or payment with respect to
the Notes except the redemption price of the Notes described in this paragraph; provided, however,
such Holder or beneficial owner may, to the extent permitted by such Gaming Authority, transfer the
Notes to any unaffiliated third party, who shall then be entitled to exercise all rights of a
Holder or beneficial owner under the Notes. Under the Indenture, the Company is not required to
pay or reimburse any Holder of the Notes or beneficial owner who is required to apply for such
license, qualification or finding of suitability for the costs of the licensure or investigation
for such qualification or finding of suitability.
Upon due presentment for registration of transfer of this Note at the office or agency of the
Company, a new Note or Notes of authorized denominations for an equal aggregate principal amount
shall be issued to the transferee in exchange thereof, subject to the limitations provided in the
Supplemental Indenture, without charge except for any tax, assessments or other governmental charge
imposed in connection therewith.
The Company, the Trustee, any Authenticating Agent, any Paying Agent, any Conversion Agent and
any Registrar may deem and treat the registered Holder hereof as the absolute owner of this Note
(whether or not this Note shall be overdue and notwithstanding any notation of ownership or other
writing hereon), for the purpose of receiving payment hereof, or on account
32
hereof, for the conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any Paying Agent nor any other Conversion Agent nor
any Registrar shall be affected by any notice to the contrary. All payments made to or upon the
order of such registered Holder shall, to the extent of the sum or sums paid, satisfy and discharge
liability for monies payable on this Note.
No recourse for the payment of the principal amount of, or accrued and unpaid interest on,
this Note, or for any claim based hereon or otherwise in respect hereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Supplemental Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any Indebtedness
represented thereby, shall be had against any incorporator, stockholder, employee, agent, officer,
director or subsidiary, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
Terms used in this Note and defined in the Supplemental Indenture are used herein as therein
defined.
In the case of any conflict between the provisions of this Note and the Indenture, the
provisions of the Indenture shall control.
The Indenture, the Supplemental Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York.
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TENANT (=tenants by the entireties), JT TEN (joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A (=Uniform gift to Minors
Act).
FORM OF FUNDAMENTAL
CHANGE REPURCHASE NOTICE
To: Las Vegas Sands Corp.
The undersigned registered owner of this Note hereby acknowledges receipt of a notice from Las
Vegas Sands Corp. (the
Company
) as to the occurrence of (check the appropriate box):
o
a Fundamental Change with respect to the Company;
and hereby directs the Company to pay, or cause the Trustee to pay, it or
an amount
in cash equal to 101% of the principal amount, or the portion thereof (which is $1,000 in principal
amount or an integral multiple thereof) below designated, to be repurchased plus
33
interest accrued to, but excluding, the Fundamental Change Repurchase Date, except as provided in
the Supplemental Indenture.
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Dated:
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Signature(s)
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Signature(s) must be guaranteed by an Eligible Guarantor Institution with
membership in an approved signature guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
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Certificate number(s), if applicable, of Note(s) tendered for repurchase:
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Principal amount to be repurchased (at least U.S. $1,000 principal amount or an
integral multiple of $1,000 in excess thereof):
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Remaining principal amount following such repurchase (not less than U.S. $1,000
principal amount):
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34
SECTION 2.03.
Form of Notice of Conversion.
NOTICE OF CONVERSION
The undersigned Holder of this Note hereby irrevocably exercises the option to convert this
Note, or any portion of the principal amount hereof (which is U.S. $1,000 principal amount or an
integral multiple of U.S. $1,000 in excess thereof,
provided
that the unconverted portion of such
principal amount is U.S. $1,000 or any integral multiple of U.S. $1,000 in excess thereof) below
designated, into shares of fully paid Common Stock (or, if applicable, Reference Property) in
accordance with the terms of the Supplemental Indenture referred to in this Note, and directs that
the consideration due upon such conversion (including a check in payment for any fractional share
and any Notes representing any unconverted principal amount hereof), be delivered to and be
registered in the name of the undersigned unless a different name has been indicated below. If
shares of Common Stock (or if applicable, Reference Property) or Notes are to be registered in the
name of a Person other than the undersigned, (a) the undersigned shall pay all transfer taxes
payable with respect thereto and (b) signature(s) must be guaranteed by an Eligible Guarantor
Institution with membership in an approved signature guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934. Any amount required to be paid by the undersigned on
account of interest accompanies this Note.
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If shares or Notes are to be registered in the name of a Person other than the
Holder, please print such Persons name and address:
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(Name)
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(Address)
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Social Security or other Identification
Number, if any
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[Signature Guaranteed]
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If only a portion of the Notes is to be converted, please indicate:
1. Principal amount to be converted: U.S. $
35
2.
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Principal amount and denomination of Notes
representing unconverted principal amount to be issued:
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Amount: U.S. $
Denominations: U.S. $
(U.S. $1,000 principal amount or any integral multiple of U.S. $1,000 in excess thereof,
provided
that the unconverted portion of such principal amount is U.S. $1,000 principal amount or any
integral multiple of U.S. $1,000 in excess thereof).
SECTION 2.04.
Form of Assignment.
ASSIGNMENT
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignees name, address and zip code)
(Insert assignees soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note, in whole or in part
in accordance with the terms of the Indenture, on the books of the Company. The agent may
substitute another to act for him.
If only a portion of the Notes is to be assigned, please indicate:
1.
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Principal amount to be assigned: U.S. $
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2.
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Principal amount and denomination of Notes
representing unassigned principal amount to be issued:
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Amount: U.S. $
Denominations: U.S. $
(U.S. $1,000 principal amount or any integral multiple of U.S. $1,000 in excess thereof,
provided
that the unassigned portion of such principal amount is U.S. $1,000 principal amount or any
integral multiple of U.S. $1,000 in excess thereof).
Date:
Your Signature:
Sign exactly as your name appears on the other side of this Note.
36
In connection with any transfer of any of the Notes evidenced by this certificate occurring prior
to the expiration of the period referred to in Rule 144 under the Securities Act after the later of
the date of original issuance of such Notes and the last date, if any, on which such Notes were
owned by the Company or any Affiliate of the Company, the undersigned confirms that such Notes are
being transferred in accordance with their terms:
CHECK ONE BOX BELOW
o
(1) pursuant to an effective registration statement under the Securities Act of
1933; or
o
(2) inside the United States to a qualified institutional buyer (as defined in
Rule 144A under the Securities Act of 1933) that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that such transfer is
being made in reliance on Rule 144A, in each case pursuant to and in compliance with Rule
144A under the Securities Act of 1933; or
o
(3) outside the United States in an offshore transaction within the meaning of
Regulation S under the Securities Act in compliance with Rule 903 or 904 under the
Securities Act of 1933; or
o
(4) pursuant to the exemption from registration provided by Rule 144 under the
Securities Act of 1933;
o
(5) to an institutional accredited investor (as defined in Rule 501(a)(1),(2),(3)
or (7) under the Securities Act of 1933) that has furnished to the Trustee a signed letter
containing certain representations and agreements; or
o
(6) pursuant to another available exemption from registration under the Securities
Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes
evidenced by this certificate in the name of any person other than the registered holder
thereof;
provided
,
however
, that if box (4) or (6) is checked, the Trustee
shall be entitled to require, prior to registering any such transfer of the Notes, such
legal opinions, certifications and other information as the Company has reasonably requested
to confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act of 1933,
such as the exemption provided by Rule 144 under such Act.
37
Signature Guarantee:
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Signature must be guaranteed
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Signature
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Unless this Note is in definitive form, signatures must be guaranteed by an eligible
guarantor institution meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program (STAMP) or such
other signature guarantee program as may be determined by the Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
38
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security for its own
account or an account with respect to which it exercises sole investment discretion and that it and
any such account is a qualified institutional buyer within the meaning of Rule 144A under the
Securities Act of 1933, and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigneds foregoing representations in order to
claim the exemption from registration provided by Rule 144A.
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Dated:
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Notice: To be executed by
an executive officer
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39
ARTICLE 3.
THE NOTES
SECTION 3.01.
Title And Terms.
(a) The Notes shall be known and designated as the
6
1
/
2
% Convertible Senior Notes due 2013
of the Company. Their Maturity Date shall be October 1, 2013 and they shall bear interest on the
principal amount in accordance with Section 3.02.
(b) The Notes shall be subject to repurchase by the Company at the option of the Holders as
provided in Section 11.02 hereof.
(c) The Fundamental Change Repurchase Price shall be payable at such place as is identified
in the Fundamental Change Repurchase Right Notice given pursuant to Section 11.02.
(d) The Notes shall be senior unsecured obligations of the Company and shall rank
pari passu
with all of the Companys other senior unsecured obligations.
(e) The Notes shall be structurally subordinated to all existing and future claims of the
Companys subsidiaries creditors, including trade creditors, and, except as otherwise provided
in Section 10.07, effectively subordinated to all of the Companys existing and future secured
Indebtedness to the extent of the value of the collateral securing such Indebtedness.
(f) The Notes shall be convertible as provided in ARTICLE 12.
(g) Articles XI, XII and XIII of the Base Indenture shall not be applicable to the Notes.
SECTION 3.02.
Interest.
Subject to the last paragraph of Section 3.11, interest will accrue on the Notes at the rate
of 6
1
/
2
% per year during any three-month period from October 1 to and including December 31 or from
January 1 to and including March 31 or from April 1 to and including June 30 or from July 1 to and
including September 30, (each, an
Interest Period
), commencing October 1, 2008;
provided
that the
initial Interest Period shall commence on October 1, 2008 and run to and include December 31, 2008.
Interest will be payable quarterly in arrears on each Interest Payment Date (subject to Section
1.08) to the Holder of record at the close of business on the Regular Record Date preceding such
Interest Payment Date.
SECTION 3.03.
Additional Notes.
After the Original Issue Date, the Company shall be entitled
to issue Additional Notes under this Supplemental Indenture, which Notes shall have identical terms
as the Initial Notes issued on the Original Issue Date, other than with respect to the date of
issuance and the issue price. The Company shall set forth the aggregate principal amount of
Additional Notes to be offered in a Company Order submitted to the Trustee. All the Notes issued
under this Supplemental Indenture shall be treated as a single class for all purposes of this
Indenture including waivers, amendments, redemptions and offers to purchase.
40
SECTION 3.04.
[Reserved].
SECTION 3.05.
Denominations.
The Notes shall be issuable only in registered form, without coupons, in denominations of U.S.
$1,000 of principal amount and integral multiples of U.S. $1,000 in excess thereof.
SECTION 3.06.
Execution, Authentication, Delivery and Dating.
The Trustee shall authenticate and deliver: (1) on the Original Issue Date, an aggregate
principal amount of $475 million 6
1
/
2
% Convertible Senior Notes due 2013 and (2) any Additional Notes
for an original issue in an aggregate principal amount specified in a Company Order pursuant to
Section 3.03 of this Supplemental Indenture. Such Company Order shall specify the amount of the
Notes to be authenticated and the date on which the original issue of Notes is to be authenticated.
The Notes shall be executed on behalf of the Company by its Chief Executive Officer, its
President or one of its Vice Presidents, attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such Notes or
did not hold such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of this Supplemental
Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Notes; and the Trustee in
accordance with such Company Order shall authenticate and deliver such Notes as provided in this
Supplemental Indenture and not otherwise.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Supplemental Indenture or be valid or
obligatory for any purpose unless there appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature, and such
certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has
been duly authenticated and delivered hereunder.
SECTION 3.07.
Global Notes; Non-Global Notes; Book-entry Provisions.
(a) Global Notes
(i) Each Global Note issued and authenticated under this Supplemental Indenture shall
be registered in the name of the Depositary designated by the Company for such Global Note
or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Note shall constitute a single Note for
41
all purposes of this Supplemental Indenture. The Company hereby appoints DTC as the
initial Depositary.
(ii) Except for exchanges of Global Notes for definitive, Non-Global Notes at the sole
discretion of the Company, no Global Note may be exchanged in whole or in part for Notes
registered, and no transfer of a Global Note in whole or in part may be registered, in the
name of any Person other than the Depositary for such Global Note or a nominee thereof
unless (A) such Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Note, or (ii) has ceased to be a clearing agency
registered as such under the Exchange Act, has ceased to be a clearing corporation within
the meaning of the Uniform Commercial Code, or announces an intention permanently to cease
business or does in fact do so or (B) there shall have occurred and be continuing an Event
of Default with respect to such Global Note and the maturity of the Notes shall have been
accelerated in accordance with Section 5.02 and any Holder shall have given written notice
to the Company requesting the issuance of Non-Global Notes. In such event set forth in
clause (A) above, if a successor Depositary for such Global Note is not appointed by the
Company within 90 calendar days after the Company receives such notice or becomes aware of
such ineligibility, the Company shall execute, and the Trustee, upon receipt of a Company
Order directing the authentication and delivery of Notes, shall authenticate and deliver,
Notes, in any authorized denominations in an aggregate principal amount equal to the
principal amount of such Global Note in exchange for such Global Note.
(iii) If any Global Note is to be exchanged for other Notes or canceled in whole, it
shall be surrendered by or on behalf of the Depositary or its nominee to the Trustee, as
Registrar, for exchange or cancellation, as provided in this ARTICLE 3. If any Global Note
is to be exchanged for other Notes or canceled in part, or if another Note is to be
exchanged in whole or in part for a beneficial interest in any Global Note, in each case as
provided in this ARTICLE 3, then either (A) such Global Note shall be so surrendered for
exchange or cancellation, as provided in this ARTICLE 3, or (B) the principal amount thereof
shall be reduced or increased by an amount equal to the portion thereof to be so exchanged
or canceled, or equal to the principal amount of such other Note to be so exchanged for a
beneficial interest therein, as the case may be, by means of an appropriate adjustment made
on the records of the Trustee, as Registrar, whereupon the Trustee, in accordance with the
Applicable Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or adjustment of a
Global Note, the Trustee shall, upon receipt of a Company Order, subject to this ARTICLE 3,
authenticate and deliver any Notes issuable in exchange for such Global Note (or any portion
thereof) to or upon the order of, and registered in such names as may be directed by, the
Depositary or its authorized representative. The Trustee shall be entitled to receive from
the Depositary the names, addresses and tax identification numbers of the Persons in whose
names the Notes are to be registered prior to such authentication and delivery. Upon the
request of the Trustee in connection with the occurrence of any of the events specified in
the preceding paragraph, the Company shall promptly make available to the Trustee a
reasonable supply of Notes that are not in the form of Global Notes. The Trustee shall be
entitled to rely upon any order, direction or request of the Depositary or its authorized
representative which is
42
given or made pursuant to this ARTICLE 3 if such order, direction or request is given
or made in accordance with the Applicable Procedures.
(iv) Every Note authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Note or any portion thereof, whether pursuant to this
ARTICLE 3 or otherwise, shall be authenticated and delivered in the form of, and shall be, a
registered Global Note, unless such Note is to be registered in accordance with this ARTICLE
3 in the name of a Person other than the Depositary for such Global Note or a nominee
thereof, in which case such Note shall be authenticated and delivered in definitive, fully
registered form, without interest coupons.
(v) The Depositary or its nominee, as registered owner of a Global Note, shall be the
Holder of such Global Note for all purposes under this Supplemental Indenture and the Notes,
and owners of beneficial interests in a Global Note shall hold such interests pursuant to
the Applicable Procedures. Accordingly, any such owners beneficial interest in a Global
Note shall be shown only on, and the transfer of such interest shall be effected only
through, records maintained by the Depositary or its nominee or its Agent Members and such
owners of beneficial interests in a Global Note shall not be considered the owners or
holders thereof.
(b) Non-Global Notes. Notes issued pursuant to Section 3.07(a)(ii) shall be in definitive,
fully registered form, without interest coupons.
SECTION 3.08.
Registration; Registration of Transfer and Exchange; Restrictions on Transfer.
(a) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office referred to as the
Securities Register
) in
which, subject to such reasonable regulations as it may prescribe, the Company shall provide for
the registration of Notes and of transfers of Notes. The Trustee is hereby appointed Registrar for
the purpose of registering Notes and transfers and exchanges of Notes as herein provided.
Upon surrender for registration of transfer of any Note at an office or agency of the Company
designated pursuant to Section 10.02 for such purpose, the Company shall execute, and the Trustee
shall authenticate and deliver, in the name of the designated transferee or transferees, one or
more new Notes of any authorized denominations and of a like aggregate principal amount and bearing
such restrictive legends as may be required by this Supplemental Indenture.
At the option of the Holder, and subject to the other provisions of this Section 3.08, Notes
may be exchanged for other Notes of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Notes to be exchanged at any such office or agency. Whenever any
Notes are so surrendered for exchange, and subject to the other provisions of this Section 3.08,
the Company shall execute, and the Trustee shall, pursuant to a Company Order, authenticate and
deliver, the Notes that the Holder making the exchange is entitled to receive. Every Note presented
or surrendered for registration of transfer or for exchange shall (if so
43
required by the Company or the Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Trustee and the Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
All Notes issued upon any registration of transfer or exchange of Notes shall be the valid
obligations of the Company, evidencing the same debt and entitled to the same benefits under this
Supplemental Indenture as the Notes surrendered upon such registration of transfer or exchange.
No service charge shall be made to a Holder for any registration of transfer or exchange of
Notes except as provided in Section 3.10, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, Section 9.06 of the Base Indenture, or Section 12.02
hereof (other than where the shares of Common Stock are to be issued or delivered in a name other
than that of the Holder of the Note) not involving any transfer and other than any stamp and other
duties, if any, which may be imposed in connection with any such transfer or exchange by the United
States or any political subdivision thereof or therein, which shall be paid by the Company.
Except as set forth below in this Section 3.08, beneficial ownership interests in the
Temporary Regulation S Global Note will not be exchangeable for interests in the Rule 144A Global
Note, the IAI Global Note, the Permanent Regulation S Global Note, or any other Note prior to the
expiration of the Distribution Compliance Period and then, after the expiration of the Distribution
Compliance Period, may be exchanged for interests in a Rule 144A Global Note, an IAI Global Note or
the Permanent Regulation S Global Note only upon delivery of a written certificate (in the form
attached to the Note) to the Trustee that (i) beneficial ownership interests in such Temporary
Regulation S Global Note are owned either by non-U.S. persons or U.S. persons who purchased such
interests in a transaction that did not require registration under the Securities Act and (ii) in
the case of an exchange for an IAI Global Note, certification (in the form attached to the Note)
that the interest in the Temporary Regulation S Global Note is being transferred to an
institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is acquiring the Notes for its own account or for the account of an accredited
investor.
Beneficial interests in Temporary Regulation S Global Notes or IAI Global Notes may be
exchanged for interests in Rule 144A Global Notes if (1) such exchange occurs in connection with a
transfer of Notes in compliance with Rule 144A and (2) the transferor of the beneficial interest in
the Temporary Regulation S Global Note or the IAI Global Note, as applicable, first delivers to the
Trustee a written certificate (in the form attached to the Note) to the effect that the beneficial
interest in the Temporary Regulation S Global Note or the IAI Global Note, as applicable, is being
transferred to a Person who the transferor reasonably believes to be a qualified institutional
buyer under Rule 144A promulgated Under the Securities Act (a
QIB
), purchasing for its own
account or the account of a QIB in a transaction meeting the requirements of Rule 144A, and in
accordance with all applicable securities laws of the States of the United States and other
jurisdictions.
44
Beneficial interests in Temporary Regulation S Global Notes and Rule 144A Global Notes may be
exchanged for an interest in IAI Global Notes if (1) such exchange occurs in connection with a
transfer of the Notes in compliance with an exemption under the Securities Act and (2) the
transferor of the Regulation S Global Note or Rule 144A Global Note, as applicable, first delivers
to the Trustee a written certificate (in the form attached to the Note) to the effect that (A) the
Regulation S Global Note or Rule 144A Global Note, as applicable, is being transferred (a) to an
institutional accredited investor as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act that is acquiring the Notes for its own account or for the account of such an
accredited investor, in each case in a minimum principal amount of the Notes of $250,000, for
investment purposes and not with a view to or for offer or sale in connection with any distribution
in violation of the Securities Act and (B) in accordance with all applicable securities laws of the
States of the United States and other jurisdictions.
Beneficial interests in a Rule 144A Global Note or an IAI Global Note may be transferred to a
Person who takes delivery in the form of an interest in a Regulation S Global Note, whether before
or after the expiration of the Distribution Compliance Period, only if the transferor first
delivers to the Trustee a written certificate (in the form attached to the Note) to the effect that
such transfer is being made in accordance with Rule 903 or 904 of Regulation S or Rule 144 (if
applicable).
(b)
Transfer and Exchange of Non-Global Notes for Non-Global Notes
. When Non-Global
Notes are presented to the Registrar with a request:
|
(x)
|
|
to register the transfer of such Non-Global Notes to a
transferee who will receive such transferred Notes in the form of Non-Global
Notes; or
|
|
|
(y)
|
|
to exchange such Non-Global Notes for an equal principal amount
of Non-Global Notes of other authorized denominations,
|
the Registrar shall register the transfer or make the exchange as requested if its reasonable
requirements for such transaction are met;
provided
,
however
, that the Non-Global
Notes surrendered for transfer or exchange:
(i) shall be duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, duly executed by the Holder
thereof or its attorney duly authorized in writing; and
(ii) if such Non-Global Notes are required to bear a Restricted Securities Legend, they
are being transferred or exchanged pursuant to an effective registration statement under the
Securities Act or pursuant to clause (A), (B) or (C) below, and are accompanied by the
following additional information and documents, as applicable:
(A) if such Non-Global Notes are being delivered to the Registrar by a
Holder for registration in the name of such Holder, without transfer, a
certification from such Holder to that effect; or
(B) if such Non-Global Notes are being transferred to the Company, a
certification to that effect (in the form attached to the Note); or
45
(C) if such Non-Global Notes are being transferred (x) pursuant to an exemption
from registration in accordance with Rule 144A or Regulation S under the Securities
Act; or (y) pursuant to Rule 144 under the Securities Act or another exemption from
registration under the Securities Act, a certification to that effect (in the form
attached to the Note).
(c)
Restrictions on Transfer of a Non-Global Note for a Beneficial Interest in a Global
Note.
A Non-Global Note may not be exchanged for a beneficial interest in a Rule 144A Global
Note, an IAI Global Note or a Permanent Regulation S Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Non-Global Note, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the Trustee, together
with:
(i) written certification (in the form attached to the Note) that such
Non-Global Note is either (A) being transferred to a QIB in accordance with Rule
144A, (B) being transferred to an institutional accredited investor as defined in
Rule 501(a)(1), (2), (3) or (7) or (C) being transferred after expiration of the
Distribution Compliance Period by a Person who initially purchased such Note in
reliance on Regulation S to a buyer who elects to hold its interest in such Note in
the form of a beneficial interest in the Permanent Regulation S Global Note; and
(ii) written instructions directing the Trustee to make, or to direct the
Custodian to make, an adjustment on its books and records with respect to such Rule
144A Global Note (in the case of a transfer pursuant to clause (c)(i)(A)), IAI
Global Note (in the case of a transfer pursuant to clause (c)(i)(B)) or Permanent
Regulation S Global Note (in the case of a transfer pursuant to clause (c)(i)(B)) to
reflect an increase in the aggregate principal amount of the Notes represented by
the Rule 144A Global Note, IAI Global Note or Permanent Regulation S Global Note, as
applicable, such instructions to contain information regarding the Depositary
account to be credited with such increase,
then the Trustee shall cancel such Non-Global Note and cause, or direct the Custodian to cause, in
accordance with the standing instructions and procedures existing between the Depositary and the
Custodian, the aggregate principal amount of Notes represented by the Rule 144A Global Note, IAI
Global Note or Permanent Regulation S Global Note, as applicable, to be increased by the principal
amount of the Non-Global Note to be exchanged and shall credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest in the Rule 144A Global
Note, IAI Global Note or Permanent Regulation S Global Note, as applicable, equal to the principal
amount of the Non-Global Note so canceled. If no Rule 144A Global Notes, IAI Global Notes or
Permanent Regulation S Global Notes, as applicable, are then outstanding, the Company shall issue
and the Trustee shall authenticate, upon written order of the Company in the form of an Officers
Certificate of the Company, a new Rule 144A Global Note, IAI Global Note or Permanent Regulation S
Global Note, as applicable, in the appropriate principal amount.
(d)
Transfer and Exchange of Global Notes.
46
(i) The transfer and exchange of Global Notes or beneficial interests therein
shall be effected through the Depositary, in accordance with this Supplemental
Indenture (including applicable restrictions on transfer set forth herein, if any)
and the procedures of the Depositary therefor. A transferor of a beneficial
interest in a Global Note shall deliver to the Registrar a written order given in
accordance with the Depositarys procedures containing information regarding the
participant account of the Depositary to be credited with a beneficial interest in
the Global Note. The Registrar shall, in accordance with such instructions instruct
the Depositary to credit to the account of the Person specified in such instructions
a beneficial interest in the Global Note and to debit the account of the Person
making the transfer the beneficial interest in the Global Note being transferred.
(ii) If the proposed transfer is a transfer of a beneficial interest in one
Global Note to a beneficial interest in another Global Note, the Registrar shall
reflect on its books and records the date and an increase in the principal amount of
the Global Note to which such interest is being transferred in an amount equal to
the principal amount of the interest to be so transferred, and the Registrar shall
reflect on its books and records the date and a corresponding decrease in the
principal amount of the Global Note from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this Supplemental Indenture
(other than Section 3.07), a Global Note may not be transferred as a whole except by
the Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary.
(iv) In the event that a Global Note is exchanged for a Non-Global Note, prior
to the effectiveness of a registration statement filed with the Commission with
respect to such Notes, such Notes may be exchanged only in accordance with such
procedures as are substantially consistent with the provisions of this Section 3.08
(including the certification requirements set forth on the reverse of the Notes
intended to ensure that such transfers comply with Rule 144A, Regulation S or
another applicable exemption under the Securities Act, as the case may be) and such
other procedures as may from time to time be adopted by the Company.
(e)
Restrictions on Transfer of Temporary Regulation S Global Notes.
During the
Distribution Compliance Period, beneficial ownership interests in Temporary Regulation S Global
Notes may only be sold, pledged or transferred in accordance with the Applicable Procedures and
only (i) to the Company, (ii) in an offshore transaction in accordance with Regulation S (other
than a transaction resulting in an exchange for an interest in a Permanent Regulation S Global
Note), (iii) pursuant to an effective registration statement under the Securities Act, in each case
in accordance with any applicable Notes laws of any State of the United States.
47
(f)
Securities Act Legends
. All Notes issued pursuant to this Supplemental Indenture,
and all Successor Notes, shall bear the Restricted Securities Legend in substantially the form set
forth in Section 2.02 hereof and shall be subject to the restrictions on transfer specified
therein, subject to the following:
(1) subject to the following clauses of this Section 3.08(f), a Note or any portion thereof
which is exchanged, upon transfer or otherwise, for a Global Note or any portion thereof shall bear
the Restricted Securities Legend borne by such Global Note for which the Note was exchanged;
(2) subject to the following clauses of this Section 3.08(f), a new Note that is not a Global
Note and is issued in exchange for another Note (including a Global Note) or any portion thereof,
upon transfer or otherwise, shall bear the Restricted Securities Legend borne by the Note for which
the new Note was exchanged;
(3) any Notes that are sold or otherwise disposed of pursuant to an effective registration
statement under the Securities Act, together with their Successor Notes shall not bear a Restricted
Securities Legend; the Company shall inform the Trustee in writing of the effective date of any
such registration statement registering the Notes under the Securities Act and shall notify the
Trustee at any time when prospectuses must be delivered with respect to Notes to be sold pursuant
to such registration statement. The Trustee shall not be liable for any action taken or omitted to
be taken by it in good faith in accordance with the aforementioned registration statement;
(4) at any time after the Notes may be freely transferred without registration under the
Securities Act or without being subject to transfer restrictions pursuant to the Securities Act, a
new Note that does not bear a Restricted Securities Legend may be issued in exchange for or in lieu
of a Note (other than a Global Note) or any portion thereof that bears such a legend if the Trustee
has received a Global Note, satisfactory to the Trustee and duly executed by the Holder of such
Note bearing a Restricted Securities Legend or his attorney duly authorized in writing, and after
such date and receipt of such certificate, the Trustee shall authenticate and deliver such new Note
in exchange for or in lieu of such other Note as provided in this Article 3;
(5) a new Note that does not bear a Restricted Securities Legend may be issued in exchange for
or in lieu of a Note or any portion thereof that bears such a legend if, in the Companys judgment,
placing such a legend upon such new Note is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee, at the direction of the Company,
shall authenticate and deliver such a new Note as provided in this Article 3; and
(6) notwithstanding the foregoing provisions of this Section 3.08(f), a Successor Note of a
Note that does not bear a Restricted Securities Legend shall not bear such legend unless the
Company has reasonable cause to believe that such Successor Note is a restricted security within
the meaning of Rule 144 of the Securities Act, in which case the Trustee, at the direction of the
Company, shall authenticate and deliver a new Note bearing a Restricted Securities Legend in
exchange for such Successor Note as provided in this Article 3.
48
(g) Any stock certificate representing shares of Common Stock issued upon conversion of the
Notes shall bear the Restricted Securities Legend borne by such Notes, to the extent required by
this Supplemental Indenture, unless such shares of Common Stock have been sold pursuant to a
registration statement that has been declared effective under the Securities Act (and that
continues to be effective at the time of such transfer) or sold pursuant to Rule 144 of the
Securities Act, or unless otherwise agreed by the Company in writing with written notice thereof
to the transfer agent for the Common Stock. With respect to the transfer of shares of Common
Stock issued upon conversion of the Notes that are restricted hereunder, any deliveries of
certificates, legal opinions or other instruments that would be required to be made to the
Registrar in the case of a transfer of Notes, as described above, shall instead be made to the
transfer agent for the Common Stock.
(h) Neither the Trustee, the Paying Agent nor any of their agents shall (i) have any duty to
monitor compliance with or with respect to any federal or state or other securities or tax laws or
(ii) have any duty to obtain documentation on any transfers or exchanges other than as
specifically required hereunder.
SECTION 3.09.
Persons Deemed Owners.
Prior to due presentment of a Note for registration of transfer, the Company, the Trustee, any
Paying Agent and any agent of the Company, the Trustee or any Paying Agent may treat the Person in
whose name such Note is registered as the owner of such Note for the purpose of receiving payment
of principal of and (subject to Section 3.11) interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Company, the Trustee, any Paying
Agent nor any agent of the Company, the Trustee or any Paying Agent shall be affected by notice to
the contrary.
SECTION 3.10.
Mutilated, Destroyed, Lost and Stolen Notes.
If any mutilated Note is surrendered to the Trustee, the Company shall execute and upon
receipt of a Company Order, the Trustee shall authenticate and deliver in exchange therefor a new
Note of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Note and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Note has been acquired by a
bona fide
purchaser, the Company shall execute and upon receipt of a Company Order, the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like
tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section 3.10, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
49
imposed in relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Note issued pursuant to this Section 3.10 in lieu of any destroyed, lost or stolen
Note shall constitute an original additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Supplemental Indenture equally and proportionately with any
and all other Notes duly issued hereunder.
The provisions of this Section 3.10 are exclusive and shall preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes.
SECTION 3.11.
Payment of Interest; Interest Rights Preserved.
Interest on any Note which is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name that Note (or one or more
Predecessor Notes) is registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Note which is payable, but is not punctually paid or duly provided for, on
any Interest Payment Date (herein called
Defaulted Interest
) shall forthwith cease to be payable
to the Holder on the relevant Regular Record Date by virtue of having been such Holder. Such
Defaulted Interest will itself accrue interest at the rate borne by the Notes plus 2.0% per annum
through the date on which such Defaulted Interest is paid to the Holders in accordance with this
Section 3.11, to the extent lawful, and may be paid by the Company, at its election in each case,
as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Notes (or their respective Predecessor Notes) are registered at the close of business
on a special record date for the payment of such Defaulted Interest (a
Special Record Date
),
which shall be fixed in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements reasonably satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix
a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder at his
address as it appears in the Securities Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record
Date
50
therefor having been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Notes (or their respective Predecessor Notes) are registered at the close of
business on such Special Record Date and shall no longer be payable pursuant to the following
clause (b).
(b) The Company may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes may be listed,
and upon such notice as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Any Transfer Restricted Note (as such term is defined in the Registration Rights Agreement)
whose holder, by virtue of holding such Note, is a beneficiary of the Registration Rights
Agreement, shall, in the event that a Registration Default (as such term is defined in the
Registration Rights Agreement) has occurred, accrue Liquidated Damages (as such term is defined in
the Registration Rights Agreement) at a rate of 0.50% per annum (increasing by an additional 0.50%
per annum after each consecutive 90-day period that occurs after the date on which such
Registration Default occurs up to a maximum additional interest rate of 1.00%) from and including
the date on which any such Registration Default occurred to but excluding the date on which all
Registration Defaults have been cured, it being understood that the Liquidated Damages described
herein and in the Registration Rights Agreement are one and the same remedy and shall in no event
represent obligations independent of one another.
Subject to the foregoing provisions of this Section 3.11, each Note delivered under this
Supplemental Indenture upon registration of transfer of or in exchange for or in lieu of any other
Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by
such other Note, as provided for in this Supplemental Indenture and the Notes.
SECTION 3.12.
Cancellation.
All Notes surrendered for payment, registration of transfer or exchange or conversion shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes
shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this
Section 3.12, except as expressly permitted by this Supplemental Indenture. All cancelled Notes
held by the Trustee shall be disposed of as directed by a Company Order.
SECTION 3.13.
Computation of Interest.
Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 3.14.
Further Assurances.
Notwithstanding anything else to the contrary contained herein, upon the
written request of any Holder of Initial Notes that are Non-Global Notes to the Company, the
Company shall use its commercially reasonable efforts to cause any such Non-Global Notes to be (i)
rendered eligible for book-entry delivery through DTC and (ii)
51
assigned a valid CUSIP number in accordance with the applicable rules and procedures of the CUSIP Service Bureau (which shall, to
the extent reasonably practicable, be the same CUSIP number as shall be assigned to the Notes held
by the initial Holders of beneficial interests in the Global Notes issued pursuant to this
Supplemental Indenture), in each case, as soon as reasonably practicable, but, in any event, within
120 days of the Original Issue Date. The Trustee shall, upon instruction from the Company,
reasonably cooperate with the Company and such Holder of Initial Notes that are Non-Global Notes to
achieve the foregoing. In addition, the Company shall cause to be entered into an indenture
supplemental hereto in accordance with Section 8.01(m) should it be necessary to do so in order to
achieve the purposes set forth in this Section 3.14.
ARTICLE 4.
DISCHARGE
With respect to the Notes, Article IV of the Base Indenture shall be replaced in its entirety
with the following:
SECTION 4.01.
Discharge of Liability on Notes.
When (1) the Company shall deliver to the Registrar for cancellation all Notes then
Outstanding not theretofore delivered to the Registrar for cancellation or (2) all the Notes then
Outstanding not theretofore delivered to the Registrar for cancellation shall have (a) been
deposited for conversion and the Company shall have delivered to the Holders shares of Common Stock
(and cash in respect of any fractional shares, as applicable) sufficient to pay all amounts owing
in respect of all such Notes or (b) become due and payable on the Maturity Date, Fundamental Change
Repurchase Date or otherwise, and the Company shall have deposited with the Trustee cash sufficient
to pay all amounts owing in respect of all such Notes, including interest accrued and unpaid to the
Maturity Date, Fundamental Change Repurchase Date or other such date, and if in either case of
clauses (1) or (2) above, no Event of Default set forth in Section 5.01(i) or (j) hereof or event (including resulting from such deposit) that, with
lapse of time or notice or both, would become an Event of Default set forth in Section 5.01(i) or
(j) hereof with respect to the Notes shall have occurred and be continuing, and the Company shall
have also paid or caused to be paid all other sums payable hereunder by the Company, then the
Indenture with respect to the Notes shall cease to be of further effect (except as to (i) remaining
rights of registration of transfer, substitution and exchange and conversion of Notes, (ii) rights
hereunder of Holders to receive from the Trustee payments of the amounts then due, including
interest with respect to the Notes and the other rights, duties and obligations of Holders, as
beneficiaries hereof solely with respect to the amounts, if any, so deposited with the Trustee, and
(iii) the rights, obligations and immunities of the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar under this Supplemental Indenture with respect to the Notes), and
the Trustee, on demand of the Company accompanied by an Officers Certificate and an Opinion of
Counsel as required by Section 4.03 and at the cost and expense of the Company, shall execute
proper instruments acknowledging satisfaction of and discharging this Supplemental Indenture with
respect to the Notes;
provided
,
however
, the Company hereby agrees to reimburse the Trustee,
Authenticating Agent, Paying Agent, Conversion Agent and
52
Registrar for any costs or expenses thereafter reasonably and properly incurred by the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar and to compensate the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar for any services thereafter reasonably and properly rendered by the
Trustee, Authenticating Agent, Paying Agent, Conversion Agent and Registrar in connection with this
Supplemental Indenture with respect to the Notes.
SECTION 4.02.
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money to the Holders entitled
thereto by reason of any order or judgment of any court of governmental authority enjoining,
restraining or otherwise prohibiting such application, the Companys obligations under this
Supplemental Indenture with respect to the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 4.01 until such time as the Trustee or the Paying Agent is
permitted to apply all such money in accordance with this Supplemental Indenture and the Notes to
the Holders entitled thereto;
provided, however
, that if the Company makes any payment of interest
on any Note following the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money held by the Trustee or
Paying Agent.
SECTION 4.03.
Officers Certificate; Opinion of Counsel.
Upon any application or demand by the Company to the Trustee to take any action under Section
4.01, the Company shall furnish to the Trustee an Officers Certificate and Opinion of Counsel
stating that all conditions precedent, if any, provided for in this Supplemental Indenture relating
to the proposed action have been complied with.
ARTICLE 5.
REMEDIES
With respect to the Notes, Article V of the Base Indenture shall be replaced in its entirety
with the following:
SECTION 5.01.
Events of Default.
Event of Default
, wherever used herein, means any one of the following events with respect
to the Notes (whatever the reason for such Event of Default or whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental body):
(a) default in any payment of interest on any Note when due and payable and the default
continues for a period of 30 calendar days; or
(b) default in the payment of principal of any Note when due and payable at Maturity, upon
required repurchase, upon redemption, upon acceleration or otherwise; or
53
(c) failure by the Company to comply with its obligation to convert the Notes into shares of
Common Stock (together with cash in place of any fractional shares, as applicable) or Reference
Property, upon exercise of a Holders conversion right; or
(d) failure by the Company to comply with its obligations under Section 7.01; or
(e) failure by the Company for two Business Days to comply with its notice obligations under
Section 11.02(b) when due; or
(f) failure by the Company for 60 calendar days after written notice from the Trustee or the
Holders of at least 25% aggregate principal amount of the Outstanding Notes has been received by
the Company to comply with any of its other agreements contained in the Notes or the Indenture;
or
(g) default by the Company or any Subsidiary of the Company with respect to any mortgage,
indenture, credit agreement, contract, agreement or other instrument under which there may be
outstanding, or by which there may be secured or evidenced, any Indebtedness in excess of $50.0
million in the aggregate of the Company and/or any such Subsidiary of the Company, whether such
Indebtedness now exists or shall hereafter be created; or
(h) failure by the Company or any of its Subsidiaries to pay any judgments entered by a
court of competent jurisdiction in excess of $50.0 million (to the extent not covered by
insurance or bonded, in each case provided by a solvent, reputable and unaffiliated insurance
company that has acknowledged coverage or covered by a valid standby letter of credit), which
judgments remain unpaid, undischarged or unstayed for a period of more than 60 calendar days; or
(i) the Company shall commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to the Company or any of its Significant Subsidiaries
or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official
of the Company or any of its Significant Subsidiaries or any substantial part of its property, or
shall consent to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or shall make a general
assignment for the benefit of creditors, or shall fail generally to pay its debts as they become
due; or
(j) an involuntary case or other proceeding shall be commenced against the Company or any of
its Significant Subsidiaries seeking liquidation, reorganization or other relief with respect to
the Company or any of its Significant Subsidiaries or its debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company or any of its
Significant Subsidiaries or any substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of 30 consecutive calendar
days; or
(k) the revocation, termination, suspension or other cessation of effectiveness of any
Gaming License, which results in the cessation or suspension of gaming operations of the
54
Company or its subsidiaries in any gaming jurisdiction for a period of more than 60 consecutive days; or
(l) any breach by the Company of, or failure of the Company to comply with, Section 10.09
hereof.
SECTION 5.02.
Acceleration of Maturity.
If an Event of Default (other than an Event of Default specified in Section 5.01(i) or Section
5.01(j) with respect to the Company) occurs and is continuing, then in every such case (except as
provided in the immediately following paragraph) the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Notes may declare 100% of the aggregate principal
amount of and accrued and unpaid interest on all the Notes to be due and payable immediately, by a
notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such
declaration of acceleration, all principal and all accrued and unpaid interest on the Notes shall
become immediately due and payable. If an Event of Default specified in Section 5.01(i) or Section
5.01(j) with respect to the Company occurs, the aggregate accreted principal of, and accrued and
unpaid interest, if any, on, all of the Notes shall become due and payable immediately without any
declaration or other act of the Holders or any act on the part of the Trustee.
Notwithstanding the foregoing, at the election of the Company, the sole remedy of Holders for
an Event of Default specified in Section 5.01(f) relating to the failure by the Company to comply
with its obligations under Section 10.06 and for any failure by the Company to comply with the
requirements of Section 314(a)(1) of the Trust Indenture Act, shall for the first 90 calendar days
after the occurrence of such an Event of Default consist exclusively of the
right to receive an extension fee on the Notes in an amount equal to 0.50% of the principal
amount of the Notes (the
Extension Fee
). If the Company elects to pay the Extension Fee as the
sole remedy for an Event of Default specified in Section 5.01(f) relating to the failure by the
Company to comply with its obligations under Section 10.06 and for any failure by the Company to
comply with the requirements of Section 314(a)(1) of the Trust Indenture Act, the Company (i) shall
notify, in the manner provided for in Section 1.6 of the Base Indenture, the Holders and the
Trustee and Paying Agent of such election prior to the close of business on the first Business Day
following the date on which such Event of Default is known by the Company to have occurred and (ii)
pay the Extension Fee, on or before the close of business on the first business day following the
date on which such Event of Default is known by the Company to have occurred, on all Notes then
Outstanding. Upon the Companys failure to give such notice or to pay the Extension Fee when due,
the Notes shall be subject to acceleration as provided in the first paragraph of this Section 5.02.
On and after the 91st calendar day after such Event of Default occurs, if such Event of Default is
not cured or waived prior to such 91st calendar day, the Notes shall be subject to acceleration as
provided in the first paragraph of this Section 5.02. If an Extension Fee is payable under this
Section 5.02, the Company shall deliver to the Trustee a certificate to that effect stating (i) the
amount of such Extension Fee that is payable and (ii) the date on which such Extension Fee is
payable. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust
Office such a certificate, the Trustee may assume without inquiry that the Extension Fee is not
payable. If the Extension Fee has been paid by the
55
Company directly to the Holders, the Company shall deliver to the Trustee a certificate setting forth the particulars of such payment.
SECTION 5.03.
Unconditional Right of Holders to Receive Principal and Interest and to
Convert.
Notwithstanding any other provision in this Supplemental Indenture, the Holder of any Note
shall have the right, which is absolute and unconditional, to receive payment of the principal of
and (subject to Section 3.11) interest on such Note on the Maturity Date, and to convert such Note
in accordance with ARTICLE 12, and to institute suit for the enforcement of any such payment and
right to convert, and such rights shall not be impaired without the consent of such Holder.
SECTION 5.04.
Waiver of Past Defaults and Rescission of Acceleration.
With the consent of the Holders of not less than a majority in the aggregate principal amount
of the Outstanding Notes (including, without limitation, consents obtained in connection with a
purchase of, or tender offer or exchange offer for, the Notes), any past Default hereunder and its
consequences may be waived on behalf of the Holders of all of the Notes, except a Default (A) in
the payment of the principal of or interest on any Note or in the delivery of amounts due upon
conversion, or (B) in respect of a covenant or provision hereof which under ARTICLE 8 cannot be
modified or amended without the consent of the Holder of each Outstanding Note affected, and
rescind any acceleration with respect to the Notes and its consequences if (1) rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and (2) all existing
Events of Default, other than the nonpayment of principal of and interest on the Notes or failure
to deliver amounts due upon conversion that have become due solely by such declaration of
acceleration, have been cured or waived.
Upon the waiver of any such Default, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose of the Indenture;
but no such waiver shall extend to any subsequent or other Default or impair any right consequent
thereon.
SECTION 5.05.
Waiver of Stay, Usury or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it shall not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, usury or extension law wherever enacted, now or at any time hereafter in force, that may
affect the covenants or the performance of the Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants
that it shall not hinder, delay or impede by reason of such law the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such power as though no
such law had been enacted.
SECTION 5.06.
Control by Holders.
56
The Holders of a majority in aggregate principal amount of the Outstanding Notes shall have
the right to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the Trustee;
provided
that
(a) such direction shall not be in conflict with any rule of law or with the Indenture;
(b) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction; and
(c) the Trustee may refuse to follow any direction that conflicts with law or the Indenture,
or that the Trustee determines is unduly prejudicial to the rights of any other Holder or would
involve the Trustee in personal liability;
provided
,
further
that, prior to taking any action under the Indenture, the Trustee will
be entitled to indemnification satisfactory to it in its sole discretion against all
losses and expenses caused by taking or not taking such action.
SECTION 5.07.
Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest on any Note when such interest
becomes due and payable and such default continues for a period of 30 calendar days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any
Note at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such
Notes, the whole amount then due and payable on such Notes for principal and interest, and, to
the extent that payment of such interest shall be legally enforceable, interest on any overdue
principal and on any overdue interest, at the rate borne by the Notes, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel.
If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in the Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.08.
Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any other obligor upon the
Notes), its property or its creditors, the Trustee shall be entitled and empowered, by intervention
in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture
Act in order to have claims of the Holders and the Trustee allowed in any such proceeding. In
57
particular, the Trustee shall be authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the
event that the Trustee shall consent to the making of such payments directly to the Holders, to pay
to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.6 of the Base Indenture.
No provision of the Indenture shall be deemed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.09.
Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under the Indenture or the Notes may be prosecuted and
enforced by the Trustee without the possession of any of the Notes or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes in respect
of which such judgment has been recovered.
SECTION 5.10.
Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, upon presentation of the Notes
and the notation thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.07 of the Base
Indenture; and
SECOND: To the payment of the amounts then due and unpaid for principal of and
interest on the Notes in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the amounts due
and payable on such Notes for principal and interest, respectively.
SECTION 5.11.
Limitation on Suits.
Except to enforce the right to receive payment of principal or interest when due or to receive
amounts due to a Holder upon conversion, no Holder of any Note shall have any right to institute
any proceeding, judicial or otherwise, with respect to the Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
58
(1) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Notes;
(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding
Notes shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee security or indemnity
satisfactory to it against any costs, liability or expense to be incurred in compliance with
such request;
(4) the Trustee for 60 calendar days after its receipt of such notice, request and
offer of security or indemnity has failed to institute any such proceeding; and
(5) no direction that, in the opinion of the Trustee, is inconsistent with such written
request has been given to the Trustee during such 60 calendar day period by the Holders of a
majority in aggregate principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Supplemental Indenture to affect,
disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain priority or
preference over any other Holders or to enforce any right under the Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders.
SECTION 5.12.
Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under the Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case, subject to
any determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 5.13.
Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in the last paragraph of Section 3.10, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.14.
Delay or Omission Not Waiver.
59
No delay or omission of the Trustee or of any Holder of any Note to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.15.
Undertaking for Costs.
In any suit for the enforcement of any right or remedy under the Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require
any party litigant in such suit to file an undertaking to pay the costs of such suit, and may
assess reasonable costs, including reasonable attorneys fees and expenses, against any such party
litigant, in the manner and to the extent provided in the Trust Indenture Act;
provided
that
neither this Section 5.15 nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted by the Company or
in any suit for the enforcement of the right to convert any Note in accordance with Article 12.
ARTICLE 6.
[RESERVED.]
ARTICLE 7.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
With respect to the Notes, Article VIII of the Base Indenture shall be replaced in its
entirety with the following:
SECTION 7.01.
Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not, directly or indirectly, in one transaction or a series of transactions,
consolidate with or merge with or into any other Person or convey, transfer, lease,
assign or otherwise dispose of all or substantially all of its properties and assets, whether
held directly or indirectly, to any Person, unless:
(1) the resulting, surviving or transferee Person, if not the Company, is a
corporation, partnership, limited liability company or other business entity organized and
existing under the laws of the United States of America, any State thereof or the District
of Columbia, and such Person, if not the Company, expressly assumes by supplemental
indenture, in a form reasonably satisfactory to the Trustee, all of the Companys
obligations under the Notes and the Indenture;
(2) the Company shall have delivered to the Trustee an Officers Certificate and an
Opinion of Counsel, each stating that such consolidation, merger or transfer and such
supplemental indenture, if any, comply with this Indenture;
(3) immediately after giving effect to such transaction, no Default or Event of Default
has occurred and is continuing;
60
(4) such transaction will not result in the loss or suspension or material impairment
of any material Gaming License of the Company or any of its Subsidiaries;
(5) such transaction would not require any Holder (other than any Person acquiring the
Company or its assets and any affiliate thereof) to obtain a Gaming License or be qualified
under the law of any applicable gaming jurisdiction;
provided
that such Holder would not
have been required to obtain a Gaming License or be qualified under the laws of any
applicable gaming jurisdiction in the absence of such transaction.
For purposes of this Section 7.01, the sale, lease, conveyance, assignment, transfer or other
disposition of all or substantially all of the properties and assets of one or more Subsidiaries of
the Company, which properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the Company on a
consolidated basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Company;
provided
, that a sale, lease, conveyance, assignment,
transfer or other disposition of properties or assets between or among Subsidiaries of the Company
(including by way of any merger, consolidation, or other corporate transaction) shall not be deemed
to be a transfer of all or substantially all of the properties and assets of the Company.
SECTION 7.02.
Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into, any other Person or
any conveyance, transfer or lease of all or substantially all of the properties and assets of the
Company in accordance with Section 7.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under the Indenture with
the same effect as if such successor Person had been named as the Company herein, and thereafter,
except in the case of a lease of all or substantially all of the Companys properties and assets,
the predecessor Person shall be relieved of all obligations and covenants under the Indenture and
the Notes.
ARTICLE 8.
SUPPLEMENTAL INDENTURES
SECTION 8.01.
Supplemental Indentures Without Consent of Holders.
With respect to the Notes, Section 9.01 of the Base Indenture shall be replaced in its
entirety with the following:
Without the consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, upon receipt of a Company Request, at any time and from time to time, may enter into
one or more indentures supplemental hereto for any of the following purposes:
61
(a) to cure any ambiguity or correct any omission, manifest error, defect or inconsistency
under this Supplemental Indenture, so long as such action will not adversely affect the interests
of the Holders; or
(b) to provide for the assumption by a successor corporation of the Companys obligations
under this Supplemental Indenture in accordance with the terms of this Supplemental Indenture; or
(c) to add guarantees or additional obligors with respect to the Notes; or
(d) to provide for a successor Trustee or other agents in accordance with the terms of this
Supplemental Indenture or to otherwise comply with any requirement of this Supplemental
Indenture; or
(e) to provide for the conversion of the Notes into Reference Property, to the extent that
the Company and the Trustee deem such amendment necessary or advisable in connection with the
conversion of the Notes into Reference Property;
provided
that no such amendment or supplement
may impair the rights or interests of any Holder of the Outstanding Notes; or
(f) to increase the Conversion Rate; or
(g) to secure the Notes; or
(h) to add to the covenants of the Company for the benefit of the Holders or to surrender
any right or power herein conferred upon the Company; or
(i) to provide for the conversion of Notes in accordance with the terms of this Supplemental
Indenture; or
(j) to make any changes to this Supplemental Indenture or the Notes that does not adversely
affect the rights of any Holder;
(k) to comply with the requirements of the Trust Indenture Act or the rules and regulations
of the Commission thereunder in order to effect or maintain the qualification of this
Supplemental Indenture under the Trust Indenture Act, as contemplated by this Supplemental
Indenture or otherwise;
(l) to provide for uncertificated Notes in addition to or in place of certificated
Securities and to provide for bearer Securities; provided that uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Internal Revenue Code of 1986, as amended,
or in a manner such that the uncertificated Securities are described in Section 163(f)(2)(B) of
such Internal Revenue Code; or
(m) to enable the purposes set forth in Section 3.14 to be achieved.
Upon a Company Request, accompanied by a Board Resolution authorizing the execution of any
such supplemental indenture (except as otherwise provided below), and subject to and upon receipt
by the Trustee of the documents described in Section 9.03 of the Base Indenture, the
62
Trustee shall (subject to the last sentence Section 9.03 of the Base Indenture) join with the
Company in the execution of any supplemental indenture authorized or permitted by the terms of this
Supplemental Indenture and to make any further appropriate agreements and stipulations that may be
therein contained. Notwithstanding the foregoing and notwithstanding any provision in the Base
Indenture, in connection with the execution of this First Supplemental Indenture and the
authentication and delivery of an aggregate principal amount of $475 million of the Notes, the
Company shall not be required to deliver to the Trustee a Board Resolution authorizing the
execution of any such supplemental indenture or the documents described in Section 9.03 of the Base
Indenture prior to the execution, and delivery, or authentication and delivery, as applicable,
thereof, but shall be required to deliver such documents to the Trustee no later than four (4)
Business Days following the Original Issue Date.
SECTION 8.02.
Supplemental Indentures With Consent of Holders.
With respect to the Notes, Section 9.02 of the Base Indenture shall be replaced in its
entirety with the following:
With the written consent of the Holders of not less than a majority in aggregate principal
amount of the Outstanding Notes (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for Notes), by the act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and
the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions of this
Supplemental Indenture or of modifying in any manner the rights of the Holders under this
Supplemental Indenture;
provided
,
however
, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(a) reduce the percentage in aggregate principal amount of Notes the Holders of which must
consent to an amendment; or
(b) reduce the rate, or extend the stated time for payment, of interest on any Note or
reduce the amount, or extend the stated time for payment, of the Extension Fee; or
(c) reduce the principal, or extend the Maturity Date, of any Note; or
(d) make any change that adversely affects the conversion rights of any Note; or
(e) reduce the Fundamental Change Repurchase Price of any Note or amend or modify in any
manner adverse to the Holders of the Notes the Companys obligations to make such payments,
whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;
or
(f) change the place or currency of payment of principal or interest or the Extension Fee in
respect of any Note; or
(g) impair the right of any Holder to receive payment of principal of, and interest on, such
Holders Notes on or after the due dates therefor or to institute suit for the enforcement of any
payment on or with respect to such Holders Notes; or
63
(h) adversely affect the ranking as to contractual right of payment of the Notes as the
Companys senior unsecured Indebtedness; or
(i) make any change in the provisions of this Article 8 that require each Holders consent
or in the waiver provisions in Section 5.04.
It shall not be necessary for the consent of Holders under this Section 8.02 to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such consent shall
approve the substance thereof.
This Section 8.02 shall be subject to Section 9.03 of the Base Indenture.
SECTION 8.03.
Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 8.02, the Company shall promptly give notice in the manner provided in
Section 1.06 of the Base Indenture briefly setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any defect therein,
shall not in any way impair or affect the validity of any such supplemental indenture.
SECTION 8.04.
Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this ARTICLE 8, this Supplemental Indenture
shall be modified in accordance therewith, and such supplemental indenture shall form a part of
this Supplemental Indenture for all purposes; and every Holder theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 8.05.
Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this ARTICLE 8 shall conform to the requirements of
the Trust Indenture Act.
ARTICLE 9.
HOLDERS LISTS BY TRUSTEE AND COMPANY
SECTION 9.01.
Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) quarterly, not more than 15 calendar days after each Regular Record Date, a list, in
such form as the Trustee may reasonably require, of the names and addresses of the Holders as of
such Regular Record Date, and
(b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
64
excluding
from any such list names and addresses received by the Trustee in its capacity as
Registrar of the Notes.
SECTION 9.02.
Preservation of Information.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names
and addresses of Holders contained in the most recent list furnished to the Trustee as provided
in Section 9.01 and the names and addresses of Holders received by the Trustee in its capacity as Registrar.
The Trustee may dispose of any list furnished to it as provided in Section 9.01 upon receipt of a new list
so furnished.
(b) The rights of Holders to communicate with other Holders with respect to their rights
under this Supplemental Indenture or under the Notes, and the corresponding rights and duties of
the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder, by receiving and holding the same, agrees with the Company and the Trustee
that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
ARTICLE 10.
COVENANTS
SECTION 10.01.
Payment of Principal and Interest.
The Company covenants and agrees that it shall duly and punctually pay the principal of and
interest on the Notes in accordance with the terms of the Notes and this Supplemental Indenture.
The Company shall deposit or cause to be deposited with the Trustee or its nominee, no later than
1:00 p.m., New York City time, on the Maturity Date of the Notes or no later than 1:00 p.m., New
York City time, on the due date for any installment of interest, all payments so due, which
payments shall be in immediately available funds on the date of such Maturity Date or due date, as
the case may be.
SECTION 10.02.
Maintenance of Offices or Agencies.
The Company shall maintain an office or agency where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment or for conversion or
repurchase and where notices and demands to or upon the Company in respect of the Notes and this
Supplemental Indenture may be served. The Company shall give prompt written notice to the Trustee
of the location, and any change in the location, of such office or agency not designated or
appointed by the Trustee. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office.
The Company may at any time and from time to time vary or terminate the appointment of any
such agent or appoint any additional agents for any or all of such purposes;
provided
,
65
however
, that until all of the Notes have been delivered to the Trustee for cancellation, or
moneys sufficient to pay the principal of and interest on the Notes have been made available for
payment and either paid or returned to the Company pursuant to the provisions of Section 10.05, the Company
shall maintain an office or agency where Notes may be presented or surrendered for payment and
conversion, where Notes may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Notes and this Supplemental Indenture
may be served. The Company shall give prompt written notice to the Trustee, and notice to the
Holders in accordance with Section 1.06 of the Base Indenture, of the appointment or termination of
any such agents and of the location and any change in the location of any such office or agency.
The Company hereby initially designates the Trustee as Paying Agent, Registrar, and Conversion
Agent, and the Corporate Trust Office of the Trustee as the office or agency of the Company for
each of the aforesaid purposes.
Any rights or immunities of the Trustee under the Indenture shall apply to the Trustee when
acting under any or all of the aforementioned capacities.
SECTION 10.03.
Existence.
Subject to Section 7.01, the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence.
SECTION 10.04.
Annual Statement by Officers.
The Company shall deliver to the Trustee, within 120 calendar days after the end of each
fiscal year, an Officers Certificate as to the signing officers knowledge of the Companys
compliance with all conditions and covenants on its part contained in this Supplemental Indenture.
For purposes of this Section 10.04, such compliance shall be determined without regard to any grace
period or requirement of notice provided under this Supplemental Indenture.
Any notice required to be given under this Section 10.04 shall be delivered to the Trustee at its
Corporate Trust Office.
SECTION 10.05.
Money for Note Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will, on or before each due
date of the principal of or interest on any of the Notes, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay all amounts payable to the Trustee
under Section 6.6 of the Base Indenture and the principal or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, prior to each due date of
the principal of or interest on any Notes, deposit with a Paying Agent a sum sufficient to pay such
amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
66
The Company will cause each Paying Agent other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the
provisions of this Section 10.05, that such Paying Agent will (i) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (ii) during the continuance of any default by
the Company (or any other obligor upon the Notes) in the making of any payment in respect of the
Notes, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust
by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Supplemental Indenture or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums
to be held by the Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or interest on any Note and remaining unclaimed for two
years after such principal or interest has become due and payable shall be paid to the Company on
Company Request, or (if then held by the Company) shall be discharged from such trust; and the
Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall thereupon cease;
provided
,
however
, that the Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a Press Release, notice that such
money remains unclaimed and that, after a date specified therein, which shall not be less than 30
calendar days from the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 10.06.
Reports by Company.
(a) Whether or not the Company is then subject to Section 13(a) or 15(d) of the Exchange
Act, so long as any Notes are outstanding, the Company will, within the time periods specified in
the Commissions rules and regulations if the Company were subject to Section 13(a) or 15(d) of
the Exchange Act, file the following reports with the Commission, even if it is not required by
the Commission to do so:
(i) All quarterly and annual reports that would be required to be filed with the
Commission on Forms 10-Q and 10-K if the Company were required to file reports pursuant to
Section 13(a) or 15(d) of the Exchange Act, including a Managements Discussion and
Analysis of Financial Condition and Results of Operations and, with respect to the annual
information only, a report thereon by the Companys certified independent accountants; and
(ii) All current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports pursuant to Section 13(a) or 15(d) of
the Exchange Act.
67
If, notwithstanding the foregoing, the Commission will not accept the Companys filings for any
reason, the Company will post the reports referred to in the preceding paragraph on its website
within the time periods that would apply if the Company were required to file those reports with
the Commission pursuant to Section 13(a) or 15(d) of the Exchange Act. If such filings with the
Commission are not then permitted by the Commission, and such filings are not generally available
on the internet free of charge within the time periods in which the Company would be required to
file a report if it were subject to Section 13(a) or 15(d) of the Exchange Act, the Company will,
without charge to the Holders, furnish the Holders with copies of any such reports.
(b) For so long as the Notes remain outstanding and constitute restricted
securities under Rule 144, if at any time the Company is not required to file with the
Commission the reports required by paragraph (a) of this Section 302, the Company shall
furnish to the Holders of the Notes and to securities analysts and prospective investors,
upon their request, the information required to be delivered pursuant to Rule 144(d)(4)
under the Securities Act.
SECTION 10.07.
Lien
The Company will not create any Lien upon any Principal Property (other than Permitted
Liens) (the
Initial Lien
) without securing the Notes equally with such Principal Property
and ratably with all other Indebtedness of the Company secured thereby for so long as such
Indebtedness is so secured. Any Lien created for the benefit of the Holders pursuant to
the preceding sentence shall provide that such Lien shall be automatically and
unconditionally released and discharged upon the release and discharge of the Initial Lien.
This covenant shall not limit or restrict any Subsidiary of the Company.
SECTION 10.08.
Limitation on Sale and Lease-Back Transactions
The Company shall not enter into any arrangement with any Person providing for the leasing by
the Company of any Principal Property (except for temporary leases of a term of not more than three
years and except for leases between the Company and its Subsidiaries or between Subsidiaries of the
Company) which property has been or is to be sold or transferred by the Company to such Person more
than 180 days after the later of the acquisition thereof or the completion of construction and
commencement of full operation thereof (a
Sale and Lease-Back Transaction
), unless:
(1) the Company applies an amount equal to the greater of the fair value (as determined
by the Companys Board of Directors) of such property or the net proceeds of such sale,
within 180 days, to the retirement of the Notes (to the extent permitted pursuant to the
terms hereof) or other Indebtedness ranking on a parity with the Notes, or to the
acquisition, construction, development or improvement of properties, facilities or equipment
used for operating purposes that are owned by the Company, or to the acquisition by the
Company or any of its Subsidiaries of another Person; or
68
(2) at the time of entering into such transaction, such Principal Property could have
been subjected to a Lien securing Indebtedness of the Company in a principal amount equal to
the Capitalized Lease-Back Obligation with respect to such Principal Property under clause
(16) of the definition of Permitted Liens without securing the Notes as contemplated by
that provision.
This covenant shall not limit or restrict any Subsidiary of the Company.
ARTICLE 11.
REDEMPTION AND REPURCHASE OF NOTES
SECTION 11.01.
Mandatory Gaming Redemption.
Notwithstanding any other provision in this Supplemental Indenture, if any Gaming Authority
requires a Holder or beneficial owner of the Notes must be licensed, qualified or found suitable
under any applicable gaming laws in order to maintain any Gaming License or franchise of the
Company or any of its Subsidiaries under any applicable gaming laws, and the Holder or beneficial
owner fails to apply for a license, qualification or finding of suitability within 30 calendar days
after being requested to do so by the Gaming Authority (or such lesser period that may be required
by such Gaming Authority) or if such Holder or beneficial owner is denied such license or
qualification or found not be suitable, the Company shall have the right, at its option, (1) to
require such Holder or beneficial owner to dispose of such Holders or beneficial owners Notes
within 30 calendar days of receipt of such finding by the applicable Gaming Authority (or such
earlier date as may be required by the applicable Gaming Authority) or (2) to call for redemption
on the Notes of such Holder or beneficial owner at a redemption price equal to (i) the lesser or
(a) 100% of the principal amount thereof, (b) the price at which such Holder or beneficial owner
acquired the Notes or (c) the fair market value of the Notes as determined in good faith by the
Board of Directors of the Company, together with, in each case, accrued and unpaid interest to the
earlier of the date of redemption or such earlier date as may be required by the Gaming Authority
or the date of the finding of unsuitability by such Gaming Authority, which may be less than 30
calendar days following the notice of redemption, if so ordered by such Gaming Authority or (ii)
such other price as may be ordered by the Gaming Authority.
Immediately upon a determination that a Holder or beneficial owner will not be licensed,
qualified or found suitable, the Holder or beneficial owner will have no further rights (a) to
exercise any right conferred by the Notes, directly or indirectly, through any Trustee, nominee or
any other Person or (b) to receive any interest or other distribution or payment with respect to
the Notes except the redemption price of the Notes described in this Section 11.01;
provided
,
however
, such Holder or beneficial holder may, to the extent permitted by such Gaming Authority,
transfer the Notes to any unaffiliated third party, who shall then be entitled to exercise all
rights of a Holder or beneficial holder under the Notes.
The Company shall not be required to pay or reimburse any Holder of the Notes or beneficial
owner who is required to apply for such license, qualification or finding of suitability
69
for the costs of the licensure or investigation for such qualification or finding of
suitability. Such expenses will, therefore, be the obligation of such Holder or beneficial owner.
Each Note shall bear a legend regarding the applicability of this Section 11.01, as set forth
in the form of Note included in Section 2.02.
SECTION 11.02.
Right to Require Repurchase Upon a Fundamental Change.
(a) If a Fundamental Change occurs at any time, then each Holder shall have the right, at
such Holders option, to require the Company to repurchase all of such Holders Notes or any
portion of the principal amount thereof that is equal to $1,000 or an integral multiple of
$1,000, for cash on the date (the
Fundamental Change Repurchase Date
) specified by the Company
that is not less than 15 calendar days and not more than 45 calendar days after the date of the
Fundamental Change Repurchase Right Notice at a repurchase price equal to 101% of the principal
amount thereof, together with accrued and unpaid interest thereon to, but excluding, the
Fundamental Change Repurchase Date (the
Fundamental Change Repurchase Price
), unless such
Fundamental Change Repurchase Date falls after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, in which case the Company shall pay the full amount of
accrued and unpaid interest payable on such Interest Payment Date to the Holder of record at the
close of business on the corresponding Regular Record Date. Any Notes repurchased by the Company
will be paid for in cash.
Repurchases of Notes under this Section 11.02 shall be made, at the option of the Holder thereof, upon:
(i) if the Notes are held in certificated form, delivery to the Trustee (or other
Paying Agent appointed by the Company) by a Holder of a duly completed notice (the
Fundamental Change Repurchase Notice
) in the form set forth on the reverse of the Note or,
if the Notes are held in global form, a notice that complies with the Applicable Procedures,
prior to the close of business on the Business Day immediately preceding the Fundamental
Change Repurchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or other Paying Agent
appointed by the Company) prior to the close of business on the Business Day immediately
preceding the Fundamental Change Repurchase Date (together with all necessary endorsements)
at the Corporate Trust Office of the Trustee (or other Paying Agent appointed by the
Company), such delivery being a condition to receipt by the Holder of the Fundamental Change
Repurchase Price therefor;
provided
that such Fundamental Change Repurchase Price shall be
so paid pursuant to this Section 11.02 only if the Note so delivered to the Trustee (or other Paying
Agent appointed by the Company) shall conform in all respects to the description thereof in
the related Fundamental Change Repurchase Notice.
The Fundamental Change Repurchase Notice shall state:
(i) if certificated, the certificate numbers of Notes to be delivered for
repurchase;
70
(ii) the portion of the principal amount of Notes to be repurchased, which must
be $1,000 or an integral multiple thereof; and
(iii) that the Notes are to be repurchased by the Company pursuant to the
applicable provisions of the Notes and this Supplemental Indenture.
Any purchase by the Company contemplated pursuant to the provisions of this Section 11.02 shall be
consummated by the delivery of the consideration to be received by the Holder promptly following
the later of the Fundamental Change Repurchase Date and the time of the book-entry transfer or
delivery of the Note.
The Trustee (or other Paying Agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Fundamental Change Repurchase Notice or written notice of withdrawal
thereof in accordance with the provisions of subsection (c) of this Section 11.02.
Any Note that is to be repurchased only in part shall be surrendered to the Trustee (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by the Holder thereof or his
attorney duly authorized in writing), and the Company shall execute, and, upon receipt of a Company
Order, the Trustee shall authenticate and make available for delivery to the Holder of such Note
without service charge, a new Note or Notes, containing identical terms and conditions, each in an
authorized denomination in aggregate principal amount equal to and in exchange for the
unrepurchased portion of the principal of the Note so surrendered.
(b) After the occurrence of a Fundamental Change, but on or before the 10th calendar day
after the Effective Date of such Fundamental Change, the Company shall provide to all Holders of
record of the Notes and the Trustee and Paying Agent a notice (the
Fundamental Change Repurchase
Right Notice
) of the occurrence of such Fundamental Change and of the resulting repurchase
right, if any, at the option of the Holders arising as a result thereof.
Each Fundamental Change Repurchase Right Notice shall specify (if applicable):
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the repurchase right arising as a
result of a Fundamental Change, if applicable;
(iv) the Fundamental Change Repurchase Price, if applicable;
(v) the Fundamental Change Repurchase Date, if applicable;
(vi) the name and address of the Paying Agent and the Conversion Agent, if applicable;
(vii) the applicable Conversion Rate and any adjustments to the applicable Conversion
Rate, including any Additional Shares, if applicable;
71
(viii) that the Notes with respect to which a Fundamental Change Repurchase Notice has
been delivered by a Holder may be converted only if the Holder withdraws the Fundamental
Change Repurchase Notice in accordance with the terms of this Supplemental Indenture; and
(ix) the procedures that Holders must follow to require the Company to repurchase their
Notes, if applicable.
No failure of the Company to give the foregoing notices and no defect therein shall limit the
Holders repurchase rights or affect the validity of the proceedings for the repurchase of the
Notes pursuant to this Section 11.02.
(c) A Fundamental Change Repurchase Notice may be withdrawn in whole on in part by means of
a written notice of withdrawal delivered to the Paying Agent in accordance with the Fundamental
Change Repurchase Right Notice at any time prior to the close of business on the Business Day
prior to the Fundamental Change Repurchase Date, specifying:
(i) the principal amount of the Notes with respect to which such notice of withdrawal
is being submitted;
(ii) if certificated Notes have been issued, the certificate numbers of the withdrawn
Notes, or if not certificated, such Holders notice must comply with the applicable DTC
procedures; and
(iii) the principal amount, if any, of such Note that remains subject to the original
Fundamental Change Repurchase Notice, which portion must be in principal amounts of $1,000
or an integral multiple of $1,000;
provided
,
however
, that if the Notes are not in certificated form, the notice must comply with the
Applicable Procedures.
(d) In connection with any repurchase of the Notes pursuant to this Section 11.02, the
Company shall
(i) comply with the provisions of Rule 13e-4, Rule 14e-1 (or any successor provision)
and any other tender offer rules under the Exchange Act that may then be applicable; and
(ii) otherwise comply with all applicable federal and state securities laws.
To the extent that the provisions of any securities laws or regulations conflict with the
provisions of this Section 11.02, the Companys compliance with such laws and regulations shall not
in and of itself cause a breach of its obligations under this Section 11.02.
(e) On or prior to 1:00 p.m., New York City time, on the Fundamental Change Repurchase Date,
the Company shall deposit with the Trustee (or other Paying Agent appointed by the Company or if
the Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided
in Section 10.05) an amount of money sufficient to
72
repurchase all of the Notes to be repurchased on such date at the Fundamental Change
Repurchase Price. Subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent
appointed by the Company) from the Company or the Holders, as applicable, payment for Notes
surrendered for repurchase (and not withdrawn) prior to the close of business on the Business Day
prior to the Fundamental Change Repurchase Date shall be made promptly after the later of (x) the
Fundamental Change Repurchase Date with respect to such Note (
provided
the Holder has satisfied
the conditions to the payment of the Fundamental Change Repurchase Price in this Section 11.02), and (y) the
time of book-entry transfer or the delivery of such Note to the Trustee (or other Paying Agent
appointed by the Company) by the Holder thereof in the manner required by this Section 11.02. The Trustee
shall, promptly after such payment and upon written demand by the Company, return to the Company
any funds in excess of the Fundamental Change Repurchase Price.
(f) Subject to a Holders right to receive interest on the related Interest Payment Date
where the Fundamental Change Repurchase Date falls between a Regular Record Date and the Interest
Payment Date to which it relates, if the Trustee (or other Paying Agent appointed by the Company)
holds money sufficient to repurchase on the Fundamental Change Repurchase Date all the Notes or
portions thereof that are to be purchased as of the Business Day following the Fundamental Change
Repurchase Date, then on and after the Fundamental Change Repurchase Date (i) such Notes shall
cease to be outstanding, (ii) interest shall cease to accrue on such Notes, and (iii) all other
rights of the Holders of such Notes shall terminate, whether or not book-entry transfer of the
Notes has been made or the Notes have been delivered to the Trustee or Paying Agent, other than
the right to receive the Fundamental Change Repurchase Price upon delivery of the Notes.
ARTICLE 12.
CONVERSION OF NOTES
SECTION 12.01.
Conversion Privilege and Conversion Rate.
(a) Subject to
compliance with the provisions of this ARTICLE 12, a Holder shall have the right, at
such Holders option, to convert all or any portion (if the portion to be converted is $1,000 in
principal amount or an integral multiple thereof) of any Notes at any time prior to the close of
business on the second Scheduled Trading Day immediately preceding October 1, 2013, into cash
and, if applicable and at the election of the Company, shares of Common Stock (or, if applicable,
Reference Property), as described herein, at a rate of 20.1410 shares of Common Stock (subject to
adjustment by the Company as provided in Sections 12.01(e) and 12.04 hereof) per $1,000 in
principal amount of the Notes (the
Conversion Rate
) under the circumstances and during the
periods set forth below.
73
(b) [Reserved].
(c) [Reserved].
(d) [Reserved].
(e) If a Holder elects to convert Notes in connection with a Make-Whole Fundamental Change,
the Conversion Rate applicable to each $1,000 in principal amount of Notes so converted shall be
increased by an additional number of shares of Common Stock (the
Additional Shares
) as
described below. Settlement of Notes tendered for conversion to which Additional Shares shall be
added to the Conversion Rate as provided in this subsection
(e) shall be settled pursuant to Section 12.02(e).
For purposes of this subsection (e), a conversion shall be deemed to be
in connection with
such
Make-Whole Fundamental Change if such conversion occurs on or after the Make-Whole Reference Date
and prior to the close of business on the second Business Day immediately prior to the related
Fundamental Change Repurchase Date for such Make-Whole Fundamental Change, but in no event later
than the second Scheduled Trading Day prior to the Maturity of the Notes. The Company will
notify Holders and the Trustee in writing of the occurrence of any Make-Whole Fundamental Change
applicable to this subsection (e) and issue a Press Release on the Make-Whole Reference Date.
(i) The number of Additional Shares by which the Conversion Rate will be increased in
the event of a Make-Whole Fundamental Change shall be determined by the Company by reference
to the table attached as
Schedule A
hereto, based on the Make-Whole Reference Date
and the Stock Price;
provided
that, for purposes of determining the number of Additional
Shares, the Make-Whole Reference Date of a transaction described in clause (1) or (2) of the
definition of Fundamental Change shall be deemed to be the earlier of (x) the date on which
such transaction occurs or becomes effective and (y) the date of the first public
announcement of such transaction by the Company or the counterparty to the transaction;
provided,
that if the actual Stock Price is between two Stock Price amounts in the table or
the Make-Whole Reference Date is between two Make-Whole Reference Dates in the table, the
number of Additional Shares by which the Conversion Rate will be increased shall be
determined by a straight-line interpolation between the number of Additional Shares set
forth for the next higher and next lower Stock Price amounts and the two nearest Make-Whole
Reference Dates, as applicable, based on a 365-day year;
provided, further,
that if (1) the
Stock Price is greater than $400.00 per share of Common Stock (subject to adjustment in
accordance with clause (ii) below), no adjustments will be made in the Conversion Rate, and (2)
the Stock Price is less than $33.10 per share (subject to adjustment in accordance with
clause (ii) below), no adjustments will be made in the Conversion Rate. Notwithstanding the
foregoing, in no event shall the Conversion Rate exceed 30.2115 shares per $1,000 in
principal amount of Notes (subject to adjustment in the same manner
as set forth in Section 12.04).
(ii) The Stock Prices set forth in the first row of the tables in
Schedule A
hereto shall be adjusted by the Company as of any date on which the Conversion Rate of the
Notes is adjusted (except pursuant to this Section 12.01(e). The adjusted Stock Prices shall equal the
Stock Prices applicable immediately prior to such adjustment, multiplied
74
by a fraction, the numerator of which is the applicable Conversion Rate in effect
immediately prior to the adjustment giving rise to the Stock Price adjustment and the
denominator of which is the Conversion Rate as so adjusted. The number of Additional Shares
within the table shall be adjusted in the same manner as the Conversion Rate as set forth in
Section 12.04 (other than by operation of an adjustment to the Conversion Rate by adding Additional
Shares).
SECTION 12.02.
Exercise of Conversion Privilege.
(a) (i) The Company will satisfy the Conversion Obligation with respect to the aggregate
principal amount of Notes tendered for conversion by delivering, on the third Trading Day
immediately following the Conversion Date shares of fully paid Common Stock equal to the
Conversion Rate times the aggregate principal amount of Notes so tendered, divided by $1,000;
provided
that the Company will deliver cash in lieu of fractional shares of Common Stock as
provided in Section 12.03; or
(ii) The Company shall treat all Holders of Notes converting on the same Trading Day in the
same manner. The Company shall not, however, have any obligation to settle its Conversion
Obligations arising on different Trading Days in the same manner.
(b) [Reserved].
(c) [Reserved].
(d) Before any Holder of a Note shall be entitled to convert the same as set forth above, such
Holder shall (1) in the case of a Global Note, comply with the procedures of the Depositary in
effect at that time and, if required, pay funds equal to interest payable on the next Interest
Payment Date to which such Holder is not entitled as set forth in subsection (i) of this Section 12.02(d) and,
if required, pay all taxes or duties, if any, in connection therewith and (2) in the case of a Note
issued in certificated form, (A) complete and manually sign and deliver an irrevocable written
notice to the Conversion Agent in the form set forth under Section 2.03 (or a facsimile thereof) (a
Notice of
Conversion
) at the office of the Conversion Agent and shall state in writing therein the principal
amount of Notes to be converted and the name or names (with addresses) in which such Holder wishes
the certificate or certificates for any shares of Common Stock, if any, to be delivered upon
settlement of the Conversion Obligation to be registered, (B) surrender such Notes, duly endorsed
to the Company or in blank (and accompanied by appropriate endorsement and transfer documents), at
the office of the Conversion Agent, (C) if required, pay funds equal to interest payable on the
next Interest Payment Date to which such Holder is not entitled as set forth in subsection (i) of Section
12.02(a), and (D) if required, pay all taxes or duties, if any, in connection therewith, and (E)
furnish appropriate endorsements and transfer documents. As used herein,
Conversion Date
shall
mean the date that the Holder has complied with the requirements set forth in this subsection (d).
No Notice of Conversion with respect to any Notes may be tendered by a Holder thereof if such
Holder has also tendered a Fundamental Change Repurchase Notice and not validly
75
withdrawn such
Fundamental Change Repurchase Notice in accordance with the
applicable provisions of Section 11.02.
If more than one Note shall be surrendered for conversion at one time by the same Holder, the
Conversion Obligation with respect to such Notes, if any, that shall be payable upon conversion
shall be computed on the basis of the aggregate principal amount of the Notes (or specified
portions thereof to the extent permitted thereby) so surrendered.
(e) Delivery of the amounts owing in satisfaction of the Conversion Obligation shall be made
by the Company in no event later than the date specified in
subsection (a) of this Section 12.02. The
Company shall make such delivery by issuing, or causing to be issued, and delivering to such
Holder, or such Holders nominee or nominees, certificates or a book-entry transfer through the
Depositary for the number of full shares of Common Stock to which such Holder shall be entitled
as part of such Conversion Obligation (together with any cash in lieu of fractional shares).
(f) In case any Note shall be surrendered for partial conversion, the Company shall execute
and the Trustee shall, as provided in a Company Order, authenticate and deliver to or upon the
written order of the Holder of the Note so surrendered, without charge to such Holder, a new Note
or Notes in authorized denominations in an aggregate principal amount equal to the unconverted
portion of the surrendered Notes.
(g) If a Holder submits a Note for conversion, the Company shall pay all documentary, stamp
or similar issue or transfer tax due, if any, which may be imposed by the United States or any
political subdivision thereof or taxing authority thereof or therein with respect to the issuance
of shares of Common Stock, if any, upon the conversion. However, the Holder shall pay any such
tax which is due because the Holder requests any shares of Common Stock to be issued in a name
other than the Holders name. The Company may refuse to deliver the certificates representing
the shares of Common Stock being issued in a name other than the Holders name until the Company
receives a sum sufficient to pay any tax which will be due because the shares are to be issued in
a name other than the Holders name. Nothing herein shall preclude any tax withholding required
by law or regulations.
(h) Except as provided in Section 12.04, no adjustment shall be made for dividends on any shares issued
upon the conversion of any Note as provided in this ARTICLE 12.
(i) Upon the conversion of an interest in a Global Note, the Trustee, or the Custodian at
the direction of the Trustee, shall make a notation on such Global Note as to the reduction in
the principal amount represented thereby. The Company shall notify the Trustee in writing of any
conversion of Notes effected through any Conversion Agent other than the Trustee.
(j) Upon conversion, a Holder shall not receive any separate cash payment for accrued and
unpaid interest except as set forth below. The Companys settlement of the Conversion Obligation
as described above shall be deemed to satisfy its obligation to pay the principal amount of the
Notes and accrued and unpaid interest to, but not including, the Conversion Date. As a result,
accrued and unpaid interest on the Notes to, but not including, the Conversion Date shall be
deemed to be paid in full rather than cancelled, extinguished or
76
forfeited. Notwithstanding the
preceding sentence, if Notes are converted after 5:00 p.m., New York City time, on a Regular
Record Date, Holders of such Notes as of 5:00 p.m., New York City time, on such Regular Record
Date shall receive the interest payable on such Notes
on the corresponding Interest Payment Date notwithstanding the conversion. Notes
surrendered for conversion during the period from 5:00 p.m., New York City time, on any Regular
Record Date to 9:00 a.m., New York City time, on the corresponding Interest Payment Date must be
accompanied by payment of an amount in cash equal to the interest payable on such Interest
Payment Date on the Notes so converted;
provided
,
however
, that no such payment need be made (i)
if the Company has specified a Fundamental Change Repurchase Date that is after a Regular Record
Date and on or prior to the next Scheduled Trading Day following the corresponding Interest
Payment Date; (ii) to the extent of any overdue interest, if any overdue interest remains unpaid
at the time of conversion with respect to such Note; or (iii) in connection with any conversions
that occur on or after the last Regular Record Date prior to the Maturity Date. Except as
described above, no payment or adjustment shall be made for accrued interest on converted Notes.
The Company shall not be required to convert any Notes that are surrendered for conversion
without payment of interest as required by this Section 12.02(j). The Conversion Rate will not
be adjusted for accrued and unpaid interest or accreted principal in excess of the $1,000
principal amount of the Notes.
SECTION 12.03.
Fractions of Shares.
No fractional shares of Common Stock shall be issued upon conversion of any Note or Notes. If
more than one Note shall be surrendered for conversion at one time by the same Holder, the number
of full shares which shall be issuable upon conversion thereof shall be computed on the basis of
the aggregate principal amount of the Notes (or specified portions thereof) so surrendered.
Instead of any fractional share of Common Stock that would otherwise be issuable upon conversion of
any Note or Notes (or specified portions thereof), the Company shall calculate and pay a cash
adjustment in respect of such fraction (calculated to the nearest 1/100th of a share) based on the
Daily VWAP on the last VWAP Trading Day prior to the Conversion Date.
SECTION 12.04.
Adjustment of Conversion Rate.
The Conversion Rate shall be adjusted from time to time by the Company as follows;
provided
that the Company shall not make any adjustments to the Conversion Rate if Holders of the Notes
participate (as a result of holding the Notes, and at the same time as holders of the Common Stock
participate) in any of the transactions described below as if such Holders held a number of shares
of Common Stock equal to the applicable Conversion Rate, multiplied by the principal amount of
Notes held by such Holders divided by $1,000, without having to convert their Notes:
(a) In case the Company shall issue shares of Common Stock as a dividend or distribution on
shares of Common Stock, or shall effect a share split or share combination, the Conversion Rate
shall be adjusted based on the following formula:
77
where,
CR
0
= the Conversion Rate in effect as of the close business on the date
immediately preceding the Ex-Date for such dividend or distribution or the effective date of
such share split or combination, as the case may be;
CR = the Conversion Rate in effect as of the opening of business on the Ex-Date for such
dividend or distribution or the effective date of such share split or combination, as the
case may be;
OS
0
= the number of shares of Common Stock outstanding as of the opening of
business on the Ex-Date for such dividend or distribution or the effective date of such
share split or combination, as the case may be; and
OS = the number of shares of Common Stock that will be outstanding as of the opening of
business on the Ex-Date for such dividend or distribution and immediately after giving
effect to such dividend or distribution or immediately after the effective date of such
share split or combination, as the case may be.
Such adjustment shall become effective immediately on the Ex-Date fixed for such dividend or
distribution, or the effective date for such share split or share combination. If any dividend or
distribution of the type described in this Section 12.04(a) is declared but not so paid or made, or the
outstanding shares of Common Stock are not split or combined, as the case may be, the Conversion
Rate shall be immediately readjusted, effective as of the date the Board of Directors determines
not to pay such dividend or distribution, or split or combine the outstanding shares of Common
Stock, as the case may be, to the Conversion Rate that would then be in effect if such dividend,
distribution, share split or share combination had not been declared.
(b) In case the Company shall distribute to all or substantially all holders of its
outstanding shares of Common Stock any rights or warrants (other than rights issued pursuant to a
stockholders rights plan) entitling them for a period expiring not more than 60 calendar days
after the date of such distribution to subscribe for or purchase shares of Common Stock at a
price per share less than the average of the Last Reported Sale Prices of the Common Stock for
the 10 consecutive Trading Day period ending on and including the Trading Day immediately
preceding the Ex-Date for such distribution, the Conversion Rate shall be adjusted based on the
following formula:
|
|
|
|
|
|
|
CR = CR
0
×
|
|
(OS
0
+ X)
|
|
|
|
|
|
|
|
|
|
(OS
0
+ Y)
|
where,
CR
0
= the Conversion Rate in effect as of the close of business on the day
immediately preceding to the Ex-Date for such distribution;
CR = the Conversion Rate in effect as of the opening of business on the Ex-Date for such
distribution;
78
OS
0
= the number of shares of Common Stock outstanding immediately prior to the
Ex-Date for such distribution;
X = the total number of shares of Common Stock issuable pursuant to such rights or warrants;
and
Y = the number of shares of Common Stock equal to the aggregate price payable to exercise
such rights or warrants divided by the average of the Last Reported Sale Prices of Common
Stock for the 10 consecutive Trading Day period ending on and including the Trading Day
immediately preceding the Ex-Date for such distribution.
Such adjustment shall be successively made whenever any such rights or warrants are
distributed and shall become effective immediately on the Ex-Date for such distribution. The
Company shall not issue any such rights or warrants in respect of shares of the Common Stock held
in treasury by the Company. To the extent that shares of the Common Stock are not delivered after
the expiration of such rights or warrants, the Conversion Rate shall be readjusted to the
Conversion Rate that would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of delivery of only the number of shares of Common Stock
actually delivered. If such rights or warrants are not so issued, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such Ex-Date for such
distribution had not been fixed.
In determining whether any rights or warrants entitle the holders to subscribe for or purchase
shares of Common Stock at less than the average of the Last Reported Sale Prices of the Common
Stock for the 10 consecutive Trading Day period ending on and including the Trading Day immediately
preceding the Ex-Date for such distribution, and in determining the aggregate offering price of
such shares of Common Stock, there shall be taken into account any consideration received by the
Company for such rights or warrants and any amount payable on exercise or conversion thereof, with
the value of such consideration, if other than cash, to be determined by the Board of Directors.
(c) In case the Company shall, by dividend or otherwise, distribute to all or substantially
all holders of its Common Stock shares of any class of Capital Stock of the Company, evidences of
its Indebtedness or other assets or property of the Company excluding (i) dividends and
distributions covered by subsections (a), (b) or (d) of this Section 12.04 and (ii) distributions
described below in this subsection (c) with respect to Spin-Offs) (any of such shares of Capital
Stock, Indebtedness, or other asset or property hereinafter in this subsection (c) called the
Distributed Property
), then, in each such case the Conversion Rate shall be adjusted based on
the following formula:
|
|
|
|
|
|
|
CR' = CR
0
×
|
|
SP
0
|
|
|
|
|
|
|
|
|
|
SP
0
FMV
|
where,
CR
0
= the Conversion Rate in effect as of the close of business on the day
immediately preceding to the Ex-Date for such distribution;
79
CR = the Conversion Rate in effect as of the opening of business on the Ex-Date for such
distribution;
SP
0
= the average of the Last Reported Sale Prices of Common Stock over the 10
consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date
for such distribution; and
FMV = the fair market value as determined by the Board of Directors or a committee thereof
of the Distributed Property with respect to each outstanding share of Common Stock on the
Ex-Date for such distribution.
Such adjustment shall become effective immediately on the Ex-Date for such distribution;
provided
that if FMV as set forth above is equal to or greater than SP
0
as set forth
above, in lieu of the foregoing adjustment, adequate provision shall be made so that each Holder
has the right to receive, for each $1,000 in principal amount of Notes, the amount of Distributed
Property such Holder would have received had such Holder owned a number of shares of Common Stock
equal to the Conversion Rate on the Ex-Date for such distribution, without being required to
convert the Notes. If such distribution is not so paid or made, the Conversion Rate shall again be
adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution
had not been declared. If the Board of Directors determines
FMV for purposes of this Section 12.04(c) by
reference to the actual or when issued trading market for any securities, it must in doing so
consider the prices in such market over the same period used in computing the Last Reported Sale
Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day
immediately preceding the Ex-Date for such distribution.
With respect to an adjustment pursuant to this subsection (c) where there has been a payment
of a dividend or other distribution on the Common Stock, in shares of Capital Stock of any class or
series, or similar equity interest, of or relating to a subsidiary or other business unit (a
Spin-Off
), the Conversion Rate in effect immediately before 5:00 p.m., New York City time, on the
10th Trading Day immediately following, and including, the effective date of the Spin-Off shall be
increased based on the following formula:
|
|
|
|
|
|
|
CR = CR
0
×
|
|
FMV
0
+ MP
0
|
|
|
|
|
|
|
|
|
|
MP
0
|
where,
CR
0
= the Conversion Rate in effect immediately prior to the close of business on
the 10th Trading Day immediately following the effective date of the Spin-Off;
CR = the Conversion Rate in effect immediately after the close of business on the 10th
Trading Day immediately following the effective date of the Spin-Off;
FMV
0
= the average of the Last Reported Sale Prices of the Capital Stock or
similar equity interest distributed to holders of Common Stock applicable to one share of
80
Common Stock over the 10 consecutive Trading Day period beginning on and including the
Trading Day immediately following the effective date of the Spin-Off; and
MP
0
= the average of the Last Reported Sale Prices of Common Stock over the 10
consecutive Trading Day period beginning on and including immediately following the
effective date of the Spin-Off.
Such adjustment to the Conversion Rate under this subsection (c) shall occur immediately after
5:00 pm New York City time on the 10th Trading Day from the effective date of the Spin-Off;
provided
, that for any conversion within the 10 Trading Days beginning on the Trading Day
immediately following the effective date of any Spin-Off, the Conversion Rate shall be adjusted
based on the number of Trading Days between the effective date of such Spin-Off and the Conversion
Date.
Rights, warrants or options distributed by the Company to all holders of Common Stock,
entitling the holders thereof to subscribe for or purchase shares of the Companys Capital Stock,
including Common Stock (either initially or under certain circumstances), which rights, warrants or
options, until the occurrence of a specified event or events (
Trigger Event
): (i) are deemed to
be transferred with such shares of Common Stock; (ii) are not exercisable; and (iii) are also
issued in respect of future issuances of Common Stock, shall be deemed not to have been distributed
for purposes of this Section 12.04 (and no adjustment to the Conversion Rate under this Section 12.04 shall be required)
until the occurrence of the earliest Trigger Event, whereupon such rights and warrants shall be
deemed to have been distributed and an appropriate adjustment (if any is required) to the
Conversion Rate shall be made under this subsection (c). If any such rights, warrants or options
are subject to events, upon the occurrence of which such rights, warrants or options become
exercisable to purchase different securities, evidences of Indebtedness or other assets, then the
date of the occurrence of any and each such event shall be deemed to be the date of distribution
and record date with respect to new rights, warrants or options with such rights (and a termination
or expiration of the existing rights, warrants or options without exercise by any of the holders
thereof). In addition, in the event of any distribution (or deemed distribution) of rights,
warrants or options, or any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes of calculating a distribution amount
for which an adjustment to the Conversion Rate under this Section 12.04 was made, (1) in the case of any such
rights, warrants or options that shall all have been redeemed or repurchased without exercise by
any holders thereof, the Conversion Rate shall be readjusted upon such final redemption or
repurchase to give effect to such distribution or Trigger Event, as the case may be, as though it
were a cash distribution, equal to the per share redemption or repurchase price received by a
holder or holders of Common Stock with respect to such rights, warrants or options (assuming such
holder had retained such rights or warrants), made to all holders of Common Stock as of the date of
such redemption or repurchase, and (2) in the case of such rights or warrants that shall have
expired or been terminated without exercise by any holders thereof, the Conversion Rate shall be
readjusted as if such rights and warrants had not been issued.
For purposes of this subsection (c) and subsections
(a) and (b) of this Section 12.04, any dividend or
distribution to which this subsection (c) is applicable that also
includes shares of Common Stock
to which subsection (a) of this Section 12.04 applies or rights, warrants or
81
options to subscribe for or purchase shares of Common Stock to
which subsection (a) or (b) of this Section 12.04 applies (or both), shall
be deemed instead to be (1) a dividend or distribution of the evidences of Indebtedness, assets or
shares of Capital Stock other than such shares of Common Stock or rights, warrants or options,
to which this subsection (c) applies (and any Conversion Rate adjustment required by this
subsection (c) with respect to such dividend or distribution shall then be made) immediately
followed by (2) a dividend or distribution of such shares of Common Stock or such rights, warrants
or options (and any further Conversion Rate adjustment required by subsections (a) and (b) of this
Section 12.04 with respect to such dividend or distribution shall then be made), except (A) the Ex-Date of such
dividend or distribution shall under this subsection (c) be substituted as the Ex-Date within the
meaning of subsection (a) and subsection (b) and (B) any shares of Common Stock included in such
dividend or distribution shall not be deemed outstanding immediately prior to the Ex-Date for such
dividend or distribution or immediately prior to the effective date of such share split or
combination, as the case may be within the meaning of subsection (a) or outstanding immediately
prior to the Ex-Date for such distribution within the meaning of subsection (b).
(d) In case the Company shall pay any cash dividends or distributions to all or
substantially all holders of its Common Stock, the Conversion Rate shall be adjusted based on the
following formula:
|
|
|
|
|
|
|
CR =
CR
0
×
|
|
SP
0
|
|
|
|
|
|
|
|
|
|
SP
0
- C
|
where,
CR
0
= the Conversion Rate in effect as of the close of business on the day
immediately preceding the Ex-Date for such dividend or distribution;
CR = the Conversion Rate in effect as of the opening of business on the Ex-Date for such
dividend or distribution;
SP
0
= the average of the Last Reported Sale Prices of Common Stock for the 10
consecutive Trading Day period ending on and including the Trading Day immediately preceding
the Ex-Date for such dividend or distribution; and
C = the amount in cash per share the Company distributes to holders of Common Stock in such
dividend or distribution.
Such adjustment to the Conversion Rate shall become effective immediately on the Ex-Date for
such dividend or distribution;
provided
that if the portion of the cash so distributed applicable
to one share of the Common Stock is equal to or greater than SP
0
as set forth above, in
lieu of the foregoing adjustment, adequate provision shall be made so that each Holder shall
receive on the date on which such cash dividend is distributed to holders of Common Stock, for each
$1,000 in principal amount of Notes, the amount of cash such Holder would have received had such
Holder owned a number of shares equal to the Conversion Rate on the Ex-Date for such dividend or
distribution, without being required to convert the Notes. If such dividend or distribution is not
so paid or made, the Conversion Rate shall again be adjusted to be the
82
Conversion Rate that would
then be in effect if such dividend or distribution had not been declared.
For the avoidance of doubt, for purposes of this subsection (d), in the event of any
reclassification of the Common Stock, as a result of which the Notes become convertible into more
than one class of Common Stock, if an adjustment to the Conversion Rate is required pursuant to
this subsection (d), references in this Section 12.04 to one share of Common Stock or Last Reported Sale Price
of one share of Common Stock shall be deemed to refer to a unit or to the price of a unit
consisting of the number of shares of each class of Common Stock into which the Notes are then
convertible equal to the numbers of shares of such class issued in respect of one share of Common
Stock in such reclassification. The above provisions of this paragraph shall similarly apply to
successive reclassifications.
(e) In case the Company or any of its Subsidiaries make a payment in respect of a tender
offer or exchange offer for all or any portion of the Common Stock, to the extent that the cash
and value of any other consideration included in the payment per share of Common Stock exceeds
the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading
Days beginning on, and including, the Trading Day next succeeding the last date on which tenders
or exchanges may be made pursuant to such tender or exchange offer, the Conversion Rate shall be
increased based on the following formula:
|
|
|
|
|
|
|
CR = CR
0
×
|
|
AC+ (SP × OS)
|
|
|
|
|
|
|
|
|
|
OS
0
× SP
|
where,
CR
0
= the Conversion Rate in effect on the date such tender or exchange offer
expires;
CR = the Conversion Rate in effect at the close of business on the 10
th
Trading
Day from the Trading Day next succeeding the date such tender or exchange offer expires;
AC = the aggregate value of all cash and any other consideration as determined by the Board
of Directors or a committee thereof paid or payable for shares purchased in such tender or
exchange offer;
OS
0
= the number of shares of Common Stock outstanding immediately prior to the
date such tender or exchange offer expires;
OS = the number of shares of Common Stock outstanding immediately after the date such
tender or exchange offer expires (after giving effect to such tender offer or exchange
offer); and
SP = the average of the Last Reported Sale Price of Common Stock over the 10 consecutive
Trading Day period beginning on, and including, the Trading Day next succeeding the date
such tender or exchange offer expires.
Such adjustment to the Conversion Rate shall become effective immediately at the close of
business on the 10
th
Trading Day from the Trading Day next succeeding the date such
tender
83
or exchange offer expires; provided that in respect of any conversion with 10 Trading Days
immediately following, and including, the expiration date of any tender or exchange offer,
references in this Section 12.04(e) with respect to 10 consecutive Trading Days shall be deemed
replaced with such lesser number of Trading Days as have elapsed between the expiration date
of such tender or exchange offer and the Conversion Rate in determining the applicable Conversion
Rate. If the Company or its subsidiary is obligated to purchase shares of Common Stock pursuant to
any such tender or exchange offer, but the Company or its subsidiary is permanently prevented by
applicable law from effecting all or any such purchases or all or any portion of such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be
in effect if such tender or exchange offer had not been made or had only been made in respect of
the purchases that had been effected.
If the application of any of the foregoing formulas (other than in respect of a share
combination) would result in a decrease in the Conversion Rate, no adjustment to the Conversion
Rate will be made.
For purposes of this Section 12.04 the term
record date
shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of Common Stock have the right to
receive any cash, securities or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash, securities or other property,
the date fixed for determination of shareholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors or by statute, contract or
otherwise).
(f) In addition to those required by subsections (a), (b), (c), (d) and (e) of this Section 12.04, and
to the extent permitted by applicable law and the rules of the New York Stock Exchange or any
other securities exchange on which the Common Stock is then listed, the Company from time to time
may increase the Conversion Rate by any amount for a period of at least 20 Trading Days if the
Board of Directors determines that such increase would be in the Companys best interest. If the
Company makes such determination, it will be conclusive and the Company will notify the Holders
of the Notes and the Trustee of the increased Conversion Rate and the period during which it will
be in effect at least 15 calendar days prior to the date the increased Conversion Rate takes
effect, in accordance with applicable law. The Company may also, but is not required to,
increase the Conversion Rate to avoid or diminish any income tax to holders of Common Stock or
rights to purchase Common Stock in connection with a dividend or distribution of shares or rights
to acquire shares or similar event.
84
If the Company has in effect a rights plan upon a conversion of the Notes into Common
Stock and the rights have not separated from the Common Stock, Holders will receive, upon a
conversion of the Notes in respect of which the Company is required to deliver shares of
Common Stock, in addition to such shares of Common Stock, rights under the Companys rights
plan. If prior to any conversion, the rights have separated from the Common Stock, the
Conversion Rate will be adjusted at the time of separation as if the Company had
distributed to all holders of Common Stock, Capital Stock, evidences of Indebtedness or
other assets or property pursuant to Section 12.02(c) hereof, subject to readjustment upon
the subsequent expiration, termination or redemption of such rights.
(g) Except as described in this Section 12.04 or in Section 12.01(e), the Company will not
adjust the Conversion Rate. Without limiting the foregoing, no adjustment to the Conversion Rate
need be made:
(i) upon the issuance of any shares of Common Stock pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on securities of the
Company and the investment of additional optional amounts in shares of Common Stock under
any plan;
(ii) upon the issuance of any shares of Common Stock or options or rights to purchase
or acquire those shares of Common Stock pursuant to any present or future employee, director
or consultant benefit plan or program of or assumed by the Company or any of its
Subsidiaries;
(iii) upon the issuance of any shares of Common Stock pursuant to any option, warrant,
right or exercisable, exchangeable or convertible security not described in clause (ii)
above and outstanding as of the date of this Supplemental Indenture;
(iv) for a change in the par value of the Common Stock; or
(v) for accrued and unpaid interest.
(h) All calculations and other determinations under this ARTICLE 12 shall be made by the
Company and shall be made to the nearest cent or to the nearest one-ten thousandth (1/10,000) of
a share, as the case may be. No adjustment shall be made to the Conversion Rate unless such
adjustment would require an increase of at least 1% in the Conversion Rate then in effect at such
time. The Company shall carry forward any adjustments that are less than 1% of the Conversion
Rate and make such carried forward adjustments, regardless of whether the aggregate adjustment is
less than 1%, upon the earliest of (1) any Notes that are converted upon such conversion (with
such adjustments to be made on each day and for each adjustment event occurring during the
applicable Observation Period) and (2) such time as all adjustments that have not been made prior
thereto would have the effect of adjusting the Conversion Rate by at least 1%.
(i) In any case in which this Section 12.04 provides that an adjustment shall become
effective immediately (1) on the Ex-Date for an event or (2) after the last date on which tenders
or exchanges may be made pursuant to any tender or exchange offer pursuant to
85
subsection (e) of this Section 12.04 (each an
Adjustment Determination Date
), the Company
may elect to defer until the occurrence of the applicable Adjustment Event (as hereinafter
defined) (x) issuing to the Holder of any Note converted after such Adjustment Determination Date
and before the occurrence of such Adjustment Event, the additional shares of Common Stock or
other securities issuable upon such conversion by reason of the adjustment required by such
Adjustment Event over and above the amounts deliverable upon such conversion before giving effect
to such adjustment and (y) paying to such Holder any amount in cash in lieu of any fraction
pursuant to Section 12.03. For purposes of this subsection (i), the term
Adjustment Event
shall mean:
(i) in any case referred to in clause (1) hereof, the date any dividend or distribution
of Common Stock, shares of Capital Stock, evidences of Indebtedness, other assets or
property or cash is paid or made, the effective date of any share split or combination or
the date of expiration of any rights or warrants, and
(ii) in any case referred to in clause (2) hereof, the date a sale or exchange of
Common Stock pursuant to such tender or exchange offer is consummated and becomes
irrevocable.
(j) For purposes of this Section 12.04, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
(k) [Reserved].
(l) With respect to a conversion of Notes pursuant to this ARTICLE 12, on the date the
shares of Common Stock issuable upon conversion of the Notes are delivered to the converting
Holder pursuant to Section 12.02(a) (the
Delivery Date
), the Person in whose name any
certificate representing any shares of Common Stock issuable upon such conversion is registered
shall be treated as a stockholder of record of the Company on such Delivery Date. On and after
the Delivery Date with respect to a conversion of Notes pursuant hereto, all rights of the
Holders of such Notes shall terminate. A Holder of a Note is not entitled, as such, to any
rights of a holder of Common Stock unless and until such Holder converts such Note and receives
shares of Common Stock in respect of such conversion on the Delivery Date with respect to such
conversion.
(m) Whenever any provision of this ARTICLE 12 requires a calculation of Last Reported Sale
Prices over a span of multiple days, the Company shall make appropriate adjustments to account
for any adjustment to the Conversion Rate that becomes effective, or any event requiring an
adjustment to the Conversion Rate where the Ex-Date of the event occurs, at any time during the
period from which such calculation is to be calculated;
provided
that such adjustments shall only
be made to the Conversion Rate relating to days prior to the date that the adjustment to the
Conversion Rate becomes effective.
(n) Notwithstanding anything else to the contrary contained herein, but subject to the
limitations and exceptions contained in Section 12.04(g), in the event that, at any time or from
86
time to time after the Original Issue Date, the Company shall issue Common Stock or
securities convertible, directly or indirectly, into Common Stock at a price, conversion price or
exercise price (as the case may be, assuming that any such security is designed to be converted
into Common Stock) less than the Conversion Price then in effect hereunder, then the Conversion
Rate shall be adjusted such that the Conversion Price is reduced to such lower price, conversion
price or exercise price, as the case may be, set in such issuance of Common Stock or securities
convertible, directly or indirectly, into Common Stock. If an adjustment is to the Conversion
Rate may be made under this Section 12.04(n) and any of paragraphs (a) through (e) of this
Section 12.04, then only the adjustment that results in the largest adjustment to the Conversion
Rate shall be made.
SECTION 12.05.
Notice of Adjustments of Conversion Rate.
Whenever the Conversion Rate is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Rate in accordance with Section 12.04
and shall prepare a certificate signed by an authorized officer of the Company setting forth the
adjusted Conversion Rate and showing in reasonable detail the facts upon which such adjustment is
based, and such certificate shall promptly be filed with the Trustee and with each Conversion
Agent (if other than the Trustee); and
(b) upon each such adjustment, a notice stating that the Conversion Rate has been adjusted
and setting forth the adjusted Conversion Rate shall be required, such notice shall be provided
by the Company to all Holders in accordance with Section 1.6 of the Base Indenture.
Neither the Trustee nor any Conversion Agent shall be under any duty or responsibility with
respect to any such certificate or the information and calculations contained therein, except to
exhibit the same to any Holder desiring inspection thereof at its office during normal business
hours or in such other manner of inspection as the Trustee deems reasonably practicable.
SECTION 12.06.
Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from preemptive rights, out of
its authorized but unissued Common Stock, for the purpose of effecting the conversion of Notes, the
full number of shares of Common Stock then issuable upon the conversion of all Outstanding Notes.
The Company covenants that all shares of Common Stock issued upon conversion of Notes shall be
fully paid and non-assessable by the Company and free from all liens created by the Company.
SECTION 12.07.
Taxes on Conversions.
Except as provided in the next sentence, the Company shall pay all documentary, stamp or
similar issue or transfer tax due that may be payable in respect of the issue or delivery of shares
of Common Stock on conversion of Notes pursuant hereto. The Company shall not, however, be
required, and the Holder shall instead be required, to pay any tax or duty that may be payable in
respect of (i) income of the Holder, or (ii) any transfer involved in the issue and
87
delivery of shares of Common Stock in a name other than that of the Holder of the Note or
Notes to be converted, and no such issue or delivery shall be made unless and until the Person
requesting such issue has paid to the Company the amount of any such tax or duty, or has
established to the satisfaction of the Company that such tax or duty has been paid.
SECTION 12.08.
Certain Covenants.
(a) Before taking any action which would cause an adjustment reducing the Conversion Rate
below the then par value, if any, of the shares of Common Stock issuable upon conversion of the
Notes, the Company shall take all corporate action, if any, which it reasonably determines may be
necessary in order that the Company may validly and legally issue shares of such Common Stock at
such adjusted Conversion Rate.
(b) The Company covenants that, if any shares of Common Stock to be provided for the purpose
of conversion of Notes hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly issued upon conversion,
the Company will use all commercially reasonable efforts, to the extent then permitted by the rules
and interpretations of the Commission or such other applicable governmental authority, to secure
such registration or approval in connection with the conversion of Notes.
(c) The Company further covenants that if at any time the Common Stock shall be listed on any
national securities exchange or automated quotation system the Company will, if permitted and
required by the rules of such exchange or automated quotation system, list and keep listed, so long
as the Common Stock shall be so listed on such exchange or automated quotation system, all Common
Stock issuable upon conversion of the Notes.
SECTION 12.09.
Cancellation of Converted Notes.
All Notes delivered for conversion shall be delivered to the Trustee or its agent and canceled
by the Trustee as provided in Section 3.12.
SECTION 12.10.
Provision in Case of Effect of Reclassification, Consolidation, Merger or
Sale.
If there shall occur (i) any Fundamental Change described in clause (2) of the definition of
Fundamental Change, (ii) any reclassification or change of the outstanding shares of Common Stock
(other than a change in par value, or from par value to no par value, or from no par value to par
value, or as a result of a split, subdivision or combination), (iii) any consolidation, binding
share exchange, recapitalization, reclassification, merger, combination or other similar event, or
(iv) any sale or conveyance of all or substantially all of the property and assets of the Company
to any other Person, in any case as a result of which holders of Common Stock shall be entitled to
receive cash, securities or other property or assets with respect to or in exchange for their
shares of Common Stock (any such event described in clauses (i) through (iv) a
Merger Event
),
then:
(a) the Company or the successor or purchasing Person, as the case may be, shall execute
with the Trustee (subject to the Trustees rights as provided herein) a supplemental
88
indenture (which shall comply with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture if such supplemental indenture is then required to so
comply) permitted under Section 8.01(i) providing for the conversion and settlement of the Notes
as set forth in this Supplemental Indenture. Such supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided
for in this ARTICLE 12 and the Trustee may conclusively rely on the determination by the Company
of the equivalency of such adjustments. If, in the case of any Merger Event, the Reference
Property includes shares of stock or other securities and assets of a company other than the
successor or purchasing company, as the case may be, in such change of control, consolidation,
binding share exchange, recapitalization, reclassification, merger, combination, sale or
conveyance or Fundamental Change described in clause (2) of the definition of Fundamental Change,
then such supplemental indenture shall also be executed by such other company and shall contain
such additional provisions to protect the interests of the Holders of the Notes as the Board of
Directors shall reasonably consider necessary by reason of the foregoing, including to the extent
required by the Board of Directors and practicable the provisions providing for the repurchase
rights set forth in ARTICLE 11.
In the event a supplemental indenture is executed pursuant to this Section 12.10, the Company
shall promptly file with the Trustee an Officers Certificate (and the documents and information
provided for in Section 9.03 of the Base Indenture) briefly stating the reasons therefor, the kind
or amount of cash, securities, property or assets that will constitute the Reference Property after
any such Merger Event, any adjustment to be made with respect thereto and that all conditions
precedent have been complied with, and shall promptly mail notice thereof to all Holders, and the
Trustee shall be protected in relying on such Officers Certificate; it being understood that the
Trustee shall have no responsibility to determine the correctness of any provisions contained in
any supplemental indenture executed pursuant to this Section 12.10.
If any securities to be provided for the purpose of conversion of Notes hereunder require
registration with or approval of any governmental authority under any federal or state law before
such securities may be validly issued upon conversion, each supplemental indenture executed
pursuant to this Section 12.10 shall provide that the Company or the successor or the purchasing
Person, as the case may be, or if the Reference Property includes shares of stock or other
securities and assets of a company other than the successor or purchasing company, as the case may
be, then such company, shall use all commercially reasonable efforts, to the extent then permitted
by the rules and interpretations of the Commission (or any successor thereto), to secure such
registration or approval in connection with the conversion of Notes.
Notwithstanding the provisions of Section 12.02 and Section 12.03, and subject to the
provisions of Section 12.01, at the effective time of such Merger Event, the right to convert each
$1,000 in principal amount of Notes shall be changed to a right to convert such Notes by reference
to the kind and amount of cash, securities, or other property that a holder of a number of shares
of Common Stock equal to the Conversion Rate immediately prior to such transaction would have owned
or been entitled to receive (the
Reference Property
) such that from and after the effective time
of such transaction, a Holder shall be entitled thereafter to convert its Notes into the same type
(and in the same proportion) of Reference Property, subject to the Companys right to settle
conversions, if applicable, in shares of Common Stock;
provided
that, upon conversion, Holders will
receive Reference Property as follows: (x) cash and (y) in lieu of
89
the shares of Common Stock otherwise deliverable, Reference Property. The amount of
consideration, and, consequently, Reference Property, Holders receive upon conversion will be based
on the Daily Conversion Values of Reference Property and the applicable Conversion Rate, as
described in Section 12.02. For purposes of determining the constitution of Reference Property, the
type and amount of consideration that a holder of Common Stock would have been entitled to in the
case of any Merger Event that causes the Common Stock to be converted into the right to receive
more than a single type of consideration determined, based in part upon any form of stockholder
election, such consideration will be deemed to be (i) if holders of the majority of shares of
Common Stock affirmatively make such an election, the weighted average of the types and amounts of
consideration received by the holders of Common Stock, or (ii) if the holders of a majority of
Common Stock do not affirmatively make such an election, the types and amount of consideration
actually received by such holders. The Company shall not become a party to any such transaction
unless its terms are consistent with the preceding. None of the foregoing provisions shall affect
the right of a Holder to convert its Notes in accordance with the provisions of this ARTICLE 12
prior to the effective date.
(b) The Company shall cause notice of the execution of such supplemental indenture to be
mailed to each Holder, at his address appearing on the Securities Register provided for in this
Supplemental Indenture, within 20 calendar days after execution thereof. Failure to deliver such
notice shall not affect the legality or validity of such supplemental indenture.
(c) The above provisions of this Section 12.10 shall similarly apply to successive Merger
Events.
SECTION 12.11.
Company Responsible for Making Calculations.
Except as otherwise provided herein, the Company will be responsible for making all
calculations required under the Notes and this Supplemental Indenture. The Company will make these
calculations in good faith and absent manifest error, these calculations will be final and binding
on the Holders. The Company will provide a schedule of such calculations to each of the Trustee
and the Conversion Agent, and each of the Trustee and the Conversion Agent is entitled to
conclusively rely upon the accuracy of such calculations without independent verification. The
Trustee will forward the Companys calculations to any Holder upon the written request of such
Holder.
SECTION 12.12.
Responsibility of Trustee for Conversion Provisions.
The Trustee and any Conversion Agent shall not at any time be under any duty or responsibility
to any Holder to determine whether any facts exist which may require any adjustment of the
Conversion Rate, or with respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, herein or in any supplemental indenture provided to be employed, in
making the same, or whether a supplemental indenture need be entered into. Neither the Trustee nor
any Conversion Agent shall be accountable with respect to the validity or value (or the kind or
amount) of any Common Stock, or of any other securities or property or cash, which may at any time
be issued or delivered upon the conversion of any Notes; and it or they do not make any
representation with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to make or
90
calculate any cash payment or to issue, transfer or deliver any shares of Common Stock or
share certificates or other securities or property or cash upon the surrender of any Note for the
purpose of conversion; and the Trustee and any Conversion Agent shall not be responsible for any
failure of the Company to comply with any of the covenants of the Company contained in this ARTICLE
12.
This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.
91
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed all as of the day and year first above written.
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LAS VEGAS SANDS CORP.
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By:
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/s/ William P. Weidner
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Name:
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William P. Weidner
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Title:
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President, Chief Operating
Officer and Secretary
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[Signature Page to Supplemental Indenture]
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U.S. BANK NATIONAL ASSOCIATION
,
as Trustee
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By:
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/s/ Richard Prokosch
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Name:
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Richard Prokosch
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Title:
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Vice President
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[Signature Page to Supplemental Indenture]
SCHEDULE A
The following table sets forth the hypothetical Stock Price, Make-Whole Reference Date and
the adjustments to the Conversion Rate, expressed as a number of Additional Shares by which the
Conversion Rate shall be increased in the event of a Fundamental Change (other than events
described in clauses (3) of the definition of a Fundamental Change), in accordance with the
Supplemental Indenture:
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Make-Whole Reference Date
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September
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October
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October
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October
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October
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October
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Stock Price
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30, 2008
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1, 2009
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1, 2010
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1, 2011
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1, 2012
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1, 2013
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$
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33.10
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10.0705
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10.0705
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10.0705
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10.0705
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10.0705
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10.0705
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$
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34.00
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9.6662
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9.2708
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9.2708
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9.2708
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9.2708
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9.2708
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$
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35.00
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9.2600
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8.7659
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8.4304
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8.4304
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8.4304
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8.4304
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$
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36.00
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8.8822
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8.3739
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7.8525
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7.6368
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7.6368
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7.6368
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$
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37.00
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8.5303
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8.0100
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7.4655
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6.9683
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6.8860
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6.8860
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$
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38.00
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8.2019
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7.6716
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7.1072
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6.5682
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6.1748
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6.1748
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$
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40.00
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7.6075
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7.0624
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6.4666
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5.8588
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5.1808
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4.8590
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$
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42.00
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7.0849
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6.5308
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5.9131
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5.2533
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4.4603
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3.6685
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$
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45.00
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6.4115
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5.8522
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5.2154
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4.5033
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3.5905
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2.0812
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$
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50.00
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5.5155
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4.9628
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4.3200
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3.5704
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2.5656
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0.0000
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$
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55.00
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4.8248
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4.2899
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3.6611
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2.9134
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1.9048
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0.0000
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$
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60.00
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4.2790
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3.7677
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3.1636
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2.4399
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1.4754
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0.0000
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$
|
65.00
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3.8388
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3.3534
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2.7792
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2.0907
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1.1921
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0.0000
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$
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70.00
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3.4771
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3.0183
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2.4757
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1.8271
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1.0007
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0.0000
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$
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80.00
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2.9198
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2.5118
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2.0312
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1.4628
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0.7710
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0.0000
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$
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90.00
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2.5116
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2.1487
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1.7237
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1.2267
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0.6422
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0.0000
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$
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100.00
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2.1999
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1.8761
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1.4987
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1.0616
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0.5586
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0.0000
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$
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125.00
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1.6692
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|
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1.4199
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|
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1.1315
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0.8020
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|
|
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0.4293
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|
0.0000
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$
|
150.00
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1.3337
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|
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1.1354
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0.9065
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|
0.6455
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0.3488
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0.0000
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$
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175.00
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1.1012
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0.9392
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0.7519
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0.5375
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0.2919
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0.0000
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$
|
200.00
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0.9301
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0.7949
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0.6380
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|
|
0.4576
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|
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0.2494
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0.0000
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$
|
250.00
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0.6942
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0.5957
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0.4804
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|
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|
0.3465
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|
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0.1898
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0.0000
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$
|
300.00
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|
|
|
0.5392
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|
|
|
0.4644
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|
|
|
0.3761
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|
|
|
0.2725
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|
|
|
0.1501
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|
|
|
0.0000
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$
|
350.00
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|
|
|
0.4298
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|
|
|
0.3714
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|
|
|
0.3019
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|
|
|
0.2197
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|
|
|
0.1218
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|
|
|
0.0000
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|
$
|
400.00
|
|
|
|
0.3487
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|
|
|
0.3021
|
|
|
|
0.2464
|
|
|
|
0.1802
|
|
|
|
0.1005
|
|
|
|
0.0000
|
|
[Schedule A]
Exhibit 10.1
Execution Version
CONVERTIBLE NOTE PURCHASE AGREEMENT
CONVERTIBLE NOTE PURCHASE AGREEMENT, dated September 30, 2008 (this
Agreement
), is
entered into by and among Las Vegas Sands Corp. (the
Company
) and the person listed on
Schedule A
(the
Purchaser
), and relates to the purchase by the Purchaser of
$475,000,000 in aggregate principal amount of the Notes (as defined below).
WHEREAS, the Board of Directors of the Company and a Special Committee of the Board of
Directors of the Company have determined it is in the best interests of the Company to issue and
sell to the Purchaser the Notes (as defined below) on the terms and subject to the conditions set
forth in this Agreement.
WHEREAS, the Company wishes to issue and sell to the Purchaser, and the Purchaser wishes to
purchase, the Notes (as defined below) on the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1
Definitions
. As used in this Agreement, and unless the context requires a
different meaning, the following terms shall have the meanings set forth below:
10-Q Reference Date
has the meaning set forth in
Section 3.7
of this
Agreement.
2004 Equity Award Plan
means the Las Vegas Sands Corp. 2004 Equity Award Plan, as
amended by the First Amendment thereto, dated February 5, 2007.
Amended and Restated Registration Rights Agreement
means the Amended and Restated
Registration Rights Agreement, dated as of September 30, 2008, among the Company and the
stockholders named therein.
Approval Default
has the meaning set forth in
Section 5.7
of this Agreement.
Approval Fee
has the meaning set forth in
Section 5.7
of this Agreement.
Approvals
means (i) obtaining an Effective Stockholder Consent or any other
shareholder approval required under the rules and regulations of the New
York Stock Exchange, (ii)
the listing of the Common Stock issuable upon conversion of the Notes on the New York Stock
Exchange, (iii) the receipt of any approval required in connection with the transactions
contemplated by the Note Documents (and the issuance of the Underlying Shares upon conversion of
the Notes) pursuant to any regulations of the Nevada Gaming Commission, the general laws, specific
gaming laws, various regulations and licensing and regulatory control of the Macau government and
Gaming Inspection and Coordination Bureau, the Pennsylvania Gaming Control Board and the government
of the State of Pennsylvania, the Singapore Tourism Board and the Singapore government and any
other Governmental Authority charged with regulating any gaming activity conducted by the Company
and (iv) receipt of any approval of any other applicable Governmental Authority necessary in
connection with the transactions contemplated by the Note Documents (and the issuance of the
Underlying Shares upon conversion of the Notes) (including Hart-Scott-Rodino clearance, to the
extent necessary) and the expiration of all applicable waiting periods.
Authorization
has the meaning set forth in
Section 3.21
of this Agreement.
Capital Stock
(i) of any Person that is a corporation, means any and all shares,
interests, participations, rights or other equivalents (however designated) of corporate stock; and
(ii) of any other Person, means any and all partnership, membership or other equity interests of
such Person.
Code
has the meaning set forth in
Section 3.26
of this Agreement.
Commission
means the Securities and Exchange Commission or any similar agency then
having jurisdiction to enforce the Securities Act.
Common Stock
means the shares of the Companys common stock, par value $0.001 per
share.
Consolidated Historical Financial Statements
has the meaning set forth in
Section 3.20
of this Agreement.
Convertibility Date
means the date on which the Company obtains each of the required
Approvals.
Credit Agreement
means the Credit and Guarantee Agreement, dated as of May 23, 2007,
by and among Las Vegas Sands, LLC, the affiliates of Las Vegas Sands, LLC named therein as
guarantors, the lenders party hereto from time to time, The Bank of Nova Scotia, as administrative
agent for the lenders and as collateral agent, Goldman Sachs Credit Partners L.P., Lehman Brothers
Inc. and Citigroup Global
Markets Inc., as joint lead arrangers and joint bookrunners and as syndication agents, and
JPMorgan Chase Bank, as documentation agent.
Effective Stockholder Consent
means the effectiveness of the Stockholder Consent
upon the passage of 20 calendar days following the distribution of
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Convertible Note Purchase Agreement
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Page 2 of 26
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the Information Statement to the holders of Common Stock pursuant to
Section 5.2
hereof and in accordance with the applicable rules and regulations of the Commission.
Equity Interests
of any Person means (i) Capital Stock of such Person or (ii)
warrants or options exercisable for, other securities convertible into or exchangeable for, or
other rights to acquire (whether by conversion, exercise, exchange or otherwise) Capital Stock of
such Person.
Environmental Laws
has the meaning set forth in
Section 3.28
of this
Agreement.
ERISA
has the meaning set forth in
Section 3.26
of this Agreement.
Exchange Act
means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder.
FF&E Agreement
means the Amended and Restated FF&E Credit and Guarantee Agreement,
dated as of August 21, 2007, by and among Las Vegas Sands, LLC, as the borrower, certain affiliates
of the borrower as guarantors, the lenders party thereto from time to time, General Electric
Capital Corporation, as administrative agent for the lenders and as collateral agent and GE Capital
Markets, Inc., as lead arranger and bookrunner.
Governmental Authority
means the government of any nation, state, city, locality or
other political subdivision of any thereof, any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
Indenture
means the indenture, dated as of September 30, 2008, as supplemented by
the supplemental indenture, dated as of September 30, 2008, between U.S. Bank, National
Association, as trustee, and the Company, in the form attached as
Exhibit A
hereto.
Information Statement
has the meaning set forth in
Section 5.2
of this
Agreement.
Intellectual Property
has the meaning set forth in
Section 3.22
of this
Agreement.
Investor Rights Agreement
means the Investor Rights Agreement, dated as of the
Closing Date, by and among the Company and the Purchaser.
Material Adverse Effect
has the meaning set forth in
Section 3.7
of this
Agreement.
Material Subsidiaries
has the meaning set forth in
Section 3.9
of this
Agreement.
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Money Laundering Laws
has the meaning set forth in
Section 3.30
of this
Agreement.
Note Documents
means this Agreement, the Indenture, the Notes and the Amended and
Restated Registration Rights Agreement.
Notes
means the Companys 6
1
/
2
% Convertible Senior Notes due 2013, issued by the
Company pursuant to the Indenture.
Person
means any individual, firm, corporation, partnership, limited liability
company, trust, incorporated or unincorporated association, joint venture, joint stock company,
Governmental Authority or other entity of any kind.
Recent Public Filings
has the meaning set forth in
Section 3.7
of this
Agreement.
Securities Act
means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission thereunder.
Stockholder Consent
means the written consent of holders of a majority of the
outstanding shares of Common Stock approving the issuance of Common Stock upon conversion of the
Notes in the form attached as
Exhibit B
hereto.
Subsidiary
or
Subsidiaries
means, with respect to any Person, any
corporation more than 50% of the Voting Stock of which is owned directly or indirectly by such
Person, and any partnership, association, joint venture or other entity in which such Person owns
more than 50% of the equity interests or has the power to elect a majority of the board of
directors or other governing body.
Trustee
means U.S. Bank, National Association, or any successor trustee under the
Indenture.
Underlying Shares
means the shares of Common Stock into which the Notes are
convertible.
Voting Stock
, as applied to the stock of any corporation, means stock of any class
or classes (however designated) having by the terms thereof ordinary voting power to elect a
majority of the members of the board of directors (or other governing body) of such corporation
other than stock having such power only by reason of the happening of a contingency.
ARTICLE 2
PURCHASE AND SALE OF NOTES
2.1
Issue and Sale of Notes
. Subject to the terms and conditions herein set forth,
the Company agrees to issue and sell to the Purchaser the aggregate principal amount of Notes set
forth opposite the Purchasers name on
Schedule A
to this
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Agreement, and the Purchaser
agrees to pay the Company the purchase price set forth opposite the Purchasers name on
Schedule A
to this
Agreement (the
Purchase Price
).
2.2
Closing
. The purchase of Notes shall take place at the closing (the
Closing
) to be held at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP, on
the date hereof (the
Closing Date
). Subject to the satisfaction of the conditions
relating to the Closing set forth in
Section 2.3
and
Section 2.4
, at the Closing,
(x) the Company shall issue a Note in the aggregate principal amount set forth opposite the
Purchasers name on
Schedule A
to this Agreement, dated the Closing Date and registered in
the Purchasers name (or in the name of its nominee), the Trustee will authenticate such Note, and
the Company shall deliver such issued and authenticated Note to the Purchaser and (y) the Purchaser
shall pay to the Company the Purchase Price by wire transfer of immediately available funds to the
account or accounts designated by the Company in writing to the Purchaser prior to the Closing.
2.3
Company Conditions to Closing
. The obligations of the Company to be performed at
the Closing shall be subject to the satisfaction of the condition that the representations and
warranties set forth in
Article IV
of the Purchaser shall be true and correct on and as of
the Closing Date.
2.4
Purchaser Conditions to Closing
. The obligations of the Purchaser to be
performed at the Closing shall be subject to the satisfaction of the following conditions:
(a)
Representations and Warranties
. The representations and warranties set forth in
Article III shall be true and correct on and as of the Closing Date.
(b)
Certificates; Resolutions
. The Purchaser shall have received a certificate of the
Secretary or Assistant Secretary of the Company setting forth (a) resolutions of the Board of
Directors of the Company with respect to the authorization of the Company to execute, deliver and
perform its obligations under each Note Document to which it is a party, issue the Notes and enter
into the transactions contemplated by the Note Documents, (b) the officers of the Company who are
authorized to sign the Notes and the other Note Documents, (c) specimen signatures of
such authorized officers, and (d) the Amended and Restated Articles of Incorporation and
Amended and Restated Bylaws of the Company certified as being true and complete. The Purchaser
shall have received a copy of resolutions of the Special Committee of the Board of Directors of the
Company recommending that the Board of Directors of the Company approve the transactions
contemplated by the Note Documents. The Purchaser shall have received a certificate of an officer
of the Company certifying as to such matters as the Purchaser may reasonably specify.
(c)
Note Documents
. The Purchaser shall have received from the Company counterparts
of each Note Document (other than the Notes) signed on behalf of each party thereto other than the
Purchaser.
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(d)
Notes
. The Purchaser shall have received each Note that is to be issued to the
Purchaser at the Closing.
(e)
Opinions
. The Purchaser shall have received written opinions, addressed to it,
issued by (i) Paul, Weiss, Rifkind, Wharton & Garrison LLP, securities counsel to the Company, (ii)
Lionel Sawyer & Collins, Nevada counsel to the Company, and (iii) Snell & Wilmer LLP, Nevada gaming
counsel to the Company, in each case, in form and substance satisfactory to the Purchaser.
(f)
Purchase Permitted by Applicable Law, etc
. On the Closing Date, (a) the
Purchasers purchase of the Notes to be purchased by the Purchaser at the Closing shall (i) be
permitted by the laws and regulations of each jurisdiction to which the Purchaser is subject, (ii)
not violate any applicable law or regulation (including, without limitation, Regulation T, U or X
of the Board of Governors of the Federal Reserve System) and (iii) not subject the Purchaser to any
tax, penalty or liability under or pursuant to any applicable law or regulation, and (b) no
litigation shall be pending or threatened, which does or, with respect to any threatened
litigation, seeks to, enjoin, prohibit or restrain, the purchase or repayment of any Notes or the
consummation of the transactions contemplated by this Agreement or any other Note Document. If
requested by the Purchaser, the Purchaser shall have received a certificate of an officer of the
Company certifying as to such matters of fact as the Purchaser may reasonably specify to enable the
Purchaser to determine whether the Purchasers receipt of such Notes is so permitted.
(g)
Default
. At the time of and immediately after giving effect to each purchase of
the Notes contemplated hereby, no event that would constitute a Default or Event of Default
under the terms of the Indenture shall have occurred and be continuing.
(h)
Note Documents
. Each of the Note Documents relating to the Purchasers investment
in the Notes shall have been executed and delivered in a form acceptable to the Purchaser.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to, and agrees with, the Purchaser as follows:
3.1 The Company has the full power and authority to execute and deliver, and perform its
obligations under this Agreement and the other Note Documents and to issue and sell the Notes and
to consummate the transactions contemplated hereby and thereby. The execution and delivery by the
Company of this Agreement and the other Note Documents, the issuance and sale of the Notes, and the
consummation by the Company of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of the Company
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and no other corporate
proceedings on the part of the Company are necessary to approve this Agreement or any other Note
Document, the issuance and sale of the Notes, or the consummation of the transactions contemplated
hereby and thereby. The Companys Board of Directors has authorized the stockholders of the
Company to act by written consent to approve the issuance of Common Stock upon conversion of the
Notes. The Company has duly executed and delivered this Agreement and the other Note Documents,
and, assuming due execution and delivery of this Agreement by the Purchaser, due execution and
delivery of the Indenture by the Trustee, and due authentication of the Notes by the Trustee, this
Agreement and the other Note Documents constitute the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their respective terms, except (i) as
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance or transfer, moratorium or similar laws affecting the enforcement of creditors rights
generally or by equitable principles relating to enforceability and (ii) to the extent that the
indemnification and contribution provisions of the Investor Rights Agreement and the Amended and
Restated Registration Rights Agreement may be unenforceable by virtue of contravening public
policy.
3.2 The Underlying Shares have been duly authorized and, when issued upon conversion of the
Notes against payment of the conversion price, will be validly issued, fully paid and nonassessable
and will conform in all material respects to the description of the Common Stock set forth under
the caption Description of Capital Stock in the Companys Registration Statement on Form S-1
(File No. 333-131845) filed on February 14, 2006.
(a) The Board of Directors of the Company has duly and validly adopted resolutions initially
reserving 9,566,975 shares of Common Stock for the purpose of enabling the Company to satisfy any
obligations to issue and deliver Underlying Shares upon conversion of the Notes.
(b) Other than pursuant to the Investor Rights Agreement, no Person is entitled to preemptive
or other rights to subscribe for the Notes or Underlying Shares.
3.3 Neither the execution and delivery of this Agreement, the Indenture and the Notes, the
issuance and sale of the Notes, nor the consummation of the transactions contemplated hereby and
thereby will conflict with or result in any violation of or constitute a default under any term of
any material agreement, mortgage, indenture, license, permit, lease, or other instrument, judgment,
decree, order, law, or regulation by which the Company or any of its Subsidiaries is bound.
3.4 Assuming the accuracy of the representations and warranties and compliance with the
covenants contained herein by the Purchaser, and the compliance by the Purchaser with the transfer
restrictions on the Notes set forth in the Indenture, no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency or body is required
by the Company or its Subsidiaries for the execution and delivery of this Agreement, the Indenture
and the Notes, the
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issuance and sale of the Notes, or the consummation by the Company of the
transactions contemplated hereby and thereby, except the filing with the Commission of the
Information Statement, the filing with the Commission of a Current Report on Form 8-K relating to
the execution and delivery of this Agreement, the Indenture and the Notes and the issuance and sale
of the Notes, and the listing of Common Stock issuable upon conversion of the Notes on the New York
Stock Exchange, and such consents, approvals, authorizations, orders, registrations and
qualifications that have been obtained and are in full force and effect as of the Closing Date.
3.5 Neither the Company nor any person acting on its behalf has offered to sell the Notes by
means of any form of general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act.
3.6 Except for the execution of the Stockholder Consent by holders of a majority of the
outstanding shares of Common Stock, no vote of the holders of any class or series of Capital Stock
of the Company (in their capacity as such holders) is necessary to approve or consummate the
transactions contemplated by this Agreement, the Indenture and the Notes, including the issuance of
the Notes to the Purchaser and the conversion of the Notes into Common Stock.
3.7 Neither the Company nor any of its Subsidiaries has sustained since the date of the latest
financial statements included in the Companys most recent quarterly report filed with the
Commission on Form 10-Q (the
10-Q Reference Date
) any material loss or interference with
its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree, otherwise than as set
forth in or contemplated by the Companys Annual Report filed with the Commission on Form 10-K for
the year ending December 31, 2007 and any other periodic or current reports filed with the
Commission thereafter (the Form 10-K together with such subsequent reports, the
Recent Public
Filings
); and, since the 10-Q Reference Date, there has not been any change in the Capital
Stock other than issuance of Common Stock pursuant to awards made under the 2004 Equity Award Plan
or any increase in the long-term debt (except as previously disclosed to the Purchaser) of the
Company or any of its Subsidiaries or any material adverse change, or any development that could
reasonably be expected to
result in a material adverse change, in or affecting the general affairs, management,
business, properties, prospects or condition (financial or other), stockholders equity or results
of operations of the Company and its subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Recent Public Filings (any such change or event, a
Material Adverse
Effect
).
3.8 The Company and its Subsidiaries have good and marketable title in fee simple to all
material real property and good and marketable title to all material personal property owned by
them, in each case free and clear of all liens, encumbrances and defects except such as are
described in the Recent Public Filings or such as do not materially affect the value of such
property and do not materially interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; and any real property and buildings held under lease by the
Company and its
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Subsidiaries are held by them under valid, subsisting and enforceable leases with
such exceptions as are described in the Recent Public Filings or are not material and do not
interfere with the use made and proposed to be made of such property and buildings by the Company
and its subsidiaries.
3.9 The Company has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Nevada with power and authority (corporate and other) to
own its properties and conduct its business as described in the Recent Public Filings and has been
duly qualified to do business as a foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, except where the failure to be so
qualified or in good standing would not, individually or in the aggregate, have a Material Adverse
Effect; and each of Las Vegas Sands, LLC, Venetian Casino Resort, LLC, Interface Group-Nevada,
Inc., Palazzo Condo Tower, LLC, Sands Pennsylvania, Inc., Sands Bethworks Gaming, LLC, Venetian
Venture Development, LLC, Venetian Venture Development Intermediate I, Venetian Venture Development
Intermediate II, Venetian Venture Development Intermediate Limited, Venetian Macau Limited,
Venetian Cotai Limited, Venetian Orient Limited, Cotai Waterjets (Macau) Limited, Cotai Waterjets
(HK) Limited, CotaiJet Holdings (II) Limited and Marina Bay Sands Pte. Ltd. (collectively, the
Material Subsidiaries
), each of which is a Subsidiary of the Company, has been duly
incorporated or organized and is validly existing as a corporation or limited liability company, as
the case may be, in good standing under the laws of its jurisdiction of incorporation or formation,
as the case may be; and each of the Subsidiaries of the Company, other than the Material
Subsidiaries, has been duly incorporated or organized and is validly existing as a corporation or
limited liability company, as the case may be, in good standing under the laws of its jurisdiction
of incorporation or formation, as the case may be, except where the failure to be in good standing
would not have a Material Adverse Effect.
3.10 The Company has an authorized capitalization as set forth in the Recent Public Filings,
all of the issued shares of Capital Stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; and all of the issued shares of Capital Stock or
other ownership interests, as the case may be,
of each subsidiary of the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and (except as otherwise set forth in the Recent Public Filings) and,
except for certain of the Companys Subsidiaries are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims.
3.11 Prior to the Closing Date, neither the Company nor any of its affiliates has taken any
action which is designed to or which has constituted or which might have been expected to cause or
result in stabilization or manipulation of the price of any security of the Company in connection
with the offering of the Notes.
3.12 The issuance and sale of the Notes and the compliance by the Company with all of the
provisions of the Notes, the Indenture and this Agreement and the consummation of the transactions
herein and therein contemplated will not conflict
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with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, (i) any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any
of the property or assets of the Company or any of its Subsidiaries is subject, (ii) the provisions
of the Amended and Restated Articles of Incorporation or Amended and Restated By-laws of the
Company or (iii) except for obtaining any Approvals in respect of the transactions contemplated by
the Note Documents and assuming the accuracy of the representations and warranties and compliance
with the covenants contained herein by the holders of the Notes with the transfer restrictions on
the Notes described in the Indenture, any statute applicable to the Company or any order, rule or
regulation applicable to the Company of any court or governmental agency or body having
jurisdiction over the Company or any of its Subsidiaries or any of their properties except, in the
case of clauses (i) and (iii), for such conflicts, breaches, violations or defaults as would not
have a Material Adverse Effect; and, assuming the accuracy of the representations and warranties
and compliance with the covenants contained herein by the holders of the Notes with the transfer
restrictions on the Notes described in the Indenture, no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency or body is required
by the Company or its Subsidiaries for the issue and sale of the Notes or the consummation by the
Company of the transactions contemplated by this Agreement or the Indenture, except filings made
pursuant to the Amended and Restated Registration Rights Agreement, filings related to the
transactions contemplated hereby on Schedule 13D or 13G, Form 4 and Form 8-K or under applicable
gaming laws with the Commission and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws or foreign securities
laws, as applicable, in connection with the purchase and distribution of the Notes and such
consents, approvals, authorizations, orders, registrations and qualifications that have been
obtained and are in full force and effect as of the Closing Date.
3.13 Neither the Company nor any of its Subsidiaries is (i) in violation of its Amended and
Restated Articles of Incorporation or Amended and Restated By-laws or limited liability company
agreement or similar organizational document, as applicable, or (ii) in default in the performance
or observance of any material
obligation, covenant or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a party or by which it or any of
its properties may be bound, except in the case of clause (ii) as would not have a Material Adverse
Effect.
3.14 Other than as set forth in the Recent Public Filings, there are no legal or governmental
proceedings pending to which the Company or any of its Subsidiaries is a party or of which any
property of the Company or any of its Subsidiaries is the subject which now have or could
reasonably be expected in the future to have a Material Adverse Effect; and, to the Companys
knowledge, no such proceedings are threatened or contemplated by governmental authorities or
threatened by others.
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3.15 The Company is not, and after giving effect to the offering and sale of the Notes and the
application of the proceeds thereof, will not be an investment company, as such term is defined
in the United States Investment Company Act of 1940, as amended.
3.16 The Company maintains a system of internal control over financial reporting (as such term
is defined in Rule 13a-15(f) under the Exchange Act) that complies with the requirements of the
Exchange Act. Each of the Company and its Subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with managements general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with managements general or specific authorization and (iv) the
recorded accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect thereto.
3.17 The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e) under the Exchange Act) that comply with the requirements of the Exchange Act; such
disclosure controls and procedures have been designed to ensure that material information relating
to the Company and its Subsidiaries is made known to the Companys principal executive officer and
principal financial officer by others within those entities; and such disclosure controls and
procedures are effective.
3.18 PricewaterhouseCoopers LLP, which has audited certain financial statements of the Company
and its subsidiaries, is an independent registered public accounting firm as required by the
Securities Act and the Exchange Act and the applicable rules and regulations of the Commission
thereunder.
3.19 The consolidated historical financial statements (the
Consolidated Historical
Financial Statements
) from the Companys preceding three full fiscal years and any fiscal
quarters since the conclusion of the Companys latest fiscal year contained in the Recent Public
Filings fairly present in all material respects
the consolidated financial position of the Company at the respective dates indicated and the
results of its operations and its cash flows for the respective periods indicated, in accordance
with U.S. generally accepted accounting principles consistently applied throughout such periods
(except as otherwise disclosed therein). Except as otherwise disclosed in such Consolidated
Historical Financial Statements or in any Recent Public Filings, the Consolidated Historical
Financial Statements are, in all material respects, prepared on a basis consistent with such
financial statements and the books and records of the Company.
3.20 Except for obtaining any Approvals in respect of the transactions contemplated by the
Note Documents, each of the Company and its Subsidiaries has complied in all respects with all
laws, regulations and orders applicable to it or its
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businesses including, without limitation, all
applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated
by the Commission thereunder, the laws of the State of Nevada, various regulations of the Nevada
Gaming Commission and the general laws, specific gaming laws, various regulations and licensing and
regulatory control of the Macau government and Gaming Inspection and Coordination Bureau, the
Pennsylvania Gaming Control Board and the government of the State of Pennsylvania, and the
Singapore Tourism Board and the Singapore government, in each case, other than as would not have a
Material Adverse Effect, or as otherwise described in the Recent Public Filings.
3.21 Except for obtaining any Approvals in respect of the transactions contemplated by the
Note Documents and except as would not, individually or in the aggregate, have a Material Adverse
Effect or as otherwise described in the Recent Public Filings, (i) each of the Company and its
Subsidiaries has all certificates, consents, exemptions, orders, permits, licenses, authorizations
or other approvals (each, an
Authorization
) of and from, and has made all declarations
and filings with, all federal, state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, necessary or required to engage in the business
currently conducted by it in the manner described in the Recent Public Filings; (ii) all such
Authorizations are valid and in full force and effect; and (iii) each of the Company and its
Subsidiaries is in compliance in all material respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory authorities and governing
bodies having jurisdiction with respect thereto.
3.22 Each of the Company and its Subsidiaries owns or possesses or has the right to use the
licenses, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks, service marks and
trade names (collectively, the
Intellectual Property
) presently employed by it in
connection with, and material to, individually or in the aggregate, its operations, except where
the failure to own, possess or have the right to use would not have a Material Adverse Effect; and
neither the Company nor any of its Subsidiaries have received any notice of infringement of or
conflict with asserted rights of others with respect to the foregoing which, individually or in the
aggregate, has, or would reasonably be expected to result in, a Material Adverse Effect. To the
knowledge of the Company and its subsidiaries, the use of such Intellectual
Property in connection with the business and operations of the Company and its Subsidiaries as
described in the Recent Public Filings does not infringe on the rights of any person, except as
would not, individually or in the aggregate, result in a Material Adverse Effect.
3.23 All income tax returns required to be filed by the Company and its Subsidiaries in all
jurisdictions have been timely and duly filed, other than those filings being contested in good
faith, except where the failure to so file any such returns could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. Except as disclosed in the
Recent Public Filings, there are no income tax returns of the Company
or its Subsidiaries that are
currently being audited by state, local or federal taxing authorities or agencies (and with respect
to which the Company
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or its Subsidiaries has received notice), where the findings of such audit
could reasonably be expected to result in a Material Adverse Effect. All material taxes, including
withholding taxes, penalties and interest, assessments, fees and other charges due or claimed to be
due from such entities, have been paid, other than those being contested in good faith and for
which adequate reserves have been provided or those currently payable without penalty or interest.
3.24 Except as disclosed under the caption in the Companys Annual Report on Form 10-K for the
year ended December 31, 2007 entitled Risk FactorsRisks Related to Our BusinessOur insurance
coverage may not be adequate to cover all possible losses that our properties could suffer. In
addition our insurance costs may increase and we may not be able to obtain the same insurance
coverage in the future, each of the Company and its Subsidiaries maintains insurance covering its
properties, operations, personnel and businesses which insures against such losses and risks as are
adequate in accordance with the Companys reasonable business judgment to protect the Company, its
Subsidiaries and their businesses. Except as disclosed in the Recent Public Filings, including,
without limitation, under the caption entitled Risk FactorsRisks Related to Our BusinessOur
insurance coverage may not be adequate to cover all possible losses that our properties could
suffer. In addition our insurance costs may increase and we may not be able to obtain the same
insurance coverage in the future, in the Companys Annual Report on Form 10-K for the year ended
December 31, 2007, all such insurance is outstanding and duly in force in all material respects on
the Closing Date.
3.25 Except as disclosed in the Recent Public Filings, and except for the transactions
contemplated by this Agreement, there are no material business relationships or related party
transactions which would be required to be disclosed therein by Item 404 of Regulation S-K of the
Commission and such business relationship or related party transaction described therein is a fair
and accurate description in all material respects of the relationships and transactions so
described.
3.26 Each of the Company and its Subsidiaries is in compliance with all presently applicable
provisions of the Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder (
ERISA
), except for any
non-compliance which would not have a Material Adverse
Effect; no reportable event (as defined in ERISA) has occurred with respect to any pension
plan (as defined in ERISA) for which the Company or any of its Subsidiaries would have any
liability, except such as would not have a Material Adverse Effect; each of the Company and its
Subsidiaries has not incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any pension plan or (ii) Section 412 or 4971
of the Internal Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the
Code
), in each case, except as would not have a Material
Adverse Effect; and each pension plan for which the Company or any of its Subsidiaries would have
any liability, except as would not have a Material Adverse Effect, that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and
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nothing has occurred,
whether by action or by failure to act, which would cause the loss of such qualification, except,
in each case, as would not have a Material Adverse Effect.
3.27 There is, except as set forth in the Recent Public Filings, (i) no material unfair labor
practice complaint pending against the Company or any of its Subsidiaries or, to the best knowledge
of each of the Company and its Subsidiaries threatened against it, before the National Labor
Relations Board or any state or local labor relations board, and no significant grievance or
significant arbitration proceeding arising out of or under any collective bargaining agreement is
so pending against the Company or any of its subsidiaries, or, to the best knowledge of each of the
Company and its subsidiaries, threatened against it, (ii) no material strike, labor dispute,
slowdown or stoppage pending against the Company or any of its Subsidiaries nor, to the best
knowledge of each of the Company and its subsidiaries, threatened against it and (iii) to the best
knowledge of each of the Company and its subsidiaries, no union representation question existing
with respect to the employees of the Company or any of its subsidiaries, and, to the best knowledge
of each of the Company and its subsidiaries, no union organizing activities are taking place,
except, in each case of clauses (i), (ii) or (iii), as would not have a Material Adverse Effect.
3.28 Each of the Company and its Subsidiaries has reviewed the effect of Environmental Laws
(as defined below) and the disposal of hazardous or toxic substances, wastes, pollutants and
contaminants on the business, assets, operations and properties of the Company and its
subsidiaries, as applicable, and identified and evaluated associated costs and liabilities
(including, without limitation, any material capital and operating expenditures required for
clean-up, closure of properties and compliance with environmental, safety or similar laws or
regulations applicable to it or its business or property relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants
(
Environmental Laws
), all permits, licenses and approvals, all related constraints on
operating activities and all potential liabilities to third parties). On the basis of such
reviews, each of the Company and its Subsidiaries has reasonably concluded that such associated
costs and liabilities would not have a Material Adverse Effect. Neither the Company nor any of its
Subsidiaries has violated any Environmental Laws, lacks any permit, license or other approval
required of it under applicable Environmental Laws or is violating any term or condition of such
permit, license or approval, in each case,
which could reasonably be expected to, either individually or in the aggregate, have a
Material Adverse Effect.
3.29 Neither the Company nor any of its Subsidiaries or to any of their knowledge, any
director, officer, agent, employee or other person associated with or acting on behalf of the
Company or any of its Subsidiaries (i) has used any corporate funds during the last five years for
any unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity, (ii) made any unlawful payment to any foreign or domestic government official or employee
from corporate funds, (iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977, as amended, or (iv) made any bribe, rebate, payoff, influence payment,
kickback
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or other unlawful payment, except, in each case, such as would not, individually or in the
aggregate, have a Material Adverse Effect.
3.30 Except as described in the Recent Public Filings, the operations of the Company and its
Subsidiaries are and have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of
1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued, administered or
enforced by any governmental agency (collectively, the
Money Laundering Laws
) and no
action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Company or any subsidiary with respect to the Money Laundering Laws is
pending or, to the best knowledge of the Company, threatened, except as would not, individually or
in the aggregate, have a Material Adverse Effect.
3.31 Other than as contemplated by or described in this Agreement, there is no broker, finder
or other party that is entitled to receive from the Company or any of its Subsidiaries any
brokerage or finders fee or other fee or commission as a result of any of the transactions
contemplated by this Agreement.
3.32 Each certificate signed by any officer of the Company and delivered to the Purchaser or
counsel to the Purchaser pursuant to this Agreement shall be deemed to be a representation and
warranty by the Company to the Purchaser as to the matters covered thereby.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby, severally with respect to itself only, makes the following
representations and warranties for the benefit of the Company as of the Closing Date:
4.1
Organization, Standing and Power
. If the Purchaser is an entity, the Purchaser is
duly organized, validly existing and in good standing under the laws of the jurisdiction in which
it is organized.
4.2
Authority; Execution and Delivery; Enforceability
. The Purchaser has the full
power and authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. If the Purchaser is an entity, the execution and delivery by the
Purchaser of this Agreement and the consummation by the Purchaser of the transactions contemplated
hereby have been duly authorized by all necessary action on the part of the Purchaser and no other
proceedings on the part of the Purchaser are necessary to approve this Agreement and to consummate
the transactions contemplated hereby. The Purchaser has duly executed and delivered this
Agreement, and, assuming due execution and delivery by the Company, this Agreement constitutes the
legal, valid and binding obligation of the
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Purchaser, enforceable against the Purchaser in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting
the enforcement of creditors rights generally or by equitable principles relating to
enforceability.
4.3
Securities Act
. The Notes are being acquired for investment only and not with a
view to any public distribution thereof, and the Purchaser shall not offer to sell or otherwise
dispose of the Notes so acquired by it and the Underlying Shares issuable upon conversion thereof
in violation of any of the registration requirements of the Securities Act.
4.4
Accredited Investor
.
(a) The Purchaser is an accredited investor (as defined in Rule 501 under the Securities
Act).
(b) The Purchaser has such knowledge and experience in financial and business matters and the
Purchaser is capable of utilizing the information that is available to the Purchaser concerning the
Company to evaluate the risks of investment in the Company including the risk that the Purchaser
could lose its entire investment in the Notes (and the Common Stock issuable upon conversion
thereof).
4.5
Investment Representations and Warranties
. The Purchaser understands that neither
the Notes nor the Underlying Shares have been registered under the Securities Act or under the
securities laws of any state or any other jurisdiction. The Purchaser understands that there is no
public market for the sale or other transfer of the Notes, such a market may not develop and that
the sale or other transfer of the Notes is restricted by federal and state securities law and this
Agreement. The Purchaser understands that the Purchaser may be required to bear the economic risk
of the investment indefinitely.
4.6
No Conflicts
. Neither the execution nor the delivery of this Agreement nor the
consummation of the transactions contemplated hereby will conflict with or result in any violation
of or constitute a default under any term of any material agreement, mortgage, indenture, license,
permit, lease, or other instrument, judgment, decree, order, law, or regulation by which the
Purchaser is bound.
ARTICLE 5
AGREEMENTS
5.1
Restrictions on Conversion of the Notes
. The Purchaser acknowledges and agrees
that it shall not have the right to convert any Notes into Common Stock unless and until the
Convertibility Date occurs. Prior to the Convertibility Date, the Purchaser agrees that it will
not sell, assign or transfer any Notes unless the purchaser, assignee or transferee thereof agrees
in writing, for the benefit of the Company, to comply with the terms of this
Section 5.1
as
if such
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purchaser, assignee or transferee was the Purchaser; provided, however, that a transfer
from the Purchaser to any Adelson Holder (as such term is defined in the Amended and Restated
Registration Rights Agreement) (or a transfer from an Adelson Holder to another Adelson Holder)
shall not require execution of such a writing if such a writing has already been provided by such
Adelson Holder.
5.2
Information Statement
. Promptly following the date of this Agreement, the
Company shall prepare and, in no event more than 40 days after the date hereof, file with the
Commission an information statement describing the Stockholder Consent and containing the
information required by Schedule 14C in accordance with all applicable rules and regulations of the
Commission (the
Information Statement
). The Company shall use its reasonable best
efforts to cause the Commission to clear the Information Statement for mailing to stockholders. As
soon as reasonably practicable after the Commission has cleared the Information Statement, the
Company shall mail the Information Statement to the holders of its Common Stock. The Company shall
provide the Purchaser with a copy of the Information Statement and all modifications thereto prior
to filing or delivery to the Commission and shall consult with the Purchaser in connection
therewith. The Company shall not mail any Information Statement, or any amendment or supplement
thereto, to which the Purchaser reasonably and timely object.
5.3
Legends and Restrictions on Transfer
. The Purchaser agree that all certificates
or other instruments representing the Notes and the Underlying Shares contemplated by this
Agreement will bear the restrictive legends set forth in the Indenture and be subject to the
transfer restrictions set forth in the Indenture.
5.4
Listing of Common Stock
. The Company will use its reasonable best efforts to
cause the Underlying Shares issuable upon conversion of the Notes to be authorized for listing on
the New York Stock Exchange as soon as practicable.
5.5
Use of Proceeds
. The Company agrees that it will apply the net proceeds it
derives from the sale of the Notes to the Purchaser in accordance with the funds flow memorandum,
dated as of the Closing Date.
5.6
Expenses
. The Company agrees to pay promptly, and in any event within 5 days
following written demand therefor, all the actual and reasonable costs and expenses of preparation,
negotiation, execution and delivery of the Note
Documents and any consents, amendments, waivers or other modifications thereto, including the
fees, expenses and disbursements of counsel to the Purchaser.
5.7
Approvals
. The Company shall use its reasonable best efforts to obtain each of
the Approvals as soon as practicable, but in any event, within 120 days of the date hereof. In the
event that the Company fails to obtain each of the Approvals within 120 days of the date hereof (an
Approval Default
) and such failure is not the direct result of action (or inaction) taken
by the Principal Stockholder (as such term is defined in the Indenture) that was designed to
prevent the Approvals from being obtained, a fee (the
Approval Fee
) will accrue from the
date on which such Approval
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Default occurs to, but not including, the date on which such Approval
Default is cured, at a rate of 2.00% per annum on the aggregate principal amount of the Notes then
held directly or beneficially by the Purchaser(s) and any other Related Party (as such term is
defined in the Indenture) of the Principal Stockholder, it being understood that (i) such ownership
of the Notes shall be reasonably documented to the Company and (ii) payment of the Approval Fee
shall not relieve the Company of its obligation to obtain each of the Approvals hereunder. Such
Approval Fee shall be payable by the Company to the Purchaser or any designee of the Purchaser on a
monthly basis commencing on the one month anniversary of the occurrence of the Approval Default.
ARTICLE 6
MISCELLANEOUS
6.1
Notices
. All notices or other communication required or permitted hereunder shall
be in writing and shall be delivered personally, telecopied or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when so delivered personally,
telecopied or sent by certified, registered or express mail, as follows:
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(a)
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if to the Company:
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Las Vegas Sands Corp.
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3555 Las Vegas Boulevard South
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Las Vegas, Nevada 89109
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Attention: Scott D. Henry
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Telecopy: 702-733-5110
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(b)
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If to the Purchaser, to the Purchasers address set forth on
Schedule A
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Any party may by notice given in accordance with this
Section 6.1
designate another address
or person for receipt of notices hereunder.
6.2
Successors and Assigns
. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the parties hereto. No Person other than the
parties hereto and their successors and permitted assigns is intended to be a beneficiary of this
Agreement.
6.3
Amendment and Waiver
.
(a) No failure or delay on the part of the Company or any of the Purchaser in exercising any
right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further exercise thereof or the
exercise of any other right, power or remedy. The remedies provided for herein are cumulative and
are not exclusive of any remedies that may be available to the Company or the Purchaser at law, in
equity or otherwise.
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(b) Any amendment, supplement or modification of or to any provision of this Agreement and any
waiver of any provision of this Agreement shall be effective only if it is made or given in writing
and signed by the Company and the Purchaser.
6.4
Counterparts
. This Agreement may be executed in any number of counterparts and by
the parties hereto in separate counterparts, all of which when so executed shall be deemed to be an
original and both of which taken together shall constitute one and the same agreement.
6.5
Headings
. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
6.6
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT
SITTING IN THE COUNTY OF NEW YORK, IN THE STATE OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT. TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, THE PARTIES HERETO IRREVOCABLY WAIVE AND AGREE NOT TO ASSERT, BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE, ANY CLAIM THAT THEY ARE NOT SUBJECT TO THE JURISDICTION OF ANY
SUCH COURT, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
6.7
Specific Performance
. The parties hereto intend that each of the parties have the
right to seek damages or specific performance in the event that any other party hereto fails to
perform such partys obligations hereunder. Therefore, if any party shall institute any action or
proceeding to enforce the provisions hereof, any party against whom such action or proceeding is
brought hereby waives any claim or defense therein that the plaintiff party has an adequate remedy
at law.
6.8
Severability
. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect
for any reason, the validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
6.9
Entire Agreement; Survival
. This Agreement, together with the schedules hereto
are intended by the parties as a final expression of their agreement and
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intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto in respect of the
subject matter contained herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or therein. This Agreement
supersedes all prior agreements and understandings between the parties with respect to such subject
matter. The agreements and covenants contained in this Agreement shall survive the issuance and
purchase of the Notes.
6.10 [
Intentionally Omitted
.]
[Agreement Continues on Page 21]
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6.11
Further Assurances
. Each of the parties shall execute such documents and perform
such further acts (including, without limitation, obtaining any consents, exemptions,
authorizations, or other actions by, or giving any notices to, or making any filings with, any
Governmental Authority or any other Person) as may be reasonably required or desirable to carry out
or to perform the provisions of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered
by their respective officers hereunto duly authorized as of the date first above written.
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/s/ Dr. Miriam Adelson
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Dr. Miriam Adelson
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[Signature Page to Convertible Note Purchase Agreement]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and
delivered by their respective officers hereunto duly authorized as of the date first above written.
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LAS VEGAS SANDS CORP.
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By:
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/s/ William P. Weidner
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Name:
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William P. Weidner
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Title:
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President, Chief Operating Officer
and Secretary
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[Signature Page to Convertible Note Purchase Agreement]
Schedule A
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Aggregate Principal
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Amount of Notes to
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Name of Purchaser
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be Purchased
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Purchase Price
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Address for Notices
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Dr. Miriam Adelson
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$
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475,000,000
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$
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475,000,000
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c/o Las Vegas Sands Corp.
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3555 Las Vegas Boulevard South
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Las Vegas, Nevada 89109
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Attention: Dr. Miriam Adelson
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Telecopy: 702-733-5710
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With Copies To:
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c/o Las Vegas Sands Corp.
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3555 Las Vegas Boulevard South
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Las Vegas, Nevada 89109
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Attention: Sheldon G. Adelson
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Telecopy: 702-733-5710
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and
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Milbank, Tweed, Hadley & McCloy, LLP
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601 S. Figueroa St., 30
th
Floor
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Los Angeles, California 90017
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Attention: Ken Baronsky, Esq.
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Telecopy: 213-892-4733
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Schedule A to Convertible Note Purchase Agreement
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Exhibit A
Indenture
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Exhibit A to Convertible Note Purchase Agreement
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Exhibit B
Form of Stockholder Consent
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Exhibit B to Convertible Note Purchase Agreement
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[This Page Intentionally Left Blank]
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Exhibit 10.2
Execution Version
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
by and among
LAS VEGAS SANDS CORP.
and the STOCKHOLDERS named therein
Dated: September 30, 2008
TABLE OF CONTENTS
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Page
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1.
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Definitions
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4
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2.
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General; Securities Subject to this Agreement
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10
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(a)
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Grant of Rights
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10
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(b)
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Registrable Securities
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10
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(c)
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Holders of Registrable Securities
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10
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(d)
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Transfer of Registration Rights
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11
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3.
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Demand Registration
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(a)
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Request for Demand Registration
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(b)
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Incidental or Piggy-Back Rights with Respect to a Demand Registration
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12
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(c)
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Effective Demand Registration
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13
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(d)
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Expenses
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13
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(e)
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Underwriting Procedures
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13
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(f)
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Selection of Underwriters
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13
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(g)
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Withdrawal
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14
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4.
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Incidental or Piggy-Back Registration
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(a)
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Request for Incidental Registration
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(b)
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Expenses
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5.
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Form S-3 Registration
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(a)
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Request for a Form S-3 Registration
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(b)
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Form S-3 Underwriting Procedures
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(c)
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Limitations on Form S-3 Registrations
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(d)
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Expenses
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6.
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Hedging Transactions
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7.
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Holdback Agreements
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(a)
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Restrictions on Public Sale by Designated Holders
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(b)
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Restrictions on Public Sale by the Company
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8.
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Registration Procedures
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(a)
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Obligations of the Company
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(b)
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Seller Information
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(c)
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Notice to Discontinue
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23
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(d)
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Registration Expenses
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9.
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Indemnification; Contribution
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24
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(a)
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Indemnification by the Company
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24
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(b)
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Indemnification by Designated Holders
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24
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(c)
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Conduct of Indemnification Proceedings
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Page
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(d)
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Contribution
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25
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10.
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Rule 144
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26
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11.
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Miscellaneous
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26
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(a)
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Registration Defaults; Effect Under Indenture and Convertible Senior Notes
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26
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(b)
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Stock Splits, etc.
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27
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(c)
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No Inconsistent Agreements
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27
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(d)
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Remedies
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27
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(e)
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Amendments and Waivers
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27
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(f)
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Notices
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27
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(g)
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Permitted Assignees; Third Party Beneficiaries
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28
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(h)
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Counterparts
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28
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(i)
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GOVERNING LAW
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28
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(j)
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Severability
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28
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(k)
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Rules of Construction
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28
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(l)
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Entire Agreement
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29
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(m)
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Further Assurances
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29
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(n)
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Other Agreements
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29
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Registration Rights Agreement
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Page 3 of 37
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated as of September 30, 2008, by and
among Las Vegas Sands Corp., a Nevada corporation (the
Company
), Dr. Miriam Adelson (the
Adelson Purchaser
), the other Adelson Holders (as defined below) and the Other Holders
(as defined below) that are party to this Agreement from time to time.
WHEREAS, the Company consummated an Initial Public Offering (as hereinafter defined) on
December 20, 2004;
WHEREAS, the Company and U.S. Bank National Association (the
Trustee
) have executed
an Indenture, dated as of the date hereof (the
Base Indenture
);
WHEREAS, pursuant to the terms of the Base Indenture, the Company has executed and delivered
to the Trustee, a First Supplemental Indenture, dated as of the date hereof (the
First
Supplemental Indenture
, and together with the Base Indenture, the
Indenture
),
providing for the issuance, and setting forth the terms, of the Companys 6
1
/
2
% Convertible Senior
Notes due 2013 (the
Convertible Senior Notes
);
WHEREAS, under the Convertible Note Purchase Agreement, dated as of the date hereof (the
Purchase Agreement
), by and between the Adelson Purchaser and the Company, the Company
has agreed to sell, and the Adelson Purchaser has agreed to purchase, Convertible Senior Notes of
the Company;
WHEREAS, in order to induce the Adelson Purchaser to purchase the Notes pursuant to the
Purchase Agreement and to provide for the grant of registration rights with respect to the
Registrable Securities (as hereinafter defined), the Company is willing to enter into this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and
for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, and unless the context requires a different meaning,
the following terms have the meanings indicated:
Adelson Holders
means collectively Sheldon G. Adelson, the Sheldon G. Adelson 2002
Remainder Trust, the Adelson Purchaser, the Sheldon G. Adelson 2005 Family Trust u/d/t dated April
25, 2005, the Dr. Miriam and Sheldon G. Adelson Charitable Trust u/d/t dated December 12, 1994, the
ESBT Y TRUST u/d/t dated October 1, 2002, the ESBT S TRUST u/d/t dated October 1, 2002, the QSST A
TRUST u/d/t dated October 1, 2002, the QSST M TRUST u/d/t dated October 1, 2002, the Sheldon G.
Adelson 2004 Remainder Trust u/d/t dated May 31, 2004, the Sheldon G. Adelson 2007 Two Year LVS
Annuity Trust u/d/t dated May 1, 2007, the Sheldon G. Adelson 2007 Three Year LVS Annuity Trust
u/d/t dated May 1, 2007, the Sheldon G. Adelson July 2007 Two Year LVS Annuity Trust u/d/t dated
July 30, 2007, the Sheldon G. Adelson July 2007 Three Year LVS Annuity Trust u/d/t dated July 30,
2007, the Sheldon G. Adelson April 2008 Two Year LVS Annuity Trust u/d/t dated
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Registration Rights Agreement
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Page 4 of 37
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April 1, 2008, the Sheldon G. Adelson April 2008 Three Year LVS Annuity Trust u/d/t dated
April 1, 2008, the Sheldon G. Adelson July 2008 Two Year LVS Annuity Trust u/d/t dated July 28,
2008, the Sheldon G. Adelson July 2008 Three Year LVS Annuity Trust u/d/t dated July 28, 2008 and
the assignees of each of the foregoing as permitted by Section 2(d) of this Agreement.
Affiliate
means, with respect to a Person, any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person.
For purposes of this definition, control (including, with correlative meanings, the terms
controlling, controlled by and under common control with), as used with respect to a Person,
shall mean the possession, directly or indirectly, of the power to direct or cause the direction of
the management or policies of such Person, whether through the ownership of voting securities, by
agreement or otherwise.
Agreement
means this Registration Rights Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
Approved Underwriter
has the meaning set forth in Section 3(f) of this Agreement.
Base Indenture
has the meaning set forth in the recitals of this Agreement.
Board of Directors
means the Board of Directors of the Company.
Business Day
means any day other than a Saturday, Sunday or other day on which
commercial banks in the State of New York or Nevada are authorized or required by law or executive
order to close.
Closing Price
means, with respect to the Registrable Securities, as of the date of
determination, (a) if the Registrable Securities are listed on a national securities exchange, the
closing price per share or per $1,000 in principal amount with respect to Convertible Senior Notes
of a Registrable Security on such date published in
The Wall Street Journal (National
Edition)
or, if no such closing price on such date is published in
The Wall Street Journal
(National Edition)
, the average of the closing bid and asked prices on such date, as officially
reported on the principal national securities exchange on which the Registrable Securities are then
listed or admitted to trading; or (b) if the Registrable Securities are not then listed or admitted
to trading on any national securities exchange but are designated as national market system
securities by the NASD, the last trading price per share or per $1,000 in principal amount with
respect to Convertible Senior Notes of a Registrable Security on such date; or (c) if there shall
have been no trading on such date or if the Registrable Securities are not designated as national
market system securities by the NASD, the average of the reported closing bid and asked prices of
the Registrable Securities on such date as shown by The Nasdaq Stock Market, Inc. (or its
successor) and reported by any member firm of The New York Stock Exchange, Inc. selected by the
Company; or (d) if none of (a), (b) or (c) is applicable, a market price per share or per $1,000 in
principal amount with respect to Convertible Senior Notes determined in good faith by the Board of
Directors. If trading is
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Registration Rights Agreement
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Page 5 of 37
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conducted on a continuous basis on any exchange, then the closing price shall be as set forth
at 4:00 P.M. New York City time.
Commission
means the Securities and Exchange Commission or any similar agency then
having jurisdiction to enforce the Securities Act.
Common Stock
means (i) the Common Stock, par value $0.001 per share, of the Company,
(ii) any other common stock of the Company, (iii) any securities of the Company or any successor or
assign of the Company into which such stock described in clauses (i) and (ii) is reclassified or
reconstituted or into which such stock is converted or otherwise exchanged in connection with a
combination of shares, recapitalization, merger, sale of assets, consolidation or other
reorganization or otherwise or (iv) any securities received as a dividend or distribution in
respect of the securities described in clauses (i), (ii), and (iii) above.
Company
has the meaning set forth in the preamble to this Agreement.
Company Underwriter
has the meaning set forth in Section 4(a) of this Agreement.
Convertible Note Registration Statement
has the meaning set forth in the definition
of Registration Default.
Convertible Senior Notes
has the meaning set forth in the recitals to this
Agreement.
Demand Registration
has the meaning set forth in Section 3(a) of this Agreement.
Designated Holder
means each of the Adelson Holders and Other Holders.
Exchange Act
means the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission thereunder.
First Supplemental Indenture
has the meaning set forth in the recitals to this
Agreement.
Hedging Counterparty
means a broker-dealer registered under Section 15(b) of the
Exchange Act or an Affiliate thereof.
Hedging Transaction
means any transaction involving a security linked to the
Registrable Securities or any security that would be deemed to be a derivative security (as
defined in Rule 16a-1(c) under the Exchange Act) with respect to the Registrable Securities or
transaction (even if not a security) which would (were it a security) be considered such a
derivative security, or which transfers some or all of the economic risk of ownership of the
Registrable Securities, including, without limitation, any forward contract, equity swap, put or
call, put or call equivalent position, collar, non-recourse loan, sale of
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Registration Rights Agreement
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Page 6 of 37
|
exchangeable security or similar transaction. For the avoidance of doubt, the following
transactions shall be deemed to be Hedging Transactions:
(a) transactions by a Designated Holder in which a Hedging Counterparty engages in short sales
of Registrable Securities pursuant to a Prospectus and may use Registrable Securities to close out
its short position;
(b) transactions pursuant to which a Designated Holder sells short Registrable Securities
pursuant to a Prospectus and delivers Registrable Securities to close out its short position;
(c) transactions by a Designated Holder in which the Designated Holder delivers, in a
transaction exempt from registration under the Securities Act, Registrable Securities to the
Hedging Counterparty who will then publicly resell or otherwise transfer such Registrable
Securities pursuant to a Prospectus or an exemption from registration under the Securities Act; and
(d) a loan or pledge of Registrable Securities to a Hedging Counterparty who may then become a
selling stockholder and sell the loaned shares or, in an event of default in the case of a pledge,
then sell the pledged shares, in each case, in a public transaction pursuant to a Prospectus.
Holders Counsel
has the meaning set forth in Section 8(a)(i) of this Agreement.
Incidental Registration
has the meaning set forth in Section 4(a) of this Agreement.
Indemnified Party
has the meaning set forth in Section 9(c) of this Agreement.
Indemnifying Party
has the meaning set forth in Section 9(c) of this Agreement.
Indenture
has the meaning set forth in the recitals to this Agreement.
Initial Public Offering
means the initial public offering of the shares of Common
Stock of the Company pursuant to an effective Registration Statement filed under the Securities
Act.
Initiating Holders
has the meaning set forth in Section 3(a) of this Agreement.
Inspector
has the meaning set forth in Section 8(a)(vii) of this Agreement.
IPO Effectiveness Date
means the date upon which the Company consummates the Initial
Public Offering.
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Registration Rights Agreement
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Page 7 of 37
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Liability
has the meaning set forth in Section 9(a) of this Agreement.
Liquidated Damages
has the meaning set forth in Section 11(a) of this Agreement.
Lock-up Agreement
means, with respect to each Designated Holder, the lock-up
agreement, dated the IPO Effectiveness Date, entered into by such Designated Holder with the
underwriters of the Initial Public Offering.
Majority Designated Holders
means beneficial owners of Registrable Securities
representing more than 50% of the total number of outstanding Registrable Securities (on an
as-converted basis).
Market Price
means, on any date of determination, the average of the daily Closing
Price of the Registrable Securities for the immediately preceding thirty (30) days on which the
national securities exchanges are open for trading;
provided
,
however
, that if the
Closing Price is determined pursuant to clause (d) of the definition of Closing Price, the Market
Price means such Closing Price on the date of determination.
NASD
means the National Association of Securities Dealers, Inc.
Other Holders
means collectively William P. Weidner, Weidner Holdings, LLC, Bradley
H. Stone, The Stone Crest Trust, Robert G. Goldstein, The Robert and Sheryl Goldstein Trust, SC
Goldstein Holdings, LLC, David Friedman, Richard Heller, Dan Raviv, Harry D. Miltenberger and
Charles D. Forman and the assignees of each of the foregoing as permitted by Section 2(d) of this
Agreement.
Permitted Assignee
means, with respect to any Person, to the extent applicable, (i)
such Persons parents, spouse, siblings, children (including stepchildren and adopted children),
childrens spouses, grandchildren or grandchildrens spouses thereof (
Family Members
),
(ii) a trust, corporation, partnership or limited liability company, a majority of the beneficial
interests of which shall be held by such Person, such Persons Affiliates and/or such Persons
Family Members, (iii) such Persons heirs, executors, administrators, estate or a trust under such
Persons will, (iv) an entity described in Section 501(c)(3) of the United States Internal Revenue
Code of 1986, as amended, that is established by such Person and (v) any Person to whom such Person
transfers Registrable Securities representing at least 1% of the outstanding Common Stock as of the
date of such transfer.
Permitted Withdrawal
has the meaning set forth in Section 3(g) of this Agreement.
Person
means any individual, firm, corporation, partnership, limited liability
company, trust, incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, government (or an agency or political subdivision thereof) or other
entity of any kind, and shall include any successor (by merger or otherwise) of such entity.
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Registration Rights Agreement
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Page 8 of 37
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Pledgee
has the meaning set forth in Section 2.4(d).
Prospectus
means the prospectus related to any Registration Statement (including,
without limitation, a prospectus that discloses information previously omitted from a prospectus
filed as part of an effective registration statement in reliance on Rule 415 (or any successor rule
or regulation) under the Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated by reference in
such prospectus.
Purchase Agreement
has the meaning set forth in the recitals to this Agreement.
Records
has the meaning set forth in Section 8(a)(vii) of this Agreement.
Registrable Securities
means, subject to Section 2(d)(i), (i) any and all shares of
Common Stock now or hereafter owned by the Designated Holders or issued or issuable upon conversion
of any convertible securities or exercise of any warrants or options now or hereafter held by any
of the Designated Holders, (ii) the Convertible Senior Notes held by the Adelson Purchaser (or any
Permitted Assignee or Affiliate of the Adelson Purchaser that hereafter holds any Convertible
Senior Notes issued pursuant to the Indenture) and (iii) any shares of Common Stock issued or
issuable upon conversion of any Convertible Senior Notes held by the Adelson Purchaser (or any
Adelson Holder or Permitted Assignee to which the Adelson Purchaser may assign any Convertible
Senior Notes) pursuant to the terms of the Indenture.
Registration Default
means (i) the failure of the Company to file any registration
statement in respect of Registrable Securities described in clauses (ii) and (iii) of the
definition thereof required to be filed pursuant to
Section 5
hereof with the Commission
within 90 days after request is made pursuant to the terms hereof (each, a
Convertible Note
Registration Statement
), (ii) the failure of the Company to cause any Convertible Note
Registration Statement to be declared effective by the Commission within 120 days after a request
is made pursuant to the terms hereof or (iii) in the event that any Convertible Note Registration
Statement required by this Agreement that is filed and declared effective and thereafter ceases to
be effective or fails to be usable for its intended purpose prior to the end of the period
specified in
Section 8(a)(ii)
hereof, the failure of the Company to succeed such
Convertible Note Registration Statement immediately by a post-effective amendment to such
Convertible Note Registration Statement or a new registration statement that cures such failure and
that is itself immediately declared effective.
Registration Expenses
has the meaning set forth in Section 8(d) of this Agreement.
Registration Statement
means a Registration Statement filed pursuant to the
Securities Act.
S-3 Initiating Holders
has the meaning set forth in Section 5(a) of this Agreement.
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Registration Rights Agreement
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Page 9 of 37
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S-3 Registration
has the meaning set forth in Section 5(a) of this Agreement.
Securities Act
means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
Specified Holder
means (i) Daniel Raviv, (ii) any Permitted Assignee of Daniel Raviv
and (iii) any Pledgee of any Person described in clauses (i) and (ii) above that complies with
Section 2(d) of this Agreement.
Transfer Restricted Notes
means each Convertible Senior Note and each share of
Common Stock issuable upon conversion thereof (and any security issued with respect thereto upon
any stock dividend, split or similar event) until the earliest of the date on which such
Convertible Senior Note or share of Common Stock, or any security issued with respect thereto upon
any stock dividend, split or similar event, as the case may be: (i) has been transferred pursuant
to a Registration Statement filed pursuant to Rule 415 of the Securities Act or another
Registration Statement covering such Convertible Senior Note or shares of Common Stock which has
been filed with the Commission pursuant to the Securities Act, in either case after such
Registration Statement has become effective and while such Registration Statement is effective
under the Securities Act; (ii) has been transferred pursuant to Rule 144 (or any similar provision
then in force); (iii) may be sold or transferred pursuant to Rule 144 (or any successor provision
promulgated by the Commission); or (iv) ceases to be outstanding.
Trustee
has the meaning set forth in the recitals to this Agreement.
Valid Business Reason
has the meaning set forth in Section 3(a) of this Agreement.
2. GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT.
(a)
Grant of Rights
. The Company hereby grants registration rights to the Designated Holders upon
the terms and conditions set forth in this Agreement.
(b)
Registrable Securities
. For the purposes of this Agreement, Registrable Securities held by
any Designated Holder will cease to be Registrable Securities, when (i) a Registration Statement
covering such Registrable Securities has been declared effective under the Securities Act by the
Commission and such Registrable Securities have been disposed of pursuant to such effective
Registration Statement (except as provided by Section 2(d)), (ii) the entire amount of the
Registrable Securities held by any Designated Holder may be sold in a single sale, in the opinion
of counsel reasonably satisfactory to the Company, without any limitation as to volume pursuant to
Rule 144 (or any successor rule or regulation) under the Securities Act or (iii) they have ceased
to be outstanding.
(c)
Holders of Registrable Securities
. A Person is deemed to be a holder of Registrable
Securities whenever such Person owns of record Registrable Securities, or holds an option to
purchase, or a security convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been
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Registration Rights Agreement
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Page 10 of 37
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effected. If the Company receives
conflicting instructions, notices or elections from two or more Persons with respect to the same
Registrable Securities, the Company may act upon the
basis of the instructions, notice or election received from the registered owner of such
Registrable Securities. Registrable Securities issuable upon exercise of an option or upon
conversion of another security, whether or not currently exercisable, shall be deemed outstanding
for the purposes of this Agreement.
(d)
Transfer of Registration Rights
.
(i) Each Designated Holder may transfer or pledge Registrable Securities with the associated
registration rights under this Agreement (including transfers occurring by operation of law or by
reason of intestacy) to a Permitted Assignee, Affiliate of such Permitted Assignee or pledgee
(
Pledgee
) only if (1) subject to the penultimate sentence of this Section 2(d), such
Permitted Assignee or Pledgee agrees in writing to be bound as a Designated Holder by the
provisions of this Agreement and (2) immediately following such transfer or pledge, the further
disposition of such Registrable Securities by such Permitted Assignee or Pledgee would be
restricted under the Securities Act and the entire amount of all such Registrable Securities could
not be sold in a single sale, in the opinion of counsel reasonably satisfactory to the Company,
without any limitation as to volume pursuant to Rule 144 (or any successor rule or regulation)
under the Securities Act. Upon any transfer of Registrable Securities other than as set forth in
this Section 2(d), such securities shall no longer constitute Registrable Securities, except that
any Registrable Securities that are pledged or made the subject of a Hedging Transaction, which
Registrable Securities are not ultimately disposed of by the Designated Holder pursuant to such
pledge or Hedging Transaction shall, to the extent such Registrable Securities remain restricted
securities under the Securities Act, be deemed to remain Registrable Securities notwithstanding
the release of such pledge or the completion of such Hedging Transaction.
(ii) If a Designated Holder assigns its rights under this Agreement in connection with the
transfer of less than all of its Registrable Securities, the Designated Holder shall retain its
rights under this Agreement with respect to its remaining Registrable Securities. If a Designated
Holder assigns its rights under this Agreement in connection with the transfer of all of its
Registrable Securities, such Designated Holder shall have no further rights or obligations under
this Agreement, except under Section 8 hereof in respect of offerings in which it participated.
3. DEMAND REGISTRATION.
(a)
Request for Demand Registration
. Any Adelson Holder or Adelson Holders (each, an
Initiating Holder
) may make a written request to the Company to register, and the Company
shall register, under the Securities Act (other than pursuant to a Registration Statement on Form
S-4 or S-8 or any successor form thereto) (a
Demand Registration
) the number of
Registrable Securities stated in such request;
provided
,
however
, that the Company
shall not be obligated to effect (i) a Demand Registration if the Initiating Holders, together with
the Designated Holders (other than the Initiating Holders) which have requested to register
securities in such registration pursuant to Section 3(b), propose to sell their Registrable
Securities at an aggregate price (calculated based upon the Market Price of
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Registration Rights Agreement
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Page 11 of 37
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the Registrable
Securities on the last date on which the Company could receive requests for inclusion in such
Demand Registration under Section 3(b)) to the public of less than
$20,000,000, (ii) any such Demand Registration commencing prior to the time permitted under
the Lock-up Agreement of the Designated Holder, as such Lock-up Agreement may be amended or waived,
or (iii) any such Demand Registration within ninety (90) days after the effective date of any other
Registration Statement of the Company (other than a Registration Statement on Form S-4 or S-8 or
any successor form thereto or an automatic shelf registration on Form S-3). If the Board of
Directors, in its good faith judgment, determines that any registration of Registrable Securities
should not be made or continued because it would materially interfere with any material financing,
acquisition, corporate reorganization or merger or other material transaction involving the Company
(a
Valid Business Reason
), the Company may (x) postpone filing a Registration Statement
relating to a Demand Registration until such Valid Business Reason no longer exists, but in no
event for more than forty-five (45) days after the date when the Demand Registration was requested
or, if later, after the occurrence of the Valid Business Reason and (y) in case a Registration
Statement has been filed relating to a Demand Registration, the Company, upon the approval of a
majority of the Board of Directors, may cause such Registration Statement to be withdrawn and its
effectiveness terminated or may postpone amending or supplementing such Registration Statement (in
which case, if the Valid Business Reason no longer exists or if more than forty-five (45) days have
passed since such withdrawal or postponement, the Initiating Holders may request a new Demand
Registration). The Company shall give written notice of its determination to postpone or withdraw
a Registration Statement and of the fact that the Valid Business Reason for such postponement or
withdrawal no longer exists, in each case, promptly after the occurrence thereof. Notwithstanding
anything to the contrary contained herein, the Company may not postpone or withdraw a filing under
this Section 3(a) more than once in any six (6) month period. Each request for a Demand
Registration by the Initiating Holders shall state the amount of the Registrable Securities
proposed to be sold and the intended method of disposition thereof.
(b)
Incidental or Piggy-Back Rights with Respect to a Demand Registration
. Each of the
Designated Holders (other than Initiating Holders which have requested a registration under Section
3(a)) may offer its Registrable Securities under any Demand Registration pursuant to this Section
3. Within five (5) days after the receipt of a request for a Demand Registration from an
Initiating Holder, the Company shall (i) give written notice thereof to all of the Designated
Holders (other than Initiating Holders which have requested a registration under Section 3(a)) and
(ii) subject to Section 3(e), include in such registration all of the Registrable Securities held
by such Designated Holders from whom the Company has received a written request for inclusion
therein within ten (10) days of the date on which the Company sent the written notice referred to
in clause (i) above. Each such request by such Designated Holder shall specify the number of
Registrable Securities proposed to be registered. The failure of any Designated Holder to respond
within such 10-day period referred to in clause (ii) above shall be deemed to be a waiver of such
Designated Holders rights under this Section 3(b) with respect to such Demand Registration. Any
Designated Holder may waive its rights under this Section 3(b) prior to the expiration of such
10-day period by giving written notice to the Company.
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Registration Rights Agreement
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Page 12 of 37
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(c)
Effective Demand Registration
. The Company shall use its commercially reasonable efforts to
cause any such Demand Registration to become effective
not later than the later of (i) ninety (90) days after it receives a request under Section
3(a) hereof and (ii) 90 days after the effective date of any other Registration Statement of the
Company (other than a Registration Statement on Form S-4 or S-8 or any successor form thereto or an
automatic shelf registration on Form S-3) that had been filed but not yet declared effective at
the time such Demand Registration was made, in each case, subject to obtaining all required
approvals from all applicable gaming authorities, and to remain continuously effective for the
lesser of (i) the period during which all Registrable Securities registered in the Demand
Registration are sold or (ii) 120 days.
(d)
Expenses
. Except as provided in Section 8(d), the Company shall pay all Registration Expenses
in connection with a Demand Registration, whether or not such Demand Registration becomes
effective.
(e)
Underwriting Procedures
. If the Initiating Holders so elect, the Company shall use its
commercially reasonable efforts to cause such Demand Registration to be in the form of a firm
commitment underwritten offering and the managing underwriter or underwriters selected for such
offering shall be the Approved Underwriter selected in accordance with Section 3(f). In connection
with any Demand Registration under this Section 3 involving an underwritten offering, none of the
Registrable Securities held by any Designated Holder making a request for inclusion of such
Registrable Securities pursuant to Section 3(b) hereof shall be included in such underwritten
offering unless such Designated Holder accepts the terms of the offering as agreed upon by the
Company, the Initiating Holders and the Approved Underwriter, and then only in such quantity as set
forth below. If the Approved Underwriter advises the Company that the aggregate amount of such
Registrable Securities requested to be included in such offering is sufficiently large to have a
material adverse effect on the success of such offering, then the Company shall include in such
registration, to the extent of the amount that the Approved Underwriter believes may be sold
without causing such material adverse effect,
first
, such number of Registrable Securities
of the Designated Holders participating in the offering, which Registrable Securities shall be
allocated pro rata among such Designated Holders participating in the offering (on an as converted
basis), based on the number of Registrable Securities held by each such Designated Holder,
second
, any other securities of the Company requested by holders thereof to be included in
such registration, which such securities shall be allocated pro rata among such stockholders, based
on the number of the Companys securities held by each such stockholder, and
third
,
securities offered by the Company for its own account.
(f)
Selection of Underwriters
. If any Demand Registration or S-3 Registration, as the case may
be, of Registrable Securities is in the form of an underwritten offering, the Company shall select
and obtain one or more investment banking firms of national reputation to act as the managing
underwriter or underwriters of the offering;
provided
,
however
, that such firm
shall, in any case, also be approved by the Initiating Holders or S-3 Initiating Holders, as the
case may be, such approval not to be unreasonably delayed or withheld. Notwithstanding the
foregoing, if any S-3 Registration of Registrable Securities is in the form of a Hedging
Transaction, the S-3 Initiating Holders shall select and
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obtain an investment banking firm of
national reputation to act as the managing underwriter (or the equivalent position) of the Hedging
Transaction;
provided
,
however
, that such firm
shall, in any case, also be approved by the Company, such approval not to be unreasonably
delayed or withheld. An investment banking firm or firms selected pursuant to this Section 3(f)
shall be referred to as the
Approved Underwriter
in this Agreement.
(g)
Withdrawal
. An Initiating Holder shall be entitled to withdraw or revoke a request for a
Demand Registration without the prior written consent of the Company if (i) as a result of facts or
circumstances arising after the date on which such request was made relating to the Company or to
market conditions, such Initiating Holder reasonably determines that participation in such
registration would have a material adverse effect on such Initiating Holder or (ii) if the Closing
Price declines by more than ten percent (10%) from the date the Initiating Holder or Holders
requested such Demand Registration (a
Permitted Withdrawal
). An Initiating Holder shall
also be entitled to withdraw or revoke a request for a Demand Registration, notwithstanding that
such withdrawal or revocation does not constitute a Permitted Withdrawal; provided, that, in such
case, (i) the Initiating Holder receives the prior written consent of the Company to such
withdrawal or (ii) the Initiating Holder pays all fees and expenses incurred by the Company in
connection with such withdrawn registration. Any withdrawal of or revocation of a request for any
Demand Registration by an Initiating Holder under this Section 3(g) (including the following
sentence) shall constitute and effect an automatic withdrawal by all other Initiating Holders and
by any Designated Holder participating in such Demand Registration pursuant to the provisions of
Section 3(b). In addition, immediately upon determination of the price at which such Registrable
Securities are to be sold, if such price is below the price which any Designated Holder
participating in the Demand Registration finds acceptable, such Designated Holder shall then have
the right, by written notice to the Company, to withdraw its Registrable Securities from being
included in such Registration Statement.
4. INCIDENTAL OR PIGGY-BACK REGISTRATION.
(a)
Request for Incidental Registration
. If the Company proposes to file a Registration Statement
under the Securities Act with respect to an offering by the Company for its own account (other than
a Registration Statement on Form S-4 or S-8 or any successor form thereto) or for the account of
any stockholder of the Company other than Designated Holders pursuant to Sections 3 and 5 hereof,
then the Company shall give written notice of such proposed filing to each of the Designated
Holders at least twenty (20) days before the anticipated filing date, which notice shall describe
the proposed registration and distribution and offer such Designated Holders the opportunity to
register the number of Registrable Securities that each such Designated Holder may request (an
Incidental Registration
). The Company shall use its commercially reasonable efforts
(within twenty (20) days of the notice provided for in the preceding sentence) to cause the
managing underwriter or underwriters in the case of a proposed underwritten offering (the
Company Underwriter
) to permit each of the Designated Holders who has requested in
writing to participate in the Incidental Registration pursuant to this Section 4(a) to include its
Registrable Securities in such offering on the same terms and conditions as the securities of the
Company or the account of such other stockholder, as the case may be, included therein.
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Prior to
the effective date of the Registration Statement with respect to which such Incidental Registration
has been requested, immediately upon determination of the price at which such
Registrable Securities are to be sold, if such price is below the price which any Designated
Holder who requested to participate in the Incidental Registration finds acceptable, such
Designated Holder shall then have the right, by written notice to the Company, to withdraw its
request to have its Registrable Securities included in such Registration Statement. Any
withdrawal of the Registration Statement by the Company for any reason shall constitute and effect
an automatic withdrawal of any Incidental Registration related thereto. In connection with any
Incidental Registration under this Section 4(a) involving an underwritten offering, the Company
shall not be required to include any Registrable Securities in such underwritten offering unless
the Designated Holders thereof accept the terms of the underwritten offering as agreed upon between
the Company, such other stockholders, if any, and the Company Underwriter, and then only in such
quantity as set forth below. If the Company Underwriter determines that the registration of all or
part of the securities that have been requested to be included would materially adversely affect
the success of such offering, then the Company shall be required to include in such Incidental
Registration, to the extent of the amount that the Company Underwriter believes may be sold without
causing such material adverse effect,
first
, all of the securities to be offered for the
account of the Company, in the case of a Company initiated Incidental Registration, or the
stockholders who have requested such Incidental Registration, in the case of a stockholder
initiated Incidental Registration,
second
, such number of Registrable Securities of the
Designated Holders requested to be included in such offering, which Registrable Securities shall be
allocated pro rata among such Designated Holders participating in the offering (on an as converted
basis), based on the number of Registrable Securities held by each such Designated Holder, and
third
, any other securities of the Company requested by the Company or stockholders to be
included in such offering. The Majority Designated Holders may waive any right to participate in
an Incidental Registration under this Section 4(a) in respect of any registration on behalf of all
holders of Registrable Securities.
(b)
Expenses
. Except as provided in Section 8(d), the Company shall bear all Registration
Expenses in connection with any Incidental Registration pursuant to this Section 4, whether or not
such Incidental Registration becomes effective.
5. FORM S-3 REGISTRATION.
(a)
Request for a
Form S-3
Registration
. Upon the Company becoming eligible for use of Form S-3
(or any successor form thereto) under the Securities Act in connection with a public offering of
its securities, in the event that the Company shall receive from (x) any Adelson Holder or Adelson
Holders or (y) any Specified Holder or Specified Holders (collectively, the
S-3 Initiating
Holders
) a written request that the Company register under the Securities Act on Form S-3 (or
any successor form then in effect) (an
S-3 Registration
) all or a portion of the
Registrable Securities owned by such S-3 Initiating Holders, the Company shall give written notice
of such request to all of the other Designated Holders (other than S-3 Initiating Holders which
have requested an S-3 Registration under this Section 5(a)) at least twenty (20) days before the
anticipated filing date of such Form S-3, which notice shall describe the proposed registration and
offer such
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other Designated Holders the opportunity to register the number of
Registrable Securities that each such Designated Holder may request in writing to the Company,
given within ten (10) days of the date on which the Company sent the written notice of such
registration. Each request for an S-3 Registration by the S-3 Initiating Holders shall state the
amount of the Registrable Securities proposed to be sold and the intended method of disposition
thereof; provided that no S-3 Initiating Holder that is a Specified Holder may request that the S-3
Registration be a firm commitment underwritten offering. With respect to each S-3 Registration,
the Company shall, subject to Section 5(b), (i) include in such offering the Registrable Securities
of the S-3 Initiating Holders and the Designated Holders (who have requested in writing to
participate in such registration on the same terms and conditions as the Registrable Securities of
the S-3 Initiating Holders included therein) and (ii) use its commercially reasonable efforts to
cause such registration pursuant to this Section 5(a) to become and remain effective as soon as
practicable but in no event earlier than 90 days after the effective date of any other Registration
Statement of the Company (other than a Registration Statement on Form S-4 or S-8 or any successor
form thereto or an automatic shelf registration on Form S-3) that had been filed with the
Commission but not yet declared effective at the time such registration was requested, subject to
obtaining all required approvals from all applicable gaming authorities. Notwithstanding the
foregoing, immediately upon determination of the price at which such Registrable Securities are to
be sold in a S-3 Registration that is a firm commitment underwritten offering, if such price is
below the price which any Designated Holder participating in the S-3 Registration finds acceptable,
such Designated Holder shall then have the right, by written notice to the Company, to withdraw its
Registrable Securities from being included in such offering; provided, that such a withdrawal by
any one of the S-3 Initiating Holders shall constitute and effect an automatic withdrawal by all
other S-3 Initiating Holders and Designated Holders participating in such S-3 Registration.
(b)
Form S-3 Underwriting Procedures
. If the S-3 Initiating Holders so elect, the Company shall
use its commercially reasonable efforts to cause such S-3 Registration pursuant to this Section 5
to be in the form of a firm commitment underwritten offering and the managing underwriter or
underwriters selected for such offering shall be the Approved Underwriter selected in accordance
with Section 3(f). In connection with any S-3 Registration under Section 5(a) involving an
underwritten offering, the Company shall not be required to include any Registrable Securities in
such underwritten offering unless the Designated Holders thereof accept the terms of the
underwritten offering as agreed upon between the Company, the Approved Underwriter and the S-3
Initiating Holders, and then only in such quantity as set forth below. If the Approved Underwriter
believes that the registration of all or part of the Registrable Securities which the S-3
Initiating Holders and the other Designated Holders have requested to be included would materially
adversely affect the success of such public offering, then the Company shall be required to include
in the underwritten offering, to the extent of the amount that the Approved Underwriter believes
may be sold without causing such material adverse effect,
first
, such number of Registrable
Securities of the Designated Holders requested to be included in the offering pursuant to the terms
of Section 5(a) hereof, which such Registrable Securities shall be allocated pro rata among such
Designated Holders participating in the offering (on an as converted basis), based on the number of
Registrable Securities held by such Designated Holder, and
second
, any
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other securities of the Company requested by the Company or other stockholders to be included
in such registration.
(c)
Limitations on
Form S-3
Registrations
. If the Board of Directors has a Valid Business Reason,
the Company may (x) postpone filing a Registration Statement relating to a S-3 Registration until
such Valid Business Reason no longer exists, but in no event for more than forty-five (45) days
after the date when the S-3 Registration was requested or, if later, after the occurrence of the
Valid Business Reason and (y) in case a Registration Statement has been filed relating to a S-3
Registration, the Company, upon the approval of a majority of the Board of Directors, may cause
such Registration Statement to be withdrawn and its effectiveness terminated or may postpone
amending or supplementing such Registration Statement (in which case, if the Valid Business Reason
no longer exists or if more than forty-five (45) days have passed since such withdrawal or
postponement, the S-3 Initiating Holder may request the prompt amendment or supplement of such
Registration Statement or a new S-3 Registration). The Company shall give written notice of its
determination to postpone or withdraw a Registration Statement and of the fact that the Valid
Business Reason for such postponement or withdrawal no longer exists, in each case, promptly after
the occurrence thereof. Notwithstanding anything to the contrary contained herein, the Company may
not postpone or withdraw a filing, under either this Section or Section 3(a), due to a Valid
Business Reason more than once in any six (6) month period. In addition, the Company shall not be
required to effect any registration pursuant to Section 5(a), (i) within ninety (90) days after the
effective date of any other Registration Statement of the Company (other than a Registration
Statement on Form S-4 or S-8 or any successor form thereto or an automatic shelf registration on
Form S-3), (ii) if the Specified Holders are the S-3 Initiating Holders and a Registration
Statement on Form S-3 has previously been requested by the Specified Holders under Section 5(a) and
declared effective (subject to the first sentence of this Section 5(c)), (iii) if Form S-3 is not
available for such offering by the S-3 Initiating Holders or (iv) if the S-3 Initiating Holders,
together with the Designated Holders (other than S-3 Initiating Holders which have requested an S-3
Registration under Section 5(a)) registering Registrable Securities in such registration, propose
to sell their Registrable Securities at an aggregate price (calculated based upon the Market Price
of the Registrable Securities on the last date on which the Company could receive requests for
inclusion in such S-3 Registration under Section 5(a)) to the public of less than $20,000,000
(except with respect to a S-3 Registration requested by the Specified Holders in which all of the
Registrable Securities held by the Specified Holders are registered).
(d)
Expenses
. Except as provided in Section 8(d), the Company shall bear all Registration
Expenses in connection with any S-3 Registration pursuant to this Section 5, whether or not such
S-3 Registration becomes effective.
6. HEDGING TRANSACTIONS.
(a) In any S-3 Registration, the S-3 Initiating Holders may elect to engage in a Hedging
Transaction. The Company agrees that, in connection with any proposed Hedging Transaction, if, in
the reasonable judgment of a firm of legal counsel designated by the Majority Designated Holders
(after good-faith consultation with counsel to the Company),
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it is necessary or desirable to register under the Securities Act such Hedging Transaction or
sales or transfers (whether short or long) of Registrable Securities in connection therewith, then
the Company shall use all commercially reasonable efforts to file a Registration Statement on Form
S-3 as may reasonably be required to register such Hedging Transactions or sales or transfers of
Registrable Securities in connection therewith under the Securities Act in a manner consistent with
the rights and obligations of the Company hereunder with respect to the registration of Registrable
Securities. Any information regarding the Hedging Transaction included in a Registration Statement
or Prospectus pursuant to this Section 6(a) shall be deemed to be information provided by the
Designated Holders selling Registrable Securities pursuant to such Registration Statement for
purposes of Section 9.
(b) If in connection with a Hedging Transaction, a Hedging Counterparty or any Affiliate
thereof is (or may be considered) an underwriter or selling stockholder, then it shall be required
to provide customary indemnities to the Company regarding the Plan of Distribution and like
matters.
(c) The Company further agrees to include, under the caption Plan of Distribution (or the
equivalent caption), in each Registration Statement and any related prospectus (to the extent such
inclusion is permitted under applicable Commission regulations and is consistent with comments
received from the Commission during any Commission review of the Registration Statement), language
substantially in the form of Annex A hereto, and to include in each prospectus supplement filed in
connection with any proposed Hedging Transaction language mutually agreed upon by the Company, the
relevant Designated Holder and the Hedging Counterparty describing such Hedging Transaction.
7. HOLDBACK AGREEMENTS.
(a)
Restrictions on Public Sale by Designated Holders
.
(i) To the extent requested by the Approved Underwriter or the Company Underwriter, as the
case may be, in the case of an underwritten public offering, each Designated Holder (other than any
Pledgee or Hedging Counterparty), agrees (x) not to effect any public sale or distribution of any
Registrable Securities or of any securities convertible into or exchangeable or exercisable for
such Registrable Securities, including a sale pursuant to Rule 144 (or any successor rule or
regulation) under the Securities Act, or offer to sell, contract to sell (including without
limitation any short sale), grant any option to purchase or enter into any hedging or similar
transaction with the same economic effect as a sale of any Registrable Securities and (y) except as
otherwise consented to by the Company, not to make any request for a Demand Registration or S-3
Registration under this Agreement during the period beginning on the effective date of any
Registration Statement relating to a registration in which Designated Holders of Registrable
Securities are participating and ending on the ninetieth (90
th
) day following the actual
effective date of such Registration Statement, or such other period (not to extend past 180 days
after such effective date), if any, mutually agreed upon by such Designated Holder and the
requesting party (except as part of such registration). In connection with the Initial Public
Offering, in lieu of the foregoing provisions of this Section 7(a), each Designated Holder shall
comply with the terms of its Lock-up Agreement.
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(ii) Notwithstanding anything herein to the contrary, no Pledgee or Hedging Counterparty shall
be required to agree to any restriction on its ability to trade in any securities, including the
restrictions set forth in this Section 7(a). The Designated Holders hereby agree that they shall
act in good faith with respect to the restrictions set forth in Section 7(a) and shall take no
action or omit to take any action with the intention of circumventing or evading the restrictions
applicable to them under this 7(a).
(b)
Restrictions on Public Sale by the Company
. Unless the Company shall have received the prior
written consent of an Adelson Holder or Adelson Holders, in each case holding a majority of the
aggregate Registrable Securities held by all Adelson Holders, the Company agrees not to effect any
public sale or distribution of any of its securities, or any securities convertible into or
exchangeable or exercisable for such securities (except pursuant to registrations on Form S-4 or
S-8 or any successor form thereto), during the period beginning on the effective date of any
Registration Statement relating to a registration in which the Designated Holders of Registrable
Securities are participating and ending on the earlier of (i) the date on which all Registrable
Securities registered on such Registration Statement are sold and (ii) 90 days after the actual
effective date of such Registration Statement (except as part of such registration).
8. REGISTRATION PROCEDURES.
(a)
Obligations of the Company
. Whenever registration of Registrable Securities has been
requested pursuant to Section 3, Section 4, or Section 5 of this Agreement, the Company shall use
its commercially reasonable efforts to effect the registration and sale of such Registrable
Securities in accordance with the intended method of distribution thereof as quickly as
practicable, and in connection with any such request, the Company shall, as expeditiously as
possible:
(i) prepare and file with the Commission (as promptly as practicable, but in any event not
later than ninety (90) days after receipt of a request to file a Registration Statement with
respect to Registrable Securities) a Registration Statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which form shall be available
for the sale of such Registrable Securities in accordance with the intended method of distribution
thereof, and cause such Registration Statement to become effective;
provided
,
however
, that (x) before filing a Registration Statement or prospectus or any amendments or
supplements thereto, the Company shall provide one firm of legal counsel selected by the Designated
Holders holding a majority of the Registrable Securities being registered in such registration
(
Holders Counsel
) and any other Inspector (as hereinafter defined) with an opportunity
to review and comment on such Registration Statement and each prospectus included therein (and each
amendment or supplement thereto) to be filed with the Commission, subject to such documents being
under the Companys control, and (y) the Company shall notify the Holders Counsel and each seller
of Registrable Securities of any stop order issued or threatened by the Commission and take all
reasonable actions required to prevent the entry of such stop order or to remove it if entered;
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(ii) prepare and file with the Commission such amendments and supplements to such Registration
Statement and the prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective for the lesser of (x) 120 days (except in the case of a
registration filed pursuant to Rule 415 of the Securities Act or any successor rule or regulation)
and (y) such shorter period which will terminate when all Registrable Securities covered by such
Registration Statement have been sold, and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration Statement during such
period in accordance with the intended methods of disposition by the sellers thereof set forth in
such Registration Statement;
(iii) furnish to each seller of Registrable Securities such number of copies of such
Registration Statement, each amendment and supplement thereto (in each case including all exhibits
thereto), and the prospectus included in such Registration Statement (including each preliminary
prospectus) and any prospectus filed under Rule 424 under the Securities Act (or any successor rule
or regulation) as each such seller may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such seller;
(iv) register or qualify such Registrable Securities under such other securities or blue sky
laws of such jurisdictions as any seller of Registrable Securities may reasonably request, and to
continue such qualification in effect in such jurisdiction for as long as permissible pursuant to
the laws of such jurisdiction, or for as long as any such seller requests or until all of such
Registrable Securities are sold, whichever is shortest, and do any and all other acts and things
which may be reasonably necessary or advisable to enable any such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such seller;
provided
,
however
, that the Company shall not be required to (x) qualify generally
to do business in any jurisdiction where it would not otherwise be required to qualify but for this
Section 8(a)(iv), (y) subject itself to taxation in any such jurisdiction or (z) consent to general
service of process in any such jurisdiction;
(v) notify each seller of Registrable Securities at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, upon discovery that, or upon the
happening of any event as a result of which, the prospectus included in such Registration Statement
contains an untrue statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading and the Company shall promptly prepare a supplement or
amendment to such prospectus and furnish to each seller of Registrable Securities a reasonable
number of copies of such supplement to or an amendment of such prospectus as may be necessary so
that, after delivery to the purchasers of such Registrable Securities, such prospectus shall not
contain an untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading;
(vi) enter into and perform customary agreements (including an underwriting agreement in
customary form with the Approved Underwriter or Company Underwriter, if any, selected as provided
in Section 3, Section 4 or Section 5, as the case may
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be) and take such other actions as are reasonably required in order to expedite or facilitate
the disposition of such Registrable Securities, including causing its officers to participate in
road shows and other information meetings organized by the Approved Underwriter or Company
Underwriter;
(vii) make available at reasonable times for inspection by any managing underwriter or
broker/dealer participating in any disposition of such Registrable Securities pursuant to a
Registration Statement, any attorney retained by any such managing underwriter or broker/dealer and
Holders Counsel (each, an
Inspector
and collectively, the
Inspectors
), all
financial and other records, pertinent corporate documents and properties of the Company and its
subsidiaries (collectively, the
Records
) as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause the Companys and its subsidiaries
officers, directors and employees, and the independent public accountants of the Company, to supply
all information reasonably requested by any such Inspector in connection with such Registration
Statement. Records that the Company determines, in good faith, to be confidential and which it
notifies the Inspectors are confidential shall not be disclosed by the Inspectors (and the
Inspectors shall confirm their agreement in writing in advance to the Company if the Company shall
so request) unless (x) the disclosure of such Records is necessary, in the Companys judgment, to
avoid or correct a misstatement or omission in the Registration Statement, (y) the release of such
Records is ordered pursuant to a subpoena or other order from a court of competent jurisdiction
after exhaustion of all appeals therefrom or (z) the information in such Records was known to the
Inspectors on a non-confidential basis prior to its disclosure by the Company or has been made
generally available to the public. Each seller of Registrable Securities agrees that it shall,
upon learning that disclosure of such Records is sought in a court of competent jurisdiction, give
notice to the Company and allow the Company, at the Companys expense, to undertake appropriate
action to prevent disclosure of the Records deemed confidential. In the event that the Company is
unsuccessful in preventing the disclosure of such Records, such seller agrees that it shall furnish
only portion of those Records which it is advised by counsel is legally required and shall exercise
all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to
those Records;
(viii) if such sale is pursuant to an underwritten offering, obtain cold comfort letters
dated the effective date of the Registration Statement and the date of the closing under the
underwriting agreement from the Companys independent public accountants in customary form and
covering such matters of the type customarily covered by cold comfort letters as the managing
underwriter reasonably requests;
(ix) furnish, at the request of any seller of Registrable Securities on the date such
securities are delivered to the underwriters for sale pursuant to such registration or, if such
securities are not being sold through underwriters, on the date the Registration Statement with
respect to such securities becomes effective, an opinion, dated such date, of counsel representing
the Company for the purposes of such registration, addressed to the underwriters, if any, and to
the seller making such request, covering such legal matters with respect to the registration in
respect of which such opinion is being given as
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the underwriters, if any, and such seller may
reasonably request and are customarily included in such opinions;
(x) comply with all applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable but no later than fifteen (15) months after
the effective date of the Registration Statement, an earnings statement covering a period of twelve
(12) months beginning after the effective date of the Registration Statement, in a manner which
satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xi) cause all such Registrable Securities to be listed on each securities exchange on which
similar securities issued by the Company are then listed,
provided
that the applicable
listing requirements are satisfied;
(xii) cooperate with each seller of Registrable Securities and each underwriter participating
in the disposition of such Registrable Securities and their respective counsel in connection with
any filings required to be made with the NASD;
(xiii) use its commercially reasonable efforts to cause the Registrable Securities covered by
such Registration Statement to be registered with or approved by such other governmental agencies
or authorities, including but not limited to gaming authorities, as may be reasonably necessary by
virtue of the business and operations of the Company to enable the seller or sellers of Registrable
Securities to consummate the disposition of such Registrable Securities; and
(xiv) take all other steps reasonably necessary to effect the registration of the Registrable
Securities contemplated hereby and reasonably cooperate with the holders of such Registrable
Securities to facilitate the disposition of such Registrable Securities pursuant thereto.
(b)
Seller Information
. The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish, and such seller shall furnish, to the Company such
information required to be included in such Registration Statement by applicable securities laws or
otherwise necessary or desirable in connection with the disposition of such Registrable Securities
as the Company may from time to time reasonably request in writing. If any seller of Registrable
Securities fails to provide such information required to be included in such Registration Statement
by applicable securities laws or otherwise necessary or desirable in connection with the
disposition of such Registrable Securities in a timely manner after written request therefor, the
Company may exclude such seller s Registrable Securities from a registration under Sections 3, 4
or 5 hereof. Each Designated Holder shall promptly furnish to the Company in writing all
information required to be disclosed in order to make the information previously furnished to the
Company for use in connection with any such Registration Statement by such Designated Holder not
materially misleading or necessary to cause such Registration Statement not to omit a material fact
with respect to such Designated Holder necessary in order to make the statements therein not
misleading.
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(c)
Notice to Discontinue
. Each Designated Holder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section 8(a)(v), such Designated
Holder shall forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement covering such Registrable Securities until such Designated Holders receipt
of the copies of the supplemented or amended prospectus contemplated by Section 8(a)(v) and, if so
directed by the Company, such Designated Holder shall deliver to the Company (at the Companys
expense) all copies, other than permanent file copies then in such Designated Holders possession,
of the prospectus covering such Registrable Securities which is current at the time of receipt of
such notice. If the Company shall give any such notice, the Company shall extend the period during
which such Registration Statement shall be maintained effective pursuant to this Agreement
(including, without limitation, the period referred to in Section 8(a)(ii)) by the number of days
during the period from and including the date of the giving of such notice pursuant to Section
8(a)(v) to and including the date when sellers of such Registrable Securities under such
Registration Statement shall have received the copies of the supplemented or amended prospectus
contemplated by and meeting the requirements of Section 8(a)(v).
(d)
Registration Expenses
. The Company shall pay all expenses arising from or incident to its
performance of, or compliance with, this Agreement, including, without limitation, (i) Commission,
stock exchange and NASD registration and filing fees, (ii) all fees and expenses incurred in
complying with State securities or blue sky laws (including reasonable fees, charges and
disbursements of counsel to any underwriter incurred in connection with blue sky qualifications
of the Registrable Securities as may be set forth in any underwriting agreement), (iii) all
printing, messenger and delivery expenses, (iv) the fees, charges and expenses of counsel to the
Company and of its independent public accountants and any other accounting fees, charges and
expenses incurred by the Company (including, without limitation, any expenses arising from any
cold comfort letters or any special audits incident to or required by any registration or
qualification) and, if any Adelson Holder is participating in the registration, the reasonable
legal fees, charges and expenses of one law firm designated by the holders of a majority of the
Registrable Securities participating in any registration incurred by the Designated Holders in any
such registration and (v) any liability insurance or other premiums for insurance obtained in
connection with any Demand Registration or piggy-back registration thereon, Incidental Registration
or S-3 Registration pursuant to the terms of this Agreement, regardless of whether such
Registration Statement is declared effective. All of the expenses described in the preceding
sentence of this Section 8(d) are referred to herein as
Registration Expenses
. The
Designated Holders of Registrable Securities sold pursuant to a Registration Statement shall bear
the expense of any brokers commission or underwriters discount or commission relating to
registration and sale of such Designated Holders Registrable Securities and shall, other than as
set forth in clause (iv) above, bear the fees and expenses of their own counsel. Notwithstanding
the foregoing, each Designated Holder (other than the Adelson Holders) agrees to pay or reimburse
the Company for its pro rata portion of all Registration Expenses for any registration in which its
Registrable Securities are included (based upon the number of Registrable Securities included in such
registration (on an as converted basis)) and agrees that
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such expenses may be withheld by the Company from the offering proceeds payable to such Designated Holder.
9. INDEMNIFICATION; CONTRIBUTION.
(a)
Indemnification by the Company
. The Company agrees to indemnify and hold harmless each
Designated Holder, its partners, directors, officers, affiliates, members, employees, trustees and
each Person who controls (within the meaning of Section 15 of the Securities Act) such Designated
Holder from and against any and all losses, claims, damages, liabilities and expenses (each, a
Liability
and collectively,
Liabilities
), arising out of or based upon any
untrue, or allegedly untrue, statement of a material fact contained in any Registration Statement,
prospectus or preliminary prospectus or notification or offering circular (as amended or
supplemented if the Company shall have furnished any amendments or supplements thereto) or arising
out of or based upon any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading under the
circumstances such statements were made, except insofar as such Liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged omission contained in
such Registration Statement, preliminary prospectus or final prospectus in reliance and in
conformity with information concerning such Designated Holder furnished in writing to the Company
by such Designated Holder expressly for use therein, including, without limitation, the information
furnished to the Company pursuant to Sections 8(b) and 9(b). The Company shall also provide
customary indemnities to any underwriters of the Registrable Securities, their officers, directors
and employees and each Person who controls such underwriters (within the meaning of Section 15 of
the Securities Act) to the same extent as provided above with respect to the indemnification of the
Designated Holders of Registrable Securities.
(b)
Indemnification by Designated Holders
. Each Designated Holder agrees severally to indemnify
and hold harmless the Company, the other Designated Holders who participate in the Registration
Statement, any underwriter retained by the Company and each Person who controls the Company, the
other Designated Holders who participate in the Registration Statement or such underwriter (within
the meaning of Section 15 of the Securities Act) to the same extent as the foregoing indemnity from
the Company to the Designated Holders (including indemnification of their respective partners,
directors, officers, members, employees and trustees), but only to the extent that Liabilities
arise out of or are based upon a statement or alleged statement or an omission or alleged omission
that was made in reliance upon and in conformity with information with respect to such Designated
Holder furnished in writing to the Company by such Designated Holder expressly for use in such
Registration Statement or prospectus, including, without limitation, the information furnished to
the Company pursuant to Section 8(b) and this Section 9(b);
provided
,
however
, that
the total amount to be indemnified by such Designated Holder pursuant to this Section 9(b) shall be limited to the net proceeds received by such Designated
Holder in the offering to which the Registration Statement or prospectus relates.
(c)
Conduct of Indemnification Proceedings
. Any Person entitled to indemnification or
contribution hereunder (the
Indemnified Party
) agrees to give
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prompt written notice to
the indemnifying party (the
Indemnifying Party
) after the receipt by the Indemnified
Party of any written notice of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which the Indemnified Party intends to claim indemnification or
contribution pursuant to this Agreement;
provided
,
however
, that the failure so to
notify the Indemnifying Party shall not relieve the Indemnifying Party of any Liability that it may
have to the Indemnified Party hereunder (except to the extent that the Indemnifying Party is
materially prejudiced or otherwise forfeits substantive rights or defenses by reason of such
failure). If notice of commencement of any such action is given to the Indemnifying Party as above
provided, the Indemnifying Party shall be entitled to participate in and, to the extent it may
wish, jointly with any other Indemnifying Party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and reasonably satisfactory to such
Indemnified Party. Each Indemnified Party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and expenses of such counsel shall
be paid by the Indemnified Party unless (i) the Indemnifying Party agrees to pay the same, (ii) the
Indemnifying Party fails to assume the defense of such action with counsel reasonably satisfactory
to the Indemnified Party or (iii) the named parties to any such action (including any impleaded
parties) include both the Indemnifying Party and the Indemnified Party and such parties have been
advised by such counsel that either (x) representation of such Indemnified Party and the
Indemnifying Party by the same counsel would be inappropriate under applicable standards of
professional conduct or (y) there may be one or more legal defenses available to the Indemnified
Party which are different from or additional to those available to the Indemnifying Party. In any
of such cases, the Indemnifying Party shall not have the right to assume the defense of such action
on behalf of such Indemnified Party, it being understood, however, that the Indemnifying Party
shall not be liable for the reasonable fees and expenses of more than one separate firm of
attorneys (in addition to any local counsel) for all Indemnified Parties and all such expenses
shall be reimbursed as incurred. No Indemnifying Party shall be liable for any settlement entered
into without its written consent, which consent shall not be unreasonably withheld. No
Indemnifying Party shall, without the consent of such Indemnified Party, effect any settlement of
any pending or threatened proceeding in respect of which such Indemnified Party is a party and
indemnity has been sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability for claims that are the subject
matter of such proceeding. Notwithstanding the foregoing, if at any time an Indemnified Party
shall have requested the Indemnifying Party to reimburse the Indemnified Party for fees and
expenses of counsel as contemplated by this Section 9, the Indemnifying Party agrees that it shall
be liable for any settlement of any proceeding effected without the Indemnifying Partys written
consent if (i) such settlement is entered into more than thirty (30) business days after receipt by
the Indemnifying Party of the aforesaid request and (ii) the Indemnifying Party shall not have reimbursed the Indemnified Party in accordance with such request or contested
the reasonableness of such fees and expenses prior to the date of such settlement.
(d)
Contribution
. If the indemnification provided for in this Section 9 from the Indemnifying
Party is unavailable to an Indemnified Party hereunder or insufficient to hold harmless an
Indemnified Party in respect of any Liabilities referred to herein, then each Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall
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contribute to the amount paid or payable by such Indemnified Party as a result of such Liabilities in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the
actions which resulted in such Liabilities, as well as any other relevant equitable considerations.
The relative fault of such Indemnifying Party and Indemnified Party shall be determined by
reference to, among other things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party,
and the parties relative intent, knowledge, access to information and opportunity to correct or
prevent such action. The amount paid or payable by a party as a result of the Liabilities referred
to above shall be deemed to include, subject to the limitations set forth in Sections 9(a), 9(b)
and 9(c), any legal or other fees, charges or expenses reasonably incurred by such party in
connection with any investigation or proceeding; provided that the total amount to be contributed
by any Designated Holder shall be limited to the net proceeds received by such Designated Holder in
the offering.
The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 9(d) were determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the immediately preceding
paragraph. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
10. RULE 144. The Company covenants that from and after the IPO Effectiveness Date it shall take
such action as may be required from time to time to enable such Designated Holder to sell
Registrable Securities without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may be amended from time
to time, or (ii) any similar rules or regulations hereafter adopted by the Commission. The Company
shall, upon the request of any Designated Holder, deliver to such Designated Holder a written
statement as to whether it has complied with such requirements.
11. MISCELLANEOUS.
(a)
Registration Defaults; Effect Under Indenture and Convertible Senior Notes.
In the event that
a Registration Default shall occur, the Company shall pay to each holder of the Convertible Senior
Notes issued to the Adelson Purchaser pursuant to the Purchase Agreement (whether such Convertible
Senior Notes continue to be held by the Adelson Purchaser or another Adelson Holder) that are
Transfer Restricted Securities during any period in which a Registration Default has occurred or is
continuing in an amount (the
Liquidated Damages
) equal to: (i) one-half of one percent
(50 basis points) per annum per $1,000 principal amount of Convertible Senior Notes constituting
Transfer Restricted Notes held by any such holder for the period up to and including the 90th day
during which such Registration Default has occurred and is continuing; and (ii) one percent (100
basis points) per annum per $1,000 principal amount of Convertible Senior Notes constituting
Transfer Restricted Notes held by any such holder for the period including and
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subsequent to the 91st day during which such Registration Default has occurred and is continuing. Following the cure
of all Registration Defaults, Liquidated Damages will cease to accrue with respect to such
Registration Defaults. All accrued Liquidated Damages shall be paid by the Company on each Interest
Payment Date (as such term is defined in the Indenture) in cash to the date of such cure and
Liquidated Damages will be calculated on the basis of a 360-day year consisting of twelve 30-day
months. The parties hereto agree that the Liquidated Damages provided for in this Section 11(a)
constitute a reasonable estimate of the damages that may be incurred by holders of Convertible
Senior Notes by reason of a Registration Default and that such Liquidated Damages are the only
monetary damages available to such holders in the event of a Registration Default.
(b)
Stock Splits, etc.
The provisions of this Agreement shall be appropriately adjusted for any
stock dividends, splits, reverse splits, combinations, recapitalizations and the like occurring
after the date hereof.
(c)
No Inconsistent Agreements
. The Company hereby represents and warrants that it has not
previously entered into any agreement granting registration rights to any Person with respect to
any securities of the Company. The Company shall not enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Designated Holders in this Agreement
or grant any additional registration rights to any Person or with respect to any securities that
are not Registrable Securities which rights are inconsistent with the rights granted in this
Agreement.
(d)
Remedies
. The Designated Holders, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, shall be entitled to specific performance of their
rights under this Agreement. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive in any action for specific performance the defense
that a remedy at law would be adequate.
(e)
Amendments and Waivers
. Except as otherwise provided herein, the provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given unless consented to in writing by the Company and Designated
Holders holding more than 50% of the Registrable Securities;
provided
,
however
,
that no amendment, modification, supplement, waiver or consent to depart from the provisions hereof
shall be effective if such amendment, modification, supplement, waiver or consent to depart from
the provisions hereof materially and adversely affects the substantive rights or obligations of one
Designated Holder, or group of Designated Holders, without a similar and proportionate effect on
the substantive rights or obligations of all Designated Holders, unless each such
disproportionately affected Designated Holder consents in writing thereto.
(f)
Notices
. All notices, demands and other communications provided for or permitted hereunder
shall be made in writing and shall be made by registered or certified first-class mail, return
receipt requested, telecopier, courier service or personal delivery.
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All such notices, demands and other communications shall be deemed to have been duly given
when delivered by hand, if personally delivered; when delivered by courier, if delivered by
commercial courier service; five (5) Business Days after being deposited in the mail, postage
prepaid, if mailed; and when receipt is mechanically acknowledged, if telecopied. Any party may by
notice given in accordance with this Section 11(e) designate another address or Person for receipt
of notices hereunder.
(g)
Permitted Assignees; Third Party Beneficiaries
. This Agreement shall inure to the benefit of
and be binding upon the permitted assignees of the parties hereto as provided in Section 2(d).
Except as provided in Section 9, no Person other than the parties hereto and their permitted
assignees is intended to be a beneficiary of this Agreement.
(h)
Counterparts; Headings
.
This Agreement may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
The headings in this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(i)
GOVERNING LAW
.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
(j)
Severability
. If any one or more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every other respect and
of the remaining provisions hereof shall not be in any way impaired.
(k)
Rules of Construction
. Unless the context otherwise requires, references to sections or
subsections refer to sections or subsections of this Agreement.
[Agreement Continues on Page 29]
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(l)
Entire Agreement
.
This Agreement is intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. There are no restrictions, promises,
representations, warranties or undertakings, other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings among the parties with respect to
such subject matter.
(m)
Further Assurances
. Each of the parties shall execute such documents and perform such further
acts as may be reasonably required or desirable to carry out or to perform the provisions of this
Agreement.
(n)
Other Agreements
. Nothing contained in this Agreement shall be deemed to be a waiver of, or
release from, any obligations any party hereto may have under, or any restrictions on the transfer
of Registrable Securities or other securities of the Company imposed by, any other agreement.
IN WITNESS WHEREOF, the undersigned have executed, or
have caused to be executed, this Amended and Restated
Registration Rights Agreement on the date first written
above.
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/s/ Sheldon G. Adelson
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Sheldon G. Adelson
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SHELDON G. ADELSON 2002
REMAINDER TRUST
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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By:
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/s/ Dr. Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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Registration Rights Agreement
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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SHELDON G. ADELSON 2005 FAMILY TRUST U/D/T
DATED APRIL 25, 2005
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By:
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/s/ Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/ Dr. Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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DR. MIRIAM AND SHELDON G. ADELSON CHARITABLE TRUST U/D/T
DATED DECEMBER 12, 1994
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By:
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/s/ Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/ Dr. Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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ESBT Y TRUST U/D/T DATED OCTOBER 1, 2002
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By:
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/s/ Dr. Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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[Signature Page to Registration Rights Agreement]
Page 30 of 37
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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ESBT S TRUST U/D/T DATED OCTOBER 1, 2002
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By:
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/s/ Dr. Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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QSST A TRUST U/D/T DATED OCTOBER 1, 2002
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By:
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/s/ Dr. Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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[Signature Page to Registration Rights Agreement]
Page 31 of 37
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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QSST M TRUST U/D/T DATED OCTOBER 1, 2002
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By:
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/s/ Dr. Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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SHELDON G. ADELSON 2004 REMAINDER TRUST U/D/T MAY 31,
2004
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By:
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/s/ Dr. Miriam Adelson
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Dr. Miriam Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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[Signature Page to Registration Rights Agreement]
Page 32 of 37
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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SHELDON G. ADELSON 2007 TWO YEAR LVS ANNUITY TRUST
U/D/T DATED MAY 1, 2007
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By:
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/s/ Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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SHELDON G. ADELSON 2007 THREE YEAR LVS ANNUITY TRUST
U/D/T DATED MAY 1, 2007
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By:
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/s/ Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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SHELDON G. ADELSON JULY 2007 TWO YEAR LVS ANNUITY
TRUST U/D/T DATED JULY 30, 2007
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By:
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/s/ Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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[Signature Page to Registration Rights Agreement]
Page 33 of 37
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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SHELDON G. ADELSON JULY 2007 THREE YEAR LVS ANNUITY
TRUST U/D/T DATED JULY 30, 2007
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By:
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/s/ Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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SHELDON G. ADELSON APRIL 2008 TWO YEAR LVS ANNUITY
TRUST U/D/T DATED APRIL 1, 2008
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By:
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/s/ Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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SHELDON G. ADELSON APRIL 2008 THREE YEAR LVS ANNUITY
TRUST U/D/T DATED APRIL 1, 2008
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By:
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/s/ Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/ Irwin Chafetz
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Irwin Chafetz
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Trustee
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[Signature Page to Registration Rights Agreement]
Page 34 of 37
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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SHELDON G. ADELSON JULY 2008 TWO YEAR LVS ANNUITY
TRUST U/D/T DATED JULY 28, 2008
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By:
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/s/ Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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SHELDON G. ADELSON JULY 2008 THREE YEAR LVS ANNUITY
TRUST U/D/T DATED JULY 28, 2008
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By:
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/s/ Sheldon G. Adelson
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Sheldon G. Adelson
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Trustee
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By:
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/s/ Timothy D. Stein
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Timothy D. Stein
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Trustee
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[Signature Page to Registration Rights Agreement]
Page 35 of 37
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be executed, this Amended
and Restated Registration Rights Agreement on the date first written above.
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LAS VEGAS SANDS CORP.
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By:
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/s/ William P. Weidner
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Name:
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William P. Weidner
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Title:
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President, Chief Operating Officer and
Secretary
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[Signature Page to Registration Rights Agreement]
Page 36 of 37
Annex A
Plan of Distribution
A selling stockholder may also enter into hedging and/or monetization transactions. For
example, a selling stockholder may:
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enter into transactions with a broker-dealer or affiliate of a broker-dealer or other third
party in connection with which that other party will become a selling stockholder and engage
in short sales of our common stock under this prospectus, in which case the other party may
use shares of our common stock received from the selling stockholder to close out any short
position;
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sell short our common stock under this prospectus and use shares of our common stock held
by the selling stockholder to close out any short position;
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enter into options, forwards or other transactions that require the selling stockholder to
deliver, in a transaction exempt from registration under the Securities Act, shares of our
common stock to a broker-dealer or an affiliate of a broker-dealer or other third party who
may then become a selling stockholder and publicly resell or otherwise transfer shares of our
common stock under this prospectus;
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loan or pledge shares of our common stock to a broker-dealer or affiliate of a
broker-dealer or other third party who may then become a selling stockholder and sell the
loaned shares or, in an event of default in the case of a pledge, become a selling stockholder
and sell the pledged shares, under this prospectus; or
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enter into derivative transactions with third parties, or sell securities not covered by
this prospectus to third parties in privately negotiated transactions. If the applicable
prospectus supplement indicates, in connection with those derivatives, the third parties may
sell securities covered by this prospectus and the applicable prospectus supplement, including
in short sale transactions. If so, the third party may use securities pledged by the selling
stockholder or borrowed from the selling stockholder or others to settle those sales or to
close out any related open borrowings of stock, and may use securities received from the
selling stockholder in settlement of those derivatives to close out any related open
borrowings of stock. The third party in such sale transactions will be an underwriter and will
be identified in the applicable prospectus supplement (or a post effective amendment).
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Annex A to Registration Rights Agreement
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Page 37 of 37
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