ý
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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¨
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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Nevada
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27-0099920
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(State or other jurisdiction of
incorporation or organization)
|
|
(I.R.S. Employer
Identification No.)
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Large accelerated filer
|
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ý
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Accelerated filer
|
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¨
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|
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|||
Non-accelerated filer
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¨
(Do not check if a smaller reporting company)
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|
Smaller reporting company
|
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¨
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Class
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|
Outstanding at October 31, 2014
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Common Stock ($0.001 par value)
|
|
801,998,185 shares
|
|
|
|
|
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Item 1.
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||
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||
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Item 2.
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Item 3.
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Item 4.
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||
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Item 1.
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||
Item 1A.
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||
Item 2.
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Item 6.
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||
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September 30, 2014
|
|
December 31, 2013
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||||
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(In thousands, except share
and per share data)
(Unaudited)
|
||||||
ASSETS
|
|||||||
Current assets:
|
|
|
|
||||
Cash and cash equivalents
|
$
|
3,147,109
|
|
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$
|
3,600,414
|
|
Restricted cash and cash equivalents
|
6,518
|
|
|
6,839
|
|
||
Accounts receivable, net
|
1,496,987
|
|
|
1,762,110
|
|
||
Inventories
|
43,090
|
|
|
41,946
|
|
||
Prepaid expenses and other
|
123,633
|
|
|
104,230
|
|
||
Total current assets
|
4,817,337
|
|
|
5,515,539
|
|
||
Property and equipment, net
|
15,355,117
|
|
|
15,358,953
|
|
||
Deferred financing costs, net
|
219,434
|
|
|
185,964
|
|
||
Deferred income taxes, net
|
20,615
|
|
|
13,821
|
|
||
Leasehold interests in land, net
|
1,397,348
|
|
|
1,428,819
|
|
||
Intangible assets, net
|
90,730
|
|
|
102,081
|
|
||
Other assets, net
|
127,200
|
|
|
119,087
|
|
||
Total assets
|
$
|
22,027,781
|
|
|
$
|
22,724,264
|
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LIABILITIES AND EQUITY
|
|||||||
Current liabilities:
|
|
|
|
||||
Accounts payable
|
$
|
109,868
|
|
|
$
|
119,194
|
|
Construction payables
|
241,396
|
|
|
241,560
|
|
||
Accrued interest payable
|
1,525
|
|
|
6,551
|
|
||
Other accrued liabilities
|
2,006,106
|
|
|
2,194,866
|
|
||
Deferred income taxes
|
8,980
|
|
|
13,309
|
|
||
Income taxes payable
|
148,940
|
|
|
176,678
|
|
||
Current maturities of long-term debt
|
102,602
|
|
|
377,507
|
|
||
Total current liabilities
|
2,619,417
|
|
|
3,129,665
|
|
||
Other long-term liabilities
|
125,270
|
|
|
112,195
|
|
||
Deferred income taxes
|
168,291
|
|
|
173,211
|
|
||
Deferred proceeds from sale of The Shoppes at The Palazzo
|
268,667
|
|
|
268,541
|
|
||
Deferred gain on sale of The Grand Canal Shoppes
|
38,678
|
|
|
40,416
|
|
||
Deferred rent from mall sale transactions
|
115,845
|
|
|
116,955
|
|
||
Long-term debt
|
9,836,015
|
|
|
9,382,752
|
|
||
Total liabilities
|
13,172,183
|
|
|
13,223,735
|
|
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Commitments and contingencies (Note 9)
|
|
|
|
||||
Equity:
|
|
|
|
||||
Common stock, $0.001 par value, 1,000,000,000 shares authorized, 829,106,838 and 827,273,217 shares issued, 801,971,285 and 818,702,936 shares outstanding
|
829
|
|
|
827
|
|
||
Treasury stock, at cost, 27,135,553 and 8,570,281 shares
|
(2,000,381
|
)
|
|
(570,520
|
)
|
||
Capital in excess of par value
|
6,426,411
|
|
|
6,348,065
|
|
||
Accumulated other comprehensive income
|
158,022
|
|
|
173,783
|
|
||
Retained earnings
|
2,622,413
|
|
|
1,713,339
|
|
||
Total Las Vegas Sands Corp. stockholders’ equity
|
7,207,294
|
|
|
7,665,494
|
|
||
Noncontrolling interests
|
1,648,304
|
|
|
1,835,035
|
|
||
Total equity
|
8,855,598
|
|
|
9,500,529
|
|
||
Total liabilities and equity
|
$
|
22,027,781
|
|
|
$
|
22,724,264
|
|
|
Three Months Ended
September 30, |
|
Nine Months Ended
September 30, |
||||||||||||
|
2014
|
|
2013
|
|
2014
|
|
2013
|
||||||||
|
(In thousands, except share and per share data)
(Unaudited)
|
||||||||||||||
Revenues:
|
|
|
|
|
|
|
|
||||||||
Casino
|
$
|
2,897,084
|
|
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$
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2,984,538
|
|
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$
|
9,281,959
|
|
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$
|
8,394,721
|
|
Rooms
|
386,867
|
|
|
349,001
|
|
|
1,162,205
|
|
|
998,646
|
|
||||
Food and beverage
|
185,821
|
|
|
174,260
|
|
|
582,804
|
|
|
534,361
|
|
||||
Mall
|
150,728
|
|
|
128,068
|
|
|
378,832
|
|
|
321,522
|
|
||||
Convention, retail and other
|
128,458
|
|
|
123,259
|
|
|
391,663
|
|
|
372,370
|
|
||||
|
3,748,958
|
|
|
3,759,126
|
|
|
11,797,463
|
|
|
10,621,620
|
|
||||
Less — promotional allowances
|
(215,836
|
)
|
|
(190,586
|
)
|
|
(629,607
|
)
|
|
(507,420
|
)
|
||||
Net revenues
|
3,533,122
|
|
|
3,568,540
|
|
|
11,167,856
|
|
|
10,114,200
|
|
||||
Operating expenses:
|
|
|
|
|
|
|
|
||||||||
Casino
|
1,634,960
|
|
|
1,668,107
|
|
|
5,192,809
|
|
|
4,714,107
|
|
||||
Rooms
|
66,301
|
|
|
69,511
|
|
|
194,682
|
|
|
203,886
|
|
||||
Food and beverage
|
95,749
|
|
|
88,020
|
|
|
291,746
|
|
|
274,045
|
|
||||
Mall
|
18,032
|
|
|
17,319
|
|
|
53,104
|
|
|
52,724
|
|
||||
Convention, retail and other
|
68,833
|
|
|
69,102
|
|
|
233,965
|
|
|
228,045
|
|
||||
Provision for doubtful accounts
|
31,103
|
|
|
55,371
|
|
|
142,690
|
|
|
182,108
|
|
||||
General and administrative
|
341,501
|
|
|
380,865
|
|
|
1,005,532
|
|
|
979,148
|
|
||||
Corporate
|
42,704
|
|
|
38,468
|
|
|
138,504
|
|
|
141,221
|
|
||||
Pre-opening
|
(2,414
|
)
|
|
1,778
|
|
|
18,027
|
|
|
9,646
|
|
||||
Development
|
3,043
|
|
|
3,487
|
|
|
8,952
|
|
|
14,840
|
|
||||
Depreciation and amortization
|
251,002
|
|
|
248,925
|
|
|
776,065
|
|
|
752,530
|
|
||||
Amortization of leasehold interests in land
|
10,086
|
|
|
10,022
|
|
|
30,152
|
|
|
30,297
|
|
||||
Loss on disposal of assets
|
801
|
|
|
2,739
|
|
|
4,922
|
|
|
9,433
|
|
||||
|
2,561,701
|
|
|
2,653,714
|
|
|
8,091,150
|
|
|
7,592,030
|
|
||||
Operating income
|
971,421
|
|
|
914,826
|
|
|
3,076,706
|
|
|
2,522,170
|
|
||||
Other income (expense):
|
|
|
|
|
|
|
|
||||||||
Interest income
|
5,609
|
|
|
3,819
|
|
|
17,109
|
|
|
10,848
|
|
||||
Interest expense, net of amounts capitalized
|
(66,779
|
)
|
|
(66,917
|
)
|
|
(207,495
|
)
|
|
(204,125
|
)
|
||||
Other income (expense)
|
95
|
|
|
3,207
|
|
|
(2,368
|
)
|
|
4,992
|
|
||||
Loss on modification or early retirement of debt
|
(1,978
|
)
|
|
—
|
|
|
(19,942
|
)
|
|
—
|
|
||||
Income before income taxes
|
908,368
|
|
|
854,935
|
|
|
2,864,010
|
|
|
2,333,885
|
|
||||
Income tax expense
|
(47,869
|
)
|
|
(45,637
|
)
|
|
(153,939
|
)
|
|
(148,940
|
)
|
||||
Net income
|
860,499
|
|
|
809,298
|
|
|
2,710,071
|
|
|
2,184,945
|
|
||||
Net income attributable to noncontrolling interests
|
(188,794
|
)
|
|
(182,554
|
)
|
|
(590,747
|
)
|
|
(456,487
|
)
|
||||
Net income attributable to Las Vegas Sands Corp.
|
$
|
671,705
|
|
|
$
|
626,744
|
|
|
$
|
2,119,324
|
|
|
$
|
1,728,458
|
|
Earnings per share:
|
|
|
|
|
|
|
|
||||||||
Basic
|
$
|
0.84
|
|
|
$
|
0.76
|
|
|
$
|
2.62
|
|
|
$
|
2.10
|
|
Diluted
|
$
|
0.83
|
|
|
$
|
0.76
|
|
|
$
|
2.62
|
|
|
$
|
2.09
|
|
Weighted average shares outstanding:
|
|
|
|
|
|
|
|
||||||||
Basic
|
803,064,834
|
|
|
823,200,515
|
|
|
808,247,012
|
|
|
823,512,889
|
|
||||
Diluted
|
804,810,589
|
|
|
826,965,340
|
|
|
810,288,616
|
|
|
827,543,510
|
|
||||
Dividends declared per common share
|
$
|
0.50
|
|
|
$
|
0.35
|
|
|
$
|
1.50
|
|
|
$
|
1.05
|
|
|
Three Months Ended
September 30, |
|
Nine Months Ended
September 30, |
||||||||||||
|
2014
|
|
2013
|
|
2014
|
|
2013
|
||||||||
|
(In thousands)
(Unaudited)
|
||||||||||||||
Net income
|
$
|
860,499
|
|
|
$
|
809,298
|
|
|
$
|
2,710,071
|
|
|
$
|
2,184,945
|
|
Currency translation adjustment, before and after tax
|
(52,349
|
)
|
|
19,865
|
|
|
(18,151
|
)
|
|
(69,672
|
)
|
||||
Total comprehensive income
|
808,150
|
|
|
829,163
|
|
|
2,691,920
|
|
|
2,115,273
|
|
||||
Comprehensive income attributable to noncontrolling interests
|
(185,744
|
)
|
|
(183,314
|
)
|
|
(588,357
|
)
|
|
(455,681
|
)
|
||||
Comprehensive income attributable to Las Vegas Sands Corp.
|
$
|
622,406
|
|
|
$
|
645,849
|
|
|
$
|
2,103,563
|
|
|
$
|
1,659,592
|
|
|
Las Vegas Sands Corp. Stockholders’ Equity
|
|
|
|
|
||||||||||||||||||||||
|
Common
Stock
|
|
Treasury
Stock |
|
Capital in
Excess of
Par Value
|
|
Accumulated
Other
Comprehensive
Income
|
|
Retained
Earnings
|
|
Noncontrolling
Interests
|
|
Total
|
||||||||||||||
|
(In thousands)
(Unaudited)
|
||||||||||||||||||||||||||
Balance at January 1, 2013
|
$
|
824
|
|
|
$
|
—
|
|
|
$
|
6,237,488
|
|
|
$
|
263,078
|
|
|
$
|
560,452
|
|
|
$
|
1,596,570
|
|
|
$
|
8,658,412
|
|
Net income
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
1,728,458
|
|
|
456,487
|
|
|
2,184,945
|
|
|||||||
Currency translation adjustment
|
—
|
|
|
—
|
|
|
—
|
|
|
(68,866
|
)
|
|
—
|
|
|
(806
|
)
|
|
(69,672
|
)
|
|||||||
Exercise of stock options
|
2
|
|
|
—
|
|
|
37,729
|
|
|
—
|
|
|
—
|
|
|
8,702
|
|
|
46,433
|
|
|||||||
Tax benefit from stock-based compensation
|
—
|
|
|
—
|
|
|
2,394
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,394
|
|
|||||||
Stock-based compensation
|
—
|
|
|
—
|
|
|
37,305
|
|
|
—
|
|
|
—
|
|
|
2,990
|
|
|
40,295
|
|
|||||||
Repurchase of common stock
|
—
|
|
|
(346,253
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(346,253
|
)
|
|||||||
Dividends declared
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(866,391
|
)
|
|
(411,359
|
)
|
|
(1,277,750
|
)
|
|||||||
Distributions to noncontrolling interests
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(7,808
|
)
|
|
(7,808
|
)
|
|||||||
Balance at September 30, 2013
|
$
|
826
|
|
|
$
|
(346,253
|
)
|
|
$
|
6,314,916
|
|
|
$
|
194,212
|
|
|
$
|
1,422,519
|
|
|
$
|
1,644,776
|
|
|
$
|
9,230,996
|
|
Balance at January 1, 2014
|
$
|
827
|
|
|
$
|
(570,520
|
)
|
|
$
|
6,348,065
|
|
|
$
|
173,783
|
|
|
$
|
1,713,339
|
|
|
$
|
1,835,035
|
|
|
$
|
9,500,529
|
|
Net income
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,119,324
|
|
|
590,747
|
|
|
2,710,071
|
|
|||||||
Currency translation adjustment
|
—
|
|
|
—
|
|
|
—
|
|
|
(15,761
|
)
|
|
—
|
|
|
(2,390
|
)
|
|
(18,151
|
)
|
|||||||
Exercise of stock options
|
2
|
|
|
—
|
|
|
44,058
|
|
|
—
|
|
|
—
|
|
|
4,383
|
|
|
48,443
|
|
|||||||
Stock-based compensation
|
—
|
|
|
—
|
|
|
34,288
|
|
|
—
|
|
|
—
|
|
|
4,751
|
|
|
39,039
|
|
|||||||
Repurchase of common stock
|
—
|
|
|
(1,429,861
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,429,861
|
)
|
|||||||
Disposition of interest in majority owned subsidiary
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(487
|
)
|
|
(487
|
)
|
|||||||
Dividends declared
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,210,250
|
)
|
|
(776,570
|
)
|
|
(1,986,820
|
)
|
|||||||
Distributions to noncontrolling interests
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(7,165
|
)
|
|
(7,165
|
)
|
|||||||
Balance at September 30, 2014
|
$
|
829
|
|
|
$
|
(2,000,381
|
)
|
|
$
|
6,426,411
|
|
|
$
|
158,022
|
|
|
$
|
2,622,413
|
|
|
$
|
1,648,304
|
|
|
$
|
8,855,598
|
|
|
Nine Months Ended
September 30, |
||||||
|
2014
|
|
2013
|
||||
|
(In thousands)
(Unaudited)
|
||||||
Cash flows from operating activities:
|
|
|
|
||||
Net income
|
$
|
2,710,071
|
|
|
$
|
2,184,945
|
|
Adjustments to reconcile net income to net cash generated from operating activities:
|
|
|
|
||||
Depreciation and amortization
|
776,065
|
|
|
752,530
|
|
||
Amortization of leasehold interests in land
|
30,152
|
|
|
30,297
|
|
||
Amortization of deferred financing costs and original issue discount
|
40,067
|
|
|
42,617
|
|
||
Amortization of deferred gain on and rent from mall sale transactions
|
(2,848
|
)
|
|
(3,708
|
)
|
||
Non-cash change in deferred proceeds from sale of The Shoppes at The Palazzo
|
738
|
|
|
1,030
|
|
||
Non-cash loss on modification or early retirement of debt
|
15,345
|
|
|
—
|
|
||
Loss on disposal of assets
|
4,922
|
|
|
9,433
|
|
||
Stock-based compensation expense
|
37,780
|
|
|
39,802
|
|
||
Provision for doubtful accounts
|
142,690
|
|
|
182,108
|
|
||
Foreign exchange gain
|
(3,437
|
)
|
|
(9,802
|
)
|
||
Excess tax benefits from stock-based compensation
|
—
|
|
|
(2,394
|
)
|
||
Deferred income taxes
|
(20,452
|
)
|
|
(5,762
|
)
|
||
Changes in operating assets and liabilities:
|
|
|
|
||||
Accounts receivable
|
119,384
|
|
|
(233,379
|
)
|
||
Inventories
|
(1,193
|
)
|
|
1,974
|
|
||
Prepaid expenses and other
|
(27,882
|
)
|
|
3,473
|
|
||
Leasehold interests in land
|
(3,433
|
)
|
|
(25,387
|
)
|
||
Accounts payable
|
(9,155
|
)
|
|
9,006
|
|
||
Accrued interest payable
|
(5,069
|
)
|
|
(13,866
|
)
|
||
Income taxes payable
|
(27,235
|
)
|
|
(17,282
|
)
|
||
Other accrued liabilities
|
(159,014
|
)
|
|
215,148
|
|
||
Net cash generated from operating activities
|
3,617,496
|
|
|
3,160,783
|
|
||
Cash flows from investing activities:
|
|
|
|
||||
Change in restricted cash and cash equivalents
|
313
|
|
|
(877
|
)
|
||
Capital expenditures
|
(793,114
|
)
|
|
(599,482
|
)
|
||
Proceeds from disposal of property and equipment
|
1,580
|
|
|
713
|
|
||
Acquisition of intangible assets
|
—
|
|
|
(45,857
|
)
|
||
Net cash used in investing activities
|
(791,221
|
)
|
|
(645,503
|
)
|
||
Cash flows from financing activities:
|
|
|
|
||||
Proceeds from exercise of stock options
|
48,443
|
|
|
46,433
|
|
||
Excess tax benefits from stock-based compensation
|
—
|
|
|
2,394
|
|
||
Repurchase of common stock
|
(1,439,231
|
)
|
|
(211,241
|
)
|
||
Dividends paid
|
(1,986,378
|
)
|
|
(1,277,360
|
)
|
||
Distributions to noncontrolling interests
|
(7,165
|
)
|
|
(7,808
|
)
|
||
Proceeds from long-term debt (Note 3)
|
2,247,725
|
|
|
354,357
|
|
||
Repayments on long-term debt (Note 3)
|
(2,051,878
|
)
|
|
(720,177
|
)
|
||
Payments of deferred financing costs
|
(88,167
|
)
|
|
—
|
|
||
Net cash used in financing activities
|
(3,276,651
|
)
|
|
(1,813,402
|
)
|
||
Effect of exchange rate on cash
|
(2,929
|
)
|
|
(5,524
|
)
|
||
Increase (decrease) in cash and cash equivalents
|
(453,305
|
)
|
|
696,354
|
|
||
Cash and cash equivalents at beginning of period
|
3,600,414
|
|
|
2,512,766
|
|
||
Cash and cash equivalents at end of period
|
$
|
3,147,109
|
|
|
$
|
3,209,120
|
|
|
|
|
|
|
Nine Months Ended
September 30, |
||||||
|
2014
|
|
2013
|
||||
|
(In thousands)
(Unaudited) |
||||||
Supplemental disclosure of cash flow information:
|
|
|
|
||||
Cash payments for interest, net of amounts capitalized
|
$
|
161,062
|
|
|
$
|
164,250
|
|
Cash payments for taxes, net of refunds
|
$
|
194,758
|
|
|
$
|
175,059
|
|
Change in construction payables
|
$
|
(164
|
)
|
|
$
|
(78,341
|
)
|
Non-cash investing and financing activities:
|
|
|
|
||||
Capitalized stock-based compensation costs
|
$
|
1,259
|
|
|
$
|
493
|
|
Change in dividends payable on unvested restricted stock and stock units included in other accrued liabilities
|
$
|
442
|
|
|
$
|
390
|
|
Property and equipment acquired under capital lease
|
$
|
—
|
|
|
$
|
2,668
|
|
Disposition of interest in majority owned subsidiary
|
$
|
487
|
|
|
$
|
—
|
|
Change in common stock repurchase payable included in other accrued liabilities
|
$
|
(9,370
|
)
|
|
$
|
135,012
|
|
|
September 30, 2014
|
|
December 31, 2013
|
||||
Land and improvements
|
$
|
552,059
|
|
|
$
|
553,561
|
|
Building and improvements
|
15,290,757
|
|
|
15,226,566
|
|
||
Furniture, fixtures, equipment and leasehold improvements
|
3,031,103
|
|
|
2,849,502
|
|
||
Transportation
|
446,299
|
|
|
439,976
|
|
||
Construction in progress
|
1,585,713
|
|
|
1,150,349
|
|
||
|
20,905,931
|
|
|
20,219,954
|
|
||
Less — accumulated depreciation and amortization
|
(5,550,814
|
)
|
|
(4,861,001
|
)
|
||
|
$
|
15,355,117
|
|
|
$
|
15,358,953
|
|
|
September 30, 2014
|
|
December 31, 2013
|
||||
The Parisian Macao
|
$
|
581,491
|
|
|
$
|
318,914
|
|
Four Seasons Macao (principally the Four Seasons Apartments)
|
422,021
|
|
|
394,404
|
|
||
Sands Cotai Central
|
216,767
|
|
|
111,704
|
|
||
Other
|
365,434
|
|
|
325,327
|
|
||
|
$
|
1,585,713
|
|
|
$
|
1,150,349
|
|
|
September 30, 2014
|
|
December 31, 2013
|
||||
Corporate and U.S. Related:
|
|
|
|
||||
2013 U.S. Credit Facility — Term B (net of original issue discount of $10,045 and $11,250, respectively)
|
$
|
2,223,080
|
|
|
$
|
2,238,750
|
|
2013 U.S. Credit Facility — Revolving
|
810,000
|
|
|
590,000
|
|
||
Airplane Financings
|
64,593
|
|
|
67,359
|
|
||
HVAC Equipment Lease
|
16,989
|
|
|
18,140
|
|
||
Other
|
627
|
|
|
2,335
|
|
||
Macao Related:
|
|
|
|
||||
2011 VML Credit Facility — Extended Term A
|
2,387,033
|
|
|
—
|
|
||
2011 VML Credit Facility — Term A
|
—
|
|
|
3,208,869
|
|
||
2011 VML Credit Facility — Extended Revolving
|
819,618
|
|
|
—
|
|
||
Other
|
6,209
|
|
|
7,910
|
|
||
Singapore Related:
|
|
|
|
||||
2012 Singapore Credit Facility — Term
|
3,610,468
|
|
|
3,626,896
|
|
||
|
9,938,617
|
|
|
9,760,259
|
|
||
Less — current maturities
|
(102,602
|
)
|
|
(377,507
|
)
|
||
Total long-term debt
|
$
|
9,836,015
|
|
|
$
|
9,382,752
|
|
|
Nine Months Ended
September 30, |
||||||
|
2014
|
|
2013
|
||||
Proceeds from 2013 U.S. Credit Facility
|
$
|
1,428,000
|
|
|
$
|
—
|
|
Proceeds from 2011 VML Credit Facility
|
819,725
|
|
|
—
|
|
||
Proceeds from Senior Secured Credit Facility
|
—
|
|
|
250,000
|
|
||
Proceeds from 2012 Singapore Credit Facility
|
—
|
|
|
104,357
|
|
||
|
$
|
2,247,725
|
|
|
$
|
354,357
|
|
|
|
|
|
||||
Repayments on 2013 U.S. Credit Facility
|
$
|
(1,224,875
|
)
|
|
$
|
—
|
|
Repayments on 2011 VML Credit Facility
|
(819,680
|
)
|
|
—
|
|
||
Repayments on 2012 Singapore Credit Facility
|
—
|
|
|
(430,504
|
)
|
||
Repayments on Senior Secured Credit Facility
|
—
|
|
|
(282,424
|
)
|
||
Repayments on Airplane Financings
|
(2,766
|
)
|
|
(2,766
|
)
|
||
Repayments on HVAC Equipment Lease and Other Long-Term Debt
|
(4,557
|
)
|
|
(4,483
|
)
|
||
|
$
|
(2,051,878
|
)
|
|
$
|
(720,177
|
)
|
|
Three Months Ended
September 30, |
|
Nine Months Ended
September 30, |
||||||||
|
2014
|
|
2013
|
|
2014
|
|
2013
|
||||
Weighted-average common shares outstanding (used in the calculation of basic earnings per share)
|
803,064,834
|
|
|
823,200,515
|
|
|
808,247,012
|
|
|
823,512,889
|
|
Potential dilution from stock options, warrants and restricted stock and stock units
|
1,745,755
|
|
|
3,764,825
|
|
|
2,041,604
|
|
|
4,030,621
|
|
Weighted-average common and common equivalent shares (used in the calculation of diluted earnings per share)
|
804,810,589
|
|
|
826,965,340
|
|
|
810,288,616
|
|
|
827,543,510
|
|
Antidilutive stock options excluded from the calculation of diluted earnings per share
|
2,941,860
|
|
|
4,573,059
|
|
|
2,833,560
|
|
|
4,547,759
|
|
|
Three Months Ended
September 30, |
|
Nine Months Ended
September 30, |
||||||||||||
|
2014
|
|
2013
|
|
2014
|
|
2013
|
||||||||
Compensation expense:
|
|
|
|
|
|
|
|
||||||||
Stock options
|
$
|
6,014
|
|
|
$
|
8,391
|
|
|
$
|
19,364
|
|
|
$
|
24,481
|
|
Restricted stock and stock units
|
5,583
|
|
|
4,903
|
|
|
18,416
|
|
|
15,321
|
|
||||
|
$
|
11,597
|
|
|
$
|
13,294
|
|
|
$
|
37,780
|
|
|
$
|
39,802
|
|
Compensation cost capitalized as part of property and equipment
|
$
|
144
|
|
|
$
|
129
|
|
|
$
|
1,259
|
|
|
$
|
493
|
|
LVSC 2004 Plan:
|
|
|
|
|
|
|
|
||||||||
Stock options granted
|
4
|
|
|
70
|
|
|
63
|
|
|
288
|
|
||||
Weighted average grant date fair value
|
$
|
23.06
|
|
|
$
|
38.11
|
|
|
$
|
32.02
|
|
|
$
|
35.76
|
|
Restricted stock granted
|
—
|
|
|
4
|
|
|
31
|
|
|
47
|
|
||||
Weighted average grant date fair value
|
$
|
—
|
|
|
$
|
56.84
|
|
|
$
|
75.46
|
|
|
$
|
54.72
|
|
Restricted stock units granted
|
—
|
|
|
89
|
|
|
6
|
|
|
123
|
|
||||
Weighted average grant date fair value
|
$
|
—
|
|
|
$
|
59.83
|
|
|
$
|
73.68
|
|
|
$
|
58.82
|
|
SCL Equity Plan:
|
|
|
|
|
|
|
|
||||||||
Stock options granted
|
1,258
|
|
|
1,058
|
|
|
11,447
|
|
|
3,787
|
|
||||
Weighted average grant date fair value
|
$
|
2.72
|
|
|
$
|
2.97
|
|
|
$
|
3.43
|
|
|
$
|
2.48
|
|
Restricted stock units granted
|
—
|
|
|
—
|
|
|
189
|
|
|
1,000
|
|
||||
Weighted average grant date fair value
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
7.37
|
|
|
$
|
5.26
|
|
|
Three Months Ended
September 30, |
|
Nine Months Ended
September 30, |
||||||||
|
2014
|
|
2013
|
|
2014
|
|
2013
|
||||
LVSC 2004 Plan:
|
|
|
|
|
|
|
|
||||
Weighted average volatility
|
41.1
|
%
|
|
94.6
|
%
|
|
58.3
|
%
|
|
94.8
|
%
|
Expected term (in years)
|
6.0
|
|
|
5.5
|
|
|
5.6
|
|
|
5.5
|
|
Risk-free rate
|
1.6
|
%
|
|
1.4
|
%
|
|
1.7
|
%
|
|
1.3
|
%
|
Expected dividends
|
2.7
|
%
|
|
2.4
|
%
|
|
2.7
|
%
|
|
2.5
|
%
|
SCL Equity Plan:
|
|
|
|
|
|
|
|
||||
Weighted average volatility
|
63.4
|
%
|
|
67.2
|
%
|
|
65.3
|
%
|
|
67.9
|
%
|
Expected term (in years)
|
6.3
|
|
|
6.3
|
|
|
6.3
|
|
|
6.3
|
|
Risk-free rate
|
1.4
|
%
|
|
1.3
|
%
|
|
1.3
|
%
|
|
0.6
|
%
|
Expected dividends
|
3.5
|
%
|
|
2.8
|
%
|
|
3.0
|
%
|
|
3.3
|
%
|
(1)
|
The Company has short-term investments classified as cash equivalents as the original maturities are
less than 90 days
.
|
(2)
|
As of
September 30, 2014
and
December 31, 2013
, the Company had
10
and
22
interest rate cap agreements, respectively, with an aggregate fair value of approximately
$26,000
and
$0.2 million
, respectively, based on quoted market values from the institutions holding the agreements.
|
•
|
do not have a material impact on the financial statements of the Company;
|
•
|
do not warrant any restatement of the Company’s past financial statements; and
|
•
|
do not represent a material weakness in the Company’s internal controls over financial reporting as of
September 30, 2014
.
|
|
Three Months Ended
September 30, |
|
Nine Months Ended
September 30, |
||||||||||||
|
2014
|
|
2013
|
|
2014
|
|
2013
|
||||||||
Net Revenues:
|
|
|
|
|
|
|
|
||||||||
Macao:
|
|
|
|
|
|
|
|
||||||||
The Venetian Macao
|
$
|
943,037
|
|
|
$
|
935,233
|
|
|
$
|
3,160,374
|
|
|
$
|
2,702,151
|
|
Sands Cotai Central
|
816,463
|
|
|
736,599
|
|
|
2,428,822
|
|
|
1,907,780
|
|
||||
Four Seasons Macao
|
265,432
|
|
|
330,027
|
|
|
863,940
|
|
|
827,336
|
|
||||
Sands Macao
|
280,079
|
|
|
305,329
|
|
|
906,882
|
|
|
910,269
|
|
||||
Other Asia
|
41,439
|
|
|
35,385
|
|
|
113,286
|
|
|
105,666
|
|
||||
|
2,346,450
|
|
|
2,342,573
|
|
|
7,473,304
|
|
|
6,453,202
|
|
||||
Marina Bay Sands
|
735,505
|
|
|
774,199
|
|
|
2,375,618
|
|
|
2,308,553
|
|
||||
United States:
|
|
|
|
|
|
|
|
||||||||
Las Vegas Operating Properties
|
380,461
|
|
|
375,041
|
|
|
1,116,194
|
|
|
1,132,312
|
|
||||
Sands Bethlehem
|
127,338
|
|
|
122,922
|
|
|
370,644
|
|
|
372,597
|
|
||||
|
507,799
|
|
|
497,963
|
|
|
1,486,838
|
|
|
1,504,909
|
|
||||
Intersegment eliminations
|
(56,632
|
)
|
|
(46,195
|
)
|
|
(167,904
|
)
|
|
(152,464
|
)
|
||||
Total net revenues
|
$
|
3,533,122
|
|
|
$
|
3,568,540
|
|
|
$
|
11,167,856
|
|
|
$
|
10,114,200
|
|
|
Three Months Ended
September 30, |
|
Nine Months Ended
September 30, |
||||||||||||
|
2014
|
|
2013
|
|
2014
|
|
2013
|
||||||||
Adjusted Property EBITDA
(1)
|
|
|
|
|
|
|
|
||||||||
Macao:
|
|
|
|
|
|
|
|
||||||||
The Venetian Macao
|
$
|
352,735
|
|
|
$
|
357,197
|
|
|
$
|
1,224,876
|
|
|
$
|
1,066,543
|
|
Sands Cotai Central
|
267,031
|
|
|
224,272
|
|
|
781,210
|
|
|
501,940
|
|
||||
Four Seasons Macao
|
101,184
|
|
|
112,922
|
|
|
282,179
|
|
|
228,283
|
|
||||
Sands Macao
|
88,099
|
|
|
89,947
|
|
|
261,856
|
|
|
274,887
|
|
||||
Other Asia
|
3,130
|
|
|
1,177
|
|
|
1,248
|
|
|
(4,547
|
)
|
||||
|
812,179
|
|
|
785,515
|
|
|
2,551,369
|
|
|
2,067,106
|
|
||||
Marina Bay Sands
|
351,687
|
|
|
373,612
|
|
|
1,204,626
|
|
|
1,125,742
|
|
||||
United States:
|
|
|
|
|
|
|
|
||||||||
Las Vegas Operating Properties
|
90,183
|
|
|
87,135
|
|
|
235,950
|
|
|
263,532
|
|
||||
Sands Bethlehem
|
29,846
|
|
|
29,553
|
|
|
84,292
|
|
|
92,988
|
|
||||
|
120,029
|
|
|
116,688
|
|
|
320,242
|
|
|
356,520
|
|
||||
Total adjusted property EBITDA
|
1,283,895
|
|
|
1,275,815
|
|
|
4,076,237
|
|
|
3,549,368
|
|
||||
Other Operating Costs and Expenses
|
|
|
|
|
|
|
|
||||||||
Stock-based compensation
|
(7,252
|
)
|
|
(8,170
|
)
|
|
(22,909
|
)
|
|
(21,831
|
)
|
||||
Legal settlement
|
—
|
|
|
(47,400
|
)
|
|
—
|
|
|
(47,400
|
)
|
||||
Corporate
|
(42,704
|
)
|
|
(38,468
|
)
|
|
(138,504
|
)
|
|
(141,221
|
)
|
||||
Pre-opening
|
2,414
|
|
|
(1,778
|
)
|
|
(18,027
|
)
|
|
(9,646
|
)
|
||||
Development
|
(3,043
|
)
|
|
(3,487
|
)
|
|
(8,952
|
)
|
|
(14,840
|
)
|
||||
Depreciation and amortization
|
(251,002
|
)
|
|
(248,925
|
)
|
|
(776,065
|
)
|
|
(752,530
|
)
|
||||
Amortization of leasehold interests in land
|
(10,086
|
)
|
|
(10,022
|
)
|
|
(30,152
|
)
|
|
(30,297
|
)
|
||||
Loss on disposal of assets
|
(801
|
)
|
|
(2,739
|
)
|
|
(4,922
|
)
|
|
(9,433
|
)
|
||||
Operating income
|
971,421
|
|
|
914,826
|
|
|
3,076,706
|
|
|
2,522,170
|
|
||||
Other Non-Operating Costs and Expenses
|
|
|
|
|
|
|
|
||||||||
Interest income
|
5,609
|
|
|
3,819
|
|
|
17,109
|
|
|
10,848
|
|
||||
Interest expense, net of amounts capitalized
|
(66,779
|
)
|
|
(66,917
|
)
|
|
(207,495
|
)
|
|
(204,125
|
)
|
||||
Other income (expense)
|
95
|
|
|
3,207
|
|
|
(2,368
|
)
|
|
4,992
|
|
||||
Loss on modification or early retirement of debt
|
(1,978
|
)
|
|
—
|
|
|
(19,942
|
)
|
|
—
|
|
||||
Income tax expense
|
(47,869
|
)
|
|
(45,637
|
)
|
|
(153,939
|
)
|
|
(148,940
|
)
|
||||
Net income
|
$
|
860,499
|
|
|
$
|
809,298
|
|
|
$
|
2,710,071
|
|
|
$
|
2,184,945
|
|
(1)
|
Adjusted property EBITDA is net income before royalty fees, stock-based compensation expense, legal settlement expense, corporate expense, pre-opening expense, development expense, depreciation and amortization, amortization of leasehold interests in land, loss on disposal of assets, interest, other income (expense), loss on modification or early retirement of debt and income taxes. Adjusted property EBITDA is used by management as the primary measure of operating performance of the Company’s properties and to compare the operating performance of the Company’s properties with that of its competitors.
|
|
Three Months Ended
September 30, |
|
Nine Months Ended
September 30, |
||||||||||||
|
2014
|
|
2013
|
|
2014
|
|
2013
|
||||||||
Intersegment Revenues
|
|
|
|
|
|
|
|
||||||||
Macao:
|
|
|
|
|
|
|
|
||||||||
The Venetian Macao
|
$
|
1,842
|
|
|
$
|
1,094
|
|
|
$
|
4,230
|
|
|
$
|
3,582
|
|
Sands Cotai Central
|
77
|
|
|
89
|
|
|
223
|
|
|
267
|
|
||||
Other Asia
|
11,360
|
|
|
5,270
|
|
|
31,799
|
|
|
24,131
|
|
||||
|
13,279
|
|
|
6,453
|
|
|
36,252
|
|
|
27,980
|
|
||||
Marina Bay Sands
|
2,969
|
|
|
2,327
|
|
|
8,989
|
|
|
7,079
|
|
||||
Las Vegas Operating Properties
|
40,384
|
|
|
37,415
|
|
|
122,663
|
|
|
117,405
|
|
||||
Total intersegment revenues
|
$
|
56,632
|
|
|
$
|
46,195
|
|
|
$
|
167,904
|
|
|
$
|
152,464
|
|
|
Nine Months Ended
September 30, |
||||||
|
2014
|
|
2013
|
||||
Capital Expenditures
|
|
|
|
||||
Corporate and Other
|
$
|
24,271
|
|
|
$
|
33,464
|
|
Macao:
|
|
|
|
||||
The Venetian Macao
|
80,297
|
|
|
61,580
|
|
||
Sands Cotai Central
|
232,032
|
|
|
176,330
|
|
||
Four Seasons Macao
|
30,469
|
|
|
8,648
|
|
||
Sands Macao
|
24,264
|
|
|
15,930
|
|
||
Other Asia
|
1,563
|
|
|
386
|
|
||
The Parisian Macao
|
259,969
|
|
|
133,697
|
|
||
|
628,594
|
|
|
396,571
|
|
||
Marina Bay Sands
|
54,048
|
|
|
122,931
|
|
||
United States:
|
|
|
|
||||
Las Vegas Operating Properties
|
79,150
|
|
|
40,824
|
|
||
Sands Bethlehem
|
7,051
|
|
|
5,692
|
|
||
|
86,201
|
|
|
46,516
|
|
||
Total capital expenditures
|
$
|
793,114
|
|
|
$
|
599,482
|
|
|
September 30, 2014
|
|
December 31, 2013
|
||||
Total Assets
|
|
|
|
||||
Corporate and Other
|
$
|
627,814
|
|
|
$
|
630,673
|
|
Macao:
|
|
|
|
||||
The Venetian Macao
|
3,439,571
|
|
|
4,367,533
|
|
||
Sands Cotai Central
|
4,843,544
|
|
|
4,669,358
|
|
||
Four Seasons Macao
|
1,169,472
|
|
|
1,273,654
|
|
||
Sands Macao
|
400,804
|
|
|
383,444
|
|
||
Other Asia
|
310,758
|
|
|
328,332
|
|
||
The Parisian Macao
|
637,882
|
|
|
376,014
|
|
||
Other Development Projects
|
125
|
|
|
169
|
|
||
|
10,802,156
|
|
|
11,398,504
|
|
||
Marina Bay Sands
|
6,305,955
|
|
|
6,354,231
|
|
||
United States:
|
|
|
|
||||
Las Vegas Operating Properties
|
3,624,870
|
|
|
3,653,127
|
|
||
Sands Bethlehem
|
666,986
|
|
|
687,729
|
|
||
|
4,291,856
|
|
|
4,340,856
|
|
||
Total assets
|
$
|
22,027,781
|
|
|
$
|
22,724,264
|
|
|
September 30, 2014
|
|
December 31, 2013
|
||||
Total Long-Lived Assets
|
|
|
|
||||
Corporate and Other
|
$
|
357,649
|
|
|
$
|
388,448
|
|
Macao:
|
|
|
|
||||
The Venetian Macao
|
1,896,587
|
|
|
1,925,040
|
|
||
Sands Cotai Central
|
3,769,197
|
|
|
3,772,095
|
|
||
Four Seasons Macao
|
932,752
|
|
|
928,396
|
|
||
Sands Macao
|
279,254
|
|
|
279,395
|
|
||
Other Asia
|
179,915
|
|
|
189,136
|
|
||
The Parisian Macao
|
636,938
|
|
|
376,014
|
|
||
|
7,694,643
|
|
|
7,470,076
|
|
||
Marina Bay Sands
|
5,094,788
|
|
|
5,277,126
|
|
||
United States:
|
|
|
|
||||
Las Vegas Operating Properties
|
3,044,457
|
|
|
3,073,793
|
|
||
Sands Bethlehem
|
560,928
|
|
|
578,329
|
|
||
|
3,605,385
|
|
|
3,652,122
|
|
||
Total long-lived assets
|
$
|
16,752,465
|
|
|
$
|
16,787,772
|
|
|
LVSC
(Non-Guarantor
Parent)
|
|
Restricted
Subsidiaries
|
|
Non-Restricted
Subsidiaries
|
|
Consolidating/
Eliminating
Entries
|
|
Total
|
||||||||||
Cash and cash equivalents
|
$
|
129,574
|
|
|
$
|
328,164
|
|
|
$
|
2,689,371
|
|
|
$
|
—
|
|
|
$
|
3,147,109
|
|
Restricted cash and cash equivalents
|
—
|
|
|
—
|
|
|
6,518
|
|
|
—
|
|
|
6,518
|
|
|||||
Intercompany receivables
|
394,755
|
|
|
246,231
|
|
|
—
|
|
|
(640,986
|
)
|
|
—
|
|
|||||
Intercompany notes receivable
|
—
|
|
|
—
|
|
|
255,391
|
|
|
(255,391
|
)
|
|
—
|
|
|||||
Accounts receivable, net
|
525
|
|
|
271,413
|
|
|
1,225,049
|
|
|
—
|
|
|
1,496,987
|
|
|||||
Inventories
|
6,093
|
|
|
11,086
|
|
|
25,911
|
|
|
—
|
|
|
43,090
|
|
|||||
Deferred income taxes, net
|
10,316
|
|
|
33,317
|
|
|
155
|
|
|
(43,788
|
)
|
|
—
|
|
|||||
Prepaid expenses and other
|
31,965
|
|
|
12,774
|
|
|
84,424
|
|
|
(5,530
|
)
|
|
123,633
|
|
|||||
Total current assets
|
573,228
|
|
|
902,985
|
|
|
4,286,819
|
|
|
(945,695
|
)
|
|
4,817,337
|
|
|||||
Property and equipment, net
|
129,227
|
|
|
3,005,683
|
|
|
12,220,207
|
|
|
—
|
|
|
15,355,117
|
|
|||||
Investments in subsidiaries
|
6,898,984
|
|
|
5,573,932
|
|
|
—
|
|
|
(12,472,916
|
)
|
|
—
|
|
|||||
Deferred financing costs, net
|
137
|
|
|
26,549
|
|
|
192,748
|
|
|
—
|
|
|
219,434
|
|
|||||
Intercompany receivables
|
226
|
|
|
38,763
|
|
|
—
|
|
|
(38,989
|
)
|
|
—
|
|
|||||
Intercompany notes receivable
|
—
|
|
|
1,205,363
|
|
|
—
|
|
|
(1,205,363
|
)
|
|
—
|
|
|||||
Deferred income taxes, net
|
—
|
|
|
—
|
|
|
103,971
|
|
|
(83,356
|
)
|
|
20,615
|
|
|||||
Leasehold interests in land, net
|
—
|
|
|
—
|
|
|
1,397,348
|
|
|
—
|
|
|
1,397,348
|
|
|||||
Intangible assets, net
|
690
|
|
|
—
|
|
|
90,040
|
|
|
—
|
|
|
90,730
|
|
|||||
Other assets, net
|
714
|
|
|
23,063
|
|
|
103,423
|
|
|
—
|
|
|
127,200
|
|
|||||
Total assets
|
$
|
7,603,206
|
|
|
$
|
10,776,338
|
|
|
$
|
18,394,556
|
|
|
$
|
(14,746,319
|
)
|
|
$
|
22,027,781
|
|
Accounts payable
|
$
|
7,321
|
|
|
$
|
26,435
|
|
|
$
|
76,112
|
|
|
$
|
—
|
|
|
$
|
109,868
|
|
Construction payables
|
576
|
|
|
6,881
|
|
|
233,939
|
|
|
—
|
|
|
241,396
|
|
|||||
Intercompany payables
|
—
|
|
|
394,710
|
|
|
246,276
|
|
|
(640,986
|
)
|
|
—
|
|
|||||
Intercompany notes payable
|
255,391
|
|
|
—
|
|
|
—
|
|
|
(255,391
|
)
|
|
—
|
|
|||||
Accrued interest payable
|
72
|
|
|
1,069
|
|
|
384
|
|
|
—
|
|
|
1,525
|
|
|||||
Other accrued liabilities
|
27,917
|
|
|
214,773
|
|
|
1,763,416
|
|
|
—
|
|
|
2,006,106
|
|
|||||
Deferred income taxes
|
—
|
|
|
—
|
|
|
52,768
|
|
|
(43,788
|
)
|
|
8,980
|
|
|||||
Income taxes payable
|
—
|
|
|
—
|
|
|
154,470
|
|
|
(5,530
|
)
|
|
148,940
|
|
|||||
Current maturities of long-term debt
|
3,688
|
|
|
24,437
|
|
|
74,477
|
|
|
—
|
|
|
102,602
|
|
|||||
Total current liabilities
|
294,965
|
|
|
668,305
|
|
|
2,601,842
|
|
|
(945,695
|
)
|
|
2,619,417
|
|
|||||
Other long-term liabilities
|
3,028
|
|
|
10,108
|
|
|
112,134
|
|
|
—
|
|
|
125,270
|
|
|||||
Intercompany payables
|
—
|
|
|
—
|
|
|
38,989
|
|
|
(38,989
|
)
|
|
—
|
|
|||||
Intercompany notes payable
|
—
|
|
|
—
|
|
|
1,205,363
|
|
|
(1,205,363
|
)
|
|
—
|
|
|||||
Deferred income taxes
|
37,014
|
|
|
46,342
|
|
|
168,291
|
|
|
(83,356
|
)
|
|
168,291
|
|
|||||
Deferred amounts related to mall sale transactions
|
—
|
|
|
423,190
|
|
|
—
|
|
|
—
|
|
|
423,190
|
|
|||||
Long-term debt
|
60,905
|
|
|
3,026,259
|
|
|
6,748,851
|
|
|
—
|
|
|
9,836,015
|
|
|||||
Total liabilities
|
395,912
|
|
|
4,174,204
|
|
|
10,875,470
|
|
|
(2,273,403
|
)
|
|
13,172,183
|
|
|||||
Total Las Vegas Sands Corp. stockholders’ equity
|
7,207,294
|
|
|
6,601,729
|
|
|
5,871,187
|
|
|
(12,472,916
|
)
|
|
7,207,294
|
|
|||||
Noncontrolling interests
|
—
|
|
|
405
|
|
|
1,647,899
|
|
|
—
|
|
|
1,648,304
|
|
|||||
Total equity
|
7,207,294
|
|
|
6,602,134
|
|
|
7,519,086
|
|
|
(12,472,916
|
)
|
|
8,855,598
|
|
|||||
Total liabilities and equity
|
$
|
7,603,206
|
|
|
$
|
10,776,338
|
|
|
$
|
18,394,556
|
|
|
$
|
(14,746,319
|
)
|
|
$
|
22,027,781
|
|
|
LVSC
(Non-Guarantor Parent) |
|
Restricted
Subsidiaries
|
|
Non-Restricted
Subsidiaries
|
|
Consolidating/
Eliminating
Entries
|
|
Total
|
||||||||||
Cash and cash equivalents
|
$
|
50,180
|
|
|
$
|
315,489
|
|
|
$
|
3,234,745
|
|
|
$
|
—
|
|
|
$
|
3,600,414
|
|
Restricted cash and cash equivalents
|
—
|
|
|
—
|
|
|
6,839
|
|
|
—
|
|
|
6,839
|
|
|||||
Intercompany receivables
|
271,993
|
|
|
236,259
|
|
|
—
|
|
|
(508,252
|
)
|
|
—
|
|
|||||
Intercompany notes receivable
|
—
|
|
|
—
|
|
|
251,537
|
|
|
(251,537
|
)
|
|
—
|
|
|||||
Accounts receivable, net
|
11,815
|
|
|
295,333
|
|
|
1,454,962
|
|
|
—
|
|
|
1,762,110
|
|
|||||
Inventories
|
3,895
|
|
|
12,609
|
|
|
25,442
|
|
|
—
|
|
|
41,946
|
|
|||||
Deferred income taxes, net
|
7,509
|
|
|
37,233
|
|
|
—
|
|
|
(44,742
|
)
|
|
—
|
|
|||||
Prepaid expenses and other
|
21,311
|
|
|
11,592
|
|
|
71,327
|
|
|
—
|
|
|
104,230
|
|
|||||
Total current assets
|
366,703
|
|
|
908,515
|
|
|
5,044,852
|
|
|
(804,531
|
)
|
|
5,515,539
|
|
|||||
Property and equipment, net
|
155,806
|
|
|
3,056,678
|
|
|
12,146,469
|
|
|
—
|
|
|
15,358,953
|
|
|||||
Investments in subsidiaries
|
7,568,252
|
|
|
6,112,507
|
|
|
—
|
|
|
(13,680,759
|
)
|
|
—
|
|
|||||
Deferred financing costs, net
|
181
|
|
|
30,737
|
|
|
155,046
|
|
|
—
|
|
|
185,964
|
|
|||||
Intercompany receivables
|
483
|
|
|
38,931
|
|
|
—
|
|
|
(39,414
|
)
|
|
—
|
|
|||||
Intercompany notes receivable
|
—
|
|
|
1,081,710
|
|
|
—
|
|
|
(1,081,710
|
)
|
|
—
|
|
|||||
Deferred income taxes, net
|
—
|
|
|
—
|
|
|
—
|
|
|
13,821
|
|
|
13,821
|
|
|||||
Leasehold interests in land, net
|
—
|
|
|
—
|
|
|
1,428,819
|
|
|
—
|
|
|
1,428,819
|
|
|||||
Intangible assets, net
|
690
|
|
|
—
|
|
|
101,391
|
|
|
—
|
|
|
102,081
|
|
|||||
Other assets, net
|
264
|
|
|
22,288
|
|
|
96,535
|
|
|
—
|
|
|
119,087
|
|
|||||
Total assets
|
$
|
8,092,379
|
|
|
$
|
11,251,366
|
|
|
$
|
18,973,112
|
|
|
$
|
(15,592,593
|
)
|
|
$
|
22,724,264
|
|
Accounts payable
|
$
|
8,381
|
|
|
$
|
25,679
|
|
|
$
|
85,134
|
|
|
$
|
—
|
|
|
$
|
119,194
|
|
Construction payables
|
2,161
|
|
|
3,226
|
|
|
236,173
|
|
|
—
|
|
|
241,560
|
|
|||||
Intercompany payables
|
—
|
|
|
278,309
|
|
|
229,943
|
|
|
(508,252
|
)
|
|
—
|
|
|||||
Intercompany notes payable
|
251,537
|
|
|
—
|
|
|
—
|
|
|
(251,537
|
)
|
|
—
|
|
|||||
Accrued interest payable
|
77
|
|
|
224
|
|
|
6,250
|
|
|
—
|
|
|
6,551
|
|
|||||
Other accrued liabilities
|
54,071
|
|
|
224,759
|
|
|
1,916,036
|
|
|
—
|
|
|
2,194,866
|
|
|||||
Deferred income taxes
|
—
|
|
|
—
|
|
|
58,051
|
|
|
(44,742
|
)
|
|
13,309
|
|
|||||
Income taxes payable
|
—
|
|
|
17
|
|
|
176,661
|
|
|
—
|
|
|
176,678
|
|
|||||
Current maturities of long-term debt
|
3,688
|
|
|
24,892
|
|
|
348,927
|
|
|
—
|
|
|
377,507
|
|
|||||
Total current liabilities
|
319,915
|
|
|
557,106
|
|
|
3,057,175
|
|
|
(804,531
|
)
|
|
3,129,665
|
|
|||||
Other long-term liabilities
|
3,775
|
|
|
10,175
|
|
|
98,245
|
|
|
—
|
|
|
112,195
|
|
|||||
Intercompany payables
|
—
|
|
|
—
|
|
|
39,414
|
|
|
(39,414
|
)
|
|
—
|
|
|||||
Intercompany notes payable
|
—
|
|
|
—
|
|
|
1,081,710
|
|
|
(1,081,710
|
)
|
|
—
|
|
|||||
Deferred income taxes
|
39,523
|
|
|
54,668
|
|
|
65,199
|
|
|
13,821
|
|
|
173,211
|
|
|||||
Deferred amounts related to mall sale transactions
|
—
|
|
|
425,912
|
|
|
—
|
|
|
—
|
|
|
425,912
|
|
|||||
Long-term debt
|
63,672
|
|
|
2,823,269
|
|
|
6,495,811
|
|
|
—
|
|
|
9,382,752
|
|
|||||
Total liabilities
|
426,885
|
|
|
3,871,130
|
|
|
10,837,554
|
|
|
(1,911,834
|
)
|
|
13,223,735
|
|
|||||
Total Las Vegas Sands Corp. stockholders’ equity
|
7,665,494
|
|
|
7,379,831
|
|
|
6,300,928
|
|
|
(13,680,759
|
)
|
|
7,665,494
|
|
|||||
Noncontrolling interests
|
—
|
|
|
405
|
|
|
1,834,630
|
|
|
—
|
|
|
1,835,035
|
|
|||||
Total equity
|
7,665,494
|
|
|
7,380,236
|
|
|
8,135,558
|
|
|
(13,680,759
|
)
|
|
9,500,529
|
|
|||||
Total liabilities and equity
|
$
|
8,092,379
|
|
|
$
|
11,251,366
|
|
|
$
|
18,973,112
|
|
|
$
|
(15,592,593
|
)
|
|
$
|
22,724,264
|
|
|
LVSC
(Non-Guarantor Parent) |
|
Restricted
Subsidiaries
|
|
Non-Restricted
Subsidiaries
|
|
Consolidating/
Eliminating
Entries
|
|
Total
|
||||||||||
Revenues:
|
|
|
|
|
|
|
|
|
|
||||||||||
Casino
|
$
|
—
|
|
|
$
|
165,070
|
|
|
$
|
2,732,014
|
|
|
$
|
—
|
|
|
$
|
2,897,084
|
|
Rooms
|
—
|
|
|
115,620
|
|
|
271,247
|
|
|
—
|
|
|
386,867
|
|
|||||
Food and beverage
|
—
|
|
|
39,497
|
|
|
146,324
|
|
|
—
|
|
|
185,821
|
|
|||||
Mall
|
—
|
|
|
—
|
|
|
150,728
|
|
|
—
|
|
|
150,728
|
|
|||||
Convention, retail and other
|
—
|
|
|
73,387
|
|
|
100,834
|
|
|
(45,763
|
)
|
|
128,458
|
|
|||||
|
—
|
|
|
393,574
|
|
|
3,401,147
|
|
|
(45,763
|
)
|
|
3,748,958
|
|
|||||
Less — promotional allowances
|
(255
|
)
|
|
(23,207
|
)
|
|
(191,770
|
)
|
|
(604
|
)
|
|
(215,836
|
)
|
|||||
Net revenues
|
(255
|
)
|
|
370,367
|
|
|
3,209,377
|
|
|
(46,367
|
)
|
|
3,533,122
|
|
|||||
Operating expenses:
|
|
|
|
|
|
|
|
|
|
||||||||||
Casino
|
—
|
|
|
78,908
|
|
|
1,556,870
|
|
|
(818
|
)
|
|
1,634,960
|
|
|||||
Rooms
|
—
|
|
|
35,752
|
|
|
30,549
|
|
|
—
|
|
|
66,301
|
|
|||||
Food and beverage
|
—
|
|
|
22,595
|
|
|
74,123
|
|
|
(969
|
)
|
|
95,749
|
|
|||||
Mall
|
—
|
|
|
—
|
|
|
18,032
|
|
|
—
|
|
|
18,032
|
|
|||||
Convention, retail and other
|
—
|
|
|
21,668
|
|
|
55,443
|
|
|
(8,278
|
)
|
|
68,833
|
|
|||||
Provision for doubtful accounts
|
—
|
|
|
10,936
|
|
|
20,167
|
|
|
—
|
|
|
31,103
|
|
|||||
General and administrative
|
—
|
|
|
75,457
|
|
|
266,275
|
|
|
(231
|
)
|
|
341,501
|
|
|||||
Corporate
|
37,084
|
|
|
798
|
|
|
40,887
|
|
|
(36,065
|
)
|
|
42,704
|
|
|||||
Pre-opening
|
—
|
|
|
36
|
|
|
(2,450
|
)
|
|
—
|
|
|
(2,414
|
)
|
|||||
Development
|
3,039
|
|
|
—
|
|
|
10
|
|
|
(6
|
)
|
|
3,043
|
|
|||||
Depreciation and amortization
|
4,951
|
|
|
45,368
|
|
|
200,683
|
|
|
—
|
|
|
251,002
|
|
|||||
Amortization of leasehold interests in land
|
—
|
|
|
—
|
|
|
10,086
|
|
|
—
|
|
|
10,086
|
|
|||||
(Gain) loss on disposal of assets
|
—
|
|
|
(4
|
)
|
|
805
|
|
|
—
|
|
|
801
|
|
|||||
|
45,074
|
|
|
291,514
|
|
|
2,271,480
|
|
|
(46,367
|
)
|
|
2,561,701
|
|
|||||
Operating income (loss)
|
(45,329
|
)
|
|
78,853
|
|
|
937,897
|
|
|
—
|
|
|
971,421
|
|
|||||
Other income (expense):
|
|
|
|
|
|
|
|
|
|
||||||||||
Interest income
|
49
|
|
|
45,699
|
|
|
6,753
|
|
|
(46,892
|
)
|
|
5,609
|
|
|||||
Interest expense, net of amounts capitalized
|
(1,596
|
)
|
|
(27,703
|
)
|
|
(84,372
|
)
|
|
46,892
|
|
|
(66,779
|
)
|
|||||
Other income (expense)
|
—
|
|
|
(1,690
|
)
|
|
1,785
|
|
|
—
|
|
|
95
|
|
|||||
Loss on modification or early retirement of debt
|
—
|
|
|
—
|
|
|
(1,978
|
)
|
|
—
|
|
|
(1,978
|
)
|
|||||
Income from equity investments in subsidiaries
|
708,737
|
|
|
634,464
|
|
|
—
|
|
|
(1,343,201
|
)
|
|
—
|
|
|||||
Income before income taxes
|
661,861
|
|
|
729,623
|
|
|
860,085
|
|
|
(1,343,201
|
)
|
|
908,368
|
|
|||||
Income tax benefit (expense)
|
9,844
|
|
|
(46,663
|
)
|
|
(11,050
|
)
|
|
—
|
|
|
(47,869
|
)
|
|||||
Net income
|
671,705
|
|
|
682,960
|
|
|
849,035
|
|
|
(1,343,201
|
)
|
|
860,499
|
|
|||||
Net income attributable to noncontrolling interests
|
—
|
|
|
(536
|
)
|
|
(188,258
|
)
|
|
—
|
|
|
(188,794
|
)
|
|||||
Net income attributable to Las Vegas Sands Corp.
|
$
|
671,705
|
|
|
$
|
682,424
|
|
|
$
|
660,777
|
|
|
$
|
(1,343,201
|
)
|
|
$
|
671,705
|
|
|
LVSC
(Non-Guarantor Parent) |
|
Restricted
Subsidiaries
|
|
Non-Restricted
Subsidiaries
|
|
Consolidating/
Eliminating
Entries
|
|
Total
|
||||||||||
Revenues:
|
|
|
|
|
|
|
|
|
|
||||||||||
Casino
|
$
|
—
|
|
|
$
|
168,131
|
|
|
$
|
2,816,407
|
|
|
$
|
—
|
|
|
$
|
2,984,538
|
|
Rooms
|
—
|
|
|
110,934
|
|
|
238,067
|
|
|
—
|
|
|
349,001
|
|
|||||
Food and beverage
|
—
|
|
|
40,267
|
|
|
133,993
|
|
|
—
|
|
|
174,260
|
|
|||||
Mall
|
—
|
|
|
—
|
|
|
128,068
|
|
|
—
|
|
|
128,068
|
|
|||||
Convention, retail and other
|
—
|
|
|
69,798
|
|
|
95,187
|
|
|
(41,726
|
)
|
|
123,259
|
|
|||||
|
—
|
|
|
389,130
|
|
|
3,411,722
|
|
|
(41,726
|
)
|
|
3,759,126
|
|
|||||
Less — promotional allowances
|
(413
|
)
|
|
(23,488
|
)
|
|
(166,178
|
)
|
|
(507
|
)
|
|
(190,586
|
)
|
|||||
Net revenues
|
(413
|
)
|
|
365,642
|
|
|
3,245,544
|
|
|
(42,233
|
)
|
|
3,568,540
|
|
|||||
Operating expenses:
|
|
|
|
|
|
|
|
|
|
||||||||||
Casino
|
—
|
|
|
80,901
|
|
|
1,587,997
|
|
|
(791
|
)
|
|
1,668,107
|
|
|||||
Rooms
|
—
|
|
|
39,298
|
|
|
30,216
|
|
|
(3
|
)
|
|
69,511
|
|
|||||
Food and beverage
|
—
|
|
|
19,455
|
|
|
69,645
|
|
|
(1,080
|
)
|
|
88,020
|
|
|||||
Mall
|
—
|
|
|
—
|
|
|
17,319
|
|
|
—
|
|
|
17,319
|
|
|||||
Convention, retail and other
|
—
|
|
|
21,656
|
|
|
53,932
|
|
|
(6,486
|
)
|
|
69,102
|
|
|||||
Provision for doubtful accounts
|
—
|
|
|
6,123
|
|
|
49,248
|
|
|
—
|
|
|
55,371
|
|
|||||
General and administrative
|
—
|
|
|
126,782
|
|
|
254,309
|
|
|
(226
|
)
|
|
380,865
|
|
|||||
Corporate
|
34,257
|
|
|
334
|
|
|
37,521
|
|
|
(33,644
|
)
|
|
38,468
|
|
|||||
Pre-opening
|
—
|
|
|
271
|
|
|
1,507
|
|
|
—
|
|
|
1,778
|
|
|||||
Development
|
3,460
|
|
|
—
|
|
|
30
|
|
|
(3
|
)
|
|
3,487
|
|
|||||
Depreciation and amortization
|
6,989
|
|
|
45,301
|
|
|
196,635
|
|
|
—
|
|
|
248,925
|
|
|||||
Amortization of leasehold interests in land
|
—
|
|
|
—
|
|
|
10,022
|
|
|
—
|
|
|
10,022
|
|
|||||
(Gain) loss on disposal of assets
|
1,000
|
|
|
(5
|
)
|
|
1,744
|
|
|
—
|
|
|
2,739
|
|
|||||
|
45,706
|
|
|
340,116
|
|
|
2,310,125
|
|
|
(42,233
|
)
|
|
2,653,714
|
|
|||||
Operating income (loss)
|
(46,119
|
)
|
|
25,526
|
|
|
935,419
|
|
|
—
|
|
|
914,826
|
|
|||||
Other income (expense):
|
|
|
|
|
|
|
|
|
|
||||||||||
Interest income
|
49
|
|
|
40,047
|
|
|
4,266
|
|
|
(40,543
|
)
|
|
3,819
|
|
|||||
Interest expense, net of amounts capitalized
|
(885
|
)
|
|
(21,590
|
)
|
|
(84,985
|
)
|
|
40,543
|
|
|
(66,917
|
)
|
|||||
Other income (expense)
|
(1
|
)
|
|
1,153
|
|
|
2,055
|
|
|
—
|
|
|
3,207
|
|
|||||
Income from equity investments in subsidiaries
|
669,879
|
|
|
615,539
|
|
|
—
|
|
|
(1,285,418
|
)
|
|
—
|
|
|||||
Income before income taxes
|
622,923
|
|
|
660,675
|
|
|
856,755
|
|
|
(1,285,418
|
)
|
|
854,935
|
|
|||||
Income tax benefit (expense)
|
3,821
|
|
|
(24,682
|
)
|
|
(24,776
|
)
|
|
—
|
|
|
(45,637
|
)
|
|||||
Net income
|
626,744
|
|
|
635,993
|
|
|
831,979
|
|
|
(1,285,418
|
)
|
|
809,298
|
|
|||||
Net income attributable to noncontrolling interests
|
—
|
|
|
(768
|
)
|
|
(181,786
|
)
|
|
—
|
|
|
(182,554
|
)
|
|||||
Net income attributable to Las Vegas Sands Corp.
|
$
|
626,744
|
|
|
$
|
635,225
|
|
|
$
|
650,193
|
|
|
$
|
(1,285,418
|
)
|
|
$
|
626,744
|
|
|
LVSC
(Non-Guarantor Parent) |
|
Restricted
Subsidiaries
|
|
Non-Restricted
Subsidiaries
|
|
Consolidating/
Eliminating
Entries
|
|
Total
|
||||||||||
Revenues:
|
|
|
|
|
|
|
|
|
|
||||||||||
Casino
|
$
|
—
|
|
|
$
|
379,178
|
|
|
$
|
8,902,781
|
|
|
$
|
—
|
|
|
$
|
9,281,959
|
|
Rooms
|
—
|
|
|
377,849
|
|
|
784,356
|
|
|
—
|
|
|
1,162,205
|
|
|||||
Food and beverage
|
—
|
|
|
153,588
|
|
|
429,216
|
|
|
—
|
|
|
582,804
|
|
|||||
Mall
|
—
|
|
|
—
|
|
|
378,832
|
|
|
—
|
|
|
378,832
|
|
|||||
Convention, retail and other
|
—
|
|
|
237,578
|
|
|
292,815
|
|
|
(138,730
|
)
|
|
391,663
|
|
|||||
|
—
|
|
|
1,148,193
|
|
|
10,788,000
|
|
|
(138,730
|
)
|
|
11,797,463
|
|
|||||
Less — promotional allowances
|
(996
|
)
|
|
(65,530
|
)
|
|
(561,457
|
)
|
|
(1,624
|
)
|
|
(629,607
|
)
|
|||||
Net revenues
|
(996
|
)
|
|
1,082,663
|
|
|
10,226,543
|
|
|
(140,354
|
)
|
|
11,167,856
|
|
|||||
Operating expenses:
|
|
|
|
|
|
|
|
|
|
||||||||||
Casino
|
—
|
|
|
217,495
|
|
|
4,977,715
|
|
|
(2,401
|
)
|
|
5,192,809
|
|
|||||
Rooms
|
—
|
|
|
108,277
|
|
|
86,405
|
|
|
—
|
|
|
194,682
|
|
|||||
Food and beverage
|
—
|
|
|
75,150
|
|
|
219,678
|
|
|
(3,082
|
)
|
|
291,746
|
|
|||||
Mall
|
—
|
|
|
—
|
|
|
53,104
|
|
|
—
|
|
|
53,104
|
|
|||||
Convention, retail and other
|
—
|
|
|
78,304
|
|
|
179,913
|
|
|
(24,252
|
)
|
|
233,965
|
|
|||||
Provision for doubtful accounts
|
—
|
|
|
26,820
|
|
|
115,870
|
|
|
—
|
|
|
142,690
|
|
|||||
General and administrative
|
—
|
|
|
236,831
|
|
|
769,409
|
|
|
(708
|
)
|
|
1,005,532
|
|
|||||
Corporate
|
124,220
|
|
|
1,736
|
|
|
122,443
|
|
|
(109,895
|
)
|
|
138,504
|
|
|||||
Pre-opening
|
—
|
|
|
133
|
|
|
17,895
|
|
|
(1
|
)
|
|
18,027
|
|
|||||
Development
|
8,861
|
|
|
—
|
|
|
106
|
|
|
(15
|
)
|
|
8,952
|
|
|||||
Depreciation and amortization
|
19,566
|
|
|
136,995
|
|
|
619,504
|
|
|
—
|
|
|
776,065
|
|
|||||
Amortization of leasehold interests in land
|
—
|
|
|
—
|
|
|
30,152
|
|
|
—
|
|
|
30,152
|
|
|||||
(Gain) loss on disposal of assets
|
—
|
|
|
6,751
|
|
|
(1,829
|
)
|
|
—
|
|
|
4,922
|
|
|||||
|
152,647
|
|
|
888,492
|
|
|
7,190,365
|
|
|
(140,354
|
)
|
|
8,091,150
|
|
|||||
Operating income (loss)
|
(153,643
|
)
|
|
194,171
|
|
|
3,036,178
|
|
|
—
|
|
|
3,076,706
|
|
|||||
Other income (expense):
|
|
|
|
|
|
|
|
|
|
||||||||||
Interest income
|
123
|
|
|
130,747
|
|
|
20,566
|
|
|
(134,327
|
)
|
|
17,109
|
|
|||||
Interest expense, net of amounts capitalized
|
(4,736
|
)
|
|
(84,987
|
)
|
|
(252,099
|
)
|
|
134,327
|
|
|
(207,495
|
)
|
|||||
Other expense
|
—
|
|
|
(1,447
|
)
|
|
(921
|
)
|
|
—
|
|
|
(2,368
|
)
|
|||||
Loss on modification or early retirement of debt
|
—
|
|
|
—
|
|
|
(19,942
|
)
|
|
—
|
|
|
(19,942
|
)
|
|||||
Income from equity investments in subsidiaries
|
2,183,199
|
|
|
1,950,227
|
|
|
—
|
|
|
(4,133,426
|
)
|
|
—
|
|
|||||
Income before income taxes
|
2,024,943
|
|
|
2,188,711
|
|
|
2,783,782
|
|
|
(4,133,426
|
)
|
|
2,864,010
|
|
|||||
Income tax benefit (expense)
|
94,381
|
|
|
(100,749
|
)
|
|
(147,571
|
)
|
|
—
|
|
|
(153,939
|
)
|
|||||
Net income
|
2,119,324
|
|
|
2,087,962
|
|
|
2,636,211
|
|
|
(4,133,426
|
)
|
|
2,710,071
|
|
|||||
Net income attributable to noncontrolling interests
|
—
|
|
|
(1,612
|
)
|
|
(589,135
|
)
|
|
—
|
|
|
(590,747
|
)
|
|||||
Net income attributable to Las Vegas Sands Corp.
|
$
|
2,119,324
|
|
|
$
|
2,086,350
|
|
|
$
|
2,047,076
|
|
|
$
|
(4,133,426
|
)
|
|
$
|
2,119,324
|
|
|
LVSC
(Non-Guarantor Parent) |
|
Restricted
Subsidiaries
|
|
Non-Restricted
Subsidiaries
|
|
Consolidating/
Eliminating
Entries
|
|
Total
|
||||||||||
Revenues:
|
|
|
|
|
|
|
|
|
|
||||||||||
Casino
|
$
|
—
|
|
|
$
|
433,095
|
|
|
$
|
7,961,626
|
|
|
$
|
—
|
|
|
$
|
8,394,721
|
|
Rooms
|
—
|
|
|
352,615
|
|
|
646,031
|
|
|
—
|
|
|
998,646
|
|
|||||
Food and beverage
|
—
|
|
|
146,611
|
|
|
387,750
|
|
|
—
|
|
|
534,361
|
|
|||||
Mall
|
—
|
|
|
—
|
|
|
321,522
|
|
|
—
|
|
|
321,522
|
|
|||||
Convention, retail and other
|
—
|
|
|
233,063
|
|
|
268,880
|
|
|
(129,573
|
)
|
|
372,370
|
|
|||||
|
—
|
|
|
1,165,384
|
|
|
9,585,809
|
|
|
(129,573
|
)
|
|
10,621,620
|
|
|||||
Less — promotional allowances
|
(1,027
|
)
|
|
(66,228
|
)
|
|
(438,791
|
)
|
|
(1,374
|
)
|
|
(507,420
|
)
|
|||||
Net revenues
|
(1,027
|
)
|
|
1,099,156
|
|
|
9,147,018
|
|
|
(130,947
|
)
|
|
10,114,200
|
|
|||||
Operating expenses:
|
|
|
|
|
|
|
|
|
|
||||||||||
Casino
|
—
|
|
|
231,948
|
|
|
4,484,376
|
|
|
(2,217
|
)
|
|
4,714,107
|
|
|||||
Rooms
|
—
|
|
|
117,329
|
|
|
86,560
|
|
|
(3
|
)
|
|
203,886
|
|
|||||
Food and beverage
|
—
|
|
|
67,369
|
|
|
209,895
|
|
|
(3,219
|
)
|
|
274,045
|
|
|||||
Mall
|
—
|
|
|
—
|
|
|
52,724
|
|
|
—
|
|
|
52,724
|
|
|||||
Convention, retail and other
|
—
|
|
|
76,723
|
|
|
169,579
|
|
|
(18,257
|
)
|
|
228,045
|
|
|||||
Provision for doubtful accounts
|
—
|
|
|
25,449
|
|
|
156,659
|
|
|
—
|
|
|
182,108
|
|
|||||
General and administrative
|
—
|
|
|
265,942
|
|
|
713,825
|
|
|
(619
|
)
|
|
979,148
|
|
|||||
Corporate
|
122,181
|
|
|
584
|
|
|
125,075
|
|
|
(106,619
|
)
|
|
141,221
|
|
|||||
Pre-opening
|
—
|
|
|
386
|
|
|
9,260
|
|
|
—
|
|
|
9,646
|
|
|||||
Development
|
14,428
|
|
|
—
|
|
|
425
|
|
|
(13
|
)
|
|
14,840
|
|
|||||
Depreciation and amortization
|
19,466
|
|
|
137,301
|
|
|
595,763
|
|
|
—
|
|
|
752,530
|
|
|||||
Amortization of leasehold interests in land
|
—
|
|
|
—
|
|
|
30,297
|
|
|
—
|
|
|
30,297
|
|
|||||
Loss on disposal of assets
|
1,000
|
|
|
1,109
|
|
|
7,324
|
|
|
—
|
|
|
9,433
|
|
|||||
|
157,075
|
|
|
924,140
|
|
|
6,641,762
|
|
|
(130,947
|
)
|
|
7,592,030
|
|
|||||
Operating income (loss)
|
(158,102
|
)
|
|
175,016
|
|
|
2,505,256
|
|
|
—
|
|
|
2,522,170
|
|
|||||
Other income (expense):
|
|
|
|
|
|
|
|
|
|
||||||||||
Interest income
|
1,144
|
|
|
132,375
|
|
|
12,550
|
|
|
(135,221
|
)
|
|
10,848
|
|
|||||
Interest expense, net of amounts capitalized
|
(3,755
|
)
|
|
(66,140
|
)
|
|
(269,451
|
)
|
|
135,221
|
|
|
(204,125
|
)
|
|||||
Other income (expense)
|
31
|
|
|
(1,312
|
)
|
|
6,273
|
|
|
—
|
|
|
4,992
|
|
|||||
Income from equity investments in subsidiaries
|
1,842,779
|
|
|
1,599,266
|
|
|
—
|
|
|
(3,442,045
|
)
|
|
—
|
|
|||||
Income before income taxes
|
1,682,097
|
|
|
1,839,205
|
|
|
2,254,628
|
|
|
(3,442,045
|
)
|
|
2,333,885
|
|
|||||
Income tax benefit (expense)
|
46,361
|
|
|
(97,934
|
)
|
|
(97,367
|
)
|
|
—
|
|
|
(148,940
|
)
|
|||||
Net income
|
1,728,458
|
|
|
1,741,271
|
|
|
2,157,261
|
|
|
(3,442,045
|
)
|
|
2,184,945
|
|
|||||
Net income attributable to noncontrolling interests
|
—
|
|
|
(1,853
|
)
|
|
(454,634
|
)
|
|
—
|
|
|
(456,487
|
)
|
|||||
Net income attributable to Las Vegas Sands Corp.
|
$
|
1,728,458
|
|
|
$
|
1,739,418
|
|
|
$
|
1,702,627
|
|
|
$
|
(3,442,045
|
)
|
|
$
|
1,728,458
|
|
|
LVSC
(Non-Guarantor Parent) |
|
Restricted
Subsidiaries
|
|
Non-Restricted
Subsidiaries
|
|
Consolidating/
Eliminating
Entries
|
|
Total
|
||||||||||
Net income
|
$
|
671,705
|
|
|
$
|
682,960
|
|
|
$
|
849,035
|
|
|
$
|
(1,343,201
|
)
|
|
$
|
860,499
|
|
Currency translation adjustment, before and after tax
|
(49,299
|
)
|
|
(42,807
|
)
|
|
(52,349
|
)
|
|
92,106
|
|
|
(52,349
|
)
|
|||||
Total comprehensive income
|
622,406
|
|
|
640,153
|
|
|
796,686
|
|
|
(1,251,095
|
)
|
|
808,150
|
|
|||||
Comprehensive income attributable to noncontrolling interests
|
—
|
|
|
(536
|
)
|
|
(185,208
|
)
|
|
—
|
|
|
(185,744
|
)
|
|||||
Comprehensive income attributable to Las Vegas Sands Corp.
|
$
|
622,406
|
|
|
$
|
639,617
|
|
|
$
|
611,478
|
|
|
$
|
(1,251,095
|
)
|
|
$
|
622,406
|
|
|
LVSC
(Non-Guarantor Parent) |
|
Restricted
Subsidiaries
|
|
Non-Restricted
Subsidiaries
|
|
Consolidating/
Eliminating
Entries
|
|
Total
|
||||||||||
Net income
|
$
|
626,744
|
|
|
$
|
635,993
|
|
|
$
|
831,979
|
|
|
$
|
(1,285,418
|
)
|
|
$
|
809,298
|
|
Currency translation adjustment, before and after tax
|
19,105
|
|
|
16,468
|
|
|
19,865
|
|
|
(35,573
|
)
|
|
19,865
|
|
|||||
Total comprehensive income
|
645,849
|
|
|
652,461
|
|
|
851,844
|
|
|
(1,320,991
|
)
|
|
829,163
|
|
|||||
Comprehensive income attributable to noncontrolling interests
|
—
|
|
|
(768
|
)
|
|
(182,546
|
)
|
|
—
|
|
|
(183,314
|
)
|
|||||
Comprehensive income attributable to Las Vegas Sands Corp.
|
$
|
645,849
|
|
|
$
|
651,693
|
|
|
$
|
669,298
|
|
|
$
|
(1,320,991
|
)
|
|
$
|
645,849
|
|
|
LVSC
(Non-Guarantor Parent) |
|
Restricted
Subsidiaries
|
|
Non-Restricted
Subsidiaries
|
|
Consolidating/
Eliminating
Entries
|
|
Total
|
||||||||||
Net income
|
$
|
2,119,324
|
|
|
$
|
2,087,962
|
|
|
$
|
2,636,211
|
|
|
$
|
(4,133,426
|
)
|
|
$
|
2,710,071
|
|
Currency translation adjustment, before and after tax
|
(15,761
|
)
|
|
(14,249
|
)
|
|
(18,151
|
)
|
|
30,010
|
|
|
(18,151
|
)
|
|||||
Total comprehensive income
|
2,103,563
|
|
|
2,073,713
|
|
|
2,618,060
|
|
|
(4,103,416
|
)
|
|
2,691,920
|
|
|||||
Comprehensive income attributable to noncontrolling interests
|
—
|
|
|
(1,612
|
)
|
|
(586,745
|
)
|
|
—
|
|
|
(588,357
|
)
|
|||||
Comprehensive income attributable to Las Vegas Sands Corp.
|
$
|
2,103,563
|
|
|
$
|
2,072,101
|
|
|
$
|
2,031,315
|
|
|
$
|
(4,103,416
|
)
|
|
$
|
2,103,563
|
|
|
LVSC
(Non-Guarantor Parent) |
|
Restricted
Subsidiaries
|
|
Non-Restricted
Subsidiaries
|
|
Consolidating/
Eliminating
Entries
|
|
Total
|
||||||||||
Net income
|
$
|
1,728,458
|
|
|
$
|
1,741,271
|
|
|
$
|
2,157,261
|
|
|
$
|
(3,442,045
|
)
|
|
$
|
2,184,945
|
|
Currency translation adjustment, before and after tax
|
(68,866
|
)
|
|
(58,573
|
)
|
|
(69,672
|
)
|
|
127,439
|
|
|
(69,672
|
)
|
|||||
Total comprehensive income
|
1,659,592
|
|
|
1,682,698
|
|
|
2,087,589
|
|
|
(3,314,606
|
)
|
|
2,115,273
|
|
|||||
Comprehensive income attributable to noncontrolling interests
|
—
|
|
|
(1,853
|
)
|
|
(453,828
|
)
|
|
—
|
|
|
(455,681
|
)
|
|||||
Comprehensive income attributable to Las Vegas Sands Corp.
|
$
|
1,659,592
|
|
|
$
|
1,680,845
|
|
|
$
|
1,633,761
|
|
|
$
|
(3,314,606
|
)
|
|
$
|
1,659,592
|
|
|
LVSC
(Non-Guarantor Parent) |
|
Restricted
Subsidiaries
|
|
Non-Restricted
Subsidiaries
|
|
Consolidating/
Eliminating
Entries
|
|
Total
|
||||||||||
Net cash generated from operating activities
|
$
|
2,714,186
|
|
|
$
|
2,593,710
|
|
|
$
|
3,481,769
|
|
|
$
|
(5,172,169
|
)
|
|
$
|
3,617,496
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
||||||||||
Change in restricted cash and cash equivalents
|
—
|
|
|
—
|
|
|
313
|
|
|
—
|
|
|
313
|
|
|||||
Capital expenditures
|
(23,824
|
)
|
|
(78,763
|
)
|
|
(690,527
|
)
|
|
—
|
|
|
(793,114
|
)
|
|||||
Proceeds from disposal of property and equipment
|
—
|
|
|
667
|
|
|
913
|
|
|
—
|
|
|
1,580
|
|
|||||
Dividends received from non-restricted subsidiaries
|
—
|
|
|
1,238,236
|
|
|
—
|
|
|
(1,238,236
|
)
|
|
—
|
|
|||||
Repayments of receivable from non-restricted subsidiaries
|
—
|
|
|
1,615
|
|
|
—
|
|
|
(1,615
|
)
|
|
—
|
|
|||||
Capital contributions to subsidiaries
|
—
|
|
|
(1,171,006
|
)
|
|
—
|
|
|
1,171,006
|
|
|
—
|
|
|||||
Net cash used in investing activities
|
(23,824
|
)
|
|
(9,251
|
)
|
|
(689,301
|
)
|
|
(68,845
|
)
|
|
(791,221
|
)
|
|||||
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
||||||||||
Proceeds from exercise of stock options
|
40,837
|
|
|
—
|
|
|
7,606
|
|
|
—
|
|
|
48,443
|
|
|||||
Repurchase of common stock
|
(1,439,231
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,439,231
|
)
|
|||||
Dividends paid
|
(1,209,808
|
)
|
|
—
|
|
|
(776,570
|
)
|
|
—
|
|
|
(1,986,378
|
)
|
|||||
Distributions to noncontrolling interests
|
—
|
|
|
(1,612
|
)
|
|
(5,553
|
)
|
|
—
|
|
|
(7,165
|
)
|
|||||
Dividends paid to Las Vegas Sands Corp.
|
—
|
|
|
(2,771,500
|
)
|
|
(88,131
|
)
|
|
2,859,631
|
|
|
—
|
|
|||||
Dividends paid to Restricted Subsidiaries
|
—
|
|
|
—
|
|
|
(3,550,774
|
)
|
|
3,550,774
|
|
|
—
|
|
|||||
Capital contributions received
|
—
|
|
|
—
|
|
|
1,171,006
|
|
|
(1,171,006
|
)
|
|
—
|
|
|||||
Repayments on borrowings from Restricted Subsidiaries
|
—
|
|
|
—
|
|
|
(1,615
|
)
|
|
1,615
|
|
|
—
|
|
|||||
Proceeds from 2013 U.S. credit facility
|
—
|
|
|
1,428,000
|
|
|
—
|
|
|
—
|
|
|
1,428,000
|
|
|||||
Proceeds from 2011 VML credit facility
|
—
|
|
|
—
|
|
|
819,725
|
|
|
—
|
|
|
819,725
|
|
|||||
Repayments on 2013 U.S. credit facility
|
—
|
|
|
(1,224,875
|
)
|
|
—
|
|
|
—
|
|
|
(1,224,875
|
)
|
|||||
Repayments on 2011 VML credit facility
|
—
|
|
|
—
|
|
|
(819,680
|
)
|
|
—
|
|
|
(819,680
|
)
|
|||||
Repayments on airplane financings
|
(2,766
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(2,766
|
)
|
|||||
Repayments on HVAC equipment lease and other long-term debt
|
—
|
|
|
(1,797
|
)
|
|
(2,760
|
)
|
|
—
|
|
|
(4,557
|
)
|
|||||
Payments of deferred financing costs
|
—
|
|
|
—
|
|
|
(88,167
|
)
|
|
—
|
|
|
(88,167
|
)
|
|||||
Net cash used in financing activities
|
(2,610,968
|
)
|
|
(2,571,784
|
)
|
|
(3,334,913
|
)
|
|
5,241,014
|
|
|
(3,276,651
|
)
|
|||||
Effect of exchange rate on cash
|
—
|
|
|
—
|
|
|
(2,929
|
)
|
|
—
|
|
|
(2,929
|
)
|
|||||
Increase (decrease) in cash and cash equivalents
|
79,394
|
|
|
12,675
|
|
|
(545,374
|
)
|
|
—
|
|
|
(453,305
|
)
|
|||||
Cash and cash equivalents at beginning of period
|
50,180
|
|
|
315,489
|
|
|
3,234,745
|
|
|
—
|
|
|
3,600,414
|
|
|||||
Cash and cash equivalents at end of period
|
$
|
129,574
|
|
|
$
|
328,164
|
|
|
$
|
2,689,371
|
|
|
$
|
—
|
|
|
$
|
3,147,109
|
|
|
LVSC
(Non-Guarantor Parent) |
|
Restricted
Subsidiaries
|
|
Non-Restricted
Subsidiaries
|
|
Consolidating/
Eliminating
Entries
|
|
Total
|
||||||||||
Net cash generated from operating activities
|
$
|
1,437,786
|
|
|
$
|
1,578,531
|
|
|
$
|
2,994,133
|
|
|
$
|
(2,849,667
|
)
|
|
$
|
3,160,783
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
||||||||||
Change in restricted cash and cash equivalents
|
—
|
|
|
—
|
|
|
(877
|
)
|
|
—
|
|
|
(877
|
)
|
|||||
Capital expenditures
|
(25,425
|
)
|
|
(39,548
|
)
|
|
(534,509
|
)
|
|
—
|
|
|
(599,482
|
)
|
|||||
Proceeds from disposal of property and equipment
|
—
|
|
|
121
|
|
|
592
|
|
|
—
|
|
|
713
|
|
|||||
Acquisition of intangible assets
|
—
|
|
|
—
|
|
|
(45,857
|
)
|
|
—
|
|
|
(45,857
|
)
|
|||||
Dividends received from non-restricted subsidiaries
|
—
|
|
|
1,115,116
|
|
|
—
|
|
|
(1,115,116
|
)
|
|
—
|
|
|||||
Repayments of receivable from LVSC
|
—
|
|
|
—
|
|
|
237,161
|
|
|
(237,161
|
)
|
|
—
|
|
|||||
Repayments of receivable from non-restricted subsidiaries
|
—
|
|
|
1,155
|
|
|
—
|
|
|
(1,155
|
)
|
|
—
|
|
|||||
Capital contributions to subsidiaries
|
(33
|
)
|
|
(1,054,416
|
)
|
|
—
|
|
|
1,054,449
|
|
|
—
|
|
|||||
Net cash generated from (used in) investing activities
|
(25,458
|
)
|
|
22,428
|
|
|
(343,490
|
)
|
|
(298,983
|
)
|
|
(645,503
|
)
|
|||||
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
||||||||||
Proceeds from exercise of stock options
|
28,686
|
|
|
—
|
|
|
17,747
|
|
|
—
|
|
|
46,433
|
|
|||||
Excess tax benefit from stock option exercises
|
2,394
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
2,394
|
|
|||||
Repurchase of common stock
|
(211,241
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(211,241
|
)
|
|||||
Dividends paid
|
(866,001
|
)
|
|
—
|
|
|
(411,359
|
)
|
|
—
|
|
|
(1,277,360
|
)
|
|||||
Distributions to noncontrolling interests
|
—
|
|
|
(1,853
|
)
|
|
(5,955
|
)
|
|
—
|
|
|
(7,808
|
)
|
|||||
Dividends paid to Las Vegas Sands Corp.
|
—
|
|
|
(1,460,929
|
)
|
|
(65,765
|
)
|
|
1,526,694
|
|
|
—
|
|
|||||
Dividends paid to Restricted Subsidiaries
|
—
|
|
|
—
|
|
|
(2,438,089
|
)
|
|
2,438,089
|
|
|
—
|
|
|||||
Capital contributions received
|
—
|
|
|
—
|
|
|
1,054,449
|
|
|
(1,054,449
|
)
|
|
—
|
|
|||||
Repayments on borrowings from Restricted Subsidiaries
|
—
|
|
|
—
|
|
|
(1,155
|
)
|
|
1,155
|
|
|
—
|
|
|||||
Repayments on borrowings from non-restricted subsidiaries
|
(237,161
|
)
|
|
—
|
|
|
—
|
|
|
237,161
|
|
|
—
|
|
|||||
Proceeds from senior secured credit facility
|
—
|
|
|
250,000
|
|
|
—
|
|
|
—
|
|
|
250,000
|
|
|||||
Proceeds from 2012 Singapore credit facility
|
—
|
|
|
—
|
|
|
104,357
|
|
|
—
|
|
|
104,357
|
|
|||||
Repayments on 2012 Singapore credit facility
|
—
|
|
|
—
|
|
|
(430,504
|
)
|
|
—
|
|
|
(430,504
|
)
|
|||||
Repayments on senior secured credit facility
|
—
|
|
|
(282,424
|
)
|
|
—
|
|
|
—
|
|
|
(282,424
|
)
|
|||||
Repayments on airplane financings
|
(2,766
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(2,766
|
)
|
|||||
Repayments on HVAC equipment lease and other long-term debt
|
—
|
|
|
(1,762
|
)
|
|
(2,721
|
)
|
|
—
|
|
|
(4,483
|
)
|
|||||
Net cash used in financing activities
|
(1,286,089
|
)
|
|
(1,496,968
|
)
|
|
(2,178,995
|
)
|
|
3,148,650
|
|
|
(1,813,402
|
)
|
|||||
Effect of exchange rate on cash
|
—
|
|
|
—
|
|
|
(5,524
|
)
|
|
—
|
|
|
(5,524
|
)
|
|||||
Increase in cash and cash equivalents
|
126,239
|
|
|
103,991
|
|
|
466,124
|
|
|
—
|
|
|
696,354
|
|
|||||
Cash and cash equivalents at beginning of period
|
7,962
|
|
|
182,402
|
|
|
2,322,402
|
|
|
—
|
|
|
2,512,766
|
|
|||||
Cash and cash equivalents at end of period
|
$
|
134,201
|
|
|
$
|
286,393
|
|
|
$
|
2,788,526
|
|
|
$
|
—
|
|
|
$
|
3,209,120
|
|
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
||||||||||||||||||
|
|
2014
|
|
2013
|
|
Percent
Change
|
|
2014
|
|
2013
|
|
Percent
Change
|
||||||||||
|
|
(Dollars in thousands)
|
||||||||||||||||||||
Net revenues
|
|
$
|
3,533,122
|
|
|
$
|
3,568,540
|
|
|
(1.0
|
)%
|
|
$
|
11,167,856
|
|
|
$
|
10,114,200
|
|
|
10.4
|
%
|
Operating expenses
|
|
2,561,701
|
|
|
2,653,714
|
|
|
(3.5
|
)%
|
|
8,091,150
|
|
|
7,592,030
|
|
|
6.6
|
%
|
||||
Operating income
|
|
971,421
|
|
|
914,826
|
|
|
6.2
|
%
|
|
3,076,706
|
|
|
2,522,170
|
|
|
22.0
|
%
|
||||
Income before income taxes
|
|
908,368
|
|
|
854,935
|
|
|
6.2
|
%
|
|
2,864,010
|
|
|
2,333,885
|
|
|
22.7
|
%
|
||||
Net income
|
|
860,499
|
|
|
809,298
|
|
|
6.3
|
%
|
|
2,710,071
|
|
|
2,184,945
|
|
|
24.0
|
%
|
||||
Net income attributable to Las Vegas Sands Corp.
|
|
671,705
|
|
|
626,744
|
|
|
7.2
|
%
|
|
2,119,324
|
|
|
1,728,458
|
|
|
22.6
|
%
|
|
|
Percent of Net Revenues
|
||||||||||
|
|
Three Months Ended September 30,
|
|
Nine Months Ended September 30,
|
||||||||
|
|
2014
|
|
2013
|
|
2014
|
|
2013
|
||||
Operating expenses
|
|
72.5
|
%
|
|
74.4
|
%
|
|
72.5
|
%
|
|
75.1
|
%
|
Operating income
|
|
27.5
|
%
|
|
25.6
|
%
|
|
27.5
|
%
|
|
24.9
|
%
|
Income before income taxes
|
|
25.7
|
%
|
|
24.0
|
%
|
|
25.6
|
%
|
|
23.1
|
%
|
Net income
|
|
24.4
|
%
|
|
22.7
|
%
|
|
24.3
|
%
|
|
21.6
|
%
|
Net income attributable to Las Vegas Sands Corp.
|
|
19.0
|
%
|
|
17.6
|
%
|
|
19.0
|
%
|
|
17.1
|
%
|
|
Three Months Ended September 30,
|
|||||||||
|
2014
|
|
2013
|
|
Percent
Change
|
|||||
|
(Dollars in thousands)
|
|||||||||
Casino
|
$
|
2,897,084
|
|
|
$
|
2,984,538
|
|
|
(2.9
|
)%
|
Rooms
|
386,867
|
|
|
349,001
|
|
|
10.8
|
%
|
||
Food and beverage
|
185,821
|
|
|
174,260
|
|
|
6.6
|
%
|
||
Mall
|
150,728
|
|
|
128,068
|
|
|
17.7
|
%
|
||
Convention, retail and other
|
128,458
|
|
|
123,259
|
|
|
4.2
|
%
|
||
|
3,748,958
|
|
|
3,759,126
|
|
|
(0.3
|
)%
|
||
Less — promotional allowances
|
(215,836
|
)
|
|
(190,586
|
)
|
|
(13.2
|
)%
|
||
Total net revenues
|
$
|
3,533,122
|
|
|
$
|
3,568,540
|
|
|
(1.0
|
)%
|
|
Three Months Ended September 30,
|
|||||||||
|
2014
|
|
2013
|
|
Change
|
|||||
|
(Dollars in thousands)
|
|||||||||
Macao Operations:
|
|
|
|
|
|
|||||
The Venetian Macao
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
817,850
|
|
|
$
|
824,956
|
|
|
(0.9)%
|
|
Non-Rolling Chip drop
|
$
|
2,208,079
|
|
|
$
|
2,005,109
|
|
|
10.1%
|
|
Non-Rolling Chip win percentage
|
24.7
|
%
|
|
23.9
|
%
|
|
0.8 pts
|
|
||
Rolling Chip volume
|
$
|
10,127,568
|
|
|
$
|
14,152,346
|
|
|
(28.4)%
|
|
Rolling Chip win percentage
|
3.13
|
%
|
|
3.03
|
%
|
|
0.10 pts
|
|
||
Slot handle
|
$
|
1,440,921
|
|
|
$
|
1,144,392
|
|
|
25.9%
|
|
Slot hold percentage
|
4.6
|
%
|
|
5.7
|
%
|
|
(1.1) pts
|
|
||
Sands Cotai Central
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
727,284
|
|
|
$
|
660,898
|
|
|
10.0%
|
|
Non-Rolling Chip drop
|
$
|
1,891,161
|
|
|
$
|
1,429,345
|
|
|
32.3%
|
|
Non-Rolling Chip win percentage
|
22.4
|
%
|
|
23.4
|
%
|
|
(1.0) pts
|
|
||
Rolling Chip volume
|
$
|
10,567,167
|
|
|
$
|
15,550,073
|
|
|
(32.0)%
|
|
Rolling Chip win percentage
|
3.48
|
%
|
|
2.71
|
%
|
|
0.77 pts
|
|
||
Slot handle
|
$
|
2,025,051
|
|
|
$
|
1,459,744
|
|
|
38.7%
|
|
Slot hold percentage
|
3.4
|
%
|
|
4.1
|
%
|
|
(0.7) pts
|
|
||
Four Seasons Macao
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
221,425
|
|
|
$
|
290,637
|
|
|
(23.8)%
|
|
Non-Rolling Chip drop
|
$
|
320,416
|
|
|
$
|
272,266
|
|
|
17.7%
|
|
Non-Rolling Chip win percentage
|
25.2
|
%
|
|
28.3
|
%
|
|
(3.1) pts
|
|
||
Rolling Chip volume
|
$
|
6,236,875
|
|
|
$
|
10,451,747
|
|
|
(40.3)%
|
|
Rolling Chip win percentage
|
3.45
|
%
|
|
2.88
|
%
|
|
0.57 pts
|
|
||
Slot handle
|
$
|
214,559
|
|
|
$
|
263,350
|
|
|
(18.5)%
|
|
Slot hold percentage
|
4.6
|
%
|
|
5.6
|
%
|
|
(1.0) pts
|
|
||
Sands Macao
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
273,647
|
|
|
$
|
297,930
|
|
|
(8.2)%
|
|
Non-Rolling Chip drop
|
$
|
884,648
|
|
|
$
|
877,375
|
|
|
0.8%
|
|
Non-Rolling Chip win percentage
|
19.1
|
%
|
|
19.6
|
%
|
|
(0.5) pts
|
|
||
Rolling Chip volume
|
$
|
4,318,491
|
|
|
$
|
5,232,928
|
|
|
(17.5)%
|
|
Rolling Chip win percentage
|
2.76
|
%
|
|
2.94
|
%
|
|
(0.18) pts
|
|
||
Slot handle
|
$
|
833,400
|
|
|
$
|
660,258
|
|
|
26.2%
|
|
Slot hold percentage
|
3.6
|
%
|
|
3.9
|
%
|
|
(0.3) pts
|
|
||
Singapore Operations:
|
|
|
|
|
|
|||||
Marina Bay Sands
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
573,521
|
|
|
$
|
628,053
|
|
|
(8.7)%
|
|
Non-Rolling Chip drop
|
$
|
1,137,411
|
|
|
$
|
1,156,271
|
|
|
(1.6)%
|
|
Non-Rolling Chip win percentage
|
25.6
|
%
|
|
23.6
|
%
|
|
2.0 pts
|
|
||
Rolling Chip volume
|
$
|
9,121,848
|
|
|
$
|
13,785,351
|
|
|
(33.8)%
|
|
Rolling Chip win percentage
|
2.64
|
%
|
|
2.85
|
%
|
|
(0.21) pts
|
|
||
Slot handle
|
$
|
3,126,527
|
|
|
$
|
2,763,660
|
|
|
13.1%
|
|
Slot hold percentage
|
4.9
|
%
|
|
5.1
|
%
|
|
(0.2) pts
|
|
||
U.S. Operations:
|
|
|
|
|
|
|||||
Las Vegas Operating Properties
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
165,069
|
|
|
$
|
168,132
|
|
|
(1.8)%
|
|
Table games drop
|
$
|
632,924
|
|
|
$
|
544,330
|
|
|
16.3%
|
|
Table games win percentage
|
24.1
|
%
|
|
28.7
|
%
|
|
(4.6) pts
|
|
||
Slot handle
|
$
|
573,108
|
|
|
$
|
511,441
|
|
|
12.1%
|
|
Slot hold percentage
|
8.3
|
%
|
|
8.7
|
%
|
|
(0.4) pts
|
|
||
Sands Bethlehem
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
118,288
|
|
|
$
|
113,932
|
|
|
3.8%
|
|
Table games drop
|
$
|
274,565
|
|
|
$
|
261,618
|
|
|
4.9%
|
|
Table games win percentage
|
16.2
|
%
|
|
15.0
|
%
|
|
1.2 pts
|
|
||
Slot handle
|
$
|
1,038,026
|
|
|
$
|
1,045,129
|
|
|
(0.7)%
|
|
Slot hold percentage
|
6.9
|
%
|
|
6.9
|
%
|
|
—
|
|
|
Three Months Ended September 30,
|
|||||||||
|
2014
|
|
2013
|
|
Change
|
|||||
|
(Room revenues in thousands)
|
|||||||||
Macao Operations:
|
|
|
|
|
|
|||||
The Venetian Macao
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
66,634
|
|
|
$
|
58,328
|
|
|
14.2%
|
|
Occupancy rate
|
93.3
|
%
|
|
91.8
|
%
|
|
1.5 pts
|
|
||
Average daily room rate
|
$
|
269
|
|
|
$
|
242
|
|
|
11.2%
|
|
Revenue per available room
|
$
|
251
|
|
|
$
|
222
|
|
|
13.1%
|
|
Sands Cotai Central
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
81,780
|
|
|
$
|
65,916
|
|
|
24.1%
|
|
Occupancy rate
|
89.5
|
%
|
|
84.8
|
%
|
|
4.7 pts
|
|
||
Average daily room rate
|
$
|
176
|
|
|
$
|
152
|
|
|
15.8%
|
|
Revenue per available room
|
$
|
157
|
|
|
$
|
129
|
|
|
21.7%
|
|
Four Seasons Macao
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
11,943
|
|
|
$
|
11,094
|
|
|
7.7%
|
|
Occupancy rate
|
88.3
|
%
|
|
88.2
|
%
|
|
0.1 pts
|
|
||
Average daily room rate
|
$
|
391
|
|
|
$
|
363
|
|
|
7.7%
|
|
Revenue per available room
|
$
|
345
|
|
|
$
|
321
|
|
|
7.5%
|
|
Sands Macao
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
5,657
|
|
|
$
|
6,205
|
|
|
(8.8)%
|
|
Occupancy rate
|
99.4
|
%
|
|
96.9
|
%
|
|
2.5 pts
|
|
||
Average daily room rate
|
$
|
219
|
|
|
$
|
243
|
|
|
(9.9)%
|
|
Revenue per available room
|
$
|
218
|
|
|
$
|
236
|
|
|
(7.6)%
|
|
Singapore Operations:
|
|
|
|
|
|
|||||
Marina Bay Sands
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
101,640
|
|
|
$
|
93,324
|
|
|
8.9%
|
|
Occupancy rate
|
99.4
|
%
|
|
99.8
|
%
|
|
(0.4) pts
|
|
||
Average daily room rate
|
$
|
468
|
|
|
$
|
401
|
|
|
16.7%
|
|
Revenue per available room
|
$
|
465
|
|
|
$
|
400
|
|
|
16.3%
|
|
U.S. Operations:
|
|
|
|
|
|
|||||
Las Vegas Operating Properties
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
115,619
|
|
|
$
|
110,934
|
|
|
4.2%
|
|
Occupancy rate
|
91.9
|
%
|
|
87.6
|
%
|
|
4.3 pts
|
|
||
Average daily room rate
|
$
|
204
|
|
|
$
|
196
|
|
|
4.1%
|
|
Revenue per available room
|
$
|
187
|
|
|
$
|
171
|
|
|
9.4%
|
|
Sands Bethlehem
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
3,594
|
|
|
$
|
3,200
|
|
|
12.3%
|
|
Occupancy rate
|
89.4
|
%
|
|
82.1
|
%
|
|
7.3 pts
|
|
||
Average daily room rate
|
$
|
145
|
|
|
$
|
141
|
|
|
2.8%
|
|
Revenue per available room
|
$
|
130
|
|
|
$
|
115
|
|
|
13.0%
|
|
|
Three Months Ended September 30,
|
|||||||||
|
2014
|
|
2013
|
|
Change
|
|||||
|
(Mall revenues in thousands)
|
|||||||||
Macao Operations:
|
|
|
|
|
|
|||||
Shoppes at Venetian
|
|
|
|
|
|
|||||
Total mall revenues
|
$
|
50,811
|
|
|
$
|
45,377
|
|
|
12.0%
|
|
Mall gross leasable area (in square feet)
|
756,261
|
|
|
756,271
|
|
|
—
|
|
||
Occupancy
|
95.6
|
%
|
|
94.2
|
%
|
|
1.4 pts
|
|
||
Base rent per square foot
|
$
|
199
|
|
|
$
|
167
|
|
|
19.2%
|
|
Tenant sales per square foot
|
$
|
1,579
|
|
|
$
|
1,473
|
|
|
7.2%
|
|
Shoppes at Cotai Central
(1)
|
|
|
|
|
|
|||||
Total mall revenues
|
$
|
17,619
|
|
|
$
|
11,452
|
|
|
53.9%
|
|
Mall gross leasable area (in square feet)
|
329,228
|
|
|
210,143
|
|
|
56.7%
|
|
||
Occupancy
|
97.9
|
%
|
|
100.0
|
%
|
|
(2.1) pts
|
|
||
Base rent per square foot
|
$
|
134
|
|
|
$
|
120
|
|
|
11.7%
|
|
Tenant sales per square foot
|
$
|
1,472
|
|
|
$
|
—
|
|
|
—
|
|
Shoppes at Four Seasons
|
|
|
|
|
|
|||||
Total mall revenues
|
$
|
36,272
|
|
|
$
|
32,245
|
|
|
12.5%
|
|
Mall gross leasable area (in square feet)
|
258,254
|
|
|
241,416
|
|
|
7.0%
|
|
||
Occupancy
|
97.9
|
%
|
|
90.7
|
%
|
|
7.2 pts
|
|
||
Base rent per square foot
|
$
|
419
|
|
|
$
|
336
|
|
|
24.7%
|
|
Tenant sales per square foot
|
$
|
5,810
|
|
|
$
|
4,769
|
|
|
21.8%
|
|
Singapore Operations:
|
|
|
|
|
|
|||||
The Shoppes at Marina Bay Sands
|
|
|
|
|
|
|||||
Total mall revenues
|
$
|
44,822
|
|
|
$
|
38,021
|
|
|
17.9%
|
|
Mall gross leasable area (in square feet)
|
648,618
|
|
|
641,442
|
|
|
1.1%
|
|
||
Occupancy
|
91.7
|
%
|
|
88.7
|
%
|
|
3.0 pts
|
|
||
Base rent per square foot
|
$
|
227
|
|
|
$
|
195
|
|
|
16.4%
|
|
Tenant sales per square foot
|
$
|
1,423
|
|
|
$
|
1,556
|
|
|
(8.5)%
|
|
U.S. Operations:
|
|
|
|
|
|
|||||
The Outlets at Sands Bethlehem
(2)
|
|
|
|
|
|
|||||
Total mall revenues
|
$
|
1,204
|
|
|
$
|
973
|
|
|
23.7%
|
|
Mall gross leasable area (in square feet)
|
151,029
|
|
|
134,907
|
|
|
12.0%
|
|
||
Occupancy
|
94.3
|
%
|
|
87.6
|
%
|
|
6.7 pts
|
|
||
Base rent per square foot
|
$
|
22
|
|
|
$
|
24
|
|
|
(8.3)%
|
|
Tenant sales per square foot
|
$
|
359
|
|
|
$
|
—
|
|
|
—
|
|
(1)
|
The first, second and third phases of the Shoppes at Cotai Central opened in April and September 2012, and June 2014, respectively. At completion, the Shoppes at Cotai Central will feature up to 600,000 square feet of gross leasable area.
|
(2)
|
Tenant sales per square foot for the three months ended September 30, 2013, is excluded from the table as certain co-tenancy requirements were not met during 2012 as the mall was only partially occupied.
|
|
Three Months Ended September 30,
|
|||||||||
|
2014
|
|
2013
|
|
Percent
Change
|
|||||
|
(Dollars in thousands)
|
|||||||||
Casino
|
$
|
1,634,960
|
|
|
$
|
1,668,107
|
|
|
(2.0
|
)%
|
Rooms
|
66,301
|
|
|
69,511
|
|
|
(4.6
|
)%
|
||
Food and beverage
|
95,749
|
|
|
88,020
|
|
|
8.8
|
%
|
||
Mall
|
18,032
|
|
|
17,319
|
|
|
4.1
|
%
|
||
Convention, retail and other
|
68,833
|
|
|
69,102
|
|
|
(0.4
|
)%
|
||
Provision for doubtful accounts
|
31,103
|
|
|
55,371
|
|
|
(43.8
|
)%
|
||
General and administrative
|
341,501
|
|
|
380,865
|
|
|
(10.3
|
)%
|
||
Corporate
|
42,704
|
|
|
38,468
|
|
|
11.0
|
%
|
||
Pre-opening
|
(2,414
|
)
|
|
1,778
|
|
|
N.M.
|
|
||
Development
|
3,043
|
|
|
3,487
|
|
|
(12.7
|
)%
|
||
Depreciation and amortization
|
251,002
|
|
|
248,925
|
|
|
0.8
|
%
|
||
Amortization of leasehold interests in land
|
10,086
|
|
|
10,022
|
|
|
0.6
|
%
|
||
Loss on disposal of assets
|
801
|
|
|
2,739
|
|
|
(70.8
|
)%
|
||
Total operating expenses
|
$
|
2,561,701
|
|
|
$
|
2,653,714
|
|
|
(3.5
|
)%
|
|
Three Months Ended September 30,
|
|||||||||
|
2014
|
|
2013
|
|
Percent
Change
|
|||||
|
(Dollars in thousands)
|
|||||||||
Macao:
|
|
|
|
|
|
|||||
The Venetian Macao
|
$
|
352,735
|
|
|
$
|
357,197
|
|
|
(1.2
|
)%
|
Sands Cotai Central
|
267,031
|
|
|
224,272
|
|
|
19.1
|
%
|
||
Four Seasons Macao
|
101,184
|
|
|
112,922
|
|
|
(10.4
|
)%
|
||
Sands Macao
|
88,099
|
|
|
89,947
|
|
|
(2.1
|
)%
|
||
Other Asia
|
3,130
|
|
|
1,177
|
|
|
165.9
|
%
|
||
|
812,179
|
|
|
785,515
|
|
|
3.4
|
%
|
||
Marina Bay Sands
|
351,687
|
|
|
373,612
|
|
|
(5.9
|
)%
|
||
United States:
|
|
|
|
|
|
|||||
Las Vegas Operating Properties
|
90,183
|
|
|
87,135
|
|
|
3.5
|
%
|
||
Sands Bethlehem
|
29,846
|
|
|
29,553
|
|
|
1.0
|
%
|
||
|
120,029
|
|
|
116,688
|
|
|
2.9
|
%
|
||
Total adjusted property EBITDA
|
$
|
1,283,895
|
|
|
$
|
1,275,815
|
|
|
0.6
|
%
|
|
Three Months Ended September 30,
|
||||||
|
2014
|
|
2013
|
||||
|
(Dollars in thousands)
|
||||||
Interest cost (which includes the amortization of deferred financing costs and original issue discount)
|
$
|
65,917
|
|
|
$
|
64,048
|
|
Add — imputed interest on deferred proceeds from sale of The Shoppes at The Palazzo
|
3,798
|
|
|
3,793
|
|
||
Less — capitalized interest
|
(2,936
|
)
|
|
(924
|
)
|
||
Interest expense, net
|
$
|
66,779
|
|
|
$
|
66,917
|
|
Cash paid for interest
|
$
|
53,500
|
|
|
$
|
59,880
|
|
Weighted average total debt balance
|
$
|
9,814,146
|
|
|
$
|
9,492,227
|
|
Weighted average interest rate
|
2.7
|
%
|
|
2.7
|
%
|
|
Nine Months Ended September 30,
|
|||||||||
|
2014
|
|
2013
|
|
Percent
Change
|
|||||
|
(Dollars in thousands)
|
|||||||||
Casino
|
$
|
9,281,959
|
|
|
$
|
8,394,721
|
|
|
10.6
|
%
|
Rooms
|
1,162,205
|
|
|
998,646
|
|
|
16.4
|
%
|
||
Food and beverage
|
582,804
|
|
|
534,361
|
|
|
9.1
|
%
|
||
Mall
|
378,832
|
|
|
321,522
|
|
|
17.8
|
%
|
||
Convention, retail and other
|
391,663
|
|
|
372,370
|
|
|
5.2
|
%
|
||
|
11,797,463
|
|
|
10,621,620
|
|
|
11.1
|
%
|
||
Less — promotional allowances
|
(629,607
|
)
|
|
(507,420
|
)
|
|
(24.1
|
)%
|
||
Total net revenues
|
$
|
11,167,856
|
|
|
$
|
10,114,200
|
|
|
10.4
|
%
|
|
Nine Months Ended September 30,
|
|||||||||
|
2014
|
|
2013
|
|
Change
|
|||||
|
(Dollars in thousands)
|
|||||||||
Macao Operations:
|
|
|
|
|
|
|||||
The Venetian Macao
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
2,821,078
|
|
|
$
|
2,404,046
|
|
|
17.3%
|
|
Non-Rolling Chip drop
|
$
|
6,853,227
|
|
|
$
|
4,932,826
|
|
|
38.9%
|
|
Non-Rolling Chip win percentage
|
25.5
|
%
|
|
27.5
|
%
|
|
(2.0) pts
|
|
||
Rolling Chip volume
|
$
|
37,772,723
|
|
|
$
|
37,661,230
|
|
|
0.3%
|
|
Rolling Chip win percentage
|
3.38
|
%
|
|
3.32
|
%
|
|
0.06 pts
|
|
||
Slot handle
|
$
|
4,239,171
|
|
|
$
|
3,485,599
|
|
|
21.6%
|
|
Slot hold percentage
|
4.9
|
%
|
|
5.6
|
%
|
|
(0.7) pts
|
|
||
Sands Cotai Central
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
2,190,377
|
|
|
$
|
1,725,210
|
|
|
27.0%
|
|
Non-Rolling Chip drop
|
$
|
5,573,482
|
|
|
$
|
3,692,883
|
|
|
50.9%
|
|
Non-Rolling Chip win percentage
|
22.3
|
%
|
|
22.4
|
%
|
|
(0.1) pts
|
|
||
Rolling Chip volume
|
$
|
38,476,839
|
|
|
$
|
43,507,873
|
|
|
(11.6)%
|
|
Rolling Chip win percentage
|
3.05
|
%
|
|
2.71
|
%
|
|
0.34 pts
|
|
||
Slot handle
|
$
|
5,813,197
|
|
|
$
|
3,937,837
|
|
|
47.6%
|
|
Slot hold percentage
|
3.5
|
%
|
|
4.0
|
%
|
|
(0.5) pts
|
|
||
Four Seasons Macao
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
759,304
|
|
|
$
|
739,225
|
|
|
2.7%
|
|
Non-Rolling Chip drop
|
$
|
1,039,009
|
|
|
$
|
568,846
|
|
|
82.7%
|
|
Non-Rolling Chip win percentage
|
25.1
|
%
|
|
30.3
|
%
|
|
(5.2) pts
|
|
||
Rolling Chip volume
|
$
|
21,078,466
|
|
|
$
|
29,876,157
|
|
|
(29.4)%
|
|
Rolling Chip win percentage
|
3.43
|
%
|
|
2.68
|
%
|
|
0.75 pts
|
|
||
Slot handle
|
$
|
674,754
|
|
|
$
|
629,757
|
|
|
7.1%
|
|
Slot hold percentage
|
5.0
|
%
|
|
5.6
|
%
|
|
(0.6) pts
|
|
||
Sands Macao
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
887,226
|
|
|
$
|
887,796
|
|
|
(0.1)%
|
|
Non-Rolling Chip drop
|
$
|
3,057,842
|
|
|
$
|
2,463,465
|
|
|
24.1%
|
|
Non-Rolling Chip win percentage
|
18.1
|
%
|
|
20.3
|
%
|
|
(2.2) pts
|
|
||
Rolling Chip volume
|
$
|
14,350,550
|
|
|
$
|
17,430,087
|
|
|
(17.7)%
|
|
Rolling Chip win percentage
|
2.84
|
%
|
|
2.76
|
%
|
|
0.08 pts
|
|
||
Slot handle
|
$
|
2,469,042
|
|
|
$
|
2,003,935
|
|
|
23.2%
|
|
Slot hold percentage
|
3.7
|
%
|
|
3.9
|
%
|
|
(0.2) pts
|
|
||
Singapore Operations:
|
|
|
|
|
|
|||||
Marina Bay Sands
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
1,900,401
|
|
|
$
|
1,858,579
|
|
|
2.3%
|
|
Non-Rolling Chip drop
|
$
|
3,401,023
|
|
|
$
|
3,514,567
|
|
|
(3.2)%
|
|
Non-Rolling Chip win percentage
|
24.6
|
%
|
|
23.4
|
%
|
|
1.2 pts
|
|
||
Rolling Chip volume
|
$
|
32,509,839
|
|
|
$
|
46,364,282
|
|
|
(29.9)%
|
|
Rolling Chip win percentage
|
3.21
|
%
|
|
2.62
|
%
|
|
0.59 pts
|
|
||
Slot handle
|
$
|
9,243,219
|
|
|
$
|
8,293,454
|
|
|
11.5%
|
|
Slot hold percentage
|
4.9
|
%
|
|
5.1
|
%
|
|
(0.2) pts
|
|
||
U.S. Operations:
|
|
|
|
|
|
|||||
Las Vegas Operating Properties
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
379,177
|
|
|
$
|
433,096
|
|
|
(12.4)%
|
|
Table games drop
|
$
|
1,591,423
|
|
|
$
|
1,602,052
|
|
|
(0.7)%
|
|
Table games win percentage
|
20.2
|
%
|
|
23.9
|
%
|
|
(3.7) pts
|
|
||
Slot handle
|
$
|
1,529,893
|
|
|
$
|
1,481,976
|
|
|
3.2%
|
|
Slot hold percentage
|
8.4
|
%
|
|
8.8
|
%
|
|
(0.4) pts
|
|
||
Sands Bethlehem
|
|
|
|
|
|
|||||
Total casino revenues
|
$
|
344,396
|
|
|
$
|
346,769
|
|
|
(0.7)%
|
|
Table games drop
|
$
|
782,766
|
|
|
$
|
765,165
|
|
|
2.3%
|
|
Table games win percentage
|
16.1
|
%
|
|
15.6
|
%
|
|
0.5 pts
|
|
||
Slot handle
|
$
|
3,004,831
|
|
|
$
|
3,134,161
|
|
|
(4.1)%
|
|
Slot hold percentage
|
7.0
|
%
|
|
7.0
|
%
|
|
—
|
|
|
Nine Months Ended September 30,
|
|||||||||
|
2014
|
|
2013
|
|
Change
|
|||||
|
(Room revenues in thousands)
|
|||||||||
Macao Operations:
|
|
|
|
|
|
|||||
The Venetian Macao
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
193,186
|
|
|
$
|
163,829
|
|
|
17.9%
|
|
Occupancy rate
|
92.2
|
%
|
|
90.3
|
%
|
|
1.9 pts
|
|
||
Average daily room rate
|
$
|
266
|
|
|
$
|
234
|
|
|
13.7%
|
|
Revenue per available room
|
$
|
246
|
|
|
$
|
211
|
|
|
16.6%
|
|
Sands Cotai Central
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
234,470
|
|
|
$
|
160,117
|
|
|
46.4%
|
|
Occupancy rate
|
87.7
|
%
|
|
74.6
|
%
|
|
13.1 pts
|
|
||
Average daily room rate
|
$
|
174
|
|
|
$
|
149
|
|
|
16.8%
|
|
Revenue per available room
|
$
|
153
|
|
|
$
|
111
|
|
|
37.8%
|
|
Four Seasons Macao
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
36,614
|
|
|
$
|
30,975
|
|
|
18.2%
|
|
Occupancy rate
|
87.1
|
%
|
|
83.4
|
%
|
|
3.7 pts
|
|
||
Average daily room rate
|
$
|
410
|
|
|
$
|
362
|
|
|
13.3%
|
|
Revenue per available room
|
$
|
357
|
|
|
$
|
302
|
|
|
18.2%
|
|
Sands Macao
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
18,457
|
|
|
$
|
18,179
|
|
|
1.5%
|
|
Occupancy rate
|
98.2
|
%
|
|
95.6
|
%
|
|
2.6 pts
|
|
||
Average daily room rate
|
$
|
242
|
|
|
$
|
244
|
|
|
(0.8)%
|
|
Revenue per available room
|
$
|
238
|
|
|
$
|
233
|
|
|
2.1%
|
|
Singapore Operations:
|
|
|
|
|
|
|||||
Marina Bay Sands
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
291,847
|
|
|
$
|
264,442
|
|
|
10.4%
|
|
Occupancy rate
|
99.3
|
%
|
|
99.2
|
%
|
|
0.1 pts
|
|
||
Average daily room rate
|
$
|
435
|
|
|
$
|
386
|
|
|
12.7%
|
|
Revenue per available room
|
$
|
431
|
|
|
$
|
383
|
|
|
12.5%
|
|
U.S. Operations:
|
|
|
|
|
|
|||||
Las Vegas Operating Properties
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
377,849
|
|
|
$
|
352,615
|
|
|
7.2%
|
|
Occupancy rate
|
90.3
|
%
|
|
89.8
|
%
|
|
0.5 pts
|
|
||
Average daily room rate
|
$
|
222
|
|
|
$
|
204
|
|
|
8.8%
|
|
Revenue per available room
|
$
|
201
|
|
|
$
|
183
|
|
|
9.8%
|
|
Sands Bethlehem
|
|
|
|
|
|
|||||
Total room revenues
|
$
|
9,782
|
|
|
$
|
8,489
|
|
|
15.2%
|
|
Occupancy rate
|
81.9
|
%
|
|
73.4
|
%
|
|
8.5 pts
|
|
||
Average daily room rate
|
$
|
145
|
|
|
$
|
141
|
|
|
2.8%
|
|
Revenue per available room
|
$
|
119
|
|
|
$
|
103
|
|
|
15.5%
|
|
|
Nine Months Ended September 30,
(1)
|
|||||||||
|
2014
|
|
2013
|
|
Change
|
|||||
|
(Mall revenues in thousands)
|
|||||||||
Macao Operations:
|
|
|
|
|
|
|||||
Shoppes at Venetian
|
|
|
|
|
|
|||||
Total mall revenues
|
$
|
130,943
|
|
|
$
|
112,647
|
|
|
16.2%
|
|
Mall gross leasable area (in square feet)
|
756,261
|
|
|
756,271
|
|
|
—
|
|
||
Occupancy
|
95.6
|
%
|
|
94.2
|
%
|
|
1.4 pts
|
|
||
Base rent per square foot
|
$
|
199
|
|
|
$
|
167
|
|
|
19.2%
|
|
Tenant sales per square foot
|
$
|
1,579
|
|
|
$
|
1,473
|
|
|
7.2%
|
|
Shoppes at Cotai Central
(2)
|
|
|
|
|
|
|||||
Total mall revenues
|
$
|
37,515
|
|
|
$
|
28,076
|
|
|
33.6%
|
|
Mall gross leasable area (in square feet)
|
329,228
|
|
|
210,143
|
|
|
56.7%
|
|
||
Occupancy
|
97.9
|
%
|
|
100.0
|
%
|
|
(2.1) pts
|
|
||
Base rent per square foot
|
$
|
134
|
|
|
$
|
120
|
|
|
11.7%
|
|
Tenant sales per square foot
|
$
|
1,472
|
|
|
$
|
—
|
|
|
—
|
|
Shoppes at Four Seasons
|
|
|
|
|
|
|||||
Total mall revenues
|
$
|
84,113
|
|
|
$
|
67,971
|
|
|
23.7%
|
|
Mall gross leasable area (in square feet)
|
258,254
|
|
|
241,416
|
|
|
7.0%
|
|
||
Occupancy
|
97.9
|
%
|
|
90.7
|
%
|
|
7.2 pts
|
|
||
Base rent per square foot
|
$
|
419
|
|
|
$
|
336
|
|
|
24.7%
|
|
Tenant sales per square foot
|
$
|
5,810
|
|
|
$
|
4,769
|
|
|
21.8%
|
|
Singapore Operations:
|
|
|
|
|
|
|||||
The Shoppes at Marina Bay Sands
|
|
|
|
|
|
|||||
Total mall revenues
|
$
|
123,602
|
|
|
$
|
110,569
|
|
|
11.8%
|
|
Mall gross leasable area (in square feet)
|
648,618
|
|
|
641,442
|
|
|
1.1%
|
|
||
Occupancy
|
91.7
|
%
|
|
88.7
|
%
|
|
3.0 pts
|
|
||
Base rent per square foot
|
$
|
227
|
|
|
$
|
195
|
|
|
16.4%
|
|
Tenant sales per square foot
|
$
|
1,423
|
|
|
$
|
1,556
|
|
|
(8.5)%
|
|
U.S. Operations:
|
|
|
|
|
|
|||||
The Outlets at Sands Bethlehem
(3)
|
|
|
|
|
|
|||||
Total mall revenues
|
$
|
2,659
|
|
|
$
|
2,259
|
|
|
17.7%
|
|
Mall gross leasable area (in square feet)
|
151,029
|
|
|
134,907
|
|
|
12.0%
|
|
||
Occupancy
|
94.3
|
%
|
|
87.6
|
%
|
|
6.7 pts
|
|
||
Base rent per square foot
|
$
|
22
|
|
|
$
|
24
|
|
|
(8.3)%
|
|
Tenant sales per square foot
|
$
|
359
|
|
|
$
|
—
|
|
|
—
|
|
(1)
|
As GLA, occupancy, base rent per square foot and tenant sales per square foot are calculated as of September 30, 2014 and 2013, they are identical to the summary presented herein for the three months ended September 30, 2014 and 2013, respectively.
|
(2)
|
The first, second and third phases of the Shoppes at Cotai Central opened in April and September 2012, and June 2014, respectively. At completion, the Shoppes at Cotai Central will feature up to 600,000 square feet of gross leasable area.
|
(3)
|
Tenant sales per square foot for the
nine
months ended
September 30, 2013
, is excluded from the table as certain co-tenancy requirements were not met during 2012 as the mall was only partially occupied.
|
|
Nine Months Ended September 30,
|
|||||||||
|
2014
|
|
2013
|
|
Percent
Change
|
|||||
|
(Dollars in thousands)
|
|||||||||
Casino
|
$
|
5,192,809
|
|
|
$
|
4,714,107
|
|
|
10.2
|
%
|
Rooms
|
194,682
|
|
|
203,886
|
|
|
(4.5
|
)%
|
||
Food and beverage
|
291,746
|
|
|
274,045
|
|
|
6.5
|
%
|
||
Mall
|
53,104
|
|
|
52,724
|
|
|
0.7
|
%
|
||
Convention, retail and other
|
233,965
|
|
|
228,045
|
|
|
2.6
|
%
|
||
Provision for doubtful accounts
|
142,690
|
|
|
182,108
|
|
|
(21.6
|
)%
|
||
General and administrative
|
1,005,532
|
|
|
979,148
|
|
|
2.7
|
%
|
||
Corporate
|
138,504
|
|
|
141,221
|
|
|
(1.9
|
)%
|
||
Pre-opening
|
18,027
|
|
|
9,646
|
|
|
86.9
|
%
|
||
Development
|
8,952
|
|
|
14,840
|
|
|
(39.7
|
)%
|
||
Depreciation and amortization
|
776,065
|
|
|
752,530
|
|
|
3.1
|
%
|
||
Amortization of leasehold interests in land
|
30,152
|
|
|
30,297
|
|
|
(0.5
|
)%
|
||
Loss on disposal of assets
|
4,922
|
|
|
9,433
|
|
|
(47.8
|
)%
|
||
Total operating expenses
|
$
|
8,091,150
|
|
|
$
|
7,592,030
|
|
|
6.6
|
%
|
|
Nine Months Ended September 30,
|
|||||||||
|
2014
|
|
2013
|
|
Percent
Change
|
|||||
|
(Dollars in thousands)
|
|||||||||
Macao:
|
|
|
|
|
|
|||||
The Venetian Macao
|
$
|
1,224,876
|
|
|
$
|
1,066,543
|
|
|
14.8
|
%
|
Sands Cotai Central
|
781,210
|
|
|
501,940
|
|
|
55.6
|
%
|
||
Four Seasons Macao
|
282,179
|
|
|
228,283
|
|
|
23.6
|
%
|
||
Sands Macao
|
261,856
|
|
|
274,887
|
|
|
(4.7
|
)%
|
||
Other Asia
|
1,248
|
|
|
(4,547
|
)
|
|
N.M.
|
|
||
|
2,551,369
|
|
|
2,067,106
|
|
|
23.4
|
%
|
||
Marina Bay Sands
|
1,204,626
|
|
|
1,125,742
|
|
|
7.0
|
%
|
||
United States:
|
|
|
|
|
|
|||||
Las Vegas Operating Properties
|
235,950
|
|
|
263,532
|
|
|
(10.5
|
)%
|
||
Sands Bethlehem
|
84,292
|
|
|
92,988
|
|
|
(9.4
|
)%
|
||
|
320,242
|
|
|
356,520
|
|
|
(10.2
|
)%
|
||
Total adjusted property EBITDA
|
$
|
4,076,237
|
|
|
$
|
3,549,368
|
|
|
14.8
|
%
|
|
Nine Months Ended September 30,
|
||||||
|
2014
|
|
2013
|
||||
|
(Dollars in thousands)
|
||||||
Interest cost (which includes the amortization of deferred financing costs and original issue discounts)
|
$
|
202,287
|
|
|
$
|
196,037
|
|
Add — imputed interest on deferred proceeds from sale of The Shoppes at The Palazzo
|
11,392
|
|
|
11,373
|
|
||
Less — capitalized interest
|
(6,184
|
)
|
|
(3,285
|
)
|
||
Interest expense, net
|
$
|
207,495
|
|
|
$
|
204,125
|
|
Cash paid for interest
|
$
|
167,246
|
|
|
$
|
167,535
|
|
Weighted average total debt balance
|
$
|
10,000,850
|
|
|
$
|
9,789,503
|
|
Weighted average interest rate
|
2.7
|
%
|
|
2.7
|
%
|
|
Shoppes at
Venetian
|
|
Shoppes at
Four Seasons
|
|
Shoppes at
Cotai Central
|
|
The Shoppes
at Marina Bay
Sands
|
|
The Outlets
at Sands
Bethlehem
(1)
|
|
Total
|
||||||||||||
For the three months ended September 30, 2014
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Mall revenues:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Minimum rents
(2)
|
$
|
32,793
|
|
|
$
|
23,512
|
|
|
$
|
9,696
|
|
|
$
|
31,497
|
|
|
$
|
396
|
|
|
$
|
97,894
|
|
Overage rents
|
11,111
|
|
|
10,772
|
|
|
4,873
|
|
|
4,844
|
|
|
808
|
|
|
32,408
|
|
||||||
CAM, levies and management fees
|
6,907
|
|
|
1,988
|
|
|
3,050
|
|
|
8,481
|
|
|
—
|
|
|
20,426
|
|
||||||
Total mall revenues
|
50,811
|
|
|
36,272
|
|
|
17,619
|
|
|
44,822
|
|
|
1,204
|
|
|
150,728
|
|
||||||
Mall operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Common area maintenance
|
4,538
|
|
|
1,599
|
|
|
1,816
|
|
|
6,352
|
|
|
307
|
|
|
14,612
|
|
||||||
Management fees and other direct operating expenses
|
1,334
|
|
|
215
|
|
|
356
|
|
|
1,412
|
|
|
103
|
|
|
3,420
|
|
||||||
Mall operating expenses
|
5,872
|
|
|
1,814
|
|
|
2,172
|
|
|
7,764
|
|
|
410
|
|
|
18,032
|
|
||||||
Property taxes
|
—
|
|
|
—
|
|
|
—
|
|
|
1,778
|
|
|
313
|
|
|
2,091
|
|
||||||
Provision for (recovery of) doubtful accounts
|
(68
|
)
|
|
47
|
|
|
1
|
|
|
218
|
|
|
—
|
|
|
198
|
|
||||||
Mall-related expenses
(3)
|
5,804
|
|
|
1,861
|
|
|
2,173
|
|
|
9,760
|
|
|
723
|
|
|
20,321
|
|
||||||
For the three months ended September 30, 2013
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Mall revenues:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Minimum rents
(2)
|
$
|
25,990
|
|
|
$
|
11,571
|
|
|
$
|
5,743
|
|
|
$
|
26,683
|
|
|
$
|
338
|
|
|
$
|
70,325
|
|
Overage rents
|
12,883
|
|
|
18,898
|
|
|
3,759
|
|
|
4,526
|
|
|
635
|
|
|
40,701
|
|
||||||
CAM, levies and management fees
|
6,504
|
|
|
1,776
|
|
|
1,950
|
|
|
6,812
|
|
|
—
|
|
|
17,042
|
|
||||||
Total mall revenues
|
45,377
|
|
|
32,245
|
|
|
11,452
|
|
|
38,021
|
|
|
973
|
|
|
128,068
|
|
||||||
Mall operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Common area maintenance
|
4,016
|
|
|
1,498
|
|
|
1,486
|
|
|
5,977
|
|
|
359
|
|
|
13,336
|
|
||||||
Management fees and other direct operating expenses
|
1,597
|
|
|
269
|
|
|
319
|
|
|
1,597
|
|
|
201
|
|
|
3,983
|
|
||||||
Mall operating expenses
|
5,613
|
|
|
1,767
|
|
|
1,805
|
|
|
7,574
|
|
|
560
|
|
|
17,319
|
|
||||||
Property taxes
|
371
|
|
|
—
|
|
|
—
|
|
|
1,755
|
|
|
281
|
|
|
2,407
|
|
||||||
Provision for (recovery of) doubtful accounts
|
56
|
|
|
29
|
|
|
29
|
|
|
(2
|
)
|
|
—
|
|
|
112
|
|
||||||
Mall-related expenses
(3)
|
6,040
|
|
|
1,796
|
|
|
1,834
|
|
|
9,327
|
|
|
841
|
|
|
19,838
|
|
|
Shoppes at
Venetian
|
|
Shoppes at
Four Seasons
|
|
Shoppes at
Cotai Central
|
|
The Shoppes
at Marina Bay
Sands
|
|
The Outlets
at Sands
Bethlehem
(1)
|
|
Total
|
||||||||||||
For the nine months ended September 30, 2014
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Mall revenues:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Minimum rents
(2)
|
$
|
95,581
|
|
|
$
|
63,894
|
|
|
$
|
22,005
|
|
|
$
|
90,747
|
|
|
$
|
1,135
|
|
|
$
|
273,362
|
|
Overage rents
|
15,196
|
|
|
14,610
|
|
|
7,526
|
|
|
10,440
|
|
|
1,524
|
|
|
49,296
|
|
||||||
CAM, levies and management fees
|
20,166
|
|
|
5,609
|
|
|
7,984
|
|
|
22,415
|
|
|
—
|
|
|
56,174
|
|
||||||
Total mall revenues
|
130,943
|
|
|
84,113
|
|
|
37,515
|
|
|
123,602
|
|
|
2,659
|
|
|
378,832
|
|
||||||
Mall operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Common area maintenance
|
13,242
|
|
|
4,316
|
|
|
4,786
|
|
|
18,624
|
|
|
939
|
|
|
41,907
|
|
||||||
Management fees and other direct operating expenses
|
5,144
|
|
|
1,017
|
|
|
1,030
|
|
|
3,624
|
|
|
382
|
|
|
11,197
|
|
||||||
Mall operating expenses
|
18,386
|
|
|
5,333
|
|
|
5,816
|
|
|
22,248
|
|
|
1,321
|
|
|
53,104
|
|
||||||
Property taxes
(4)
|
(1,488
|
)
|
|
—
|
|
|
—
|
|
|
5,297
|
|
|
887
|
|
|
4,696
|
|
||||||
Provision for (recovery of) doubtful accounts
|
199
|
|
|
159
|
|
|
(20
|
)
|
|
990
|
|
|
—
|
|
|
1,328
|
|
||||||
Mall-related expenses
(3)
|
17,097
|
|
|
5,492
|
|
|
5,796
|
|
|
28,535
|
|
|
2,208
|
|
|
59,128
|
|
||||||
For the nine months ended September 30, 2013
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Mall revenues:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Minimum rents
(2)
|
$
|
74,088
|
|
|
$
|
35,905
|
|
|
$
|
17,264
|
|
|
$
|
77,923
|
|
|
$
|
874
|
|
|
$
|
206,054
|
|
Overage rents
|
20,130
|
|
|
26,719
|
|
|
5,187
|
|
|
9,938
|
|
|
1,385
|
|
|
63,359
|
|
||||||
CAM, levies and management fees
|
18,429
|
|
|
5,347
|
|
|
5,625
|
|
|
22,708
|
|
|
—
|
|
|
52,109
|
|
||||||
Total mall revenues
|
112,647
|
|
|
67,971
|
|
|
28,076
|
|
|
110,569
|
|
|
2,259
|
|
|
321,522
|
|
||||||
Mall operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||
Common area maintenance
|
11,881
|
|
|
4,050
|
|
|
4,197
|
|
|
19,253
|
|
|
956
|
|
|
40,337
|
|
||||||
Management fees and other direct operating expenses
|
5,105
|
|
|
1,012
|
|
|
865
|
|
|
4,943
|
|
|
462
|
|
|
12,387
|
|
||||||
Mall operating expenses
|
16,986
|
|
|
5,062
|
|
|
5,062
|
|
|
24,196
|
|
|
1,418
|
|
|
52,724
|
|
||||||
Property taxes
|
371
|
|
|
—
|
|
|
—
|
|
|
5,355
|
|
|
811
|
|
|
6,537
|
|
||||||
Provision for (recovery of) doubtful accounts
|
(363
|
)
|
|
184
|
|
|
(93
|
)
|
|
(5
|
)
|
|
—
|
|
|
(277
|
)
|
||||||
Mall-related expenses
(3)
|
16,994
|
|
|
5,246
|
|
|
4,969
|
|
|
29,546
|
|
|
2,229
|
|
|
58,984
|
|
(1)
|
Revenues from CAM, levies and management fees are included in minimum rents for The Outlets at Sands Bethlehem.
|
(2)
|
Minimum rents include base rents and straight-line adjustments of base rents.
|
(3)
|
Mall-related expenses consist of CAM, management fees and other direct operating expenses, property taxes and provision for (recovery of) doubtful accounts, but excludes depreciation and amortization and general and administrative costs.
|
(4)
|
Commercial property that generates rental income is exempt from property tax for the first six years for newly constructed buildings in Cotai. This property tax exemption expired in August 2013 for The Venetian Macao. In May 2014, the Company received an additional six-year property tax exemption for The Venetian Macao. As a result, during the three months ended June 30, 2014, the Company reversed $2.6 million of previously recognized property taxes.
|
|
Nine Months Ended September 30,
|
||||||
|
2014
|
|
2013
|
||||
|
(In thousands)
|
||||||
Net cash generated from operating activities
|
$
|
3,617,496
|
|
|
$
|
3,160,783
|
|
Cash flows from investing activities:
|
|
|
|
||||
Change in restricted cash and cash equivalents
|
313
|
|
|
(877
|
)
|
||
Capital expenditures
|
(793,114
|
)
|
|
(599,482
|
)
|
||
Proceeds from disposal of property and equipment
|
1,580
|
|
|
713
|
|
||
Acquisition of intangible assets
|
—
|
|
|
(45,857
|
)
|
||
Net cash used in investing activities
|
(791,221
|
)
|
|
(645,503
|
)
|
||
Cash flows from financing activities:
|
|
|
|
||||
Proceeds from exercise of stock options
|
48,443
|
|
|
46,433
|
|
||
Excess tax benefits from stock-based compensation
|
—
|
|
|
2,394
|
|
||
Repurchase of common stock
|
(1,439,231
|
)
|
|
(211,241
|
)
|
||
Dividends paid
|
(1,986,378
|
)
|
|
(1,277,360
|
)
|
||
Distributions to noncontrolling interests
|
(7,165
|
)
|
|
(7,808
|
)
|
||
Proceeds from long-term debt
|
2,247,725
|
|
|
354,357
|
|
||
Repayments on long-term debt
|
(2,051,878
|
)
|
|
(720,177
|
)
|
||
Payments of deferred financing costs
|
(88,167
|
)
|
|
—
|
|
||
Net cash used in financing activities
|
(3,276,651
|
)
|
|
(1,813,402
|
)
|
||
Effect of exchange rate on cash
|
(2,929
|
)
|
|
(5,524
|
)
|
||
Increase (decrease) in cash and cash equivalents
|
$
|
(453,305
|
)
|
|
$
|
696,354
|
|
•
|
amendment of our 2011 VML Credit Facility (see “Item 1 — Financial Statements — Notes to Condensed Consolidated Financial Statements — Note 3 — Long-term Debt — 2011 VML Credit Facility”);
|
•
|
amendment of our 2012 Singapore Credit Facility (see “Item 1 — Financial Statements — Notes to Condensed Consolidated Financial Statements — Note 3 — Long-term Debt — 2012 Singapore Credit Facility”); and
|
•
|
net borrowings of $220.0 million under our 2013 U.S. Revolving Facility (which matures in December 2018 with no interim amortization).
|
•
|
general economic and business conditions in the U.S. and internationally, which may impact levels of disposable income, consumer spending, group meeting business, pricing of hotel rooms and retail and mall sales;
|
•
|
our leverage, debt service and debt covenant compliance, including the pledge of our assets (other than our equity interests in our subsidiaries) as security for our indebtedness;
|
•
|
disruptions in the global financing markets and our ability to obtain sufficient funding for our current and future developments;
|
•
|
the extensive regulations to which we are subject to and the costs of compliance with such regulations;
|
•
|
increased competition for labor and materials due to other planned construction projects in Macao and quota limits on the hiring of foreign workers;
|
•
|
our ability to meet certain development deadlines;
|
•
|
the uncertainty of tourist behavior related to discretionary spending and vacationing at casino-resorts in Macao, Singapore, Las Vegas and Pennsylvania;
|
•
|
regulatory policies in mainland China or other countries in which our customers reside, including visa restrictions limiting the number of visits or the length of stay for visitors from mainland China to Macao, restrictions on foreign currency exchange or importation of currency, and the judicial enforcement of gaming debts;
|
•
|
our dependence upon properties primarily in Macao, Singapore and Las Vegas for all of our cash flow;
|
•
|
our relationship with GGP or any successor owner of the Grand Canal Shoppes;
|
•
|
new developments, construction and ventures, including our Cotai Strip developments;
|
•
|
the passage of new legislation and receipt of governmental approvals for our proposed developments in Macao and other jurisdictions where we are planning to operate;
|
•
|
our insurance coverage, including the risk that we have not obtained sufficient coverage or will only be able to obtain additional coverage at significantly increased rates;
|
•
|
disruptions or reductions in travel, as well as disruptions in our operations, due to natural or man-made disasters, outbreaks of infectious diseases, terrorist activity or war;
|
•
|
our ability to collect gaming receivables from our credit players;
|
•
|
our dependence on chance and theoretical win rates;
|
•
|
fraud and cheating;
|
•
|
our ability to establish and protect our IP rights;
|
•
|
conflicts of interest that arise because certain of our directors and officers are also directors of SCL;
|
•
|
government regulation of the casino industry (as well as new laws and regulations and changes to existing laws and regulations), including gaming license regulation, the requirement for certain beneficial owners of our
|
•
|
increased competition in Macao and Las Vegas, including recent and upcoming increases in hotel rooms, meeting and convention space, retail space, potential additional gaming licenses and online gaming;
|
•
|
the popularity of Macao, Singapore and Las Vegas as convention and trade show destinations;
|
•
|
new taxes, changes to existing tax rates or proposed changes in tax legislation;
|
•
|
our ability to maintain our gaming licenses, certificate and subconcession;
|
•
|
the continued services of our key management and personnel;
|
•
|
any potential conflict between the interests of our Principal Stockholder and us;
|
•
|
the ability of our subsidiaries to make distribution payments to us;
|
•
|
our failure to maintain the integrity of our customer or company data, including against past or future cybersecurity attacks, and any litigation or disruption to our operations resulting from such loss of data integrity;
|
•
|
the completion of infrastructure projects in Macao; and
|
•
|
the outcome of any ongoing and future litigation.
|
|
2015
|
|
2016
|
|
2017
|
|
2018
|
|
2019
|
|
Thereafter
|
|
Total
|
|
Fair
Value
(1)
|
||||||||||||||||
|
(Dollars in millions)
|
||||||||||||||||||||||||||||||
LIABILITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Long-term debt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Variable rate
|
$
|
98.4
|
|
|
$
|
98.4
|
|
|
$
|
271.3
|
|
|
$
|
452.7
|
|
|
$
|
2,366.2
|
|
|
$
|
6,637.8
|
|
|
$
|
9,924.8
|
|
|
$
|
9,755.2
|
|
Average interest rate
(2)
|
2.2
|
%
|
|
2.2
|
%
|
|
1.8
|
%
|
|
1.7
|
%
|
|
1.7
|
%
|
|
2.2
|
%
|
|
2.1
|
%
|
|
|
|||||||||
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
||||||||||||||||
Cap agreements
(3)
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
(1)
|
The estimated fair values are based on level 2 inputs (quoted prices in markets that are not active).
|
(2)
|
Based upon contractual interest rates for current LIBOR, HIBOR and SOR for variable-rate indebtedness. Based on variable rate debt levels as of
September 30, 2014
, an assumed 100 basis point change in LIBOR, HIBOR and SOR would cause our annual interest cost to change by approximately $88.1 million.
|
(3)
|
As of
September 30, 2014
, we had
10
interest rate cap agreements with an aggregate fair value of approximately
$26,000
based on quoted market values from the institutions holding the agreements, which mature during the twelve months ending September 30, 2015 and 2016.
|
Period
|
Total
Number of
Shares
Purchased
|
|
Weighted
Average
Price Paid
per Share
(1)
|
|
Total Number
of Shares
Purchased as
Part of a Publicly
Announced Program
|
|
Approximate
Dollar Value of
Shares that May
Yet Be Purchased
Under the Program
(in thousands)
(2)
|
||||||
July 1, 2014 — July 31, 2014
|
952,372
|
|
|
$
|
73.50
|
|
|
952,372
|
|
|
$
|
229,767
|
|
August 1, 2014 — August 31, 2014
|
3,175,357
|
|
|
$
|
67.71
|
|
|
3,175,357
|
|
|
$
|
14,767
|
|
September 1, 2014 — September 30, 2014
|
234,465
|
|
|
$
|
62.91
|
|
|
234,465
|
|
|
$
|
17
|
|
(1)
|
Calculated excluding commissions.
|
(2)
|
On June 5, 2013, the Company’s Board of Directors approved a stock repurchase program, which expires on
June 5, 2015
, with an initial authorization of
$2.0 billion
. In October 2014, the Company's Board of Directors authorized the repurchase of an additional
$2.0 billion
of its outstanding common stock, which expires on October 9, 2016. All repurchases under the stock repurchase program are made from time to time at the Company’s discretion in accordance with applicable federal securities laws. All share repurchases of the Company’s common stock have been recorded as treasury stock.
|
Exhibit No.
|
|
Description of Document
|
10.1
|
|
Amendment and Restatement Agreement dated as of August 29, 2014, to the Facility Agreement, dated as of June 25, 2012 (as amended by an amendment agreement dated November 20, 2013), among Marina Bay Sands Pte, Ltd., as borrower, various lenders party thereto, DBS Bank Ltd. (“DBS”), Oversea-Chinese Banking Corporation Limited, United Overseas Bank Limited and Malayan Banking Berhad, Singapore Branch, as global coordinators, DBS, as agent and security trustee, and DBS, Oversea-Chinese Banking Corporation Limited, United Overseas Bank Limited, Malayan Banking Berhad, Singapore Branch, Standard Chartered Bank, Sumitomo Mitsui Banking Corporation and CIMB Bank Berhad, Singapore Branch, as mandated lead arrangers (including as Schedule 3 thereto, the Form of Amended and Restated Facility Agreement).
|
31.1
|
|
Certification of the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
31.2
|
|
Certification of the Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
32.1
|
|
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.
|
32.2
|
|
Certification of 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.
|
101.INS
|
|
XBRL Instance Document
|
101.SCH
|
|
XBRL Taxonomy Extension Schema Document
|
101.CAL
|
|
XBRL Taxonomy Extension Calculation Linkbase Document
|
101.DEF
|
|
XBRL Taxonomy Extension Definition Linkbase Document
|
101.LAB
|
|
XBRL Taxonomy Extension Label Linkbase Document
|
101.PRE
|
|
XBRL Taxonomy Extension Presentation Linkbase Document
|
|
LAS VEGAS SANDS CORP.
|
||
|
|
|
|
November 5, 2014
|
By:
|
|
/s/ Sheldon G. Adelson
|
|
|
|
Sheldon G. Adelson
Chairman of the Board and
Chief Executive Officer |
|
|
|
|
November 5, 2014
|
By:
|
|
/s/ Michael A. Quartieri
|
|
|
|
Michael A. Quartieri
Chief Accounting Officer
(Principal Financial Officer) |
Execution Version |
ALLEN & GLEDHILL LLP
ONE MARINA BOULEVARD #28-00
SINGAPORE 018989
|
(1)
|
MARINA BAY SANDS PTE. LTD.
,
registration number 200507292R (the “
Borrower
”); and
|
(2)
|
DBS BANK LTD.
, as agent of the other Finance Parties (the “
Agent
”),
|
(A)
|
Pursuant to the Original Facility Agreement, the Lenders (as defined therein) agreed to grant to the Borrower loan facilities of up to S$5,100,000,000, upon the terms and subject to the conditions of the Original Facility Agreement
.
The financial institutions which are Lenders as at the date of this Agreement are listed in Part I and Part II of Schedule 2 (
The Existing Lenders
).
|
(B)
|
It has been agreed by the relevant parties to the Original Facility Agreement, on the terms and subject to the conditions set out in this Agreement, to amend and restate the Original Facility Agreement in the manner set out in this Agreement
.
|
(C)
|
The Agent is authorised pursuant to paragraph (b) of Clause 36.1 (
Required Consents
) of the Original Facility Agreement to execute this Agreement on behalf of the other Finance Parties
.
|
1.
|
DEFINITIONS AND INTERPRETATION
|
1.1
|
Definitions
|
1.2
|
Construction
|
(a)
|
Any reference in this Agreement to the “
Original Facility Agreement
” is a reference to the Original Facility Agreement as amended, novated, supplemented, extended, restated (however fundamentally and whether or not more onerously) or replaced before the date of this Agreement.
|
(b)
|
The principles of construction set out in Clause 1.2 (
Construction
) of the Original Facility Agreement shall have effect as if set out in this Agreement.
|
1.3
|
Third Party Rights
|
(a)
|
Other than the Finance Parties or unless expressly provided to the contrary in this Agreement, a person who is not a Party has no right under the Contracts (Rights of Third
|
|
Parties) Act, Chapter 53B of Singapore to enforce or to enjoy the benefit of any term of this Agreement.
|
(b)
|
Notwithstanding any term of this Agreement the consent of any third party is not required for any variation (including any release or compromise of any liability under) or termination of this Agreement.
|
1.4
|
Designation
|
2.
|
AMENDMENT AND RESTATEMENT
|
3.
|
EFFECTIVE DATE
|
3.1
|
Conditions Precedent
|
|
(a)
|
(in the case where the Agent has received all of the documents and other evidence listed in Schedule 1 (
Conditions Precedent
) in form and substance satisfactory to the Agent on or prior to 29 August 2014) 29 August 2014; and
|
|
(b)
|
(in the case where the Agent has received all of the documents and other evidence listed in Schedule 1 (
Conditions Precedent
) in form and substance satisfactory to the Agent after 29 August 2014) the date on which all such documents and evidence are so received,
|
3.2
|
Failure to satisfy Conditions Precedent
|
|
(a)
|
the Agent shall promptly notify the Lenders upon the occurrence of such event; and
|
|
(b)
|
the amendment and restatement pursuant to Clause 2 (
Amendment and Restatement
) shall not occur.
|
3.3
|
Rights of the Finance Parties
|
4.
|
CONFIRMATION
|
|
(a)
|
the Security created by the Security Documents extends to the liabilities and obligations of the Obligors under the Original Facility Agreement (as amended and restated pursuant to this Agreement) and the Supplemental Security Documents, and that the obligations of the Obligors arising under or in connection with this Agreement, the Amended Facility Agreement, the Security Documents and the Supplemental Security Documents constitute obligations secured under the Security Documents; and
|
|
(b)
|
the Security created or conferred under the Security Documents to which it is a party continue in full force and effect on the terms of the respective Security Documents as amended by the Supplemental Security Documents.
|
5.
|
REPRESENTATIONS
|
6.
|
AMENDMENT FEE
|
7.
|
INCORPORATION OF TERMS
|
8.
|
COUNTERPARTS
|
(a)
|
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
|
(b)
|
Each counterpart of this Agreement shall constitute an original of this Agreement and may be signed and executed by the Parties and transmitted by facsimile transmission or other electronic transmission (including Portable Document Format) and shall be as valid and effectual as if executed as an original, but all counterparts shall constitute one and the same instrument. The Borrower shall deliver its original counterpart to the Agent as soon as practicable.
|
9.
|
GOVERNING LAW
|
1.
|
The Borrower
|
(a)
|
A certificate of an authorised signatory of the Borrower, certifying that the constitutional documents previously delivered to the Agent for the purposes of the Original Facility Agreement have not been amended and remain in full force and effect.
|
(b)
|
An extract of the resolutions of the board of directors or equivalent body of the Borrower:
|
|
(i)
|
approving the terms of, and the transactions contemplated by, the New Finance Documents to which it is a party and resolving that it execute the New Finance Documents to which it is a party;
|
|
(ii)
|
authorising a specified person or persons to execute the New Finance Documents to which it is a party on its behalf; and
|
|
(iii)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or despatched by it under or in connection with the New Finance Documents to which it is a party.
|
(c)
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above.
|
(d)
|
A certificate from the Borrower (signed by a director or a chief financial officer) confirming that borrowing the Total Commitments would not cause any borrowing or similar limit binding on it to be exceeded.
|
(e)
|
A certificate of an authorised signatory of the Borrower certifying that each copy document relating to it specified in this Schedule 1 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
2.
|
Security
|
(a)
|
An original copy of each of the following documents, duly executed by the parties to it:
|
|
(i)
|
the Supplemental Assignment of Development Agreement;
|
|
(ii)
|
the Supplemental Assignment of Insurances;
|
|
(iii)
|
the Supplemental Assignment of Proceeds;
|
|
(iv)
|
the Supplemental Debenture;
|
|
(v)
|
the Mortgage; and
|
|
(vi)
|
the Intercreditor Agreement Amendment and Restatement Agreement.
|
(b)
|
Evidence that the relevant caveats have been lodged against the Properties in favour of the Security Trustee.
|
3.
|
Legal Opinion
|
4.
|
Other documents and evidence
|
(a)
|
A copy of the base case financial model detailing the economic projections and assumptions in relation to the Borrower and the Integrated Resort, prepared by the Borrower and dated 18 June 2014.
|
(b)
|
A copy of the valuation report by CBRE Pte Ltd (the “
Approved Valuer
”) dated 17 March 2014 delivered to the Agent under the cover of the Approved Valuer’s letter dated 31 March 2014.
|
(c)
|
Evidence that the Amendment Fee Letter has been duly executed by the parties to it.
|
(d)
|
Evidence that the requisite Lenders’ consent in relation to the amendment and restatement of the Original Facility Agreement as contemplated by this Agreement has been or will be obtained.
|
21. | Korea Exchange Bank, Singapore Branch |
S$20,000,000
|
22. | Mega International Commercial Bank Co., Ltd., Singapore Branch |
S$20,000,000
|
Name of Original Facility B Lender |
Facility B Commitment
|
|
1. |
DBS Bank Ltd.
|
S$89,652,893
|
2. |
Oversea-Chinese Banking Corporation Limited
|
S$89,652,893
|
3. |
United Overseas Bank Limited
|
S$89,652,893
|
4. |
Malayan Banking Berhad, Singapore Branch
|
S$74,710,744
|
5. |
Standard Chartered Bank, Singapore Branch
|
S$44,826,446
|
6. |
Sumitomo Mitsui Banking Corporation, Singapore Branch
|
S$29,884,297
|
7. |
CIMB Bank Berhad, Singapore Branch
|
S$18,677,685
|
8. |
Bank of China Limited, Singapore Branch
|
S$14,942,149
|
9. |
Barclays Bank Plc, Singapore Branch
|
S$24,000,000
|
10. |
The Royal Bank of Scotland Plc, Singapore Branch
|
S$24,000,000
|
Execution Version |
Contents | Page | |
1.
|
Definitions and Interpretation
|
15
|
2.
|
The Facilities
|
74
|
3.
|
Purpose
|
79
|
4.
|
Conditions of Utilisation
|
80
|
5.
|
Utilisation – Loans
|
82
|
6.
|
Ancillary Facilities
|
84
|
7.
|
Repayment
|
87
|
8.
|
Prepayment and cancellation
|
91
|
9.
|
Interest
|
100
|
10.
|
Interest Periods
|
101
|
11.
|
Changes to the calculation of interest
|
103
|
12.
|
Fees
|
104
|
13.
|
Tax gross-up and indemnities
|
105
|
14.
|
Increased costs
|
108
|
15.
|
Mitigation by the Lenders
|
109
|
16.
|
Other indemnities
|
110
|
17.
|
Costs and expenses
|
112
|
18.
|
Guarantee and indemnity
|
113
|
19.
|
Representations
|
117
|
20.
|
Information undertakings
|
122
|
21.
|
Financial covenants
|
129
|
22.
|
General undertakings
|
133
|
23.
|
Events of Default
|
160
|
24.
|
Changes to the Lenders
|
167
|
25.
|
Debt Purchase Transactions
|
170
|
26.
|
Changes to the Obligors
|
173
|
27.
|
Disclosure of information
|
174
|
28.
|
Role of the Administrative Parties
|
175
|
29.
|
Sharing among the Finance Parties
|
183
|
30.
|
Payment mechanics
|
184
|
31.
|
Set-off
|
187
|
32.
|
Notices
|
187
|
33.
|
Calculations and certificates
|
189
|
34.
|
Partial invalidity
|
190
|
35.
|
Remedies and waivers
|
190
|
36.
|
Amendments and waivers
|
190
|
37.
|
Counterparts
|
193
|
38.
|
Governing law
|
193
|
39.
|
Enforcement
|
193
|
40.
|
Certain Matters Affecting Lenders
|
194
|
41.
|
Gaming Authorities
|
194
|
Schedule 1 The Original Parties
|
195
|
|
Schedule 2 Conditions Precedent
|
199
|
|
Schedule 3 Requests
|
204
|
|
Schedule 4 Form of Transfer Certificate
|
208
|
|
Schedule 5 Form of Compliance Certificate
|
212
|
|
Schedule 6 Form of Guarantor Accession Letter
|
213
|
|
Schedule 7 Form of Lender Increase Confirmation
|
215
|
|
Schedule 8 Properties
|
218
|
|
Schedule 9 Repayment Schedule For Facility A Loans
|
219
|
|
Schedule 10 Timetables
|
220
|
|
Schedule 11
Form of Subordination Agreement
|
222
|
Schedule 12 Existing Indebtedness
|
249
|
(1)
|
MARINA BAY SANDS PTE. LTD.
, registration number 200507292R (the “
Borrower
”);
|
(2)
|
THE FINANCIAL INSTITUTIONS AND OTHERS
listed in Part I of
Schedule 1
(
The Original Parties
)
as mandated lead arrangers (whether acting individually or together, the “
Mandated
Lead Arranger
”);
|
(3)
|
DBS BANK LTD., OVERSEA-CHINESE BANKING CORPORATION LIMITED, UNITED OVERSEAS BANK LIMITED
and
MALAYAN BANKING BERHAD, SINGAPORE BRANCH
, as global coordinators
(whether acting individually or together, the “
Global Coordinator
”, and together with the Mandated Lead Arranger whether acting individually or together, the “
Arranger
”);
|
(4)
|
THE FINANCIAL INSTITUTIONS AND OTHERS
listed in Part II and Part III of
Schedule 1 (
The Original Parties
)
as lenders (the “
Original Lenders
”);
|
(5)
|
DBS BANK LTD.
, as agent of the other Finance Parties (the “
Agent
”); and
|
(6)
|
DBS BANK LTD.
, as security trustee for the Secured Parties (the “
Security Trustee
”).
|
1.
|
Definitions and Interpretation
|
1.1
|
Definitions
|
|
(a)
|
it is in a form initialled by or on behalf of the Borrower and the Agent on or before the signing of this Agreement for the purposes of identification; or
|
|
(b)
|
if not falling within sub-paragraph (a) above, it is in form and substance satisfactory to the Agent (acting reasonably) and initialled by or on behalf of the Borrower and the Agent for the purposes of identification.
|
|
(a)
|
a document setting out the terms of an Ancillary Facility; and
|
|
(b)
|
the Ancillary Facility Letter.
|
|
(a)
|
the principal amount under each overdraft facility under that Ancillary Facility;
|
|
(b)
|
the face amount of each guarantee, bond, trust receipt and letter of credit issued under that Ancillary Facility; and
|
|
(c)
|
in relation to any other Ancillary Facility, such other amount as fairly represents the aggregate exposure of the Ancillary Lender under that Ancillary Facility,
|
|
(i)
|
in relation to any utilisation denominated in the Base Currency, the amount of that utilisation (determined as described in paragraphs (a) and (b) above) shall be used; and
|
|
(ii)
|
in relation to any utilisation not denominated in the Base Currency, the equivalent (calculated as specified in the relevant Ancillary Facility Document or, if not so specified, as the relevant Ancillary Lender may specify, in each case in accordance with its usual practice at that time for calculating that equivalent (acting reasonably and after consultation with the Agent)) in the Base Currency of the amount of that utilisation (determined as described in paragraphs (a) and (b) above) shall be used.
|
|
(a)
|
in relation to Facility A, the period from and including the date of this Agreement to and including the date which is 30 days after the date of this Agreement;
|
|
(b)
|
in relation to Facility B, the period from and including the date of this Agreement to and including the date which is one Month before the Facility B Termination Date; and
|
|
(c)
|
in relation to any increase in Facility C after the date of this Agreement in accordance with Clause 2.3 (
Accordion Feature – Increase in Facility C
), the period from and including its Establishment Date to and including the date which is 60 days after that date.
|
|
(b)
|
in relation to any proposed Loan, the amount of its participation in any Loans that are due to be made under that Facility on or before the proposed Utilisation Date,
|
|
(b)
|
which is subordinated to all amounts which may be or become payable to the Finance Parties under the Finance Documents by way of a Subordination Agreement.
|
|
(a)
|
the interest (excluding the Margin) which a Lender should have received pursuant to the terms of this Agreement for the period from the date of receipt of all or any
|
|
|
part of the principal amount of a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
|
|
(b)
|
the amount of interest which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Singapore interbank market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.
|
|
(a)
|
securities, mortgage-backed securities, collateralised mortgaged obligations or direct obligations with a maturity of less than 12 months from the date of acquisition issued or fully guaranteed or fully insured by:
|
|
(i)
|
the Government of the United States or any member state of the European Union which is rated at least AA by Standard & Poor's Rating Group, Aa2 by Moody's Investors Service, Inc. or AA by Fitch Ratings;
|
|
(ii)
|
any county or Governmental Agency of the United States which is rated at least AA by Standard & Poor's Rating Group, Aa2 by Moody's Investors Service, Inc. or AA by Fitch Ratings; or
|
|
(iii)
|
any of the 50 states of the United States which is rated at least AA by Standard & Poor's Rating Group, Aa2 by Moody's Investors Service, Inc. or AA by Fitch Ratings;
|
|
(b)
|
commercial paper or other debt securities issued by an issuer rated at least A-1 by Standard & Poor's Ratings Group, P-1 by Moody's Investors Service, Inc. or F1 by Fitch Ratings, and with a maturity of less than 12 months;
|
|
(c)
|
certificates of deposit, bankers’ acceptance or demand or time deposits (including overnight deposits) of:
|
|
(i)
|
any commercial bank (which has outstanding debt securities rated as referred to in paragraph (b) above); or
|
|
(ii)
|
any bank or financial institution (which has outstanding debt securities
|
|
|
rated at least BBB+ by Standard & Poor's Ratings Group, Baa1 by Moody's Investors Service, Inc. or BBB+ by Fitch Ratings),
|
|
(d)
|
securities with a maturity of less than 12 months from the date of acquisition issued or fully guaranteed by the Government of (i) Singapore or (ii) any state that is a member or partner in the Organization of Economic Cooperation and Development with a sovereign debt rating of at least AA+ by Standard & Poor’s Rating Group, Aa1 by Moody’s Investors Service, Inc. or AA+ by Fitch Ratings, or (iii) any other state approved by the Agent (acting on the instructions of the Majority Lenders);
|
|
(e)
|
repurchase obligations for underlying securities of the types described in paragraphs (a) and (b) above, entered into with any commercial bank or any other financial institution having long-term unsecured debt securities rated (on the date of acquisition thereof)
at least AA by Standard & Poor’s Rating Group, Aa2 by Moody’s Investors Service, Inc. or AA by Fitch Ratings issued by any person;
|
|
(f)
|
investment contracts of any financial institution, the principal and return on which are guaranteed by that financial institution, having long-term debt rated (on the date of acquisition thereof) at least at least AA by Standard & Poor’s Rating Group, Aa2 by Moody’s Investors Service, Inc. or AA by Fitch Ratings;
|
|
(g)
|
Singapore Dollars, Hong Kong Dollars, United States Dollars, Euros or Sterling;
|
|
(h)
|
loans to, deposits with, or investments in Sands FinCo:
|
|
(i)
|
where the aggregate principal amount of such loans, deposits and/or investments shall not at any time exceed S$200,000,000; and
|
|
(ii)
|
where, not later than ten Business Days after the date that such loans, deposits and/or investments are made, the Borrower delivers to the Agent details of such loans, deposits and/or investments;
|
|
(i)
|
investments in mutual funds sponsored by any securities broker-dealer of recognised national standing having an investment policy that requires substantially all the invested assets of such fund to be invested in investments described in any one or more of the foregoing paragraphs and rated at least at least AA by Standard & Poor’s Rating Group, Aa2 by Moody’s Investors Service, Inc. or AA by Fitch Ratings; or
|
|
(j)
|
investments in any money market fund:
|
|
(i)
|
where all or substantially all of its assets fall within the description of paragraphs (a) to (i) above;
|
|
(ii)
|
which have net assets of not less than S$500,000,000 (or the equivalent in another currency); and
|
|
(iii)
|
which has either (A) an investment grade rating by Standard & Poor’s Rating Group, Moody’s Investors Service, Inc. or Fitch Ratings or (B) is registered with the Investment Company Act of 1940, as amended,
|
|
(a)
|
S$500,000,000;
|
|
(b)
|
the amount which is 50 per cent. of the Adjusted Cumulative Consolidated Net Income as of the last Relevant Date falling on or before the Cash Investment Date;
|
|
(c)
|
all cash proceeds received by the Borrower by way of equity contribution to the Borrower and any issuance or sale by the Borrower of its shares (including any issuance or sale of shares by the Borrower arising from the conversion or exchange of its debt securities) or debt contribution by way of Internal Subordinated Debt, in each case, except to the extent received by the Borrower pursuant to Clause 21.2 (
Rectification
), from the date of this Agreement to that Cash Investment Date,
less
, all fees, discounts, commissions, charges, expense, withholdings and transactions costs properly incurred in connection with that contribution, issuance or sale, and all Taxes paid by the Borrower or reasonably estimated by the Borrower to be payable (as certified by it to the Agent) as a result of that contribution, issuance or sale; and
|
|
(d)
|
in relation to each joint venture, partnership, consortium or Excluded Subsidiary in which the Borrower has made an Investment (including any loan constituting an Investment) (each such Investment, an “
Original Investment
”) as permitted by paragraph (b) of Clause 22.7 (
Loans and guarantees
) or paragraph (b) of Clause 22.15 (
Acquisitions and investments
):
|
|
(i)
|
the amount of all cash dividends, cash distributions and cash payments in the nature of principal and interest (each, a “
Cash
Return
”) received by the Borrower from the date of this Agreement to that Cash Investment Date, to the extent such Cash Return (when aggregated with the amount of all other Cash Returns in respect of that Original Investment, whether received before on or after the date of this Agreement) represent less than or equal to 100 per cent. of the
|
|
|
amount contributed by the Borrower in respect of the Original Investment; and
|
|
(ii)
|
50 per cent. of the amount of all Cash Returns received by the Borrower from the date of this Agreement to that Cash Investment Date, to the extent such Cash Return (when aggregated with the amount of all other Cash Returns in respect of that Original Investment, whether received before on or after the date of this Agreement) represent more than 100 per cent. of the amount contributed by the Borrower in respect of the Original Investment,
|
|
(a)
|
in connection with the utilisation of Facility C contemplated by Clause 4.2 (
Further conditions precedent
), setting out (in reasonable detail) computations as to compliance with the ratio set out in paragraph (e) of the Clause 4.2 (
Further conditions precedent
);
|
|
(b)
|
pursuant to Clause 20.3 (
Compliance Certificate
);
|
|
(c)
|
in connection with any Investments contemplated by paragraph (b)(xiii) of Clause 22.15 (
Acquisitions and investments
), setting out (in reasonable detail) computations as to the Cash Investment Limit and the ratio set out in paragraph (b)(xiii)(C) of Clause 22.15 (
Acquisitions and investments
);
|
|
(d)
|
in connection with any issuance of a Designated RPS permitted under paragraph (b)(iv) Clause 22.6 (
Financial Indebtedness
), setting out (in reasonable detail) computations as to compliance with the ratio set out in paragraph (d) of the definition of “Designated RPS”;
|
|
(e)
|
in connection with any incurrence of Incremental Indebtedness permitted under paragraph (b)(v) Clause 22.6 (
Financial Indebtedness
), setting out (in reasonable detail) computations as to compliance with the ratio set out in paragraph (g) of the definition of “Incremental Indebtedness”;
|
|
(f)
|
in connection with any incurrence of Mezzanine Indebtedness permitted under paragraph (b)(vi) Clause 22.6 (
Financial Indebtedness
), setting out (in reasonable detail) computations as to compliance with the ratio set out in paragraph (f) of the definition of “Mezzanine Indebtedness”;
|
|
(g)
|
in connection with a sale by a member of the Borrower Group of any asset, setting out (in reasonable detail) computations as to compliance with the ratio set out in paragraph (ii) of the definition of “Exempt Disposal” in Clause 8.5 (
Mandatory prepayment from Net Sale Proceeds
);
|
|
(h)
|
in connection with a declaration, making or payment of a Controlled Transaction permitted under the definition of “Permitted Transaction (Designated Sale)”, setting out (in reasonable detail) computations as to compliance with the ratio set out in paragraph (d) of that definition;
|
|
(i)
|
in connection with a declaration, making or payment of a Controlled Transaction permitted under the definition of “Permitted Transaction (Leverage Ratio)”, setting out (in reasonable detail) computations as to compliance with the ratio set out in paragraph (c) of that definition;
|
|
(j)
|
in connection with the prepayment of Facility C Loans in accordance with Clause 8.10 (
Voluntary prepayment of Facility C Loans
), setting out (in reasonable detail) computations as to compliance with the ratio set out in paragraph (b)(ii) of Clause 8.10 (
Voluntary prepayment of Facility C Loans
);
|
|
(k)
|
in connection with any voluntary payment, repayment or prepayment in the nature of principal on all or any part of any Incremental Indebtedness, setting out (in reasonable detail) computations as to compliance with the ratio set out in paragraph (b)(ii) of Clause 22.22 (
Incremental Indebtedness
);
|
|
(l)
|
in connection with any voluntary payment, repayment or prepayment in the nature of principal on all or any part of any Permitted Refinancing Indebtedness, setting out (in reasonable detail) computations as to compliance with the ratio set out in paragraph (b)(ii) of Clause 22.23 (
Permitted Refinancing Indebtedness
); or
|
|
(m)
|
in connection with any voluntary payment, repayment or prepayment in the nature of principal on all or any part of any Mezzanine Indebtedness, setting out (in
|
|
|
reasonable detail) computations as to compliance with the ratio set out in paragraph (b)(ii) of Clause 22.24 (
Mezzanine Indebtedness
),
|
|
(a)
|
Consolidated
Net Income;
|
|
(b)
|
Consolidated Total Interest Expense;
|
|
(c)
|
total interest expense (including non-cash interest and interest on Subordinated Debt) to the extent deducted in calculating Consolidated Net Income;
|
|
(d)
|
provision for taxes based on income and similar taxes imposed in lieu of income taxes to the extent deducted in calculating Consolidated Net Income;
|
|
(e)
|
total depreciation expense;
|
|
(f)
|
total amortisation expense;
|
|
(g)
|
total pre-opening and development expenses (if any);
|
|
(h)
|
total amortisation of rent expense incurred and paid as a result of the actual payment of:
|
|
(i)
|
other non-cash items (including non-cash corporate expenses) reducing Consolidated Net Income;
|
|
(j)
|
costs and expenses relating to the negotiation of, entry into and performance of this Agreement or any amendment or waiver hereto or any transactions contemplated thereby to the extent deducted in calculating Consolidated Net Income, provided that the aggregate amount of costs and expenses included in this paragraph (j) shall not exceed S$10,000,000 in any financial year of the Borrower;
|
|
(k)
|
costs and expenses of any actual or contemplated investment or incurrence of Debt or asset sale that is or if completed would be permitted hereunder to the extent deducted in Consolidated Net Income provided that the aggregate amount
|
|
|
of costs and expenses included in this paragraph (k) shall not exceed S$30,000,000 in any financial year of the Borrower;
|
|
(l)
|
corporate expenses incurred to the extent deducted in calculating Consolidated Net Income, provided that the aggregate amount of costs and expenses included in this paragraph (l) shall not exceed S$40,000,000 in any financial year of the Borrower; and
|
|
(m)
|
non-recurring charges and expenses to the extent deducted in calculating Consolidated Net Income, provided that the aggregate amount of costs and expenses included in this paragraph (m) shall not exceed S$50,000,000 in any financial year of the Borrower,
|
|
less
|
|
(A)
|
other non-cash items increasing Consolidated Net Income (but excluding (I) any such non-cash item to the extent it represents the reversal of an accrual or reserve for potential cash item in any prior period and (II) the amounts received from any IR Project Vehicles funded through Permitted Investments falling within the description of paragraph (a) of the definition of Permitted Investments); and
|
|
(B)
|
any cash expenditure to the extent it reduces any accrual or reserve established in a prior period which was added to determine Consolidated Adjusted EBITDA in such prior period pursuant to paragraph (i) above,
|
|
(a)
|
the income (or loss) of any person (other than a member of the Borrower Group or any IR Project Vehicles funded through Permitted Investments falling within the description of paragraph (a) of the definition of Permitted Investments), except to the extent of the amount of dividends or other
|
|
|
distributions actually paid to the members of the Borrower Group by such person during such period;
|
|
(b)
|
the income (or loss) of any person accrued prior to the date it is merged into or consolidated with the Borrower or any other member of the Borrower Group or that person’s assets are acquired by the Borrower or any other member of the Borrower Group;
|
|
(c)
|
any after-tax gains or losses attributable to:
|
|
(i)
|
asset sales consummated pursuant to paragraph (c)(iii), (c)(xiv), (c)(xv) or (c)(xvi) of Clause 22.5 (
Disposals
); or
|
|
(ii)
|
the disposition of any securities or the extinguishment of any Financial Indebtedness of any member of the Borrower Group;
|
|
(d)
|
dividends or distributions from any Excluded Subsidiary to the Borrower or any other member of the Borrower Group which are used to fund their share of any applicable tax payments to be made under a tax sharing arrangement;
|
|
(e)
|
the effect of non-cash accounting adjustments resulting from a change in the tax status of a flow-through or disregarded tax entity to a taxed entity, or vice versa;
|
|
(f)
|
any net extraordinary gains or net extraordinary losses; and
|
|
(g)
|
any refinancing costs and/or costs and expenses relating to any amendment or waiver of, in each case, this Agreement or any other Debt permitted to be incurred pursuant to this Agreement (provided that the aggregate amount of all refinancing costs and/or costs and expenses relating to any amendment or waiver of such other Debt excluded from the calculation of Consolidated Net Income pursuant to this paragraph (g) shall not exceed S$15,000,000 in any financial year of the Borrower), amortisation or charges (including premiums, costs, amortisation and charges associated with the refinancing of the Existing Facilities), provided further, that there shall be included, without duplication, the cash flows from IR Project Vehicles funded through Permitted Investments falling within the description of paragraph (a) of the definition of Permitted Investments whose net income has been included as set forth above.
|
|
(a)
|
amortisation of debt issuance costs and deferred financing fees including any
|
|
|
amounts referred to in Clause 12 (
Fees
) payable to the Finance Parties;
|
|
(b)
|
any fees and expenses payable to the Finance Parties in connection with this Agreement on or prior to the first Utilisation Date;
|
|
(c)
|
non-cash payment-in-kind interest; and
|
|
(d)
|
any additional amounts payable by the Borrower under Clause 14.1 (
Increased costs
).
|
|
(a)
|
a declaration or payment of any dividend or other payment or distribution of any kind by the Borrower to its shareholders on or in respect of any of its shares;
|
|
(b)
|
a reduction, return, purchase, repayment, cancellation or redemption of the shares of any member of the Borrower Group;
|
|
(c)
|
a payment, repayment, prepayment of any principal, interest or other amount on or in respect of, or a redemption, purchase or defeasance of any Subordinated Debt; or
|
|
(d)
|
an Investment by any member of the Borrower Group:
|
|
(i)
|
where any such Investment is in the form of debt, there shall be no further obligation by the relevant member of the Borrower Group to make any loan or to provide any form of credit or financial accommodation thereafter; and
|
|
(ii)
|
where any such Investment is in the form of equity, there shall be no further obligation by the relevant member of the Borrower Group to provide funds (whether by way of debt or equity contributions or otherwise) or otherwise provide any credit support thereafter.
|
|
(a)
|
including:
|
|
(i)
|
all External Subordinated Debt;
|
|
(ii)
|
any Borrower Group Subordinated Guarantees;
|
|
(iii)
|
any Guarantee of any Permitted Aircraft/Watercraft Indebtedness; and
|
|
(iv)
|
all Permitted FF&E Indebtedness,
|
|
(b)
|
but excluding:
|
|
(i)
|
any indebtedness referred to in paragraph (e) and (g) of the definition of Financial Indebtedness;
|
|
(ii)
|
any indebtedness referred to in paragraph (j) of the definition of Financial Indebtedness (to the extent relating to any indebtedness referred to in paragraph (i) above);
|
|
(iii)
|
any Guarantee that constitutes Permitted Security described in paragraph (i) of the definition of Permitted Security or any Financial Indebtedness described in paragraphs (b)(xi), (b)(xii)(B) and (b)(xiv) of Clause 22.6 (
Financial Indebtedness
); and
|
|
(iv)
|
any Internal Subordinated Debt (other than any Borrower Group Subordinated Guarantees)
.
|
|
(A)
|
if an audited balance sheet of the Borrower has been prepared as at that day, in their Singapore Dollars equivalent at the rate of exchange used for the purpose of preparing that balance sheet; and
|
|
(B)
|
in any other case, in their Singapore
Dollars equivalent at the rate of exchange that would have been used had an audited balance sheet of the Borrower been prepared as at that day in accordance with GAAP.
|
|
(a)
|
(in the case of a redemption by the holder) which may only be made (whether on its specified maturity or as a result of an event of default (however described)) after the Facility A Termination Date;
|
|
(b)
|
(in the case of a redemption by the issuer) which may only be made to the extent it constitutes a Redemption that is a Permitted Transaction (Designated Sale), a Permitted Transaction (Leverage Ratio) or a Permitted Transaction (Miscellaneous) provided that the amount of any redemption under this paragraph (b) may not exceed such amount prescribed by any applicable law, had it been a Dividend;
|
|
(c)
|
which when aggregated with all Designated RPS described in this definition then outstanding, does not exceed S$1,000,000,000
(or its equivalent in another currency or currencies) in principal amount;
|
|
(d)
|
where on the date of issuance of such shares, the ratio of:
|
|
(i)
|
the Debt as of the last Relevant Date falling on or before the date of such issuance,
|
|
to:
|
|
|
(ii)
|
the Consolidated Adjusted EBITDA for the Relevant Period ending on the Relevant Date described in paragraph (d)(i) above,
|
|
(a)
|
a bank or merchant bank that:
|
|
(i)
|
is a financial institution acting through a Facility Office in Singapore;
|
|
(ii)
|
is in possession of (A) a valid licence granted under the Banking Act, Chapter 19 of Singapore, authorising it to conduct banking business in Singapore or (B) a valid licence granted by the Monetary Authority of Singapore, authorising it to conduct merchant banking business in Singapore;
|
|
(iii)
|
in respect of which, the Borrower would not be obliged to make a payment under paragraph (a) of Clause 13.2 (
Tax gross-up
)
or paragraph (a) of Clause 13.3 (
Tax indemnity
) to or for the account of such financial institution; and
|
|
(iv)
|
(for so long as no Event of Default shall have occurred and is continuing) is not a Restricted Person;
|
|
(b)
|
any other financial institution or a trust, fund or other entity which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets that:
|
|
(i)
|
is acting through a Facility Office in Singapore;
|
|
(ii)
|
in respect of which, the Borrower would not be obliged to make a payment under paragraph (a) of Clause 13.2 (
Tax gross-up
)
or paragraph (a) of Clause 13.3 (
Tax indemnity
) to or for the account of such person; and
|
|
(iii)
|
(for so long as no Event of Default shall have occurred and is continuing) is not a Restricted Person;
|
|
(c)
|
any other entity approved by the Borrower (such approval not to be unreasonably withheld or delayed and the Borrower is deemed to have approved of each Original Lender listed in paragraphs 1 to 26 of Part II
of Schedule 1 (
The Original Facility A Lenders
)) that:
|
|
(i)
|
is acting through a Facility Office in Singapore;
|
|
(ii)
|
is holding a valid Exemption issued by the Registrar of Moneylenders under Section 36 of the Moneylenders Act, Chapter 188 of Singapore, in connection with the Facilities;
|
|
(iii)
|
in respect of which, the Borrower would not be obliged to make a payment under paragraph (a) of Clause 13.2 (
Tax gross-up
) or paragraph (a) of Clause 13.3 (
Tax indemnity
) to or for the account of such person; and
|
|
(iv)
|
(for so long as no Event of Default shall have occurred and is continuing) is not a Restricted Person; or
|
|
(d)
|
any Permitted Sands Lender.
|
|
(a)
|
air (including air within natural or man-made structures, whether above or below ground);
|
|
(b)
|
water (including territorial, coastal and inland waters, water under or within land and water in drains and sewers); and
|
|
(c)
|
land (including land under water).
|
|
(a)
|
does (or will) own, develop, design, construct, operate, manage or otherwise implement any part of the Integrated Resort; or
|
|
(b)
|
holds (or will hold) or has (or will have) any rights in any Authorisation (including the Casino Licence) in relation to the Integrated Resort),
|
(i)
|
owns or operates, or will own or operate, Aircraft/Watercraft;
|
|
(ii)
|
will acquire FF&E;
|
|
(iii)
|
owns, operates, manages or implements or will own, operate, manage or implement any business or service that is funded as a Permitted Investment under this Agreement;
|
|
(iv)
|
owns, operates, manages or implements the Retail Properties and/or the Car Park pursuant to a disposal of the Retail Properties and/or the Car Park to it under paragraphs (c)(iv) and/or (c)(xviii) of Clause 22.5 (
Disposals
); or
|
|
(v)
|
owns, operates, manages or implements the ArtScience Museum (but does not own any part of the Properties comprising the ArtScience Museum) pursuant to paragraph (c)(xx) of Clause 22.5 (
Disposals
)
,
|
|
but which, in each case, does not hold (and will not hold) the Casino Licence.
|
|
(a)
|
an unsecured subordinated bond or an unsecured senior subordinated bond issued or to be issued by a member of the Borrower Group; or
|
|
(b)
|
any other unsecured subordinated Financial Indebtedness incurred or to be incurred by a member of the Borrower Group,
|
|
(i)
|
which is subordinated to all amounts which may be or become payable to the Finance Parties under the Finance Documents by way of:
|
|
(A)
|
an External Subordination Agreement; or
|
|
(B)
|
(where the Borrower (acting reasonably and in good faith) determines that subordination pursuant to an External Subordination Agreement could reasonably be expected to materially and adversely affect the feasibility of establishing, or the marketability of, such bonds or Financial Indebtedness) the incorporation of terms within the documentation relating to such bonds or Financial Indebtedness which:
|
|
(I)
|
expressly provide that all payments in the nature of principal and interest thereunder are subordinated, on customary terms for such bonds or Financial Indebtedness, in all respects to the Facilities and that such subordination obligations cannot be amended without the consent of the Agent; and
|
|
(II)
|
provide that the Agent shall have enforceable third party rights in respect of such subordination obligations;
|
|
(ii)
|
which provides for a rate of interest (or a lower rate of interest) consistent with the market rate of interest for a transaction of a similar nature at the time of its incurrence;
|
|
(iii)
|
where any scheduled repayment or redemption of such bonds or Financial Indebtedness only occurs after the Facility A Termination Date; and
|
|
(iv)
|
where each of the creditors in respect of such bonds or Financial Indebtedness is an External Subordinated Creditor,
|
|
(A)
|
provide to the Agent certified copies of the documents evidencing such bonds or Financial Indebtedness; and
|
|
(B)
|
in the case where the subordination contemplated by paragraph (i) is achieved (or is intended to be achieved) pursuant to paragraph (i)(B), provide to the Agent certifications of the Borrower (signed by a director and a senior officer of the Borrower) as the Agent may reasonably request in connection with such bonds or Financial Indebtedness and, at the Borrower’s costs, authorise and instruct the Borrower’s counsel to consult with the Agent on such subordination.
|
|
(a)
|
in relation to an Original Lender, the amount in Singapore Dollars set opposite its name under the heading “Facility A Commitment” in Part II of Schedule 1 (
The Original Facility A Lenders
) and the amount of any other Facility A Commitment transferred to it under this Agreement; and
|
|
(b)
|
in relation to any other Lender, the amount in Singapore Dollars of any Facility A Commitment transferred to it under this Agreement,
|
|
(a)
|
any Original Facility A Lender; and
|
|
(b)
|
any Eligible Lender which has become a Party in accordance with Clause 24 (
Changes to the Lenders
) and which is transferred an interest in Facility A,
|
|
(a)
|
in relation to an Original Lender, the amount in Singapore Dollars set opposite its name under the heading “Facility B Commitment” in Part III of Schedule 1 (
The Original Facility B Lenders
) and the amount of any other Facility B Commitment transferred to it under this Agreement; and
|
|
(b)
|
in relation to any other Lender, the amount of any Facility B Commitment transferred to it under this Agreement,
|
|
(a)
|
any Original Facility B Lender; and
|
|
(b)
|
any Eligible Lender which has become a Party in accordance with Clause 24 (
Changes to the Lenders
) and which is transferred an interest in Facility B,
|
|
(a)
|
made or to be made on the same day that one or more maturing Facility B Loans is or are due to be repaid;
|
|
(b)
|
the aggregate amount of which is equal to or less than the maturing Facility B Loan(s); and
|
|
(c)
|
made or to be made to the Borrower for the purpose of refinancing the maturing Facility B Loan(s).
|
|
(a)
|
moneys borrowed;
|
|
(b)
|
any amount raised by acceptance under any acceptance credit facility;
|
|
(c)
|
any amount raised pursuant to any note purchase facility or the issue of bonds (for the avoidance of doubt, other than a payment or advance payment bond), notes, debentures, loan stock or any similar instrument;
|
|
(d)
|
the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease, provided that any obligation of a person under a lease of hire purchase contract (whether existing now or entered into the future) that is not (or would not be) required to be treated as a finance or capital lease on a balance sheet of such person under GAAP as in effect on the date of this Agreement shall not be treated as finance or capital lease as a result of (i) the adoption of changes in GAAP after such date, or (ii) changes in the application of GAAP after such date;
|
|
(e)
|
receivables sold or discounted (other than any receivables to the extent they are sold or discounted on a non-recourse basis);
|
|
(f)
|
any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing and would, in accordance with GAAP, be treated as a borrowing;
|
|
(g)
|
solely for the purpose of Clause 23.5 (
Cross default
), any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account, and such value shall be calculated without double-counting with other indebtedness);
|
|
(h)
|
shares which are expressed to be redeemable, other than Designated RPS;
|
|
(i)
|
any counter-indemnity obligation in respect of:
|
|
(i)
|
a guarantee, indemnity, bond (including any payment or advance payment bond), standby or documentary letter of credit or any other similar instrument issued by a bank or financial institution; and
|
|
(ii)
|
any other instrument issued by a bank or financial institution, where such other instrument is in a form that, on its face, gives rise to a payment obligation on the part of that bank or financial institution; and
|
|
(j)
|
the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (i) above,
|
|
(A)
|
any indebtedness comprising trade payables or payments under leases and hire purchase contracts (in the case of leases and hire purchase contracts, to the
|
|
|
extent only that they do not fall within paragraph (d) above) incurred in the ordinary course of business;
|
|
(B)
|
any surety bonds for claims underlying repairer liens over equipment or machinery; and
|
|
(C)
|
any Financial Indebtedness comprising bonds, notes, debentures, loan stock or any other similar instrument described in paragraph (c) above, that have either been satisfied, discharged or defeased prior to their stated maturity (provided that cash or securities are being held by the trustee of such instruments pending application on maturity or redemption) in accordance with the terms of such bonds, notes, debentures, loan stock or any other similar instrument or by operation of law.
|
|
(a)
|
in relation to the financial statements (consolidated if applicable) of the Borrower, generally accepted accounting principles, standards and practices applied in Singapore; and
|
|
(b)
|
in relation to any other Obligor, generally accepted accounting principles, standards and practices applied in its jurisdiction of incorporation,
|
|
(a)
|
provides the Borrower with any hedging in connection with interest payable in respect of the Senior Liabilities, the Secured Incremental Liabilities and/or the Secured Permitted Refinancing Liabilities; and
|
|
(b)
|
at the Borrower’s request, accedes as a Hedging Bank to the Intercreditor Agreement in accordance with the terms thereof (provided that such accession may only take place if that person is, at that time, a Lender (or an Affiliate of a Lender)
,
|
|
(a)
|
the proceeds of which are made available by that HoldCo to the Borrower as Internal Subordinated Debt or equity; and
|
|
(b)
|
which, in the case where the creditor of such Financial Indebtedness is an Internal Subordinated Creditor not being a Holding Company of the Borrower, provides for a rate of interest that does not exceed prevailing market rates for comparable subordinated debt at the time the Financial Indebtedness is incurred.
|
|
(a)
|
which is designated by the Borrower as “Incremental Indebtedness”;
|
|
(b)
|
which when aggregated with (i) all Financial Indebtedness described in this definition then outstanding and (ii) the amount of Facility C Loans then outstanding, does not exceed S$1,000,000,000
(or its equivalent in another currency or currencies) in outstanding principal;
|
|
(c)
|
where, not later than ten Business Days after the date that the Financial Indebtedness is incurred, the Borrower delivers to the Agent details of such Financial Indebtedness;
|
|
(d)
|
where, on the date the Financial Indebtedness is incurred, no Event of Default is continuing or would reasonably be expected to result from the incurring of such Financial Indebtedness;
|
|
(e)
|
where the terms of such Financial Indebtedness in relation to:
|
|
(i)
|
principal amortisation;
|
|
(ii)
|
Security; and
|
|
(iii)
|
covenants (taken as a whole),
|
|
(f)
|
where:
|
|
(i)
|
at all times, the then remaining average weighted life (taking into account the effect of any prepayment) of such Financial Indebtedness is longer than the then remaining average weighted life (taking into account the effect of any prepayment) of Facility A and Facility B taken as a whole (but without taking into account any extension of the Facility A Termination Date or the Facility B Termination Date); and
|
|
(ii)
|
the final scheduled repayment date of such Financial Indebtedness extends beyond the Facility A Termination Date (without taking into account any extension of the Facility A Termination Date) (and where such Financial Indebtedness constitutes bonds, notes or other debt securities, any scheduled repayment or redemption of such Financial Indebtedness only occurs after the Facility A Termination Date (without taking into account any extension of the Facility A Termination Date));
|
|
|
and
|
|
(g)
|
where on the date (the “
Incremental Indebtedness Incurrence Date
”) such Financial Indebtedness is incurred, the ratio of:
|
|
(i)
|
the aggregate of:
|
|
(A)
|
the Debt as of the last Relevant Date falling on or before the date of such incurrence; and
|
|
(B)
|
the amount of such Financial Indebtedness actually incurred,
|
|
to
|
|
|
(ii)
|
the Consolidated Adjusted EBITDA for the Relevant Period ending on the Relevant Date described in paragraph (g)(i)(A) above,
|
|
(1)
|
(in the case where the Incremental Indebtedness Incurrence Date falls on or before 30 September 2019) less than or equal to 3.50 to 1; and
|
|
(2)
|
(in the case where the Incremental Indebtedness Incurrence Date falls after 30 September 2019) less than or equal to 3.00 to 1,
|
|
“
Incremental Indebtedness Creditor
” means a creditor (including any agent or trustee on its behalf) of the Borrower or any other Obligor in respect of any Incremental Indebtedness.
|
|
“
Incremental Indebtedness Document
” means any facility agreement, credit agreement, indenture, note purchase agreement or other document relating to, constituting or otherwise evidencing any Incremental Indebtedness.
|
|
(a)
|
all amounts payable to or for the benefit or account of the Borrower or any Restricted Subsidiary arising from or in connection with the Integrated Resort and the letting, use or occupation of the Properties (or any part of the Properties), including (without limitation and without double counting):
|
|
(i)
|
Gross Revenues;
|
|
(ii)
|
without limiting sub-paragraph (i) above, rents, hotel room revenues, Casino revenues, conference, meeting, convention and exhibition facilities' revenues, licence fees and equivalent sums reserved or made payable;
|
|
(iii)
|
any premium paid on the amount of any Occupational Lease;
|
|
(iv)
|
any other monies payable in respect of use and/or occupation of the Integrated Resort;
|
|
(v)
|
proceeds of insurance in respect of loss of rent;
|
|
(vi)
|
receipts from or the value of consideration given for the surrender or variation of any letting;
|
|
(vii)
|
proceeds paid by way of reimbursement of expenses incurred, or on account of expenses to be incurred, in the management, maintenance and repair of, and the payment of insurance premiums for, the Properties;
|
|
(viii)
|
proceeds paid for a breach of covenant under any Occupational Lease and for expenses incurred in relation to any such breach;
|
|
(ix)
|
payments from a guarantor in respect of any of the items listed in this paragraph (a); and
|
|
(x)
|
interest, damages or compensation in respect of any of the items in this paragraph (a),
|
|
(b)
|
interest and other income in respect of funds standing to the credit of the Accounts;
|
|
(c)
|
any income, receipts or realised gains (including those of a non-recurring or extraordinary nature) from any Permitted Investments; and
|
|
(d)
|
any other income, receipts or realised gains (including those of a non-recurring or extraordinary nature) from whatever source and whether or not attributable to the Integrated Resort.
|
|
(a)
|
which is subordinated to all amounts which may be or become payable to the Finance Parties under the Finance Documents by way of an Internal Subordination Agreement;
|
|
(b)
|
where any scheduled repayment of such Financial Indebtedness only occurs after the Facility A Termination Date; and
|
|
(c)
|
the terms of which:
|
|
(i)
|
except where permitted by the provisions of the Finance Documents, expressly prohibit any member of the Borrower Group from making any payment in the nature of interest (but interest may (A) accrue or be capitalised and (B) be evidenced by any instrument which constitutes such Internal Subordinated Debt or equity and such instrument may be issued to the Internal Subordinated Creditor);
|
|
(ii)
|
do not comprise any cross default (however described) provisions; and
|
|
(iii)
|
do not comprise any onerous covenants, undertakings or other provisions other than customary affirmative covenants.
|
|
(a)
|
an Agreement for Lease; or
|
|
(b)
|
an Occupational Lease.
|
|
(a)
|
(except as provided in
paragraphs (g) and (h) of
Clause 36.2 (
Exceptions
)
)
any Permitted Sands Lender which is a Lender shall not be entitled to vote and shall not be polled (or its interests taken into consideration) by the Agent or the Security Trustee for the purposes of this definition, and its vote shall instead be exercised,
subject to any contrary indication in the Intercreditor Agreement,
by the other Lenders on a
pro rata
basis; and
|
|
(b)
|
to the extent set out in (and in accordance with) Clause 2.4 (
Non-Funding Lender
), any Non-Funding Lender shall not be entitled to vote and shall not be polled (or its interests taken into consideration) by the Agent or the Security Trustee for the purposes of this definition, and its vote shall instead be exercised,
subject to any contrary indication in the Intercreditor Agreement,
by the other Lenders on a
pro rata
basis.
|
|
(a)
|
in relation to any Loan under Facility A and/or Facility B:
|
|
(i)
|
(from the date of this Agreement to the date falling six Months after the date of this Agreement) 1.85 per cent. per annum; and
|
|
(ii)
|
(from the date falling six Months after the date of this Agreement and thereafter) the rate per annum specified opposite the relevant range set out in the following table in which the ratio of Debt as at the most recent Relevant Date to Consolidated Adjusted EBITDA for the Relevant Period ending on that Relevant Date:
|
Ratio of Debt to
Consolidated Adjusted EBITDA
|
Margin
(per cent. per annum)
|
Higher than 3.50 to 1
|
1.85
|
Higher than 2.50 to 1, but lower than or equal to 3.50 to 1
|
1.65
|
Higher than 1.90 to 1, but lower than or equal to 2.50 to 1
|
1.45
|
Higher than 1.00 to 1, but lower than or equal to 1.90 to 1
|
1.20
|
Lower than or equal to 1.00 to 1
|
1.15
|
|
(A)
|
any increase or decrease in the Margin for a Loan under Facility A and/or Facility B shall take effect immediately following the receipt by the Agent of the Compliance Certificate for that Relevant Period pursuant to C
lause 20.3
(
Compliance Certificate
);
|
|
(B)
|
while an Event of Default is continuing, the Margin for each Loan under Facility A and/or Facility B shall be the highest
|
|
|
percentage per annum set out above for a Loan under that Facility; and
|
|
(C)
|
for the purpose of determining the Margin, Debt, Consolidated Adjusted EBITDA and Relevant Period shall be determined in accordance with Clause 21.4
(
Financial covenant calculations
); and
|
|
(b)
|
in relation to any Loan under Facility C, the applicable percentage(s) per annum as agreed between the Borrower and the relevant Increase Lenders to which that Loan relates, as set out in the relevant Increase Confirmation.
|
|
(a)
|
the consolidated financial condition, assets or business of the Borrower Group
taken as a whole;
|
|
(b)
|
the Integrated Resort, taken as a whole;
|
|
(c)
|
the ability of the Borrower to perform and comply with its payment or other material obligations under the Finance Documents to which it is a party, the Development Agreement or the Head Lease;
|
|
(d)
|
the ability of the Obligors (other than the Borrower) to perform and comply with their payment or other material obligations under the Finance Documents to which they are a party; or
|
|
(e)
|
the ability of any Finance Party to enforce the payment or other material obligations of each Obligor under the Finance Documents to which that Obligor is a party or the ability of any Finance Party to enforce any of their respective rights or remedies under the Finance Documents.
|
|
(a)
|
which is designated by the Borrower as “Mezzanine Indebtedness”;
|
|
(b)
|
which when aggregated with all Financial Indebtedness described in this definition then outstanding, does not exceed S$1,000,000,000
(or its equivalent in another currency or currencies) in outstanding principal;
|
|
(c)
|
where, not later than ten Business Days after the date that the Financial Indebtedness is incurred, the Borrower delivers to the Agent details of such Financial Indebtedness;
|
|
(d)
|
where, on the date the Financial Indebtedness is incurred, no Event of Default is continuing or would reasonably be expected to result from the incurring of such Financial Indebtedness;
|
|
(e)
|
where any scheduled repayment or redemption of such Financial Indebtedness only occurs after 28 August 2020; and
|
|
(f)
|
where on the date such Financial Indebtedness is incurred, the ratio of:
|
|
(i)
|
the aggregate of:
|
|
(A)
|
the Debt as of the last Relevant Date falling on or before the date of such incurrence; and
|
|
(B)
|
the amount of such Financial Indebtedness actually incurred,
|
|
to
|
|
|
(ii)
|
the Consolidated Adjusted EBITDA for the Relevant Period ending on the Relevant Date described in paragraph (f)(i)(A) above,
|
|
“
Mezzanine Indebtedness Creditor
” means a creditor (including any agent or trustee on its behalf) of the Borrower or any other Obligor in respect of any Mezzanine Indebtedness.
|
|
“
Mezzanine Indebtedness Document
” means any facility agreement, credit agreement, indenture, note purchase agreement or other document relating to, constituting or otherwise evidencing any Mezzanine Indebtedness.
|
|
(a)
|
subject to paragraph (c) below, if the numerically corresponding day is not a Business Day, that period shall end on the next succeeding Business Day in that calendar month in which that period is to end if there is one, or if there is not, on the immediately preceding Business Day;
|
|
(b)
|
if there is no numerically corresponding day in the calendar month in which that period is to end, that period shall end on the last Business Day in that calendar month; and
|
|
(c)
|
if an Interest Period begins on the last Business Day of a calendar month, that Interest Period shall end on the last Business Day in the calendar month in which that Interest Period is to end.
|
|
“
Net Sale Proceeds
” means the cash or cash equivalent proceeds (including, when received, the cash or cash equivalent proceeds of any deferred consideration, whether by way of adjustment to the purchase price or otherwise) received by the Borrower Group in connection with any sale by a member of the Borrower Group of any asset after deducting:
|
|
(a)
|
fees, discounts, commissions, charges, expenses, withholdings and transaction costs properly incurred in connection with that sale, transfer or disposal;
|
|
(b)
|
Taxes paid by such member or reasonably estimated by such member to be payable (as certified by it to the Agent) as a result of that sale, transfer or disposal;
|
|
(c)
|
any amounts required to be applied to the repayment of indebtedness secured by a Security permitted under paragraph (d) of Clause 22.4 (
Negative pledge
) (or amounts permitted by the terms of such indebtedness to be otherwise reinvested in other assets of such member to the extent so reinvested); and
|
|
(d)
|
any reserve for adjustment in respect of the sale price of such asset or assets or any liabilities associated with the asset disposed of in such sale or transfer and the deduction of appropriate amounts provided by the seller as a reserve in accordance with GAAP against any liabilities associated with the assets disposed of in the sale and retained by the Borrower, provided that where any such reserve (or the relevant part thereof) is no longer required or has not been applied within the period for which the reserve was set aside, the Borrower shall apply an amount equal to such reserve (or the relevant part thereof) in accordance with Clause 8.5 (
Mandatory prepayment from Net Sale Proceeds
) as if such amount were “Net Sale Proceeds”.
|
|
(a)
|
in relation to the Mortgage and Intercreditor Agreement, in each case, when
|
|
|
executed and delivered, the payment of stamp tax in Singapore;
|
|
(b)
|
in relation to the Mortgage, when executed, delivered and dated, its registration with the Singapore Land Authority;
|
|
(c)
|
in relation to each Security Document (other than the Intercreditor Agreement), in each case, when executed and delivered, its registration as a charge against the Borrower at the Accounting and Corporate Regulatory Authority in Singapore, and any notification or other requirements as may be required by the terms of that document; and
|
|
(d)
|
in relation to each Offshore Collection Account Security Document, when executed and delivered, any registration, notification or other requirements as may be required by the terms of that document.
|
|
(a)
|
for the purpose of:
|
|
(i)
|
financing the acquisition, lease, equipping or charter of Aircraft/Watercraft by that Affiliate;
|
|
(ii)
|
refinancing any Financial Indebtedness referred to in sub-paragraph (i) above; and/or
|
|
(iii)
|
financing the working capital requirements of that Affiliate with respect to such Aircraft/Watercraft;
|
|
(b)
|
which, when aggregated with all Financial Indebtedness described in this definition then outstanding, does not exceed S$300,000,000 (or its equivalent in any other currency or currencies);
|
|
(c)
|
which, on the date it is incurred, no Event of Default is continuing or would reasonably be expected to result from the incurring of such Financial Indebtedness; and
|
|
(d)
|
a reasonable summary of which will be supplied to the Agent within ten Business Days of a member of the Borrower Group issuing a Guarantee in respect of such Financial Indebtedness.
|
|
(a)
|
the purpose of such Security is to secure the Permitted Aircraft/Watercraft Indebtedness incurred by that Affiliate to acquire such Aircraft/Watercraft;
|
|
(b)
|
the beneficiary of such Security has no right of recovery for any such Permitted Aircraft/Watercraft Indebtedness against any Transaction Security; and
|
|
(c)
|
a reasonable summary of which will be supplied to the Agent within ten Business Days of that Affiliate incurring that Permitted Aircraft/Watercraft Indebtedness.
|
|
(a)
|
for the purpose of:
|
|
(i)
|
financing its acquisition and/or installation of FF&E;
|
|
(ii)
|
refinancing its acquisition and/or installation of FF&E (including any costs and expenses incurred in connection with such acquisition) originally financed by the Facilities or Ancillary Facilities; or
|
|
(iii)
|
refinancing any Financial Indebtedness referred to in paragraphs (a)(i) and (ii) above;
|
|
(b)
|
which when aggregated with all Financial Indebtedness described in this definition then outstanding, does not exceed S$500,000,000
(or its equivalent in another currency or currencies) in outstanding principal;
|
|
(c)
|
which, on the date it is incurred, no Event of Default is continuing or would reasonably be expected to result from the incurring of such Financial Indebtedness; and
|
|
(d)
|
a reasonable summary of which (and any applicable Permitted FF&E Security) will be supplied to the Agent within ten Business Days of the Borrower or that Obligor incurring (or being contractually entitled to incur) such Financial Indebtedness.
|
|
(a)
|
the purpose of such Security is to secure the Permitted FF&E Indebtedness incurred by the Borrower or that Obligor to acquire (or refinance the acquisition of) such FF&E;
|
|
(b)
|
the beneficiary of such Security has no right of recovery for any such Permitted FF&E Indebtedness against any Transaction Security (other than such FF&E);
|
|
(c)
|
a reasonable summary of which will be supplied to the Agent not later than ten Business Days after the date of the Borrower or that Obligor incurring that Permitted FF&E Indebtedness; and
|
|
(d)
|
where that Permitted FF&E Indebtedness is described in paragraph (a)(ii) of the definition of Permitted FF&E Indebtedness, the Security Trustee shall (and is hereby instructed by the Lenders to) release (or reduce to second ranking), as requested by the Borrower, any Security Document over such FF&E at the cost and expense of the Borrower.
|
|
(a)
|
made through joint ventures, consortiums, partnerships or similar arrangements in businesses such as restaurants, clubs, theatre, retail and entertainment offerings that will form part of (or be located in) the Integrated Resort; or
|
|
(b)
|
in projects that are ancillary (and of benefit) to the Integrated Resort where:
|
|
(i)
|
the aggregate amount of cash (or cash equivalents) used to make all Investments described in this sub-paragraph (b), does not exceed S$450,000,000 (or its equivalent in any other currency or currencies at the date the relevant Investment is made);
|
|
(ii)
|
the ratio of Debt as of the last Relevant Date falling on or before the date of such Investments to Consolidated Adjusted EBITDA for the Relevant Period ending on that Relevant Date is less than 3.50 to 1, as evidenced by a Compliance Certificate delivered to the Agent on or before the date of such Investments, setting out (in reasonable detail) computations as to compliance with the above ratio); and
|
|
(iii)
|
on the date of such Investments, no Event of Default is continuing.
|
|
(a)
|
which is designated by the Borrower as “Permitted Refinancing Indebtedness”;
|
|
(b)
|
for the purpose of:
|
|
(i)
|
refinancing the Senior Liabilities (other than Facility B), the Secured Incremental Liabilities and/or the Secured Permitted Refinancing Liabilities (in each case, whether in whole or in part); and/or
|
|
(ii)
|
refinancing any Financial Indebtedness referred to in sub-paragraph (i) above;
|
|
(c)
|
where, not later than ten Business Days before the date that the Financial Indebtedness is to be incurred, the Borrower delivers to the Agent:
|
|
(i)
|
details of such Financial Indebtedness; and
|
|
(ii)
|
the estimated amount of the Senior Liabilities (other than Facility B), the Secured Incremental Liabilities and/or the Secured Permitted
|
|
|
Refinancing Liabilities (and the date on which they are expected) to be refinanced;
|
|
(d)
|
where, on the date the Financial Indebtedness is incurred, no Event of Default is continuing or would reasonably be expected to result from the incurring of such Financial Indebtedness; and
|
|
(e)
|
where the relevant portion of the proceeds from such Financial Indebtedness will be paid directly to the Agent and applied in accordance with Clause 2 (
Mandatory prepayment
) of the Intercreditor Agreement,
|
|
(a)
|
an amalgamation, merger, liquidation, dissolution or corporate reconstruction (each a “
Reorganisation”
) on a solvent basis of a member of the Borrower Group (other than the Borrower) where:
|
|
(i)
|
all of the business and assets of that member of the Borrower Group, remain within the Borrower Group (and if that member of the Borrower Group was an Obligor immediately prior to such reorganisation being implemented, all of the business and assets of that member are retained by one or more other Obligors);
|
|
(ii)
|
if it or its assets were subject to the Security Documents immediately prior to such reorganisation, the Security Trustee will enjoy the same or equivalent Security over the same assets, or as the case may be, over it or, where an Obligor is being dissolved or liquidated, its assets are passed up to its Holding Company (being a member of the Borrower Group); and
|
|
(iii)
|
in the case of an amalgamation or merger, if such member of the Borrower Group is an Obligor, the surviving entity is an Obligor to at least the same extent as such first mentioned Obligor immediately prior to the said amalgamation, merger or corporate reconstruction;
|
|
(b)
|
any incorporation of a Subsidiary, intra-Borrower Group transfer (other than one involving the Borrower, except to the extent permitted by paragraph (e) of
|
|
|
Clause 22.4 (
Negative pledge
)) or other step taken in connection with a proposed securitisation of the business of the Borrower Group, (other than one involving the Borrower, except to the extent permitted by paragraph (e) of Clause 22.4 (
Negative pledge
)) (or any part thereof), and/or any other refinancing where it is intended that the proceeds thereof be used to prepay the Facilities in full, provided that, in each case, any such action would not reasonably be expected to materially and adversely affect the interests of the Finance Parties under the Finance Documents; or
|
|
(c)
|
any other Reorganisation of one or more members of the Borrower Group (other than the Borrower) approved by the Majority Lenders (acting reasonably).
|
|
(a)
|
any lien arising by operation of law and in the ordinary course of business securing amounts not more than 30
days overdue (or contested in good faith by appropriate means prior to an order being made against the person contesting such amounts, so long as reserves or other appropriate provisions, if any, required by the applicable GAAP, shall have been made for any such contested amounts);
|
|
(b)
|
any conditional sale arrangement or retention of title arrangements and rights of set-off arising in the ordinary course of business with suppliers of goods to any Obligor;
|
|
(c)
|
any Security created pursuant to any Finance Document;
|
|
(d)
|
any Security created with the consent of the Agent (acting on the instructions of the Majority Lenders);
|
|
(e)
|
any attachment or judgment lien not constituting an Event of Default;
|
|
(f)
|
easements, rights-of-way, avigational servitudes, restrictions, encroachments, and other defects or irregularities in title and other similar charges or encumbrances, in each case, which either exist on the date of this Agreement or which do not and will not interfere in any material respect with the ordinary conduct of the business of the Borrower or any Obligor or result in a material diminution in the value the Charged Assets as security for the Senior Liabilities;
|
|
(g)
|
liens arising from filing Uniform Commercial Code financing statements or the Singapore equivalent relating solely to leases permitted by this Agreement;
|
|
(h)
|
licenses of patents, trademarks and other intellectual property rights granted by that Obligor in the ordinary course of business and not interfering in any
|
|
|
material respect with the ordinary conduct of the business of any Obligor;
|
|
(i)
|
(other than in respect of the Properties) liens to secure a stay of process in proceedings to enforce a contested liability, or required in connection with the institution of legal proceedings or in connection with any other order or decree in any such proceeding or in connection with any contest of any tax or other governmental charge, or deposits with a governmental agency entitling the Borrower or any Obligor to maintain self-insurance or to participate in other specified insurance arrangements;
|
|
(j)
|
leases or subleases, licenses or sublicenses or other types of occupancy agreements granted to third parties in accordance with any applicable terms of this Agreement and the Security Documents and not interfering in any material respect with the ordinary conduct of the business of the Borrower or any Obligor;
|
|
(k)
|
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;
|
|
(l)
|
statutory liens of landlords, liens of banks and rights of set-off, statutory liens of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other liens imposed by law, in each case incurred in the ordinary course of business (A) for amounts not yet overdue, (B) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of 30 days) are being contested in good faith by appropriate proceedings prior to an order being made against the person contesting such amounts so long as such reserves or other appropriate provisions, if any, as shall be required by the applicable GAAP, shall have been made for any such contested amounts or (C) with respect to liens of mechanics, repairmen, workmen and materialmen, if such lien arises in the ordinary course of business, that Obligor has bonded such lien within a reasonable time after becoming aware of the existence thereof;
|
|
(m)
|
liens incurred or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of Financial Indebtedness), incurred in the ordinary course of business (i) for the amounts not yet overdue, (ii) for the amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of five days) are being contested in good faith by appropriate proceedings or (iii) with respect to liens of mechanics, repairmen, workmen and materialmen, if such lien arises in the ordinary course of business, and the Borrower has bonded such lien within a reasonable time after becoming aware of the existence thereof and which may be prior to the liens granted in favour of the Finance Parties;
|
|
(n)
|
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 and which may be prior to the liens granted in favour of the Secured Parties;
|
|
(o)
|
liens on:
|
|
(i)
|
property acquired by any member of the Borrower Group; or
|
|
(ii)
|
property of a person existing at the time such person became a Restricted Subsidiary, is merged into or consolidated with or into, or wound up into, any member of the Borrower Group,
|
|
(p)
|
liens for taxes, assessments or governmental claims if the obligations with respect thereto are being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and statutory liens for taxes not yet due and payable;
|
|
(q)
|
any interest or title of a lessor or sublessor under any lease of real estate permitted hereunder;
|
|
(r)
|
liens solely on any cash earnest money deposits made by any member of the Borrower Group in connection with any letter of intent or purchase agreement permitted under this Agreement;
|
|
(s)
|
licenses of patents, copyrights, trademarks and other intellectual property rights granted by the members of the Borrower Group in the ordinary course of business and not interfering in any material respect with the ordinary conduct of or materially detracting from the value of the business of such member of the Borrower Group;
|
|
(t)
|
liens in favour of an Obligor, provided that where such liens are over assets subject to any Security created by the Security Documents, such liens are made subject to such Security;
|
|
(u)
|
any liens over any asset (other than the Development Agreement, the Head Lease, the Properties and the Casino Licence), provided the aggregate value of assets permitted to be secured under this paragraph (u) does not exceed S$50,000,000;
|
|
(v)
|
in connection with any redemption or defeasance of Debt (to the extent such redemption or defeasance is permitted under the Finance Documents), liens in favour of the trustee on any amounts held in a redemption or defeasance
|
|
|
account pursuant to a trust or similar agreement and any proceeds held in such account for the benefit of the holders of such Debt (provided that in the case of a redemption, any such liens shall be furnished temporarily only and for the purpose of facilitating the completion of that redemption); and
|
|
(w)
|
any netting or set-off arrangement entered into by any member of the Borrower Group in the ordinary course of its banking arrangements for the purpose of netting debit and credit balances.
|
|
(a)
|
which is designated by the Borrower as a “Permitted Transaction (Designated Sale)”;
|
|
(b)
|
where such Controlled Transaction is wholly funded from such part of the consideration arising from a sale (the “
Designated Sale
”) by a member of the Borrower Group of any asset the proceeds of which are not required to be paid into the Prepayment Account under Clause 8.5 (
Mandatory prepayment from Net Sale Proceeds
)
for application in accordance with the Intercreditor Agreement (the “
Excess Net Sale Proceeds
”);
|
|
(c)
|
where no Default is continuing or would reasonably be expected to result from such Controlled Transaction; and
|
|
(d)
|
the amount of which (when aggregated with the amounts of all other Controlled Transactions falling within the description of this definition in respect of that Designated Sale) does not exceed:
|
|
(i)
|
(in the case where the ratio of Debt as of the last Relevant Date falling on or before the completion date of that Designated Sale to Proforma Consolidated Adjusted EBITDA for the Relevant Period ending on that Relevant Date is greater than 3.50 to 1 but less than or equal to 4.00 to 1, as evidenced by a Compliance Certificate delivered to the Agent on or before the completion date of that Designated Sale, setting out (in reasonable detail) computations as to compliance with the above ratio) 50 per cent. of the Excess Net Sale Proceeds in respect of that Designated Sale; and
|
|
(ii)
|
(in the case where the ratio of Debt as of the last Relevant Date falling on or before the completion date of that Designated Sale to Proforma Consolidated Adjusted EBITDA for the Relevant Period ending on that Relevant Date is less than or equal to 3.50 to 1, as evidenced by a Compliance Certificate delivered to the Agent on or before the completion date of that Designated Sale, setting out (in reasonable detail) computations as to compliance with the above ratio) 100 per cent. of the Excess Net Sale Proceeds in respect of that Designated Sale.
|
|
(a)
|
which is designated by the Borrower as a “Permitted Transaction (Leverage Ratio)”;
|
|
(b)
|
where no Default is continuing or would reasonably be expected to result from such Controlled Transaction; and
|
|
(c)
|
the amount of which, when aggregated with the amounts of all other Controlled Transactions falling within the description of this definition declared, paid or made in the same financial year of the Borrower, does not exceed the amount specified opposite the relevant ratio set out in the following table in which the ratio of Debt as of the end of each Relevant Period to Consolidated Adjusted EBITDA for such Relevant Period falls (as evidenced by a Compliance Certificate delivered to the Agent on or before the declaration, payment or making of a Controlled Transaction falling within the description of this definition, setting out (in reasonable detail) computations as to compliance with the below ratio):
|
Ratio of Debt to Consolidated
Adjusted EBITDA
|
Amount
|
Lower than or equal to 3.50 to 1
|
Unlimited
|
Higher than 3.50 to 1
but lower than or equal to 4.00 to 1
|
S$500,000,000
|
Higher than 4.00 to 1
|
Nil
|
|
(a)
|
which is designated by the Borrower as a “Permitted Transaction (Miscellaneous)”;
|
|
(b)
|
where no Default is continuing or would reasonably be expected to result from such Controlled Transaction; and
|
|
(c)
|
where the amount of such Controlled Transaction, when aggregated with the amounts of all other Controlled Transactions falling within the description of this definition does not exceed S$5,000,000 (or its equivalent in another currency or currencies) in any financial year of the Borrower.
|
|
(a)
|
for the purpose of Clause 8.5 (
Mandatory prepayment from Net Sale Proceeds
)
in relation to any Exempt Disposal, the Consolidated Adjusted EBITDA for the Relevant Period ending on the last Relevant Date falling on or before the completion date of such Exempt Disposal,
less
(or, if negative, plus) such part of the Consolidated Adjusted EBITDA for that Relevant Period attributable to the asset which is the subject matter of that Exempt Disposal; and
|
|
(b)
|
for the purpose of the definition of “Permitted Transaction (Designated Sale)”, in relation to any Designated Sale, the Consolidated Adjusted EBITDA for the Relevant Period ending on the last Relevant Date falling on or before the completion date of such Designated Sale,
less
(or, if negative, plus) such part of the Consolidated Adjusted EBITDA for that Relevant Period attributable to the asset which is the subject matter of that Designated Sale.
|
|
(a)
|
for the purpose of:
|
|
(i)
|
financing its acquisition or lease of any asset including without limitation, any automobile, equipment or machinery; and/or
|
|
(ii)
|
refinancing any Financial Indebtedness referred to in sub-paragraph (i) above;
|
|
(b)
|
which, when aggregated with all Financial Indebtedness described in this definition then outstanding, does not exceed S$30,000,000 (or its equivalent in any other currency or currencies);
|
|
(c)
|
which, on the date it is incurred, no Event of Default is continuing or would reasonably be expected to result from the incurring of such Financial Indebtedness; and
|
|
(d)
|
a reasonable summary of which (and any applicable Purchase Money Security) will be supplied to the Agent within ten Business Days of the Borrower or that Obligor incurring (or being contractually entitled to incur) such Financial Indebtedness.
|
|
(a)
|
the purpose of such Security is to secure the Purchase Money Indebtedness incurred by the Borrower or that Obligor to acquire (or refinance the acquisition of) such asset;
|
|
(b)
|
the beneficiary of such Security has no right of recovery for any such Purchase Money Indebtedness against any Transaction Security; and
|
|
(c)
|
a reasonable summary of which will be supplied to the Agent within ten Business Days of the Borrower or that Obligor incurring that Purchase Money Indebtedness.
|
|
(a)
|
each of the representations set out in Clauses 19.1 (
Status
) to 19.4 (
Power and authority
), 19.6 (
Governing law and enforcement
), paragraph (a) of 19.8 (
No default
), paragraph (a) of 19.9 (
No misleading information
), 19.10 (
Financial statements
) (other than paragraph (c) thereof) to 19.18 (
Environmental releases
), 19.20 (
Governmental Regulation
), and 19.21 (
Material Adverse Effect
); and
|
|
(b)
|
each of the representations expressed to be a repeating representation under the terms of any other Finance Document.
|
|
(a)
|
any person that owns or operates a casino located in Singapore, Macau, the United Kingdom, the States of Nevada or New Jersey or Michigan, or the Commonwealths of Massachusetts or Pennsylvania, or any other jurisdiction in which the Sponsor or any of its Subsidiaries has obtained or applied for a gaming licence (or is an Affiliate of such a person); provided that a passive investment constituting less than ten per cent. of the common stock of any such casino shall not constitute ownership thereof for the purposes of this definition;
|
|
(b)
|
any person that owns or operates a convention, trade show, conference center or exhibition facility in Singapore, Macau, the United Kingdom, Las Vegas, Nevada or Clark County, Nevada, the State of New Jersey or Michigan or the Commonwealths of Massachusetts or Pennsylvania, or any other jurisdiction in which the Sponsor or any of its Subsidiaries owns, operates or is developing a convention, trade show, conference center or exhibition facility (or an Affiliate of such a person); provided that a passive investment constituting less than ten per cent. of the common stock of any such convention or trade show facility shall not constitute ownership for the purpose of this definition;
|
|
(c)
|
any union pension fund or Affiliate thereof; provided that any intermingled fund or managed account which has as part of its assets under management the assets of a union pension fund shall not be disqualified from being an Eligible Lender hereunder so long as the manager of such fund is not controlled by a union or a union does not own ten per cent. or more of the assets of such fund; or
|
|
(d)
|
any person denied approval or licence, or found unsuitable to be given such approval or licence, under the gaming laws and the rules and regulations of the gaming authorities in Singapore, Macau, the United Kingdom, the States of Nevada or New Jersey or the Commonwealths of Massachusetts or Pennsylvania or any other applicable jurisdiction.
|
|
(a)
|
which is designated by the Borrower as “RP/CP Hivedown Refinancing Indebtedness”;
|
|
(b)
|
for the purpose of:
|
|
(i)
|
refinancing the Senior Liabilities (other than Facility B), the Secured Incremental Liabilities and/or the Secured Permitted Refinancing Liabilities (in each case, in whole or in part); and/or
|
|
(ii)
|
refinancing any Financial Indebtedness referred to in sub-paragraph (i) above;
|
|
(c)
|
where, not later than five Business Days before the date that the Financial Indebtedness is to be incurred, the Borrower delivers to the Agent:
|
|
(i)
|
details of such Financial Indebtedness; and
|
|
(ii)
|
the estimated amount of the Senior Liabilities (other than Facility B), the Secured Incremental Liabilities and/or the Secured Permitted Refinancing Liabilities (and the date on which they are expected) to be refinanced;
|
|
(d)
|
where, on the date the Financial Indebtedness is incurred, no Event of Default is continuing or would reasonably be expected to result from the incurring of such Financial Indebtedness;
|
|
(e)
|
where the Head Lessor and the relevant Governmental Agencies have approved such refinancing and the issue of separate strata title for the Retail Properties (or the relevant portion thereof) and/or Car Park (or the relevant portion thereof), as applicable, in a manner that the Agent is reasonably satisfied will not materially and adversely affect the interests of the Lenders (taken as a whole); and
|
|
(f)
|
where the relevant portion of the proceeds from such Financial Indebtedness will be paid directly to the Security Trustee and applied in accordance with
|
|
|
Clause 2 (
Mandatory prepayment
) of the Intercreditor Agreement.
|
|
(a)
|
the purpose of such Security is to secure the RP/CP Hivedown Refinancing Indebtedness incurred by the Borrower or any other Obligor in relation to the Retail Properties (or the relevant portion thereof) and/or the Car Park (or the relevant portion thereof);
|
|
(b)
|
the Agent is reasonably satisfied that the part of the Retail Properties and/or the Car Park, if any, that continues to be financed by the Facilities, shall remain subject to the Security created by the relevant Security Documents;
|
|
(c)
|
the Agent is reasonably satisfied that all the other Properties (other than the Retail Properties (or the relevant portion thereof) and/or Car Park (or the relevant portion thereof) subject to the RP/CP Hivedown Refinancing Indebtedness) shall remain subject to the Security created by the relevant Security Documents; and
|
|
(d)
|
details (reasonably satisfactory to the Agent) of which have been supplied to the Agent.
|
|
“
Secured
Incremental Indebtedness Creditor
” means an Incremental Indebtedness Creditor which accedes as a Secured Incremental Indebtedness Creditor to the Intercreditor Agreement in accordance with the terms thereof.
|
|
“
Secured
Incremental Indebtedness Document
” means any facility agreement, credit agreement, indenture, note purchase agreement or other document relating to, constituting or otherwise evidencing any Secured Incremental Indebtedness.
|
|
“
Secured
Mezzanine Indebtedness Creditor
” means a Mezzanine Indebtedness Creditor which accedes as a Secured Mezzanine Indebtedness Creditor to the Intercreditor Agreement in accordance with the terms thereof.
|
|
“
Secured
Mezzanine Indebtedness Document
” means any facility agreement, credit agreement, indenture, note purchase agreement or other document relating to, constituting or otherwise evidencing any Secured Mezzanine Indebtedness.
|
|
“
Secured
Permitted Refinancing Indebtedness
Creditor
” means a Permitted Refinancing
Indebtedness Creditor which accedes as a Secured Permitted Refinancing
Indebtedness Creditor to the Intercreditor Agreement in accordance with the terms thereof.
|
|
“
Secured
Permitted Refinancing
Document
” means any facility agreement, credit agreement, indenture, note purchase agreement or other document relating to, constituting or otherwise evidencing any Secured Permitted Refinancing
Indebtedness.
|
|
(a)
|
which is controlled, directly or indirectly, by the holding company;
|
|
(b)
|
more than half the issued share capital of which is beneficially owned, directly or indirectly, by the holding company; or
|
|
(c)
|
which is a Subsidiary of another Subsidiary of the holding company,
|
|
(a)
|
the applicable Screen Rate as of the Specified Time (or such other time as may be market practice in the Singapore interbank market) on the Quotation Day for the displaying of the swap offer rate for a period comparable to the Interest Period for that Loan or Unpaid Sum
(or, in respect of any Interest Period of a two-Month duration, the rate determined through the use of linear interpolation by reference to two rates, one of which shall be the Screen Rate as of the Specified Time on
|
|
|
the Quotation Day for the displaying of the swap offer rate for a one-Month period and the other of which shall be the Screen Rate as of the Specified Time on the Quotation Day for displaying of the swap offer rate for a three-Months period)
;
|
|
(b)
|
(if no Screen Rate is available for the Interest Period for that Loan or Unpaid Sum) any substitute rate announced by the Administrator by the Specified Time on the Quotation Day as the swap offer rate for a period comparable to the Interest Period for that Loan
(or, in respect of any Interest Period of a two-Month duration, the rate determined through the use of linear interpolation by reference to two rates, one of which shall be the
substitute rate announced by the Administrator
as of the Specified Time on the Quotation Day for the displaying of the swap offer rate for a one-Month period and the other of which shall be the
substitute rate announced by the Administrator
as of the Specified Time on the Quotation Day for displaying of the swap offer rate for a three-Months period)
; or
|
|
(c)
|
(if no such substitute rate for the Interest Period for that Loan or Unpaid Sum is announced or the Screen Rate for the Interest Period for that Loan or Unpaid Sum is zero or negative) the arithmetic mean of the rates (rounded upwards to four decimal places), as supplied to the Agent at its request, quoted by the Reference Bank(s) to leading banks in the Singapore interbank market to be the swap offer rate for that Interest Period relating to that Loan or Unpaid Sum at or as soon as reasonably practicable after the Specified Time on the Quotation Day.
|
|
(a)
|
(in relation to Facility A) the Facility A Termination Date;
|
|
(b)
|
(in relation to Facility B) the Facility B Termination Date; or
|
|
(c)
|
(in relation to Facility C) the earlier of the final maturity date set out in the applicable Increase Confirmation and the Facility C Longstop Termination Date.
|
|
(a)
|
the proposed Transfer Date specified in the relevant Transfer Certificate; and
|
|
(b)
|
the date on which the Agent executes the relevant Transfer Certificate.
|
1.2
|
Construction
|
(a)
|
Unless a contrary indication appears, any reference in this Agreement to:
|
|
(i)
|
any “
Administrative Party
”, any “
Ancillary Lender
”, the “
Agent
”, the “
Arranger
”, the “
Borrower
”, any “
Finance Party
”, any “
Hedging Bank
”, any “
HoldCo
”, any “
Lender
”, any “
Obligor
”, any “
Party
”, any “
Secured Party
”, the “
Security Trustee
” or the “
Sponsor
” shall be construed so as to include its successors in title, permitted assigns and permitted transferees;
|
|
(ii)
|
“
assets
” includes present and future properties, revenues and rights of every description;
|
|
(iii)
|
the Borrower providing “
cash cover
” for a contingent liability under a Secured Document, means the Borrower paying an amount in the currency of the contingent liability (as the case may be) to an interest-bearing deposit account in the name of the Borrower (with interest accruing to the benefit of the Borrower) and the following conditions are met:
|
|
(A)
|
the account is with the Security Trustee or, in relation to a Secured Document, the relevant Secured Party;
|
|
(B)
|
where the amount is being provided pursuant to paragraph (a) of Clause 21.2 (
Rectification
), withdrawals from the account may only be made pursuant to paragraph (b) of Clause 21.2 (
Rectification
) and in every other case, withdrawals from the account may only be made to pay the relevant Secured Parties amounts due and payable to them under that Secured Document in respect of the relevant contingent liability until no amount is or may become outstanding under that Secured Document; and
|
|
(C)
|
if the Security Trustee or the relevant Secured Parties requires, the Borrower has executed a security document over that account, in form and substance reasonably satisfactory to the Security Trustee or (as the case may be) the relevant Secured Party with which that account is held, creating a first ranking security interest over that account;
|
|
(iv)
|
any document being “
certified
” by the Borrower or to any “
certificate
” of the Borrower, means certification by a director, authorised officer, authorised signatory or (to the extent that he or she is authorised by the Borrower to give such certification) the company secretary of the Borrower;
|
|
(v)
|
“
documented
” in relation to costs and expenses, means the reasonable itemisation of such costs and expenses;
|
|
(vi)
|
the “
equivalent
” in any currency (the “
first currency
”) of any amount in another currency (the “
second
currency
”) shall be construed as a reference to the
|
|
|
amount in the first currency which could be purchased with that amount in the second currency at the Agent's spot rate of exchange for the purchase of the first currency with the second currency in the Singapore foreign exchange market at or about 11:00 a.m. on the applicable day (or at or about such time and on such date as the Agent may from time to time reasonably determine to be appropriate in the circumstances);
|
|
(vii)
|
“
including
” shall be construed as “including without limitation” (and cognate expressions shall be construed similarly);
|
|
(viii)
|
“
indebtedness
” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent;
|
|
(ix)
|
a Lender's “
participation
” in a Loan or Unpaid Sum includes an amount (in the currency of such Loan or Unpaid Sum) representing the fraction or portion (attributable to such Lender by virtue of the provisions of this Agreement) of the total amount of such Loan or Unpaid Sum and the Lender's rights under this Agreement in respect thereof;
|
|
(x)
|
a “
person
” includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality), or two or more of the foregoing;
|
|
(xi)
|
a “
regulation
” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
|
|
(xii)
|
the Borrower “
repaying
” or “
prepaying
” any guarantee, documentary credit facility or hedging facility means:
|
|
(A)
|
the Borrower providing cash cover for that facility;
|
|
(B)
|
the maximum amount payable under that facility being reduced or cancelled in accordance with its terms; or
|
|
(C)
|
the provider of that facility being reasonably satisfied that such facility has been released, cancelled, terminated or otherwise secured to its satisfaction and such provider has no further liability under that facility,
|
|
(xiii)
|
“
shares
” or “
share capital
” includes equivalent ownership interests (and “
shareholder
” and similar expressions shall be construed accordingly);
|
|
(xiv)
|
a “
Transaction Document
” or any other agreement or instrument is a reference to that Transaction Document or other agreement or instrument as amended, novated, supplemented, extended, restated (however fundamentally and whether or not more onerous, and in the case of the Development Agreement or the Head Lease, shall include any written approval or understanding received by the Borrower from the Head Lessor that has the practical effect of amending or varying the terms of the Development Agreement or the Head Lease) or replaced and includes any change in the purpose of, any extension of or any increase in any facility or the addition of any new facility under any Transaction Document or other agreement or instrument;
|
|
(xv)
|
a utilisation
made or to be made by the Borrower or borrowed by the Borrower under an Ancillary Facility, includes any guarantee, bond or letter of credit issued on its behalf under that Ancillary Facility;
|
|
(xvi)
|
an Ancillary Lender funding a utilisation under an Ancillary Facility includes an Ancillary Lender issuing a guarantee, bond or letter of credit under an Ancillary Facility;
|
|
(xvii)
|
amounts outstanding under this Agreement include amounts outstanding under any Ancillary Facility;
|
|
(xviii)
|
an outstanding amount of an Ancillary Facility at any time is the maximum amount that is or may be payable by the Borrower in respect of that Ancillary Facility at that time;
|
|
(xix)
|
a provision of law is a reference to that provision as amended or re-enacted; and
|
|
(xx)
|
a time of day is a reference to Singapore time.
|
(b)
|
Section, Clause and Schedule headings are for ease of reference only.
|
(c)
|
Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
|
(d)
|
A Default (including an Event of Default) is “
continuing
” if it has not been remedied or waived.
|
1.3
|
Third party rights
|
(a)
|
Unless expressly provided to the contrary in this Agreement, a person who is not a Party has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce or to enjoy the benefit of any term of this Agreement.
|
(b)
|
Notwithstanding any term of this Agreement, the consent of any person who is not a Party is not required for any variation (including any release or compromise of any liability under) or termination of this Agreement at any time.
|
1.4
|
Eligible Lender
|
2.
|
The Facilities
|
2.1
|
The Facilities
|
|
(a)
|
the Facility A Lenders make available to the Borrower a term loan facility in Singapore Dollars in an aggregate amount equal to the Total Facility A Commitments;
|
|
(b)
|
the Facility B Lenders make available to the Borrower a revolving credit facility in Singapore Dollars in an aggregate amount equal to the Total Facility B Commitments (parts of which may, from time to time and in an aggregate amount at any time up to the Total Ancillary Limit, be designated as Ancillary Facilities); and
|
|
(c)
|
(subject to Clause 2.3 (
Accordion Feature – Increase in Facility C
)) the Facility C Lenders make available to the Borrower a term loan facility in Singapore Dollars in an aggregate amount equal to the Total Facility C Commitments.
|
2.2
|
Finance Parties' rights and obligations
|
(a)
|
The obligations of the Finance Parties under the Finance Documents are several. Failure by a Finance Party to perform its obligations under the Finance Documents does not affect the obligations of any other Party under the Finance Documents. No Finance Party is responsible for the obligations of any other Finance Party under the Finance Documents.
|
(b)
|
The rights of the Finance Parties under or in connection with the Finance Documents are separate and independent rights and any debt arising under the Finance Documents to a Finance Party from an Obligor shall be a separate and independent debt.
|
(c)
|
A Finance Party may, except as otherwise stated in the Finance Documents, separately enforce its rights under the Finance Documents.
|
2.3
|
Accordion Feature – Increase in Facility C
|
(a)
|
Subject to this Clause 2.3, during the Accordion Period, the Borrower may by written notice to the Agent request that the Total Facility C Commitments be increased (and the Total Facility C Commitments shall be so increased) as follows:
|
|
(i)
|
the increased Facility C Commitments will be assumed by:
|
|
(A)
|
one or more Lenders; or
|
|
(B)
|
any other person which is an Eligible Lender,
|
|
(ii)
|
that Increase Lender shall become a Party as a “Facility C Lender” and:
|
|
(A)
|
each of the Obligors and that Increase Lender shall assume obligations towards one another and/or acquire rights against one another; and
|
|
(B)
|
each of the other Finance Parties and that Increase Lender shall assume obligations towards one another and acquire rights against one another,
|
|
(iii)
|
the Commitments of the other Lenders then subsisting shall continue in full force and effect;
|
|
(iv)
|
any increase in the Total Facility C Commitments shall take effect on the date specified by the Borrower in the Increase Confirmation or any later date on which the conditions set out in paragraph (b) below are satisfied (the “
Establishment Date
”);
|
|
(v)
|
any such increase constituting Available Facility in respect of Facility C shall be available for drawing by the Borrower for the period from and including its Establishment Date to and including the date which is 60 days after that date in accordance with this Agreement, and any part of that Available Facility which is undrawn at the close of business in Singapore on the last day of that period shall be automatically cancelled;
|
|
(vi)
|
(A) the Margin applicable to any Facility C Loan borrowed (or to be borrowed) under any such increase shall be the applicable percentage(s) per annum and (B) the fees applicable to any Facility C Loan borrowed (or to be borrowed) under any such increase shall be the applicable amount(s) or percentage(s), in each case as agreed between the Borrower and the relevant Increase Lenders to which that Loan relates, as set out in the relevant Increase Confirmation;
|
|
(vii)
|
the repayment schedule applicable to any Facility C Loan borrowed (or to be borrowed) under any such increase shall be as agreed between the Borrower and the relevant Increase Lenders to which that Loan relates, as set out in the relevant Increase Confirmation provided that such repayment schedule shall comply with Clause 7.3 (
Repayment of Facility C Loans
);
|
|
(viii)
|
(to the extent different from those contained in the Finance Documents) the terms relating to mandatory prepayment applicable to any Facility C Loan borrowed (or to be borrowed) under any such increase shall be as agreed between the Borrower and the relevant Increase Lenders to which that Loan relates, as set out in the relevant Increase Confirmation provided that those terms shall not be more
|
|
|
favourable to the relevant Increase Lenders than those for the benefit of the Facility A Lenders as contained in the Finance Documents); and
|
|
(ix)
|
each Increase Confirmation
may, without the consent of any Lender (other than the Increase Lenders to which that Increase Confirmation relates), effect such amendments to this Agreement and the other Finance Documents:
|
|
(A)
|
which are of a technical nature; or
|
|
(B)
|
which do not directly affect any Lender (other than the Increase Lenders to which that Increase Confirmation relates),
|
(b)
|
An increase in the Total Facility C Commitments will only be effective on:
|
|
(i)
|
the receipt by the Agent of a certificate signed by a director or chief financial officer of the Borrower and each Guarantor, certifying that such increase shall not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded;
|
|
(ii)
|
the execution by the Agent and the Borrower of an Increase Confirmation from the relevant Increase Lender in compliance with the provisions of this Agreement (including, without limitation, Clause 7.3 (
Repayment of Facility C Loans
)); and
|
|
(iii)
|
in relation to an Increase Lender which is not a Lender immediately prior to the relevant increase:
|
|
(A)
|
the Increase Lender entering into the documentation required for it to accede as a party to the Intercreditor Agreement; and
|
|
(B)
|
the performance by the Agent of all necessary “know your customer” or other similar checks under all applicable laws and regulations in relation to the assumption of the increased Facility C Commitments by that Increase Lender, the completion of which the Agent shall promptly notify to the Borrower and the Increase Lender,
|
(c)
|
The Total Facility C Commitments shall not, at any time, exceed S$1,000,000,000 (or its equivalent in another currency or currencies).
|
(d)
|
An increase in the Total Facility C Commitments under this Clause 2.3 may only take place when the Available Facility in respect of Facility C is, at that time, zero.
|
(e)
|
Each Increase Lender, by executing the Increase Confirmation, confirms (for the avoidance of doubt) that the Agent has authority to execute on its behalf any amendment or waiver that has been approved by or on behalf of the requisite Lender or Lenders in
|
|
accordance with this Agreement on or prior to the date on which the increase becomes effective.
|
(f)
|
Clause 24.4 (
Limitation of responsibility of Existing Lenders
) shall apply
mutatis mutandis
in this Clause 2.3 in relation to an Increase Lender as if references in that Clause to:
|
|
(i)
|
an “
Existing Lender
” were references to all the Lenders immediately prior to the relevant increase;
|
(ii)
|
the “
New Lender
” were references to that “
Increase Lender
”; and
|
(iii)
|
a “
re-transfer
” were references to respectively a “
transfer
”.
|
(g)
|
For the avoidance of doubt, the existing Lenders may (but shall not be obliged to) participate in any increase in the Total Facility C Commitments under this Clause 2.3
.
|
2.4
|
Non-Funding Lender
|
(a)
|
A Non-Funding Lender (for as long it is a Non-Funding Lender) shall not be entitled to:
|
|
(i)
|
receive any commitment fee under Clause 12.1 (
Commitment fee
) in respect of its Available Commitment under Facility B for any day on which it is a Non-Funding Lender; or
|
|
(ii)
|
vote as a Lender, a Finance Party or a Secured Party for the purposes of the Finance Documents and shall not be polled (or its interests taken into consideration) by the Agent or the Security Trustee, and its vote shall instead be exercised by the other Lenders on a
pro rata
basis (except, in relation to its participation in any outstanding Loans, an amendment or waiver described in paragraphs (a)(iii), (a)(iv), (a)(v) or (a)(vii) of Clause 36.2 (
Exceptions
))
until
:
|
|
(A)
|
that Non-Funding Lender makes available its Non-Funding Lender Amount to the Borrower (which shall be promptly accepted by the Borrower); or
|
|
(B)
|
another Lender or Lenders agree to accept a transfer of the Non-Funding Lender Amount pursuant to Clause 8.11 (
Right of replacement of a single Lender
).
|
(b)
|
Subject to the provisions of the Intercreditor Agreement, any payment of principal, interest, fees or other amounts received by the Agent for the account of a Non-Funding Lender (for as long as it is a Non-Funding Lender) other than pursuant to Clause 23.17 (
Acceleration
), shall be applied at such time or times as may be reasonably determined by the Agent in the following order:
|
|
(i)
|
first
, in or towards payment of any unpaid fees, costs and expenses of any Administrative Party under the Finance Documents;
|
|
(ii)
|
second
, where no Event of Default is continuing, if requested by the Borrower, to make available any Loan or any participation in any Utilisation in respect of which that Non-Funding Lender has failed to make available its portion thereof as required by this Agreement;
|
|
(iii)
|
third
, if so agreed by the Agent and the Borrower, to be held in a non-interest bearing deposit account and released in order to satisfy obligations of that Non-Funding Lender to make available any future Loans or participation in any Utilisation under this Agreement;
|
|
(iv)
|
fourth
, to the payment of any amounts owing to the Lenders (other than a Non-Funding Lender);
|
|
(v)
|
fifth
, where no Event of Default is continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against that Non-Funding Lender as a result of that Non-Funding Lender’s breach of its obligations under this Agreement; and
|
|
(vi)
|
sixth
, to that Non-Funding Lender or as otherwise directed by a court of competent jurisdiction,
|
|
(A)
|
such payment is a repayment of the principal amount of any Loan in respect of which that Non-Funding Lender has not funded all or any part of its appropriate participation; and
|
|
(B)
|
such Loan was made when the conditions set out in Clause 4 (
Conditions of Utilisation
) have been satisfied or waived,
|
(c)
|
Nothing in this Clause 2.4 shall affect any other obligations of the Borrower to the Finance Parties (or any of them) under the Finance Documents.
|
(d)
|
The rights and remedies of the Borrower against a Non-Funding Lender under this Clause 2.4 are in addition to any other rights or remedies that the Borrower may have against that Non-Funding Lender with respect to its Non-Funding Lender Amount.
|
2.5
|
Borrower as Obligors' agent
|
|
(a)
|
irrevocably authorises the Borrower to act on its behalf as its agent in relation to the Finance Documents, including:
|
|
(i)
|
to give and receive as agent on its behalf all notices, consents and instructions;
|
|
(ii)
|
to sign on its behalf all documents in connection with the Finance Documents (including amendments and variations of and consents under any Finance Documents, and to execute any new Finance Documents); and
|
|
(iii)
|
to take such other action as may be necessary or desirable under or in connection with the Finance Documents; and
|
|
(b)
|
confirms that it will be bound by any action taken by the Borrower under or in connection with the Finance Documents.
|
2.6
|
Acts of Borrower
|
(a)
|
The respective liabilities of each of the Obligors under the Finance Documents shall not be in any way affected by:
|
|
(i)
|
any actual or purported irregularity in any act done, or failure to act, by the Borrower;
|
|
(ii)
|
the Borrower acting (or purporting to act) in any respect outside any authority conferred upon it by any Obligor; or
|
|
(iii)
|
any actual or purported failure by or inability of the Borrower to inform any Obligor of receipt by it of any notification under the Finance Documents.
|
(b)
|
In the event of any conflict between any notices or other communications of the Borrower and any other Obligor, those of the Borrower shall prevail.
|
3.
|
Purpose
|
3.1
|
Purpose
|
(a)
|
The Borrower shall apply all amounts borrowed by it under the Facilities towards:
|
|
(i)
|
refinancing the Existing Facilities (including payment of fees and expenses in connection therewith);
|
|
(ii)
|
financing costs, fees and expenses (and Taxes on them) and stamp duty, registration and other similar Taxes incurred by the Borrower in connection with the provision of the Facilities;
|
|
(iii)
|
financing the general corporate and working capital purposes of the Borrower Group, including the financing of investments and loans to the extent permitted under Clause 22.7 (
Loans and guarantees
) or Clause 22.15 (
Acquisitions and investments
);
|
|
(iv)
|
financing the payment of dividends, distributions and other payments permitted under Clause 22.13 (
Restricted payments
); and/or
|
|
(v)
|
(in the case of Facility B) refinancing any then maturing Facility B Loan as contemplated by the definition of “Facility B Rollover Loan”.
|
(b)
|
The Borrower may not apply amounts borrowed by it under the Facilities towards financing any of the purposes set out in sub-paragraphs (a)(ii) to (a)(v) above unless the Agent has received evidence in form and substance reasonably satisfactory to it that all present and future moneys, debts and liabilities due, owing or incurred by the Borrower under or in connection with the Existing Facilities have been fully paid or discharged.
|
(c)
|
No amount borrowed under the Facilities or the Ancillary Facilities shall be applied:
|
|
(i)
|
towards refinancing any Permitted FF&E Indebtedness;
|
|
(ii)
|
towards refinancing any Permitted Aircraft/Watercraft Indebtedness; or
|
|
(iii)
|
in any manner that may be illegal or contravene any applicable law or regulation in any relevant jurisdiction concerning financial assistance by a company for the acquisition of or subscription for shares.
|
3.2
|
Monitoring
|
4.
|
Conditions of Utilisation
|
4.1
|
Initial conditions precedent
|
4.2
|
Further conditions precedent
|
|
(a)
|
on the date of the Utilisation Request and on the proposed Utilisation Date:
|
|
(i)
|
in the case of a Facility B Rollover Loan, no Rollover Termination Event has occurred; and
|
|
(ii)
|
in the case of any other Loan, no Default is continuing or would reasonably be expected to result from the proposed Loan;
|
|
(b)
|
on the date of the Utilisation Request and on the proposed Utilisation Date of a Loan other than a Facility B Rollover Loan, the Repeating Representations are true in all material respects;
|
|
(c)
|
on the first Utilisation Date:
|
|
(i)
|
the Borrower delivers (or procures that the Existing Facilities Agent delivers)
the following documents to the Agent:
|
|
(A)
|
the original Development Agreement and the original Supplemental Agreement, each duly executed by the parties to it;
|
|
(B)
|
the notices of charge or assignment signed by the Borrower, all as required by the Assignment of Insurances, the Assignment of Proceeds and the Debenture; and
|
|
(C)
|
the notice signed by the Borrower and the acknowledgement of such notice signed by the Head Lessor, as required by the Assignment of Development Agreement; and
|
|
(ii)
|
the Agent receives evidence reasonably satisfactory to it that the Existing Facilities Security will be unconditionally discharged and released by the close of business in Singapore on the first Utilisation Date
;
|
|
(d)
|
on the proposed Utilisation Date of a Facility C Loan, the aggregate of:
|
(i)
|
the principal amount of that proposed Facility C Loan;
|
(ii)
|
all other Facility C Loans then outstanding; and
|
|
(iii)
|
all Incremental Indebtedness then outstanding,
|
|
(e)
|
on the proposed Utilisation Date of a Facility C Loan, the ratio of:
|
(i)
|
the aggregate of:
|
|
(A)
|
the Debt as of the last Relevant Date falling on or before that proposed Utilisation Date; and
|
|
(B)
|
the principal amount of that proposed Facility C Loan,
|
|
(ii)
|
the Consolidated Adjusted EBITDA for the Relevant Period ending on the Relevant Date described in paragraph (e)(i)(A) above,
|
is:
|
|
|
(1)
|
(in the case where that proposed Utilisation Date falls on or before 30 September 2019) less than or equal to 3.50 to 1; and
|
|
(2)
|
(in the case where that proposed Utilisation Date falls after 30 September 2019) less than or equal to 3.00 to 1,
|
4.3
|
Maximum number of Loans
|
(a)
|
The Borrower may not deliver a Utilisation Request if as a result of the proposed Loan:
|
|
(i)
|
more than five Facility A Loans would be outstanding;
|
|
(ii)
|
more than 15
Facility B Loans would be outstanding; or
|
|
(iii)
|
more than five Facility C Loans would be outstanding.
|
(b)
|
The Borrower may not request that a Facility A Loan be divided if, as a result of the proposed division, more than five Facility A Loans would be outstanding.
|
(c)
|
The Borrower may not request that a Facility C Loan be divided if, as a result of the proposed division, more than five Facility C Loans would be outstanding.
|
5.
|
Utilisation – Loans
|
5.1
|
Delivery of a Utilisation Request
|
|
(a)
|
an original duly completed Utilisation Request not later than the Specified Time (or such later time as the Agent (acting on the instructions of all Lenders participating in the relevant Loan) may agree); or
|
|
(b)
|
(i) a scanned copy of a duly completed Utilisation Request by email and followed by (ii) the original duly completed Utilisation Request (or a fax copy of the duly completed Utilisation Request), in each case, not later than the respective Specified Times (or such later time as the Agent (acting on the instructions of all Lenders participating in the relevant Loan) may agree).
|
5.2
|
Completion of a Utilisation Request
|
(a)
|
Each Utilisation Request for a Loan is irrevocable and will not be regarded as having been duly completed unless:
|
|
(i)
|
it specifies that it is for a Loan;
|
(ii)
|
it identifies the Facility to be utilised;
|
(iii)
|
it identifies the purpose of the Loan;
|
|
(iv)
|
the proposed Utilisation Date is a Business Day within the Availability Period applicable to that Facility;
|
|
(v)
|
the currency and amount of the Loan comply with Clause 5.3 (
Currency and amount
);
|
|
(vi)
|
the proposed Interest Period complies with Clause
10 (
Interest
Periods
)
; and
|
|
(vii)
|
it specifies the manner in which the proceeds of the Loan are to be credited.
|
(b)
|
Only one Loan may be requested in each Utilisation Request.
|
5.3
|
Currency and amount
|
(a)
|
The currency specified in a Utilisation Request must be Singapore Dollars.
|
(b)
|
The amount of the proposed Loan must be:
|
|
(i)
|
a minimum of S$500,000,000 for Facility A, a minimum of S$10,000,000 for Facility B, a minimum of S$200,000,000 for Facility C or, in each case, if less, the Available Facility; and
|
|
(ii)
|
in any event such that it is less than or equal to the Available Facility.
|
5.4
|
Lenders' participations
|
(a)
|
If the conditions set out in this Agreement have been met, each Lender participating in a Facility shall make its participation in each Loan under that Facility available to the Agent by the Utilisation Date through its Facility Office.
|
(b)
|
The amount of each Lender's participation in each Loan will be equal to the proportion borne by its Available Commitment to the Available Facility immediately prior to making the Loan.
|
(c)
|
The Agent shall by the Specified Time notify:
|
|
(i)
|
each Facility A Lender of the amount of each Facility A Loan and the amount of its participation in that Loan;
|
|
(ii)
|
each Facility B Lender of the amount of each Facility B Loan and the amount of its participation in that Loan; and
|
|
(iii)
|
each Facility C Lender of the amount of each Facility C Loan and the amount of its participation in that Loan.
|
6.
|
Ancillary Facilities
|
6.1
|
Establishment of Ancillary Facilities
|
6.2
|
Types of Ancillary Facility
|
|
(a)
|
an overdraft facility;
|
|
(b)
|
guarantee, documentary letter of credit (including standby and commercial letters of credit) or trust receipt facilities; and
|
|
(c)
|
such other documentary credit facilities as may be required and as the Agent and the relevant Ancillary Lender may agree.
|
6.3
|
Request for Ancillary Facilities
|
(a)
|
The Borrower may request the establishment of an Ancillary Facility by delivery to the Agent of a duly completed Ancillary Facility Request at any time.
|
(b)
|
An Ancillary Facility Request relating to a proposed Ancillary Facility will not be regarded as duly completed unless it identifies:
|
|
(i)
|
the Ancillary Lender (which must be a Designated Facility B Lender) which is to make available that Ancillary Facility;
|
|
(ii)
|
the type or types of facility to comprise that Ancillary Facility (which must comply with Clause 6.2 (
Types of Ancillary Facility
));
|
|
(iii)
|
the date (the “
Commencement Date
”) on which that Ancillary Facility is to become available (which must be a date on which the Facility B is available to be drawn and must not be less than five Business Days after the date on which the Agent receives the Ancillary Facility Request);
|
|
(iv)
|
the expiry date of that Ancillary Facility (which must fall on or before the Facility B Termination Date);
|
|
(v)
|
the amount of the Ancillary Commitment (which must be denominated in the Base Currency) which is to apply to that Ancillary Facility;
|
|
(vi)
|
the currency or currencies (which must comply with paragraph (c) of this Clause 6.3) in which utilisations under that Ancillary Facility may be requested;
|
|
(vii)
|
the margin, commitment fee and other fees payable in respect of that Ancillary Facility; and
|
|
(viii)
|
such other details in relation to that Ancillary Facility as the Agent may reasonably require.
|
(c)
|
An Ancillary Facility shall only be available for utilisation in the Base Currency or a currency which:
|
|
(i)
|
is readily available in the amount required and freely convertible into the Base Currency in the Singapore interbank market on the date for utilisation of that Ancillary Facility; and
|
|
(ii)
|
is US Dollars, Hong Kong Dollars or has been approved by the relevant Designated Facility B Lender on or prior to receipt by the Agent of the Ancillary Facility Request for that Ancillary Facility.
|
(d)
|
The Agent shall, promptly after receipt by it of an Ancillary Facility Request, notify each Designated Facility B Lender of that Ancillary Facility Request.
|
6.4
|
Grant of Ancillary Facility
|
|
(a)
|
the proposed Ancillary Commitment under that Ancillary Facility is equal to or less than the Available Commitment of that Designated Facility B Lender under Facility B on that Commencement Date;
|
|
(b)
|
the proposed Ancillary Commitment under that Ancillary Facility will not, when aggregated with the Ancillary Commitments under all other Ancillary Facilities in effect on that Commencement Date, exceed the Total Ancillary Limit;
|
|
(c)
|
that Ancillary Facility complies with the internal credit policies and guidelines of the proposed Ancillary Lender, in which case the proposed Ancillary Lender shall notify the Borrower and the Agent promptly upon such internal credit policies and guidelines being satisfied
; and
|
|
(d)
|
the Agent has received (save for those which have been waived by the Agent in accordance with this Agreement) all the documents and other evidence listed in
Part I of Schedule 2 (
Conditions Precedent to Initial Utilisation
) in form and substance reasonably satisfactory to the Agent
.
|
6.5
|
Adjustments to Facility B Commitment
|
(a)
|
The Facility B Commitment of a Designated Facility B Lender which is an Ancillary Lender shall be reduced by the amount of its Ancillary Commitments upon the Agent being satisfied that the conditions in Clause 6.4 (
Grant of Ancillary Facility
) have been met.
|
(b)
|
If and to the extent:
|
|
(i)
|
any Ancillary Facility expires, or is cancelled (in whole or in part) in accordance with Clause 6.8 (
Voluntary cancellation of Ancillary Facilities
); and
|
|
(ii)
|
no amount is or may be payable to or by the Ancillary Lender in respect of that Ancillary Facility (or the relevant part or it),
|
6.6
|
Terms of Ancillary Facilities
|
(a)
|
The terms applicable to each Ancillary Facility shall be as agreed between the relevant Ancillary Lender and the Borrower (as set out in the applicable Ancillary Facility Document), provided that:
|
|
(i)
|
those terms shall be consistent with this Clause 6 and the details set out in the Ancillary Facility Request;
|
|
(ii)
|
utilisations under an Ancillary Facility shall be used only for the purposes set out in paragraph
(a) of Clause 3.1 (
Purpose
);
|
|
(iii)
|
the rate of interest, fees and other remuneration in respect of the Ancillary Facility shall be based upon the normal market rates and terms from time to time of that Ancillary Lender, provided that:
|
|
(A)
|
the rates of any commitment fees shall not exceed the rates set out in Clause 12.1 (
Commitment fee
); and
|
|
(B)
|
the rates of interest, other fees and other remuneration shall not exceed the rates set out in the Ancillary Facility Letter; and
|
|
(iv)
|
cancellation, termination or enforcement of the Ancillary Facility shall only occur as described in Clause 6.8 (
Voluntary cancellation of Ancillary Facilities
), Clause 7.4 (
Repayment of Ancillary Facilities
), Clause 8.2 (
Change of control
) or Clause 23.17 (
Acceleration
).
|
(b)
|
Any material variation to any Ancillary Facility (including any proposed increase or reduction in the Ancillary Commitment) shall be in accordance with and subject to this Clause 6.
|
(c)
|
In the case of any inconsistency between any term of an Ancillary Facility and of this Agreement, this Agreement shall prevail.
|
6.7
|
Limits on Ancillary Facilities
|
|
(a)
|
the aggregate of all Ancillary Commitments does not at any time exceed the Total Ancillary Limit; and
|
|
(b)
|
the Ancillary Outstandings under any Ancillary Facility do not at any time exceed the Ancillary Commitment under that Ancillary Facility.
|
6.8
|
Voluntary cancellation of Ancillary Facilities
|
6.9
|
Notice in respect of Ancillary Facilities
|
(a)
|
Each Ancillary Lender shall promptly notify the Agent of:
|
|
(i)
|
the establishment by it of any Ancillary Facility and the applicable Commencement Date;
|
|
(ii)
|
the amount of any Ancillary Facility which is cancelled or expires and the date of any such cancellation or expiry; and
|
|
(iii)
|
any other information relating to any Ancillary Facility provided by it as the Agent may reasonably request, including the Ancillary Outstandings from time to time.
|
(b)
|
The Agent may assume, unless it has received notice to the contrary in its capacity as agent for the Lenders, that no Ancillary Facility has expired or been cancelled in whole or part.
|
(c)
|
The Borrower consents to all information described in paragraph (a) above being disclosed to the Finance Parties.
|
6.10
|
Ancillary Outstandings
|
7.
|
Repayment
|
7.1
|
Repayment of Facility A Loans
|
(a)
|
The Borrower shall repay the aggregate Facility A Loans in instalments by repaying on each Facility A Repayment Date an amount which reduces the outstanding aggregate Facility A Loans by an amount equal to the relevant percentage of all the Facility A Loans
|
|
borrowed by the Borrower as at the close of business in Singapore on the last day of the Availability Period in relation to Facility A as set out in Schedule 9 (
Repayment Schedule For Facility A Loans
).
|
(b)
|
If, in relation to a Facility A Repayment Date, the aggregate amount of the Facility A Loans made to the Borrower exceeds the Facility A Repayment Instalment to be repaid by the Borrower, the Borrower may, if it gives the Agent not less than five Business Days’ prior notice, select which of those Facility A Loans will be wholly or partially repaid so that the Facility A Repayment Instalment is repaid on the relevant Facility A Repayment Date in full. The Borrower may not make a selection if as a result more than one Facility A Loan will be partially repaid.
|
(c)
|
If the amount of the Facility A Loans outstanding on any Facility A Repayment Date is less than the Facility A Repayment Instalment due on that date, the Borrower shall repay the remaining outstanding Facility A Loans on that date. If on the Facility A Termination Date, any Facility A Loan remains outstanding, the Borrower shall repay it on that date.
|
(d)
|
The Borrower may not reborrow any part of Facility A which is repaid.
|
7.2
|
Repayment of Facility B Loans
|
(a)
|
The Borrower shall repay each Facility B Loan on the last day of its Interest Period.
|
(b)
|
Any Facility B Loan remaining outstanding on the Facility B Termination Date shall be repaid on that date.
|
7.3
|
Repayment of Facility C Loans
|
(a)
|
Subject to paragraph (b) below, the Borrower shall repay each Facility C Loan in accordance with the repayment schedule, and as may be amended or extended from time to time,
applicable to that Facility C Loan, in each case, as agreed between the Borrower and the relevant Increase Lenders to which that Loan relates (and without the consent of any other Lender), as set out in the relevant Increase Confirmation.
|
(b)
|
The repayment schedule applicable to each Facility C Loan shall be such that:
|
|
(i)
|
the principal amortisation of the Facility C Loan shall not be as favourable or more favourable to the applicable Facility C Lenders than that of the Facility A Loans in respect of the Facility A Lenders (without taking into account any extension of the Facility A Termination Date);
|
|
(ii)
|
at all times, the then remaining average weighted life (taking into account the effect of any prepayment) of that Facility C Loan is longer than the then remaining average weighted life (taking into account the effect of any prepayment) of Facility A and Facility B taken as a whole (but without taking into account any extension of the Facility A Termination Date or the Facility B Termination Date); and
|
|
(iii)
|
the final scheduled repayment date of that Facility C Loan extends beyond the
|
|
|
Facility A Termination Date (without taking into account any extension of the Facility A Termination Date).
|
(c)
|
Any Facility C Loan remaining outstanding on the Facility C Longstop Termination Date shall be repaid on that date.
|
(d)
|
The Borrower may not reborrow any part of Facility C which is repaid.
|
(e)
|
In connection with any extension of a Facility C Loan under this Clause 7.3, the Borrower and the relevant Increase Lenders to which that Loan relates may (without the consent of any other Lender) agree to a revised Margin for that Loan.
|
(f)
|
In connection with any extension of a Facility C Loan under this Clause 7.3, the Borrower and the relevant Increase Lenders to which that Loan relates may (without the consent of any other Lender) agree to any extension fees and other amounts payable to those Increase Lenders in connection with such extension.
|
7.4
|
Repayment of Ancillary Facilities
|
7.5
|
Extension Option
|
(a)
|
In this
Clause 7.5
, “
Extending Lenders
” means in relation to a Facility (other than Facility C), the Lenders participating in that Facility which have agreed to extend the Termination Date of that Facility in accordance with this Clause
7.5
.
|
(b)
|
If:
|
|
(i)
|
the Borrower requests that the Termination Date of a Facility
(other than Facility C)
be extended by notice received by the Agent not more than 12 Months (nor less than one Month) before the Termination Date of that Facility, such notice to include:
|
|
(A)
|
the proposed extension period for that Facility (the “
Extension Period
”); and
|
|
(B)
|
such other information as the Agent may reasonably require; and
|
|
(ii)
|
the Agent notifies the Borrower that the Extending Lenders for that Facility have agreed to that request,
|
(c)
|
The Agent shall promptly notify each Lender of any such request.
|
(d)
|
Each Lender participating in the relevant Facility (other than Facility C) shall notify the Agent of its decision (which shall be in its sole discretion) whether or not to agree to the request for extension, within 20 Business Days from the date on which the Agent first notified that Lender of that request.
|
(e)
|
The Agent shall promptly notify the Borrower of each Extending Lender that has agreed to the request.
|
(f)
|
There may only be up to two extensions of each Termination Date (other than the Facility C Longstop Termination Date).
|
(g)
|
The Facility A Termination Date may not be extended beyond 30 August 2030
.
|
(h)
|
The Facility B Termination Date may not be extended beyond 28 February 2030.
|
(i)
|
In connection with any extension of a Facility (other than Facility C) under this Clause
7.5
, the Borrower and the relevant Extending Lenders may (without the consent of any other Lender) agree to a revised Margin for that Facility provided that the revised Margin for that Facility shall be applicable to those Extending Lenders only such that:
|
|
(i)
|
the rate of interest on each Extending Lender’s participation in the Loans under that Facility shall be the percentage rate per annum which is the sum of:
|
|
(A)
|
the revised Margin; and
|
|
(B)
|
the applicable SWAP Rate; and
|
|
(ii)
|
the rate of interest on each other Lender’s participation in the Loans under that Facility shall not be affected and shall be computed in accordance with the terms of this Agreement without giving effect to such revision.
|
(j)
|
Any revision in the applicable Margin pursuant to paragraph (i) above shall take effect and be binding on all Parties in accordance with their terms and, for the avoidance of doubt, may take effect before the Termination Date of the relevant Facility (but for the extension).
|
(k)
|
In relation to any Lender which did not agree to an extension of the Termination Date of a Facility (other than Facility C) under this Clause 7.5, the Borrower shall repay that Lender's participation in the Loans under that Facility, together with accrued interest and all other amounts accrued to that Lender under the Finance Documents on the date(s) which, but for such extension, would be the date(s) on which that repayment is due.
|
(l)
|
In connection with any extension of a Facility under this Clause 7.5, the Borrower and the relevant Extending Lenders may (without the consent of any other Lender) agree to extension fees and other amounts payable to the Extending Lenders in connection with such extension.
|
(m)
|
For the avoidance of doubt, neither the Facility C Longstop Termination Date nor (without prejudice to anything in paragraph (a) of Clause 7.3 (
Repayment of Facility C Loans
)) the life of Facility C may be extended by this Clause 7.5.
|
8.
|
Prepayment and cancellation
|
8.1
|
Illegality
|
|
(a)
|
that Lender or, as the case may be, Ancillary Lender shall promptly notify the Agent upon becoming aware of that event; and
|
|
(b)
|
upon the Agent notifying the Borrower that it has become unlawful for that Lender or, as the case may be, that Ancillary Lender to perform any of its obligations as contemplated by this Agreement or to fund its participation in any Loan or, in the case of an Ancillary Lender, any utilisation under any Ancillary Facility, the Commitment of that Lender or, as the case may be, the commitment of that Ancillary Lender under that Ancillary Facility will be immediately cancelled and:
|
|
(i)
|
the Borrower shall repay that Lender's participation in the Loans on the last day of the Interest Period for each Loan occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law); and
|
|
(ii)
|
the Borrower shall repay each amount payable or, as the case may be, provide full cash cover in respect of each contingent liability under each Ancillary Facility of that Ancillary Lender on the next due date occurring after the Agent has notified the Borrower or, if earlier, the date specified by the Ancillary Lender in the notice delivered to the Agent (being no earlier than the last day of any applicable grace period permitted by law).
|
8.2
|
Change of control
|
(a)
|
In this Clause 8.2, a “
Change of Control
” will occur if:
|
|
(i)
|
the Sponsor does not or ceases to beneficially own, directly or indirectly, at least 51 per cent. of the share capital of the Borrower;
|
|
(ii)
|
the Sponsor does not or ceases to have the right to, directly or indirectly, determine the composition of the majority of the board of directors or equivalent body of the Borrower;
|
|
(iii)
|
the Sponsor does not or ceases to have power to, directly or indirectly, manage or direct the Borrower through ownership of share capital, by contract or otherwise; or
|
|
(iv)
|
any Security (except pursuant to paragraph (p) of the definition of “Permitted Security” or where created in favour of the Finance Parties or the Secured Parties)
|
|
|
has been created or subsists or is created or is permitted to subsist over any shares in the issued share capital of the Borrower or any other member of the Borrower Group in each case, where such shares are beneficially owned, directly or indirectly by the Sponsor, and such Security is not fully released or discharged within five Business Days of the earlier of (i) any Obligor becoming aware of such Security and (ii) the Agent or any Lender giving notice to the Borrower of such Security.
|
(b)
|
If a Change of Control occurs:
|
|
(i)
|
the Borrower shall promptly notify the Agent immediately upon becoming aware of that event;
|
|
(ii)
|
the Borrower may not utilise a Loan or utilise an Ancillary Facility; and
|
|
(iii)
|
the Facilities shall immediately be cancelled all outstanding Loans and Ancillary Outstandings, together with accrued interest, and all other amounts accrued under the Finance Documents shall become immediately due and payable, and full cash cover in respect of each contingent liability under each Ancillary Facility shall become immediately due and payable.
|
8.3
|
Automatic cancellation
|
8.4
|
Voluntary cancellation
|
8.5
|
Mandatory prepayment from Net Sale Proceeds
|
(a)
|
In this Clause 8.5:
|
|
“
Exempt Disposal
” means any sale by a member of the Borrower Group of any asset where:
|
|
(i)
|
no Default is continuing on the date of, nor has resulted from, the completion of such sale; and
|
|
(ii)
|
the ratio of Debt as of the last Relevant Date falling on or before the
|
|
|
completion date of such sale to Proforma Consolidated Adjusted EBITDA for the Relevant Period ending on that Relevant Date is:
|
|
(A)
|
(in the case where the completion date of such sale occurred on or before 30 September 2019) less than or equal to 3.50 to 1; and
|
|
(B)
|
(in the case where the completion date of such sale occurred after 30 September 2019) less than or equal to 3.00 to 1,
|
|
“
Relevant Net Sale Proceeds
” means the Net Sale Proceeds required to be paid into the Prepayment Account for application in accordance with the Intercreditor Agreement under paragraph (b) below.
|
(b)
|
Subject to this Clause 8.5 (including for the avoidance of doubt paragraph (c) below), the Borrower shall ensure that at least 25 per cent. of the Net Sale Proceeds are paid directly into (or as soon as reasonably practicable after receipt are transferred into) the Prepayment Account for application in accordance with the Intercreditor Agreement.
|
(c)
|
Paragraph (b) above does not apply to any Net Sale Proceeds to the extent that:
|
|
(i)
|
the Net Sale Proceeds relate to the sale of any asset falling within the description of paragraphs (b)(i) to (b)(vii) (other than (b)(v)) or (c)(i) to (c)(xxi) (other than (c)(iii), (c)(iv), (c)(xiii) and (c)(xix)) of Clause 22.5 (
Disposals
);
|
|
(ii)
|
the Net Sale Proceeds relate to the sale of any asset, and within five Business Days of the receipt of the relevant Net Sale Proceeds by the relevant member of the Borrower Group, the Borrower certifies to the Agent that it intends to use those proceeds (and such proceeds are so utilised) within 12 Months of receipt to purchase additional assets to be used by the Borrower or any of its Restricted Subsidiaries for the purposes of its business (it being understood that such Net Sale Proceeds shall remain deposited in the Prepayment Account pending such purchase);
|
|
(iii)
|
the Net Sale Proceeds relate to the sale of any asset which is an Exempt Disposal provided that where the sale of any asset would have been an Exempt Disposal but for any non-compliance with the applicable ratio set out in paragraph (ii) of the definition of “Exempt Disposal”, the Borrower shall only be required to pay such part of the Net Sale Proceeds into the Prepayment Account in accordance with paragraph (b) above in an amount sufficient to ensure compliance with the relevant ratio (on the basis that any such payment shall be deemed, for the purpose of this paragraph (c)(iii), to have been applied towards the repayment or prepayment of the Senior Liabilities and the other liabilities in accordance with the Intercreditor Agreement on the last Relevant Date falling on or before the completion date of such sale). For the
|
|
|
avoidance of doubt, any part of the Net Sale Proceeds required to be paid into the Prepayment Account to ensure compliance with the relevant ratio pursuant to this paragraph (c)(iii) may be more than 25 per cent. of those Net Sale Proceeds as specified in paragraph (b) above; or
|
|
(iv)
|
such Net Sale Proceeds do not, when aggregated with any other Net Sale Proceeds not falling within paragraphs (i) to (iii) above received in any financial year of the Borrower, exceed S$20,000,000 (or its equivalent in another currency or currencies).
|
(d)
|
On the date that any asset is sold, transferred or otherwise disposed of by a member of the Borrower Group in accordance with this Agreement, the Security Trustee shall (and is hereby instructed by the Lenders to), as soon as practicable, release any Security created by the Security Documents over that asset, at the cost and expense of the Borrower.
|
8.6
|
Mandatory prepayment from Net Recovery Proceeds
|
(a)
|
In this Clause 8.6, “
Net Recovery Proceeds
” means any cash compensation or consideration received or recovered by a member of the Borrower Group from a Governmental Agency pursuant to or in respect of the cancellation, non-issue, suspension, variation or revocation of the Casino Licence (net of related fees, discounts, commissions, charges, expenses, withholdings and transaction costs properly incurred in achieving any such recoveries).
|
(b)
|
The Borrower shall ensure that any Net Recovery Proceeds are paid directly into (or as soon as reasonably practicable after receipt are transferred into) the Prepayment Account for application in accordance with the Intercreditor Agreement.
|
8.7
|
Mandatory prepayment from Borrowings
|
(a)
|
In this Clause 8.7:
|
(b)
|
The Borrower shall ensure that the proceeds of any Borrowings are paid directly into (or as soon as reasonably practicable after receipt are transferred into) the Prepayment Account for application in accordance with the Intercreditor Agreement.
|
8.8
|
Intercreditor Agreement
|
(a)
|
No amount may be withdrawn or transferred from the Prepayment Account except:
|
|
(i)
|
to make the payments required under the Intercreditor Agreement;
|
|
(ii)
|
in relation to Net Sale Proceeds deposited in the Prepayment Account, for the purposes and within the period provided by paragraph (c)(ii) of Clause 8.5 (
Mandatory prepayment from Net Sale Proceeds
); or
|
|
(iii)
|
(notwithstanding anything in paragraph (c) of Clause 2.3 (
Prepayment Account
) of the Intercreditor Agreement)
with the prior consent of all Facility A Lenders and the Majority Facility C Lenders, and in accordance with paragraph (c) of Clause 2.3 (
Prepayment Account
) of
the Intercreditor Agreement.
|
(b)
|
Any prepayment of the Senior Liabilities in respect of Facility A made under Clause 2.1 (
Mandatory prepayment from Net Recovery Proceeds, Borrowings (Others) and the Relevant Net Sale Proceeds
) or Clause 2.2 (
Mandatory prepayment from Borrowings (Permitted Refinancing Indebtedness)
) of the Intercreditor Agreement:
|
|
(i)
|
shall occur on the expiry of their current Interest Periods when the Security Trustee receives the applicable Quantum Notice until Facility A Loans equal to the amount required to be applied towards their prepayment under paragraph (d)(A) of Clause 2.1 (
Mandatory prepayment from Net Recovery Proceeds, Borrowings (Others) and the Relevant Net Sale Proceeds
) and/or (as the case may be), paragraph (c)(A) of Clause 2.2 (
Mandatory prepayment from Borrowings (Permitted Refinancing Indebtedness)
) of the Intercreditor Agreement have been prepaid; and
|
|
(ii)
|
shall satisfy the obligations under Clause 7.1 (
Repayment of Facility A Loans
) rateably.
|
(c)
|
Any prepayment of the Senior Liabilities in respect of Facility C made under Clause 2.1 (
Mandatory prepayment from Net Recovery Proceeds, Borrowings (Others) and the Relevant Net Sale Proceeds
) or Clause 2.2 (
Mandatory prepayment from Borrowings (Permitted Refinancing Indebtedness)
) of the Intercreditor Agreement:
|
|
(i)
|
shall occur on the expiry of their current Interest Periods when the Security Trustee receives the applicable Quantum Notice until Facility C Loans equal to the amount required to be applied towards their prepayment under paragraph (d)(B) of Clause 2.1 (
Mandatory prepayment from Net Recovery Proceeds, Borrowings (Others) and the Relevant Net Sale Proceeds
) and/or (as the case may be), paragraph (c)(B) of Clause 2.2 (
Mandatory prepayment from Borrowings (Permitted Refinancing Indebtedness)
) of the Intercreditor Agreement have been prepaid; and
|
|
(ii)
|
shall, without prejudice to anything in paragraph (b) of Clause 7.3 (
Repayment of Facility C Loans
), satisfy the obligations under Clause 7.3 (
Repayment of Facility C Loans
) in such manner as the Facility C Lenders may agree.
|
8.9
|
Voluntary prepayment of Facility A Loans
|
(a)
|
The Borrower may, if it gives the Agent not less than five Business Days'
(or such shorter pe
riod as the Majority Facility A Lenders may agree) prior notice, prepay the whole or any part of a Facility A Loan, in an aggregate amount that reduces the amount of that Facility A Loan by a minimum amount of S$25,000,000.
|
(b)
|
Any prepayment under this Clause 8.9 shall satisfy the obligations under Clause 7.1 (
Repayment of Facility A Loans
)
rateably.
|
(c)
|
No Lender may refuse or waive any prepayment under this Clause 8.9.
|
(d)
|
The Borrower may, in relation to a notice given under paragraph (a) above:
|
|
(i)
|
revoke that notice; or
|
|
(ii)
|
impose any conditions in respect of the prepayment to which that notice relates (it being understood that the prepayment will occur, without any requirement to deliver a further prepayment notice under paragraph (a), on the date the relevant conditions are satisfied),
|
8.10
|
Voluntary prepayment of Facility C Loans
|
(a)
|
The Borrower may, if it gives the Agent not less than five Business Days' (or such shorter period as the Majority Facility C Lenders may agree) prior notice, prepay the whole or any part of a Facility C Loan, in an aggregate amount that reduces the amount of that Facility C Loan by a minimum amount of S$25,000,000 provided that on the same date, the Borrower prepays the Facility A Loans in accordance with Clause 8.9 (
Voluntary prepayment of Facility A Loans
) by an amount representing a fraction of all Facility A Loans where:
|
|
(i)
|
the numerator of such fraction is the amount by which the Facility C Loans is to be prepaid under this Clause 8.10; and
|
|
(ii)
|
the denominator of such fraction is the amount of all Facility C Loans immediately prior to such prepayment.
|
(b)
|
The requirement to prepay the Facility A Loans concurrently with any prepayment of the Facility C Loans (
a “
Facility C Prepayment
”)
under paragraph (a) above shall not apply if:
|
|
(i)
|
no Event of Default has occurred and is continuing; and
|
|
(ii)
|
on the date of the Facility C Prepayment:
|
|
(A)
|
the Debt (but without taking into account the effect that Facility C
|
|
|
Prepayment) as of the last Relevant Date falling on or before the date of that Facility C Prepayment;
|
|
(B)
|
the Consolidated Adjusted EBITDA for the Relevant Period ending on the Relevant Date described in paragraph (A) above,
|
(c)
|
Any prepayment under this Clause 8.10 shall, without prejudice to anything in paragraph (b) of Clause 7.3 (
Repayment of Facility C Loans
), satisfy the obligations under Clause 7.3 (
Repayment of Facility C Loans
) in such manner as the Facility C Lenders may agree.
|
(d)
|
No Lender may refuse or waive any prepayment under this Clause 8.10.
|
(e)
|
The Borrower may, in relation to a notice given under paragraph (a) above:
|
|
(i)
|
revoke that notice; or
|
|
(ii)
|
impose any conditions in respect of the prepayment to which that notice relates (it being understood that the prepayment will occur, without any requirement to deliver a further prepayment notice under paragraph (a), on the date the relevant conditions are satisfied),
|
8.11
|
Right of replacement of a single Lender
|
|
(a)
|
any Lender becomes entitled to receive any additional amounts pursuant to paragraph (a) of Clause 13.2 (
Tax gross-up
);
|
|
(b)
|
any Lender claims indemnification from the Borrower under paragraph (a) of Clause 13.3 (
Tax indemnity
) or Clause 14.1 (
Increased costs
);
|
|
(c)
|
the rate notified by a Lender in relation to a particular Interest Period under paragraph (a)(ii) of Clause 11.2 (
Market disruption
) is higher than the lowest rate notified by a Lender under that paragraph;
|
|
(d)
|
any Lender ceases to be an Eligible Lender;
|
|
(e)
|
any Lender becomes a Non-Funding Lender;
|
|
(f)
|
it becomes illegal for any Lender to participate in the Facilities due to the operation of Clause 8.1 (
Illegality
); or
|
|
(g)
|
a Lender becomes a Non-Consenting Lender,
|
8.12
|
Right of prepayment and cancellation in relation to a single Lender
|
(a)
|
If:
|
|
(i)
|
any sum payable to any Lender by the Borrower is required to be increased under paragraph (a) of Clause 13.2 (
Tax gross-up
);
|
|
(ii)
|
any Lender claims indemnification from the Borrower under Clause 13.3 (
Tax indemnity
) or Clause 14.1 (
Increased costs
);
|
|
(iii)
|
the rate notified by a Lender in relation to a particular Interest Period under paragraph (a)(ii) of Clause 11.2 (
Market disruption
) is higher than the lowest rate notified by a Lender under that paragraph;
|
|
(iv)
|
any Lender ceases to be an Eligible Lender;
|
|
(v)
|
any Lender becomes a Non-Funding Lender;
|
|
(vi)
|
it becomes illegal for any Lender to participate in the Facilities due to the operation of Clause 8.1 (
Illegality
); or
|
|
(vii)
|
any Lender becomes a Non-Consenting Lender,
|
(b)
|
On receipt of a notice referred to in paragraph (a) above, the Commitments and the Ancillary Commitments (if any) of that Lender shall be reduced to zero concurrently with the prepayment under paragraph (c) below.
|
(c)
|
In relation to a Loan, on the last day of each Interest Period which ends after the Borrower has given notice under paragraph (a) above and, in relation to a utilisation under an Ancillary Facility, on the next due date occurring after such notice (or, in each case, if earlier, the date specified by the Borrower in that notice), the Borrower shall repay that Lender's participation in the Loans or utilisation of an Ancillary Facility granted by that Lender.
|
8.13
|
Restrictions
|
(a)
|
Any notice of cancellation or prepayment given by any Party under this Clause 8 shall be irrevocable (except as otherwise provided in this Clause 8) and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
|
(b)
|
Any prepayment under this Agreement shall be made together with accrued interest on the amount prepaid to, but not including, the date of prepayment and, subject to any Break Costs, without premium or penalty.
|
(c)
|
The Borrower may not reborrow any part of Facility A or Facility C which is prepaid.
|
(d)
|
Unless a contrary indication appears in this Agreement, any part of Facility B which is prepaid may be reborrowed in accordance with the terms of this Agreement.
|
(e)
|
The Borrower shall not repay or prepay all or any part of the Loans or cancel all or any part of the Commitments except at the times and in the manner expressly provided for in this Agreement.
|
(f)
|
Any prepayment of Facility A Loans under this Clause
8
shall satisfy the obligations under Clause
7.1 (
Repayment of Facility A Loans
)
rateably.
|
(g)
|
Any prepayment of Facility C Loans under this Clause
8
shall satisfy the obligations under
Clause 7.3 (
Repayment of Facility C Loans
)
in such manner as the Facility C Lenders may agree.
|
(h)
|
Unless a contrary indication appears in this Agreement, no amount of the Total Commitments cancelled under this Agreement may be subsequently reinstated.
|
(i)
|
If the Agent receives a notice under this Clause 8 it shall promptly forward a copy of that notice to either the Borrower or the affected Lender, as appropriate.
|
(j)
|
If all or part of a Loan is repaid or prepaid and is not available for redrawing (other than by operation of Clause
4.2 (
Further conditions precedent
)
), an amount of the Commitments (equal to the amount of the Loan which is repaid or prepaid) will be deemed to be cancelled on the date of repayment or prepayment. Any cancellation under this paragraph
|
|
(j) (save in connection with any repayment or, as the case may be, prepayment under paragraph (b) of Clause 8.1 (
Illegality
), Clause 8.11 (
Right of replacement of a single Lender
) or paragraph (c) of Clause 8.12 (
Right of prepayment and cancellation in relation to a single Lender
)) shall reduce the Commitments of the Lenders rateably.
|
9.
|
Interest
|
9.1
|
Calculation of interest
|
|
(a)
|
Margin; and
|
|
(b)
|
SWAP Rate.
|
9.2
|
Payment of interest
|
9.3
|
Default interest
|
(a)
|
If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date to the date of actual payment (both before and after judgment) at a rate which is, subject to paragraph (b) below, two per cent. higher than the rate which would have been payable if the Unpaid Sum had, during the period of non-payment, constituted a Loan in the currency of the Unpaid Sum for successive Interest Periods, each of a duration selected by the Agent (acting reasonably). Any interest accruing under this Clause 9.3 shall be immediately payable by the Obligor on demand by the Agent.
|
(b)
|
If any Unpaid Sum consists of all or part of a Loan which became due on a day which was not the last day of an Interest Period relating to that Loan:
|
|
(i)
|
the first Interest Period for that Unpaid Sum shall have a duration equal to the unexpired portion of the current Interest Period relating to that Loan; and
|
|
(ii)
|
the rate of interest applying to the Unpaid Sum during that first Interest Period shall be two per cent. higher than the rate which would have applied if the Unpaid Sum had not become due.
|
(c)
|
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum but will remain immediately due and payable.
|
9.4
|
Notification of rates of interest
|
10.
|
Interest Periods
|
10.1
|
Selection of Interest Periods
|
(a)
|
The Borrower may select an Interest Period for a Loan in the Utilisation Request for that Loan or (if the Loan has already been borrowed) in a Selection Notice.
|
(b)
|
Each Selection Notice for a Term Loan is irrevocable and must be delivered to the Agent by the Borrower not later than the Specified Time.
|
(c)
|
If the Borrower fails to deliver a Selection Notice to the Agent in accordance with paragraph (b) above, the relevant Interest Period will, subject to Clause 10.2 (
Changes to Interest Periods
), be one Month.
|
(d)
|
Subject to this Clause 10, the Borrower may select an Interest Period of one, two, three or six Months or any other period agreed between the Borrower and the Agent (acting on the instructions of all the Lenders participating in the relevant Loan). In addition, the Borrower may:
|
|
(i)
|
select an Interest Period of less than two Months:
|
|
(A)
|
for the first Facility A Loan, the first Facility B Loan and/or the first Facility C Loan; and/or
|
|
(B)
|
for any Facility A Loan, Facility B Loan and/or Facility C Loan in connection with any refinancing thereof provided that that Loan shall be wholly repaid and any related Commitment wholly cancelled on the last day of that Interest Period;
|
|
(ii)
|
(in relation to Facility A) select an Interest Period of less than one Month, if necessary to ensure that there are sufficient Facility A Loans (with an aggregate amount equal to or greater than the Facility A Repayment Instalment) which have an Interest Period ending on a Facility A Repayment Date for the Borrower to make the Facility A Repayment Instalment due on that date; or
|
|
(iii)
|
(in relation to Facility B) select an Interest Period of less than one Month, if necessary to ensure that the Interest Periods of two or more Facility B Loans will end on the same date; or
|
|
(iv)
|
(in relation to Facility C) select an Interest Period of less than one Month, if necessary to ensure that there are sufficient Facility C Loans (with an aggregate amount equal to or greater than the relevant repayment instalment in respect of Facility C) which have an Interest Period ending on a scheduled repayment date applicable to Facility C for the Borrower to make that repayment instalment due on that date.
|
(e)
|
An Interest Period for a Facility A Loan shall not extend beyond the Facility A Termination Date. An Interest Period for a Facility B Loan shall not extend beyond the Facility B Termination Date. An Interest Period for a Facility C Loan shall not extend beyond its scheduled final maturity date and/or the Facility C Longstop Termination Date.
|
(f)
|
Each Interest Period for a Term Loan shall start on the Utilisation Date or (if a Term Loan has already been made) on the last day of the preceding Interest Period of such Loan.
|
(g)
|
A Facility B Loan has one Interest Period only.
|
10.2
|
Changes to Interest Periods
|
(a)
|
Prior to determining the interest rate for a Facility A Loan, the Agent may, in consultation with the Borrower, shorten an Interest Period for any Facility A Loan to ensure there are sufficient Facility A Loans (with an aggregate amount equal to or greater than the Facility A Repayment Instalment) which have an Interest Period ending on a Facility A Repayment Date for the Borrower to make the Facility A Repayment Instalment due on that date.
|
(b)
|
If the Agent makes any of the changes to an Interest Period referred to in this Clause 10.2, it shall promptly notify the Borrower and the Facility A Lenders.
|
10.3
|
Non-Business Days
|
10.4
|
Consolidation and division of Term Loans
|
(a)
|
Subject to paragraph (b) below and to the extent applicable, if two or more Interest Periods:
|
|
(i)
|
relate to Term Loans made to the Borrower under the same Facility; and
|
|
(ii)
|
end on the same date,
|
(b)
|
Subject to Clause 4.3 (
Maximum number of Loans
) and Clause
5.3 (
Currency and amount
)
, if the Borrower requests in a Selection Notice that a Facility A Loan or a Facility C Loan be divided into two or more Facility A Loans or Facility C Loans, that Term Loan will, on the last day of its Interest Period, be so divided into the amounts specified in that Selection Notice, being an aggregate amount equal to the amount of that Term Loan immediately before its division.
|
11.
|
Changes to the calculation of interest
|
11.1
|
Absence of quotations
|
11.2
|
Market disruption
|
(a)
|
If a Market Disruption Event occurs in relation to a Loan for any Interest Period, then the rate of interest on each Lender's participation in that Loan for that Interest Period shall be the percentage rate per annum which is the sum of:
|
|
(i)
|
the Margin; and
|
|
(ii)
|
the
percentage rate per annum notified to the Agent by that Lender, as soon as practicable and in any event not later than five Business Days before interest is due to be paid in respect of that Interest Period (or such later date as may be agreed by the Agent and the Borrower), as the cost to that Lender of funding its participation in that Loan from whatever source(s) it may reasonably select
.
|
(b)
|
In relation to a Market Disruption Event under paragraph (c)(ii) below, if the percentage rate per annum notified by a Lender pursuant to paragraph (a)(ii) above shall be less than the SWAP Rate or if a Lender shall fail to notify the Agent of any such percentage rate per annum, the cost to that Lender of funding its participation in the relevant Loan for the relevant Interest Period shall be deemed, for the purposes of paragraph (a) above, to be the SWAP Rate.
|
(c)
|
In this Agreement “
Market Disruption Event
” means:
|
|
(i)
|
at or about 11.00 a.m. (London time) on the Quotation Day for the relevant Interest Period:
|
(A)
|
the Screen Rate is not available and the Administrator does not announce a substitute rate; or
|
(B)
|
the Screen Rate is zero or negative; and
|
|
(ii)
|
before 2.00 p.m. on the Business Day immediately after the Quotation Day for the relevant Interest Period, the Agent receives notifications from a Lender or Lenders
|
|
|
whose participations in a Loan exceed 50 per cent. of that Loan that the cost to it or them of obtaining matching deposits in the Singapore interbank market would be in excess of the SWAP Rate.
|
(d)
|
If a Market Disruption Event shall occur, the Agent shall promptly notify the Lenders and the Borrower thereof (including the identities of the Lenders affected by the Market Disruption Event).
|
(e)
|
Each Lender shall, as soon as practicable after a notice is given to the Borrower pursuant to paragraph (d) above, provide a certificate to the Agent and the Borrower, confirming the amount and the basis of calculation (in reasonable detail) of the rate notified by that Lender under paragraph (a)(ii) above, provided that such Lender shall not be required to disclose any confidential information relating to the organisation of its affairs.
|
11.3
|
Alternative basis of interest or funding
|
(a)
|
If a Market Disruption Event occurs and the Agent or the Borrower so requires, the Agent and the Borrower shall enter into negotiations (for a period of not more than 30 days) with a view to agreeing a substitute basis for determining the rate of interest.
|
(b)
|
Any alternative basis agreed pursuant to paragraph (a) above shall, with the prior consent of all the Lenders under the affected Facility and the Borrower, be binding on all Parties.
|
(c)
|
For the avoidance of doubt, in the event that no substitute basis is agreed at the end of the 30 day period, the rate of interest shall continue to be determined in accordance with the terms of this Agreement.
|
11.4
|
Break Costs
|
(a)
|
The Borrower shall, within five Business Days of demand by a Finance Party, pay to that Finance Party its Break Costs attributable to all or any part of a Loan or Unpaid Sum being paid by the Borrower on a day other than the last day of an Interest Period for that Loan or Unpaid Sum.
|
(b)
|
Each Lender shall, as soon as reasonably practicable after a demand by the Agent or the Borrower (through the Agent), provide to the Agent and the Borrower, a certificate confirming the amount and the basis of calculation (in reasonable detail) of its Break Costs for any Interest Period in which they accrue, provided that such Lender shall not be required to disclose any confidential information relating to the organisation of its affairs.
|
12.
|
Fees
|
12.1
|
Commitment fee
|
(a)
|
The Borrower shall pay to the Agent (for the account of each Facility B Lender) a commitment fee in Singapore Dollars computed at the Relevant Commitment Fee Rate of that Lender’s Available Commitment under Facility B for the Availability Period applicable to Facility B.
|
(b)
|
The Borrower shall pay to the Agent (for the account of each Ancillary Lender) a commitment fee in Singapore Dollars computed at the Relevant Commitment Fee Rate of that Ancillary Lender’s Available Ancillary Commitment under each Ancillary Facility for the Availability Period applicable to Facility B.
|
(c)
|
The accrued commitment fees are payable on the last day of each successive period of three Months which ends during the Availability Period applicable to Facility B, on the last day of that Availability Period and, if cancelled in full, on the cancelled amount of the relevant Facility B Lender's Commitment or, as the case may be, the relevant Ancillary Lender’s Ancillary Commitment at the time the cancellation is effective.
|
(d)
|
In this Clause 12.1, “
Relevant Commitment Fee Rate
” means in respect of any day on which a Lender’s Available Commitment under Facility B (when aggregated with that Lender’s Available Ancillary Commitments, if applicable), at the close of business in Singapore that day is:
|
|
(i)
|
equal to or less than 50 per cent. of that Lender’s Facility B Commitment (when aggregated with that Lender’s Ancillary Commitments, if applicable), 35 per cent. of the applicable Margin on that day; and
|
|
(ii)
|
more than 50 per cent. of that Lender’s Facility B Commitment (when aggregated with that Lender’s Ancillary Commitments, if applicable), 40 per cent. of the applicable Margin on that day.
|
12.2
|
Coordinators’ fee
|
12.3
|
Agency fee
|
12.4
|
Security Trustee fee
|
13.
|
Tax gross-up and indemnities
|
13.1
|
Tax definitions
|
(a)
|
In this Agreement:
|
(b)
|
Unless a contrary indication appears, in this Clause 13 a reference to “determines” or “determined” means a determination made in the absolute discretion of the person making the determination.
|
13.2
|
Tax gross-up
|
(a)
|
Each Obligor shall make all payments to be made by it without any Tax Deduction unless a Tax Deduction is required by law, in which case,
to the extent that such Tax Deduction is or was a direct result of a change in law or the interpretation, administration or application of any law after the date of this Agreement (or with respect to a Lender that becomes a Party after the date of this Agreement, after the relevant Transfer Date),
the amount of the payment due from that Obligor shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required to be made.
|
(b)
|
The Borrower shall promptly upon becoming aware that an Obligor must make a Tax Deduction (or that there is any change in the rate or the basis of a Tax Deduction) notify the Agent accordingly. Similarly, a Lender shall notify the Agent on becoming so aware in respect of a payment payable to that Lender. If the Agent receives such notification from a Lender it shall notify the Borrower and that Obligor.
|
(c)
|
If an Obligor is required to make a Tax Deduction, that Obligor shall make that Tax Deduction and any payment required in connection with that Tax Deduction within the time allowed and in the minimum amount required by law.
|
(d)
|
Within 30 days of making either a Tax Deduction or any payment required in connection with that Tax Deduction, the Obligor making that Tax Deduction shall deliver to the Agent for the Finance Party entitled to the payment evidence reasonably satisfactory to that Finance Party that the Tax Deduction has been made or (as applicable) any appropriate payment paid to the relevant taxing authority.
|
(e)
|
This Clause 13.2 shall not apply with respect to any Tax assessed on a Finance Party:
|
|
(i)
|
under the law of the jurisdiction in which that Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
|
(ii)
|
under the law of the jurisdiction in which that Finance Party's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
13.3
|
Tax indemnity
|
(a)
|
Each Obligor shall (within five Business Days of demand by the Agent) pay to a Protected Party an amount equal to the loss, liability or cost which that Protected Party has suffered for or on account of any Tax
(that is a direct result of a change in law or the interpretation, administration or application of any law after the date of this Agreement)
by that Protected Party in respect of a Finance Document.
|
(b)
|
Paragraph (a) above shall not apply to:
|
|
(i)
|
with respect to any Tax assessed on a Finance Party:
|
|
(A)
|
under the law of the jurisdiction in which such Finance Party is incorporated or, if different, the jurisdiction (or jurisdictions) in which that Finance Party is treated as resident for tax purposes; or
|
|
(B)
|
under the law of the jurisdiction in which that Finance Party’s Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
|
(ii)
|
to the extent a loss, liability or cost is compensated for by an increased payment under Clause
13.2 (
Tax gross-up
)
.
|
(c)
|
A Protected Party making, or intending to make a claim under paragraph (a) above shall promptly notify the Agent of the event which will give or has given rise to the claim, whereupon the Agent shall notify the Borrower thereof.
|
(d)
|
A Protected Party shall, on receiving a payment from an Obligor under this Clause 13.3, notify the Agent.
|
13.4
|
Tax credit
|
|
(a)
|
a Tax Credit is attributable either to an increased payment of which that Tax Payment forms part, or to that Tax Payment; and
|
|
(b)
|
that Finance Party has obtained, utilised and retained that Tax Credit,
|
13.5
|
Stamp taxes
|
13.6
|
Goods and services tax
|
13.7
|
Forms
|
14.
|
Increased costs
|
14.1
|
Increased costs
|
(a)
|
Subject to Clause 14.3 (
Exceptions
) the Borrower shall, within five Business Days of a demand by the Agent, pay for the account of a Finance Party the amount of any Increased Costs incurred by that Finance Party as a result of:
|
|
(i)
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation; or
|
|
(ii)
|
compliance with any law or regulation,
|
(b)
|
In this Agreement “
Increased Costs
” means:
|
|
(i)
|
a reduction in the rate of return from a Facility or on a Finance Party's overall capital;
|
|
(ii)
|
an additional or increased cost; or
|
|
(iii)
|
a reduction of any amount due and payable under any Finance Document,
|
14.2
|
Increased cost claims
|
(a)
|
A Finance Party intending to make a claim pursuant to Clause 14.1 (
Increased costs
) shall notify the Agent of the event giving rise to the claim, following which the Agent shall within seven Business Days notify the Borrower.
|
(b)
|
Each Finance Party shall, together with its notice under paragraph (a) above, provide a certificate to the Agent and the Borrower, confirming the amount and the basis of calculation (in reasonable detail) of its Increased Costs, provided that such Finance Party shall not be required to disclose any confidential information relating to the organisation of its affairs.
|
14.3
|
Exceptions
|
|
(a)
|
attributable to a Tax Deduction required by law to be made by an Obligor;
|
|
(b)
|
compensated for by Clause 13.3 (
Tax indemnity
) (or would have been compensated for under Clause 13.3 (
Tax indemnity
) but was not so compensated solely because any of the exclusions in paragraph (b) of Clause 13.3 (
Tax indemnity
) applied);
|
|
(c)
|
attributable to the wilful breach by the relevant Finance Party or its Affiliates of any law or regulation; or
|
|
(d)
|
attributable to any day more than six Months before the first date on which the relevant Finance Party became (or, if earlier, could reasonably be expected to have become) aware of the Increased Cost.
|
15.
|
Mitigation by the Lenders
|
15.1
|
Mitigation
|
(a)
|
Each Finance Party shall, in consultation with the Borrower, take all reasonable steps to mitigate any circumstances which arise and which would result in any amount becoming payable under or pursuant to, or cancelled pursuant to, any of Clause 8.1 (
Illegality
), Clause 11.2 (
Market disruption
), Clause 13 (
Tax gross-up and indemnities
) or Clause 14 (
Increased costs
), including (but not limited to) transferring its rights and obligations under the Finance Documents to another Affiliate or Facility Office.
|
(b)
|
Paragraph (a) above does not in any way limit the obligations of any Obligor under the Finance Documents.
|
15.2
|
Limitation of liability
|
(a)
|
The Borrower shall, within five Business Days of demand, indemnify each Finance Party for all documented costs and expenses reasonably incurred by that Finance Party as a result of steps taken by it under Clause 15.1 (
Mitigation
).
|
(b)
|
A Finance Party is not obliged to take any steps under Clause 15.1 (
Mitigation
) if, in the opinion of that Finance Party (acting reasonably), to do so might be prejudicial to it.
|
15.3
|
Conduct of business by the Finance Parties
|
|
(a)
|
interfere with the right of any Finance Party to arrange its affairs (tax or otherwise) in whatever manner it thinks fit;
|
|
(b)
|
oblige any Finance Party to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim; or
|
|
(c)
|
oblige any Finance Party to disclose any information relating to its affairs (tax or otherwise) or any computations in respect of Tax.
|
16.
|
Other indemnities
|
16.1
|
Currency indemnity
|
(a)
|
If any sum due from an Obligor under the Finance Documents (a “
Sum
”), or any order, judgment or award given or made in relation to a Sum, has to be converted from the currency (the “
First Currency
”) in which that Sum is payable into another currency (the “
Second Currency
”) for the purpose of:
|
|
(i)
|
making or filing a claim or proof against that Obligor; or
|
|
(ii)
|
obtaining or enforcing an order, judgment or award in relation to any litigation or arbitration proceedings,
|
(b)
|
Each Obligor waives any right it may have in any jurisdiction to pay any amount under the Finance Documents in a currency or currency unit other than that in which it is expressed to be payable.
|
(c)
|
Each Finance Party shall, as soon as practicable after a demand by the Agent or the Borrower (where that Finance Party is not the Agent, through the Agent), provide a certificate to the Agent and the Borrower, confirming the amount and the basis of calculation (in reasonable detail) of its indemnified amount, provided that such Finance Party shall not be required to disclose any confidential information relating to the organisation of its affairs.
|
16.2
|
Other indemnities
|
|
(a)
|
the occurrence of any Event of Default;
|
|
(b)
|
a failure by an Obligor to pay any amount due under a Finance Document on its due date or in the relevant currency, including without limitation, any cost, loss or liability arising as a result of Clause 29 (
Sharing among the Finance Parties
);
|
|
(c)
|
funding, or making arrangements to fund, its participation in a Loan requested by the Borrower in a Utilisation Request but not made by reason of the operation of any one or more of the provisions of this Agreement;
|
|
(d)
|
a Loan (or part of a Loan) not being prepaid in accordance with a notice of prepayment given by the Borrower (except where this Agreement provides that such notice can be revoked or made subject to conditions and the Borrower revokes such notice or, as the case may be, notifies the Agent that such conditions have not been satisfied, not later than 11:00 a.m. two Business Days before the scheduled date for such prepayment) or as required by this Agreement (other than by reason of default or negligence by that Finance Party); or
|
|
(e)
|
any investigative, administrative or judicial proceedings or hearing commenced or threatened by any person, whether or not such Finance Party shall be designated as a party or a potential party thereto, (including any fees or expenses incurred by such Finance Party in enforcing its indemnity under this Clause 16.2), arising out of or in connection with:
|
|
(i)
|
the Finance Documents or the transactions contemplated thereby;
|
|
(ii)
|
any enforcement of any of the Finance Documents (including any sale of, collection from or other realisation upon any Security or Guarantee); or
|
|
(iii)
|
any breach of Environmental Law,
|
|
provided that:
|
|
(A)
|
no Obligor shall have any obligation under this Clause 16.2 to indemnify any Finance Party for any cost, loss or liability to the extent arising from the wilful
|
|
|
wilful default, gross negligence or wilful misconduct of such Finance Party alone, as determined in a final non-appealable judgment of a court of competent jurisdiction; and
|
|
(B)
|
this Clause 16.2 does not apply to the extent any cost, loss or liability is compensated for by Clause 13 (
Tax gross-up and indemnities
) or Clause 14 (
Increased costs
).
|
16.3
|
Indemnity to the Agent and the Security Trustee
|
|
(a)
|
investigating any event which it reasonably believes is a Default; or
|
|
(b)
|
acting or relying on any notice, request or instruction which it reasonably believes to be genuine, correct and appropriately authorised,
|
17.
|
Costs and expenses
|
17.1
|
Transaction expenses
|
|
(a)
|
the negotiation, preparation, printing, execution, syndication and administration of:
|
|
(i)
|
the Facility Agreement and any other documents referred to in this Agreement; and
|
|
(ii)
|
any other Finance Document executed after the date of this Agreement; and
|
|
(b)
|
the appointment of any legal advisers (being the legal advisers named in paragraph 3 of Part I of Schedule 2 (
Conditions Precedent to Initial Utilisation
) or which are approved by or are reasonably acceptable to, the Borrower) in connection with any of the foregoing.
|
17.2
|
Amendment costs
|
17.3
|
Enforcement costs
|
17.4
|
Security Trustee expenses
|
18.
|
Guarantee and indemnity
|
18.1
|
Guarantee and indemnity
|
|
(a)
|
guarantees to each Finance Party punctual performance by the Borrower of all the Borrower's obligations under the Finance Documents;
|
|
(b)
|
undertakes with each Finance Party that whenever the Borrower does not pay any amount when due under or in connection with any Finance Document, that Guarantor shall immediately on demand pay that amount as if it was the principal obligor; and
|
|
(c)
|
undertakes with each Finance Party that, if any amount which would otherwise be claimed by such Finance Party under paragraph(s) (a) and/or (b) above is for any reason not recoverable thereunder on the basis of a guarantee, that Guarantor shall as a principal debtor and primary obligor indemnify such Finance Party immediately on demand against any cost, loss or liability which such Finance Party may incur or suffer as a result of the Borrower not paying any amount when (if such amount were recoverable from the Borrower) it would have been due under or in connection with any Finance Document; and the amount payable by a Guarantor under this indemnity shall not exceed the amount it would have had to
|
|
|
pay under paragraph(s) (a) and/or (b) above if the amount claimed had been recoverable on the basis of a guarantee.
|
18.2
|
Continuing guarantee
|
18.3
|
Reinstatement
|
|
(a)
|
any payment to a Finance Party (whether in respect of the obligations of any Obligor or any security for those obligations or otherwise) is avoided, reduced or required to be restored; or
|
|
(b)
|
any discharge, compromise or arrangement (whether in respect of the obligations of any Obligor or any security for any such obligation or otherwise) given or made wholly or partly on the basis of any payment, security or other matter which is avoided, reduced or required to be restored,
|
|
(i)
|
the liability of each Obligor shall continue (or be deemed to continue) as if the payment, discharge, compromise or arrangement had not occurred; and
|
|
(ii)
|
each Finance Party shall be entitled to recover the value or amount of that payment or security from each Obligor, as if the payment, discharge, compromise or arrangement had not occurred.
|
18.4
|
Waiver of defences
|
|
(a)
|
any time, waiver or consent granted to, or composition with, any Obligor or other person;
|
|
(b)
|
the release of any other Obligor or any other person under the terms of any composition or arrangement with any creditor of any member of the Borrower Group or any other person;
|
|
(c)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, execute, take up or enforce, any rights against, or security over assets of, any Obligor or other person or any non-presentation or non-observance
|
|
|
of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
|
(d)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Obligor or any other person;
|
|
(e)
|
any amendment (however fundamental) or replacement of a Transaction Document or any other document or security;
|
|
(f)
|
any unenforceability, illegality or invalidity of any obligation of any person under any Transaction Document or any other document or security;
|
|
(g)
|
any insolvency or similar proceedings; or
|
|
(h)
|
this Agreement or any other Finance Document not being executed by or binding upon any other party.
|
18.5
|
Immediate recourse
|
18.6
|
Appropriations
|
|
(a)
|
refrain from applying or enforcing any other moneys, security or rights held or received by that Finance Party (or any trustee or agent on its behalf) in respect of those amounts, or apply and enforce the same in the manner and order contemplated by the Finance Documents (whether against those amounts or otherwise) and no Guarantor shall be entitled to the benefit of the same; and
|
|
(b)
|
hold in an interest-bearing suspense account any moneys received from any Guarantor or on account of any Guarantor's liability under this Clause 18.
|
18.7
|
Deferral of Guarantors' rights
|
|
(a)
|
to be indemnified by an Obligor;
|
|
(b)
|
to claim any contribution from any other guarantor of or provider of security for any Obligor's obligations under the Finance Documents;
|
|
(c)
|
to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under the Finance Documents or of any other guarantee or security taken pursuant to, or in connection with, the Finance Documents by any Finance Party;
|
|
(d)
|
to bring legal or other proceedings for an order requiring any Obligor to make any payment, or perform any obligation, in respect of which any Guarantor has given a guarantee, undertaking or indemnity under Clause 18.1 (
Guarantee and indemnity
);
|
|
(e)
|
to exercise any right of set-off against any Obligor; and/or
|
|
(f)
|
to claim or prove as a creditor of any Obligor in competition with any Finance Party.
|
18.8
|
Release of Guarantors' right of contribution
|
|
(a)
|
that Retiring Guarantor is released by each other Guarantor from any liability (whether past, present or future and whether actual or contingent) to make a contribution to any other Guarantor arising by reason of the performance by any other Guarantor of its obligations under the Finance Documents; and
|
|
(b)
|
each other Guarantor waives any rights it may have by reason of the performance of its obligations under the Finance Documents to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any rights of the Finance Parties under any Finance Document or of any other security taken pursuant to, or in connection with, any Finance Document where such rights or security are granted by or in relation to the assets of the Retiring Guarantor.
|
18.9
|
Additional security
|
19.
|
Representations
|
19.1
|
Status
|
(a)
|
It is a limited liability company, corporation or other entity duly incorporated or organised and validly existing under the laws of its jurisdiction of incorporation or organisation.
|
(b)
|
It and each of its Restricted Subsidiaries has the power to own its assets and carry on its business as it is being conducted.
|
19.2
|
Binding obligations
|
|
(a)
|
any general principles of law limiting its obligations in respect of equitable remedies, insolvency, liquidation or creditors’ rights generally;
|
|
(b)
|
any other general principles of law limiting its obligations which are specifically referred to in any legal opinion delivered in accordance with Clause 4 (
Conditions of Utilisation
) or Clause 26 (
Changes to the Obligors
); or
|
|
(c)
|
in the case of any Security Document, the terms of the Development Agreement, (once issued) the Head Lease and the applicable Perfection Requirements.
|
19.3
|
Non-conflict with other obligations
|
|
(a)
|
conflict with:
|
|
(i)
|
any material law or regulation applicable to it or any of its Restricted Subsidiaries in any material respect;
|
|
(ii)
|
its or any of its Restricted Subsidiaries' constitutional documents; or
|
|
(iii)
|
in any material respect, any material agreement or instrument binding upon it or any of its Restricted Subsidiaries or any of its or any of its Restricted Subsidiaries' assets; or
|
|
(b)
|
(except as provided in any Security Document) result in the existence of, or oblige it or any of its Restricted Subsidiaries to create, any Security over any of its assets.
|
19.4
|
Power and authority
|
19.5
|
Validity and admissibility in evidence
|
|
(a)
|
to enable it lawfully to enter into, exercise its rights and comply with its obligations in the Transaction Documents to which it is a party and the transactions contemplated by the Transaction Documents;
|
|
(b)
|
to make the Transaction Documents to which it is a party admissible in evidence in its jurisdiction of incorporation; and
|
|
(c)
|
to enable it to create the Security to be created by it pursuant to any Security Document and to ensure that such Security has the priority and ranking it is expressed to have,
|
19.6
|
Governing law and enforcement
|
(a)
|
The choice of Singapore law as the governing law of the Finance Documents will be recognised and enforced in its jurisdiction of incorporation.
|
(b)
|
Any judgment obtained in Singapore in relation to a Finance Document will be recognised and enforced in its jurisdiction of incorporation.
|
19.7
|
No filing or stamp taxes
|
19.8
|
No default
|
(a)
|
No Event of Default is continuing or would reasonably be expected to result from the making of any Loan.
|
(b)
|
No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on it or any of its Restricted Subsidiaries (subject to any applicable grace period) or to which its (or any of its Restricted Subsidiaries') assets are subject which would reasonably be expected to have a Material Adverse Effect.
|
19.9
|
No misleading information
|
(a)
|
Any written factual information relating to the Obligors (other than projections and other forward looking information) contained in or provided by or on behalf of the Borrower to any Finance Party in connection with any Finance Document, including the Information Memorandum (other than projections and other forward looking information), was, when taken as a whole, true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
|
(b)
|
The financial projections contained in the Information Memorandum have been prepared on the basis of recent historical information and on the basis of assumptions that the Borrower believed were reasonable at the time the projections were prepared.
|
19.10
|
Financial statements
|
(a)
|
Its financial statements most recently supplied to the Agent (which, at the date of this Agreement, are the Original Financial Statements) were prepared in accordance with GAAP consistently applied save to the extent expressly disclosed in such financial statements.
|
(b)
|
Its financial statements most recently supplied to the Agent (which, at the date of this Agreement, are the Original Financial Statements) fairly represent its financial condition and operations (consolidated in the case of the Borrower) in all material respects as at the end of and for the relevant financial year save to the extent expressly disclosed in such financial statements.
|
(c)
|
There has been no material adverse change in its business or financial condition (or the business or consolidated financial condition of the Borrower Group, in the case of the Borrower) since 31 December 2011.
|
19.11
|
Pari passu ranking
|
19.12
|
Immunity
|
19.13
|
No proceedings pending or threatened
|
19.14
|
Authorised Signatures
|
19.15
|
Security
|
19.16
|
Title
|
19.17
|
Environmental Laws and Licences
|
|
(a)
|
complied with all Environmental Laws to which it may be subject;
|
|
(b)
|
all Environmental Permits required or desirable in connection with its business; and
|
|
(c)
|
complied with the terms of those Environmental Permits,
|
19.18
|
Environmental releases
|
|
(a)
|
property currently or previously owned, leased, occupied or controlled by it (including any offsite waste management or disposal location utilised by it) is contaminated with any Hazardous Substance; and
|
|
(b)
|
discharge, release, leaching, migration or escape of any Hazardous Substance into the Environment has occurred or is occurring on, under or from that property,
|
19.19
|
Commercial Documents
|
(a)
|
The Commercial Documents:
|
|
(i)
|
contain all the terms of the agreement and arrangements between the Head Lessor (and/or any of its Affiliates) and the Borrower (and/or any of its Affiliates) in relation to the acquisition, ownership and development of the Properties by the Borrower;
|
|
(ii)
|
are (or, in relation to the Head Lease only, on the date of its execution, will be) in full force and effect; and
|
|
(iii)
|
have not been amended or waived (in whole or in part) and no consent has been given thereunder, save for any which are minor or technical or have been amended or waived in accordance with this Agreement.
|
(b)
|
It is not in, or aware of any, breach of or default under any Commercial Document.
|
19.20
|
Governmental Regulation
|
(a)
|
No Obligor is subject to regulation under the Public Utility Holding Company Act of 2005, the Federal Power Act, or the Interstate Commerce Act or registration under the Investment Company Act of 1940 or under any other U.S. federal or state, or Singapore statute or regulation which would limit its ability to incur indebtedness, or which would otherwise render all or any portion of its obligations under the Finance Documents to which it is a party unenforceable.
|
(b)
|
To the extent applicable, each Obligor is in compliance, in all material respects, with:
|
|
(i)
|
the Trading with the Enemy Act, as amended, and each of the foreign assets control regulations of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) and any other enabling legislation or executive order relating thereto; and
|
|
(ii)
|
the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “
Patriot Act
”).
|
(c)
|
The Borrower shall ensure and procure that no part of the proceeds of the Loans will be used, directly or indirectly, by the Borrower or any of its Affiliates, for any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of the United States Foreign Corrupt Practices Act of 1977, as amended from time to time.
|
19.21
|
Material Adverse Effect
|
19.22
|
Time when representations are made
|
|
(a)
|
on the date of each Utilisation Request and the proposed Utilisation Date for a Utilisation (other than a Facility B Rollover Loan);
|
|
(b)
|
(if no Repeating Representations are deemed to be made pursuant to paragraph (a) above in any of the Borrower’s financial years) on the last day of that financial year; and
|
|
(c)
|
in the case of a Guarantor, on the day on which the company becomes (or it is proposed that the company becomes) a Guarantor,
|
|
(i)
|
where any representation or warranty of an Obligor is expressed to be given as of a specific date, such representation and warranty under this Clause 19 shall be made on and as of that date; and
|
|
(ii)
|
the Repeating Representations deemed to be made pursuant to paragraph (b) above shall exclude each of the representations set out in Clause 19.13 (
No proceedings pending or threatened
) and Clause 19.17 (
Environmental Laws and Licences
).
|
20.
|
Information undertakings
|
20.1
|
Annual financial statements
|
(a)
|
The Borrower shall supply to the Agent as soon as the same become available, but in any event within 120 days after the end of each of its financial years, a copy of its audited financial statements (consolidated if applicable) for that financial year.
|
(b)
|
Each set of financial statements delivered pursuant to paragraph (a) above:
|
|
(i)
|
shall include:
|
|
(A)
|
a cash flow statement and profit and loss account (consolidated if applicable) for the relevant fiscal period; and
|
|
(B)
|
a balance sheet (consolidated if applicable) as at the end of the relevant fiscal period; and
|
|
(ii)
|
where such financial statements are consolidated, shall be supplied with proforma financial statements for the Borrower Group (if different from the financial statements delivered pursuant to paragraph (a) above).
|
20.2
|
Quarterly financial statements
|
(a)
|
The Borrower shall supply to the Agent as soon as the same become available, but in any event within 60 days after the end of its first, second and third Accounting Quarters, a copy of its financial statements (consolidated if applicable) for that Accounting Quarter.
|
(b)
|
Each set of quarterly financial statements delivered pursuant to paragraph (a) above:
|
|
(i)
|
shall include:
|
|
(A)
|
a cash flow statement and profit and loss account (consolidated if applicable) for the relevant Accounting Quarter and for the financial year to date; and
|
|
(B)
|
a balance sheet (consolidated if applicable) as at the end of the relevant Accounting Quarter; and
|
|
(ii)
|
where such financial statements are consolidated, shall be supplied with proforma financial statements for the Borrower Group (if different from the financial statements delivered pursuant to paragraph (a) above).
|
20.3
|
Compliance Certificate
|
(a)
|
The Borrower shall supply to the Agent, with each set of financial statements delivered pursuant to Clause 20.1 (
Annual financial
statements
) or Clause 20.2 (
Quarterly financial statements
), a Compliance Certificate:
|
|
(i)
|
setting out (in reasonable detail) computations as to compliance with Clause 21 (
Financial covenants
) in respect of the Relevant Period ending on the date as at which those financial statements were drawn up (if such compliance is required pursuant to the terms of Clause 21 (
Financial covenants
)); and
|
|
(ii)
|
certifying that no Default is continuing (or if a Default is continuing, specifying the Default and the steps, if any, being taken to remedy it).
|
(b)
|
Each Compliance Certificate shall be signed by one authorised officer or authorised signatory of the Borrower.
|
20.4
|
Requirements as to financial statements
|
(a)
|
Each set of financial statements delivered by the Borrower pursuant to Clause 20.1 (
Annual financial
statements) or Clause 20.2 (
Quarterly financial statements
) shall be certified by an authorised officer or authorised signatory of the relevant company as fairly representing its (or, as the case may be, its consolidated) financial condition and operations as at the end of and for the period in relation to which those financial statements were drawn up.
|
(b)
|
The Borrower shall procure that each set of its financial statements delivered pursuant to Clause 20.1 (
Annual financial
statements
) or Clause 20.2 (
Quarterly financial statements
) is prepared using GAAP. The Borrower shall promptly notify the Agent of any material change in GAAP, the accounting practices or reference periods in relation to its financial statements or the manner in which its financial statements are prepared. If the Borrower notifies the Agent of a change or prospective change in accordance with the foregoing, the Borrower and the Agent (acting on the instructions of the Majority Lenders) shall, at the request of the Borrower, enter into negotiations (for a period of not more than 60 days) with a view to agreeing any amendments to Clause 1.1 (
Definitions
) and Clause 21 (
Financial covenants
) which are desirable to ensure that such change does not result in any material variation in the commercial effect and intent of the calculations and ratios in Clause 21 (
Financial covenants
) or any ratio contemplated by a Compliance Certificate, provided that prior to the expiry of the above period, each of the calculations and ratios in Clause 21 (
Financial covenants
) and the ratios contemplated by any Compliance Certificate shall be computed in accordance with GAAP as in effect and applied immediately before such change.
|
(c)
|
If any amendments are agreed pursuant to paragraph (b) above, they shall take effect and be binding on all Parties in accordance with their terms.
|
(d)
|
For the avoidance of doubt, in the event that no amendments are agreed at the end of the period referred to in paragraph (b) above, the ratios in Clause 21 (
Financial covenants
) shall continue to be determined in accordance with the terms of this Agreement.
|
20.5
|
Financial budget
|
(a)
|
The Borrower shall supply to the Agent, as soon as the same becomes available, but in any event not later than 45 Business Days after the start of each of its financial years (beginning with the financial year following the date of this Agreement), a copy of the financial budget in respect of that financial year.
|
(b)
|
Each financial budget shall include:
|
|
(i)
|
a projected cash flow statement and profit and loss account (consolidated if applicable) of the Borrower for that financial year and for each Accounting Quarter of that financial year;
|
|
(ii)
|
a projected balance sheet (consolidated if applicable) of the Borrower as at the end of each Accounting Quarter
of that financial year;
|
|
(iii)
|
projected levels of the financial ratios in Clause 21.1 (
Financial covenants
) as at each Relevant Date of that financial year, or, as the case may be, in respect of the Relevant Period
ending on each Relevant Date of that financial year; and
|
|
(iv)
|
projected Consolidated Adjusted EBITDA of the Borrower and the projected revenues and net profit after tax of the Borrower and of each of its principal operating divisions,
for that financial year and for each Accounting Quarter
of that financial year.
|
20.6
|
Information: miscellaneous
|
|
(a)
|
all documents dispatched by the Borrower to:
|
|
(i)
|
the Head Lessor under the Development Agreement that are material to the Facilities or the Finance Documents; or
|
|
(ii)
|
its creditors generally
and which are material in the context of the Finance Documents and/or the Facilities,
|
|
(b)
|
promptly upon becoming aware of them, the details of any litigation, arbitration or administrative proceedings which are current, threatened or pending against any Obligor, and which would reasonably be expected to have a Material Adverse Effect;
|
|
(c)
|
promptly upon becoming aware of them, the details of any claim, notice or other communication received by it in respect of any actual or alleged breach of or liability under Environmental Law which would reasonably be expected to have a Material Adverse Effect;
|
|
(d)
|
promptly upon becoming aware of them, the details of any actual or proposed amendment to or waiver or consent under, or any notice given or received under, any Commercial Document;
|
|
(e)
|
promptly, the details of any claim(s) made by or on behalf of any Obligor in respect of any cancellation, non-issue, suspension, variation or revocation of the Casino Licence;
|
|
(f)
|
promptly, such further material information regarding the financial condition, business and operations of any Obligor as any Finance Party (through the Agent) may reasonably request; and
|
|
(g)
|
notice of any change in authorised signatories of any Obligor signed by a director or company secretary of such Obligor accompanied by specimen signatures of any new authorised signatories, promptly before any such new authorised signatory executes any Finance Document on that Obligor’s behalf or signs and/or despatch any document and notice to be signed and/or despatched by that Obligor under or in connection with the Finance Documents,
|
20.7
|
Notification of default
|
20.8
|
Inspection of books and records
|
|
(a)
|
keep books and records which accurately reflect in all material respects all of its business, affairs and transactions;
|
|
(b)
|
permit the Agent or any of its representatives (which shall number not more than three at one time), at reasonable times and intervals, and upon prior reasonable notice, to visit any of its offices, to inspect any of its books and records and to discuss its financial matters with its officers The cost and expense of up to two such visits under this paragraph (b) in each successive period of 12 Months from the date of this Agreement shall be borne by the Borrower; and
|
|
(c)
|
after the occurrence of an Event of Default which is continuing, permit the Agent or any of its representatives (which shall number not more than three at one time), at reasonable times and intervals, and upon prior reasonable notice, to visit any of its offices, to inspect any of its books and records and to discuss its financial matters with its auditors (in the presence of that Obligor’s officers). The cost and expense of such visits under this paragraph (c) shall be borne by the Borrower.
|
20.9
|
Auditors
|
(a)
|
The Borrower shall ensure that PriceWaterhouseCoopers or another reputable firm of accountants is appointed as its auditors and the auditors of each other member of the Borrower Group.
|
(b)
|
The Borrower shall promptly notify the Agent of any change in its auditors or the auditors of any other member of the Borrower Group.
|
(c)
|
The Borrower shall ensure that its audited consolidated financial statements are not adversely qualified by its auditors other than:
|
|
(i)
|
a qualification that is of a minor or technical nature;
|
|
(ii)
|
a going concern qualification due solely to a projected failure to meet a financial covenant in Clause 21 (
Financial covenants
)
or to the Loans reaching maturity within the next financial year of the Borrower following the date of those financial statements; or
|
|
(iii)
|
a qualification in terms or as to issues which could not reasonably be expected to be materially adverse to the interests of the Finance Parties under the Finance Documents
.
|
20.10
|
Properties information
|
|
(a)
|
the average occupancy rate, the average rental rate and the weighted average lease maturity profile of the Retail Properties as at the end of that quarterly period;
|
|
(b)
|
details of the top 20 tenants of the Retail Properties for that period, including:
|
|
(i)
|
the rental for each such unit for that Accounting Quarter;
|
|
(ii)
|
the aggregate net lettable area of such units; and
|
|
(iii)
|
the
lease expiry
of each relevant Occupational Lease; and
|
|
(c)
|
the aggregate amount of tenancy proceeds and service charges received for all tenanted units in the Retail Properties for that period.
|
20.11
|
Valuation Reports
|
|
(a)
|
the value (on an “as is” basis) of the Properties;
|
|
(b)
|
the value (on an “as is” basis) of the Retail Properties;
|
|
(c)
|
the fire reinstatement value of the Properties; and
|
|
(d)
|
the fire reinstatement value of the Retail Properties,
|
20.12
|
Insurance Reports
|
20.13
|
“Know your customer” checks
|
(a)
|
If:
|
|
(i)
|
the introduction of or any change in (or in the interpretation, administration or application of) any law or regulation made after the date of this Agreement;
|
|
(ii)
|
any change in the status of an Obligor or the composition of the shareholders of an Obligor after the date of this Agreement; or
|
|
(iii)
|
a proposed assignment or transfer by a Lender of any of its rights and/or obligations under this Agreement to a party that is not a Lender prior to such assignment or transfer,
|
(b)
|
Each Lender shall promptly upon the request of the Agent supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself) in order for the Agent to conduct any “know your customer” or other similar procedures under applicable laws and regulations.
|
(c)
|
The Borrower shall, by not less than 10 Business Days' prior written notice to the Agent, notify the Agent (which shall promptly notify the Lenders) of its intention to request that one of its Restricted Subsidiaries becomes a Guarantor pursuant to Clause 26 (
Changes to the Obligors
).
|
(d)
|
Following the giving of any notice pursuant to paragraph (c) above, if the accession of such Guarantor obliges the Agent or any Lender to comply with “know your customer” or
|
|
similar identification procedures in circumstances where the necessary information is not already available to it, the Borrower shall promptly upon the request of the Agent (for itself or on behalf of any Lender) use its best endeavours to supply, or procure the supply of, such documentation and other evidence as is reasonably requested by the Agent (for itself or on behalf of any Lender) in order for the Agent or such Lender to carry out and be satisfied it has complied with all necessary “know your customer” or other similar checks under all applicable laws and regulations pursuant to the accession of such Restricted Subsidiary to this Agreement as a Guarantor.
|
21.
|
Financial covenants
|
21.1
|
Financial covenants
|
|
(a)
|
the ratio of Debt as of each Relevant Date to Consolidated Adjusted EBITDA for each Relevant Period ending on that Relevant Date set out in the table below will not exceed the ratio set out in the relevant column in the table below opposite that Relevant Date:
|
Relevant Date
|
Debt
to Consolidated
Adjusted EBITDA
|
Each Relevant Date falling on
and after 30 September 2012 but
on or before 30 September 2013
|
4.00 to 1
|
Each Relevant Date falling on
and after 31 December 2013 but
on or before 30 September 2019
|
3.50 to 1
|
Each subsequent Relevant Date
|
3.00 to 1
|
|
(b)
|
the ratio of Consolidated Adjusted EBITDA to Consolidated Total Interest Expense for each Relevant Period will not be less than 3.50 to 1; and
|
|
(c)
|
Consolidated Net Worth will, at all times, be positive (and for the avoidance of doubt, the Borrower shall only be obliged to provide the computations as to compliance with this paragraph (c) in the Compliance Certificates supplied to the Agent pursuant to Clause 20.3 (
Compliance Certificate
)).
|
21.2
|
Rectification
|
(a)
|
If any of the financial covenants set out in paragraphs (a) to (c) of Clause 21.1 (
Financial covenants
) is not satisfied (an “
Unsatisfied Financial Covenant
”) for any Relevant Period ending on a Relevant Date (the “
Affected Relevant Date
”), within 20 Business Days after the earlier of the date on which the financial statements for the period ending on the Affected Relevant Date are due under Clause 20.1 (
Annual financial statements
) and/or Clause 20.2 (
Quarterly financial statements
),
and the date on which the financial statements for the period ending on the Affected Relevant Date are actually received by the Agent, the Borrower may:
|
|
(i)
|
obtain an equity contribution or Internal Subordinated Debt (each, a “
Sponsor Group Contribution
”) from a member of the Sponsor Group;
|
|
(ii)
|
repay or prepay outstanding Debt (including outstanding Loans);
|
|
(iii)
|
provide cash cover in respect of the Loans; and/or
|
|
(iv)
|
procure the issue of Bank SBLCs in favour of the Agent,
|
(b)
|
If a Rectification Amount has been provided to satisfy an Unsatisfied Financial Covenant and that financial covenant is satisfied for the Relevant Periods ending on any two consecutive Relevant Dates after the Affected Relevant Date, in each case, without taking into consideration such Rectification Amount, provided that no Default is continuing:
|
|
(i)
|
where the Rectification Amount comprises a Sponsor Group Contribution, the Borrower may repay that Sponsor Group Contribution (or the relevant part thereof);
|
|
(ii)
|
where the Rectification Amount comprises a repayment or prepayment of Debt, the Borrower may redraw that Debt in accordance with its terms (provided that where that Debt comprised outstanding Loans, such Loans may only be redrawn in accordance with this Agreement); and
|
|
(iii)
|
where the Rectification Amount comprises cash cover or a Bank SBLC, the Security Trustee shall (and is irrevocably authorised and instructed by all the Secured Parties to), upon the written request of the Borrower, release such cash cover (or the relevant part thereof) or, as the case may be, Bank SBLC, at the cost and expense of the Borrower.
|
(c)
|
The cash proceeds received by the Borrower from any Sponsor Group Contribution or the face value of any Bank SBLC shall be included in the calculation of Consolidated Adjusted EBITDA and any repayment of Debt or any provision of cash cover in respect of the Loans shall reduce the Debt as of the applicable Relevant Date (in each case, without double counting), following which the relevant financial covenants shall be calculated or
|
|
recalculated (as the case may be) including, without double counting, such Sponsor Group Contribution, the face value of any Bank SBLC and/or such repayment or cash cover (solely for the purpose of ascertaining compliance with the requirements and not for any other purpose).
|
(d)
|
If, after giving effect to the calculation or recalculation referred to in paragraph (c) above, the relevant financial covenants are met, then for all purposes under the Finance Documents:
|
|
(i)
|
(in the case of prevention of a breach of financial covenants) the Event of Default which otherwise would have arisen will not arise; and
|
|
(ii)
|
(in the case of cure of a breach of financial covenants) the Event of Default which arose as a result shall be deemed not to have arisen.
|
(e)
|
Rectification Amounts:
|
|
(i)
|
may not exceed S$50,000,000 in aggregate in respect of each Accounting Quarter;
|
|
(ii)
|
(without prejudice to anything in paragraph (e)(i) above) may exceed the minimum amount required to cure or prevent any breach of financial covenant; and
|
|
(iii)
|
made in respect of an Accounting Quarter shall be included in the relevant financial covenant calculations until such time as that Accounting Quarter falls outside a Relevant Period or until they have been repaid, redrawn or (as the case may be) released in accordance with paragraph (b) above.
|
21.3
|
Limitation on rectification
|
(a)
|
The Borrower may not exercise its right (the “
Right of Cure
”) under Clause 21.2 (
Rectification
)
to satisfy any Unsatisfied Financial Covenant in respect of any Relevant Period if:
|
|
(i)
|
it has exercised the Right of Cure in respect of two earlier Relevant Periods; and
|
|
(ii)
|
those two Relevant Periods end on any two consecutive Relevant Dates (the later of the two consecutive Relevant Dates being the “
Reference Date
”).
|
(b)
|
The limitation in paragraph (a) shall cease to apply if the Borrower has complied with the financial covenants set out in paragraphs (a) and (b) of Clause 21.1 (
Financial covenants
) for any Relevant Period ending on a Relevant Date falling after the Reference Date, without taking into consideration the Rectification Amounts (if any) made in respect of any Accounting Quarter falling within that Relevant Period.
|
21.4
|
Financial covenant calculations
|
(a)
|
Debt, Consolidated Adjusted EBITDA, Consolidated Total Interest Expense and Relevant Debt shall:
|
|
(i)
|
be calculated and interpreted:
|
|
(A)
|
on a consolidated Borrower Group basis;
|
|
(B)
|
in the case of Consolidated Adjusted EBITDA and Consolidated Total Interest Expense, on a four rolling Accounting Quarters basis; and
|
|
(C)
|
(subject to Clause 20.4 (
Requirements as to financial statements
)) in accordance with GAAP; and
|
|
(ii)
|
be expressed in Singapore Dollars.
|
(b)
|
Consolidated Net Worth shall be calculated and interpreted on a consolidated Borrower Group basis in accordance with GAAP and shall be expressed in Singapore Dollars. For the avoidance of doubt, Consolidated Net Worth shall be calculated giving effect to the principal amount of Internal Subordinated Debt or loans provided by the Sponsor Group even if such calculation is inconsistent with GAAP.
|
(c)
|
Consolidated Adjusted EBITDA, Consolidated Net Worth and Consolidated Total Interest Expense shall be determined (except as needed to reflect the terms of this Clause 21) from the financial statements of the Borrower delivered under Clause 20.1 (
Annual financial statements
) and Clause 20.2 (
Quarterly financial statements
), and Compliance Certificates delivered under Clause 20.3 (
Compliance Certificate
).
|
(d)
|
For the purpose of this Clause 21, no item shall be included or excluded more than once in any calculation.
|
21.5
|
Financial definitions
|
|
(a)
|
which is in Agreed Form;
|
|
(b)
|
which will be for a minimum tenor of at least six Months;
|
|
(c)
|
(where the Bank SBLC is a standby letter of credit) which is governed by UCP500 (or any successor thereto) or similar accepted international standards for letters of credit; and
|
|
(d)
|
under which:
|
|
(i)
|
following the Acceleration Date, the Agent will be entitled to make unconditional demands on such Bank SBLC to reduce the outstanding Loans; and
|
|
(ii)
|
following receipt of such a demand on such Bank SBLC from the Agent, the Acceptable Bank irrevocably and unconditionally agrees to make payment of such a demand.
|
22.
|
General undertakings
|
22.1
|
Authorisations
|
(a)
|
Each Obligor shall (and the Borrower shall ensure that each other member of the Borrower Group will) promptly obtain, comply with and do all that is necessary to maintain in full force and effect (and supply one copy to the Agent of) any Authorisation required under any applicable law or regulation:
|
|
(i)
|
to enable it to perform its obligations under the Transaction Documents;
|
|
(ii)
|
to ensure the legality, validity, enforceability or admissibility in evidence in its jurisdiction of incorporation of any Transaction Document; and
|
|
(iii)
|
to enable it to carry on its business as it is being conducted from time to time if failure to obtain, comply with or maintain any such Authorisation under this sub-paragraph (iii), would reasonably be expected to have a Material Adverse Effect
.
|
(b)
|
The Borrower shall ensure that the Perfection Requirements are promptly complied with after the first Utilisation Date.
|
22.2
|
Compliance with laws
|
22.3
|
Pari passu ranking
|
22.4
|
Negative pledge
|
(a)
|
No Obligor shall (and the Borrower shall ensure that no other member of the Borrower Group will) create or permit to subsist any Security over any of its assets.
|
(b)
|
No Obligor shall (and the Borrower shall ensure that no other member of the Borrower Group will):
|
|
(i)
|
sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any Affiliate of an Obligor;
|
|
(ii)
|
enter into or permit to subsist any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or
|
|
(iii)
|
enter into or permit to subsist any other preferential arrangement having a similar effect,
|
(c)
|
No Obligor shall (and the Borrower shall ensure that no other member of the Borrower Group will) sell, transfer or otherwise dispose of any of its receivables, except as permitted by the Finance Documents.
|
(d)
|
Paragraphs
(a) and (b) above do not apply to:
|
|
(i)
|
any Permitted Security;
|
|
(ii)
|
up to first Utilisation Date, the Existing Facilities Security;
|
|
(iii)
|
any Permitted FF&E Security;
|
|
(iv)
|
any Permitted Aircraft/Watercraft Security;
|
|
(v)
|
any Purchase Money Security; or
|
|
(vi)
|
any RP/CP Hivedown Security.
|
(e)
|
Paragraphs (a) and (b) above do not apply to sale-lease back transactions:
|
|
(i)
|
entered into by any member of the Borrower Group;
|
|
(ii)
|
with respect to FF&E; and
|
|
(iii)
|
in an aggregate principal amount with respect to any such lease at any one time outstanding, taken together with all Permitted FF&E Indebtedness (without duplication), does not exceed S$600,000,000.
|
(f)
|
Paragraph (c) above does not apply to:
|
|
(i)
|
any sale of receivables by a member of the Borrower Group for cash for fair market value; or
|
|
(ii)
|
any cash monetization of rental payments by a member of the Borrower Group,
|
(g)
|
The Security Trustee shall (and is hereby instructed by the Lenders to) release any Security created by the Security Documents over the separate strata title issued for the Retail Properties and/or Car Park (or relevant parts thereof), which is to be made subject to any RP/CP Hivedown Security, at the cost and expense of the Borrower.
|
22.5
|
Disposals
|
(a)
|
No Obligor shall (and the Borrower shall ensure that no other member of the Borrower Group will), enter into a single transaction or a series of transactions (whether related or not and whether voluntary or involuntary) to sell, lease, transfer or otherwise dispose of:
|
|
(i)
|
any part of the Properties comprising the hotel, conference, meeting, convention, exhibition and/or Casino facilities; and/or
|
|
(ii)
|
any other asset.
|
(b)
|
Paragraph (a)(i) above does not apply to:
|
|
(i)
|
any lease or licence of any part of the Properties comprising the hotel, conference, meeting, convention, exhibition and/or Casino facilities:
|
|
(A)
|
which are made in the ordinary course of business of the Borrower; and
|
|
(B)
|
where the duration of any such lease or licence is for a period other than short term, the relevant lessee or licensee is subject to the same restrictions as a tenant of the Retail Properties, as described in items (A) and (B) of paragraph (c)(i) below;
|
|
(ii)
|
any sale, transfer or disposal permitted under paragraphs (d), (e) or (f) of Clause 22.4 (
Negative pledge
);
|
|
(iii)
|
with respect to any property (whether a tangible or intangible asset, or real or personal property), any of the following: (A) any loss, destruction or damage of such property or asset; (B) any actual condemnation, seizure or taking by exercise of the power of eminent domain or otherwise of such property or asset, or confiscation of such property or asset or the requisition of the use of such property or asset; (C) any settlement in lieu of item (B) above, or (D) any transfer of any personal property or personal asset to the insurer in connection with an insured claim, provided that nothing in this sub-paragraph (iii) shall limit or prevent the occurrence of any Event of Default or limit or restrict the rights of the Finance Parties under Clause 23 (
Events of Default
);
|
|
(iv)
|
any sale, lease, transfer or other disposal between or among any members of the Borrower Group (provided that the Borrower may not dispose of any Charged Assets except as otherwise permitted by this Agreement) and if the disposing member had given Security over the relevant asset, the acquiring member must give equivalent Security over that asset;
|
|
(v)
|
any transfer, on terms reasonably satisfactory to the Agent, of immaterial portions of the Properties comprising the hotel, conference, meeting, convention, exhibition and/or Casino facilities to the Government of Singapore upon the written request of the Government of Singapore and its stated intent to use such portions in connection with infrastructure, roadway, utility easement, or other “public works” purposes (so long as such transfer does not impair in any material way the ability of the Borrower to open, manage and/or operate the hotel, conference, meeting, convention, exhibition and/or Casino facilities);
|
|
(vi)
|
any Permitted Reorganisation of a Restricted Subsidiary or a Permitted Corporate Restructuring; or
|
|
(vii)
|
any sale, lease, transfer or other disposal agreed by the Agent (acting on the instructions of all Lenders).
|
(c)
|
Paragraph (a)(ii) above does not apply to:
|
|
(i)
|
in relation to any Retail Properties and/or the ArtScience Museum, any grant or agreement to grant any Lease Document in respect of the Retail Properties
|
|
|
(or any part of the Retail Properties) and/or the ArtScience Museum (or any part of the Art/Science Museum) made on normal commercial terms and in the ordinary course of business of the Borrower, so long as the tenant party to that Lease Document:
|
|
(A)
|
is not permitted to register the Lease Document nor permitted to lodge a caveat in respect of the Lease Document or in respect of any option to renew pursuant to the Lease Document at the Singapore Land Authority (or other relevant Governmental Agency), whether before or during the continuance of the term of the Lease Document; and
|
|
(B)
|
is not entitled to require that the Borrower subdivide those Retail Properties (or any part thereof) or the ArtScience Museum (or any part thereof) or to do any act or thing which could result in the Borrower being required to subdivide Retail Properties and/or the ArtScience Museum,
|
|
(ii)
|
any lease or licence of any part of the Properties comprising the hotel, conference, meeting, convention, exhibition and Car Park facilities:
|
|
(A)
|
which are made in the ordinary course of business of the Borrower; and
|
|
(B)
|
where the duration of any such lease or licence is for a period other than short term, the relevant lessee or licensee is subject to the same restrictions as a tenant of the Retail Properties, as described in items (A) and (B) of sub-paragraph (i) above;
|
|
(iii)
|
any sale of the whole (or any part) of the Properties (other than any part of the Properties comprising the hotel, conference, meeting, convention, exhibition and/or Casino facilities) by the Borrower:
|
|
(A)
|
for cash consideration, where:
|
|
(1)
|
an amount of such consideration (the “
Cash Consideration
”) sufficient to repay or prepay the total outstanding Utilisations in full in accordance with the provisions of the definition of “Net Sale Proceeds” and “Relevant Net Sale Proceeds”, Clause 8.5 (
Mandatory prepayment from Net Sale Proceeds
), Clause 8.8 (
Intercreditor Agreement
) and Clause 2 (
Mandatory Prepayment
) of the Intercreditor Agreement is receivable by the Borrower no later than the date of completion of the sale, after taking into account:
|
|
(I)
|
any permitted deduction;
|
|
(II)
|
any requirement to repay or prepay the liabilities (other than the Senior Liabilities) as contemplated by Clause 8.5 (
Mandatory prepayment from Net Sale Proceeds
) and the provisions of the Intercreditor Agreement on a
pro rata
basis; and
|
|
(III)
|
the operation of any condition exempting such repayment or prepayment or reducing the amount required to be applied towards such repayment or prepayment; or
|
|
(2)
|
where the Cash Consideration is insufficient to repay or prepay the total outstanding Utilisations in full as described in paragraph (1) above, the Borrower certifies to the Agent that it currently holds sufficient cash in an Account to make up such shortfall (and such cash shall be promptly transferred to the Prepayment Account and shall be considered “Relevant Net Sale Proceeds” for the purposes of this Agreement);
|
(B)
|
where the Relevant Net Sale Proceeds from such sale will be paid directly into the Prepayment Account (and be applied) in accordance with the Intercreditor Agreement; and
|
|
(C)
|
where no Default has occurred and is continuing;
|
|
(iv)
|
any sale, transfer or other disposal (a “
CP/RP Disposal
”) of the whole (or any part) of the Retail Properties and/or Car Park by the Borrower to any person (including, for the avoidance of doubt, to an Excluded Subsidiary):
|
|
(A)
|
at arm's length and on normal commercial terms;
|
|
(B)
|
(in the case where that CP/RP Disposal does not constitute an Exempt Disposal by reason of the non-compliance with the applicable ratio set out in paragraph (ii) of the definition of “Exempt Disposal”) that CP/RP Disposal shall be for a consideration:
|
|
(I)
|
all or a part of which shall be in cash in an amount being not less than that which if paid into the Prepayment Account in accordance Clause 8.5 (
Mandatory prepayment from Net Sale Proceeds
) and applied towards the prepayment of the Senior Liabilities and the other liabilities as contemplated by paragraph (c)(iii) of Clause 8.5 (
Mandatory prepayment from Net Sale Proceeds
), would result in compliance with that ratio (the “
Minimum CP/RP Disposal Cash Proceeds
”); and
|
|
(II)
|
where the Minimum CP/RP Disposal Cash Proceeds shall be receivable no later than the completion date of that CP/RP Disposal and upon such receipt shall be paid directly into the
|
|
|
Prepayment Account (and be applied) in accordance with the Intercreditor Agreement;
|
|
(C)
|
where no Event of Default has occurred and is continuing;
|
|
(D)
|
where the Head Lessor and the relevant Governmental Agencies have approved that CP/RP Disposal and the issue of separate strata title for the Retail Properties (or the relevant portion thereof) and/or Car Park (or the relevant portion thereof) (as applicable), in a manner that will not materially and adversely effect the interests of the Lenders (taken as a whole);
|
|
(E)
|
the part of the Retail Properties and/or the Car Park, if any, that continues to be financed by the Facilities, shall remain subject to the Security created by the relevant Security Documents; and
|
|
(F)
|
all the other Properties (other than such part of the Retail Properties and/or Car Park subject to the sale under this paragraph (c)(iv)) shall remain subject to the Security created by the relevant Security Documents;
|
|
(v)
|
any sale, lease, transfer or other disposal of any moveable asset or Intellectual Property Rights made:
|
|
(A)
|
in the ordinary course of business;
|
|
(B)
|
either in exchange for or to be replaced by other assets comparable or superior as to type, value and quality; or
|
|
(C)
|
due to obsolescence or wear and tear or where that asset is no longer material to the business of the Borrower Group taken as a whole;
|
(vi)
|
any disposal of cash, cash equivalents or Cash Equivalent Investments:
|
|
(A)
|
for the acquisition of assets or Investments permitted to be acquired under this Agreement; or
|
(B)
|
for any other purpose not prohibited under this Agreement;
|
|
(vii)
|
any sale, transfer or disposal permitted under paragraphs (d), (e) or (f) of Clause 22.4 (
Negative pledge
);
|
|
(viii)
|
any sale, lease, transfer or other disposal agreed by the Agent (acting on the instructions of the Majority Lenders);
|
|
(ix)
|
with respect to any property (whether a tangible or intangible asset, or real or personal property), any of the following: (A) any loss, destruction or damage of such property or asset; (B) any actual condemnation, seizure or taking by exercise of the power of eminent domain or otherwise of such property or
|
|
|
asset, or confiscation of such property or asset or the requisition of the use of such property or asset; (C) any settlement in lieu of item (B) above, or (D) any transfer of any personal property or personal asset to the insurer in connection with an insured claim, provided that nothing in this sub-paragraph (ix) shall limit or prevent the occurrence of any Event of Default or limit or restrict the rights of the Finance Parties under Clause 23 (
Events of Default
);
|
|
(x)
|
any sale, lease, transfer or other disposal of Intellectual Property Rights to any Affiliate in connection with the overall management of Intellectual Property Rights of the Sponsor and its Subsidiaries, so long as the Borrower’s ability to use any necessary Intellectual Property Rights and otherwise carry on its business as then conducted and contemplated to be conducted is not hindered thereby;
|
|
(xi)
|
any sale, lease, transfer or other disposal between or among any members of the Borrower Group (provided that the Borrower may not dispose of any Charged Assets except as otherwise permitted by this Agreement) and if the disposing member had given Security over the relevant asset, the acquiring member must give equivalent Security over that asset;
|
|
(xii)
|
any sale, lease, transfer or other disposal on market terms of any construction equipment no longer required for the Borrower Group's business;
|
|
(xiii)
|
any transfer, on terms reasonably satisfactory to the Agent, of immaterial portions of the Properties to the Government of Singapore upon the written request of the Government of Singapore and its stated intent to use such portions in connection with infrastructure, roadway, utility easement, or other “public works” purposes (so long as such transfer does not impair in any material way the ability of the Borrower to open, manage and/or operate the Integrated Resort);
|
|
(xiv)
|
the dissolution, liquidation or winding-up of any Excluded Subsidiary, provided that prior to such event, any assets held by the entity to be so dissolved, liquidated or wound-up are distributed to a member of the Borrower Group;
|
|
(xv)
|
any Permitted Reorganisation of a Restricted Subsidiary or a Permitted Corporate Restructuring;
|
|
(xvi)
|
any sale, lease, transfer or other disposal of any FF&E permitted by the terms of the relevant Permitted FF&E Indebtedness, provided that all proceeds from a sale are applied in accordance with the terms of such Permitted FF&E Indebtedness;
|
|
(xvii)
|
any sale, lease, transfer or other disposal of any Aircraft/Watercraft subject to any Permitted Aircraft/Watercraft Indebtedness, provided that all proceeds from a sale are applied in accordance with the terms of such Permitted Aircraft/Watercraft Indebtedness;
|
|
(xviii)
|
any sale, lease, transfer or other disposal of the Retail Properties (or the relevant portion thereof) and/or Car Park (or the relevant portion thereof) subject to any RP/CP Hivedown Refinancing Indebtedness to any Excluded Subsidiary, provided that all proceeds from a sale are applied in accordance with the terms of such RP/CP Hivedown Refinancing Indebtedness;
|
|
(xix)
|
any sale, transfer or other disposal (an “
Other Asset Disposal
”) of assets (other than the Retail Properties and/or Car Park):
|
|
(A)
|
at arm’s length and on normal commercial terms;
|
|
(B)
|
(in the case where that Other Asset Disposal does not constitute an Exempt Disposal by reason of the non-compliance with the applicable ratio set out in paragraph (ii) of the definition of “Exempt Disposal”) that Other Asset Disposal shall be for a consideration:
|
|
(I)
|
all or a part of which shall be in cash in an amount being not less than that which if paid into the Prepayment Account in accordance Clause 8.5 (
Mandatory prepayment from Net Sale Proceeds
) and applied towards the prepayment of the Senior Liabilities and the other liabilities as contemplated by paragraph (c)(iii) of Clause 8.5 (
Mandatory prepayment from Net Sale Proceeds
), would result in compliance with that ratio (the “
Minimum Other Asset Disposal Cash Proceeds
”); and
|
|
(II)
|
where the Minimum Other Asset Disposal Cash Proceeds shall be receivable no later than the completion date of that Other Asset Disposal and upon such receipt shall be paid directly into the Prepayment Account (and be applied) in accordance with the Intercreditor Agreement;
|
|
(C)
|
where the fair market value of such assets (when aggregated with the fair market value of all other assets sold, transferred or otherwise disposed as permitted under this paragraph (xix)) does not exceed S$100,000,000 (or its equivalent in another currency or currencies); and
|
|
(D)
|
where no Event of Default has occurred and is continuing;
|
|
(xx)
|
any sale, lease, transfer or other disposal of the business, operations and undertakings in respect of the ArtScience Museum (other than any part of the Properties comprising the ArtScience Museum) to any Excluded Subsidiary in connection with one or more charitable purposes;
|
|
(xxi)
|
the making of an investment permitted by paragraph (b) of Clause 22.15 (
Acquisitions and investments
); or
|
|
(xxii)
|
any sale, lease, transfer or other disposal of any moveable asset, where the fair market value (when aggregated with the fair market value for any other
|
|
|
sale, lease, transfer or other disposal of moveable assets, other than any permitted under sub-paragraphs (i) to (xxi) above) does not exceed S$15,000,000 (or its equivalent in another currency or currencies) in any calendar year.
|
(d)
|
The Security Trustee shall (and is hereby instructed by the Lenders to) release any Security created by the Security Documents over any assets subject to a permitted disposal under paragraph (c) above, at the cost and expense of the Borrower and subject to the satisfaction of any terms and conditions applicable to such disposal.
|
22.6
|
Financial Indebtedness
|
(a)
|
No Obligor shall (and the Borrower shall ensure that no other member of the Borrower Group will) incur or have outstanding any Financial Indebtedness or any Designated RPS.
|
(b)
|
Paragraph (a) above does not apply to:
|
|
(i)
|
up to the first Utilisation Date, Financial Indebtedness in respect of the Existing Facilities;
|
|
(ii)
|
any Financial Indebtedness under the Finance Documents;
|
|
(iii)
|
any Internal Subordinated Debt (including any Guarantee in respect thereof issued by any member of the Borrower Group which constitutes Internal Subordinated Debt) and any External Subordinated Debt (including any Guarantee in respect thereof issued by any member of the Borrower Group which constitutes External Subordinated Debt);
|
|
(iv)
|
any Designated RPS issued by any member of the Borrower Group (provided the aggregate principal amount of all such Designated RPS, without double counting, shall not at any one time exceed S$1,000,000,000 (or its equivalent in another currency or currencies));
|
|
(v)
|
any Incremental Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Incremental Indebtedness (provided the aggregate outstanding principal amount of (A) all such Incremental Indebtedness and Guarantees, without double counting and (B) the amount of Facility C Loans then outstanding, shall not at any one time exceed S$1,000,000,000 (or its equivalent in another currency or currencies));
|
|
(vi)
|
any Mezzanine Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Mezzanine Indebtedness (provided the aggregate outstanding principal amount of all such Mezzanine Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$1,000,000,000 (or its equivalent in another currency or currencies));
|
|
(vii)
|
any Permitted Aircraft/Watercraft Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Permitted Aircraft/Watercraft Indebtedness (provided the aggregate outstanding principal amount of all such
|
|
|
Permitted Aircraft/Watercraft Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$300,000,000 (or its equivalent in another currency or currencies));
|
|
(viii)
|
any Permitted FF&E Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Permitted FF&E Indebtedness (provided the aggregate outstanding principal amount of all such Permitted FF&E Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$500,000,000 (or its equivalent in another currency or currencies));
|
|
(ix)
|
any Purchase Money Indebtedness and any Guarantee issued by any member of the Borrower Group in respect of that Purchase Money Indebtedness (provided the aggregate outstanding principal amount of all such Purchase Money Indebtedness and Guarantees, without double counting, shall not at any one time exceed S$30,000,000 (or its equivalent in another currency or currencies));
|
|
(x)
|
any Permitted Refinancing Indebtedness or RP/CP Hivedown Refinancing Indebtedness;
|
|
(xi)
|
any Financial Indebtedness owed by any member of the Borrower Group to another member of the Borrower Group;
|
|
(xii)
|
to the extent that such incurrence does not result in the incurrence by any member of the Borrower Group of any obligation for the payment of Financial Indebtedness of others (other than other members of the Borrower Group), any Financial Indebtedness of a member of the Borrower Group incurred solely in respect of:
|
|
(A)
|
performance bonds, completion guarantees, standby letters of credit or bankers' acceptances, letters of credit in order to provide security for workers' compensation claims, payment obligations in connection with self insurance or similar requirements, surety and similar bonds and statutory claims of lessors, licensees, contractors, franchisees or customers in each case to the extent the Financial Indebtedness in respect of such facilities are on terms more favourable than those under the Ancillary Facilities; and
|
|
(B)
|
bonds securing the performance of judgments or a stay of process in proceedings to enforce a contested liability or in connection with any order or decree in any legal proceeding,
|
|
(xiii)
|
any Financial Indebtedness arising from any agreement entered into by any member of the Borrower Group providing for indemnification, purchase price
|
|
|
adjustment or similar obligations, in each case, incurred or assumed in connection with a sale, lease, transfer or other disposition of any asset permitted pursuant to paragraph (c) of Clause 22.5 (
Disposals
);
|
|
(xiv)
|
any Financial Indebtedness in respect of derivative transactions entered into pursuant to Clause
22.8 (
Hedging
);
|
|
(xv)
|
any Financial Indebtedness permitted by paragraph (b) of Clause 22.7 (
Loans and guarantees
);
|
|
(xvi)
|
investments permitted pursuant to paragraph (b) of Clause 22.15
(Acquisitions and investments
) to the extent they constitute Financial Indebtedness;
|
|
(xvii)
|
any Financial Indebtedness of any member of the Borrower Group, to the extent constituting or covered by a guarantee, bond, letter of credit or other instrument issued under any Ancillary Facility; and
|
|
(xviii)
|
any Financial Indebtedness existing on the date of this Agreement and listed in Schedule 12 (
Existing Indebtedness
), and any replacement, renewal, refinancing, refunding or extension of that Financial Indebtedness in whole or in part by the member of the Borrower Group that originally incurred such Financial Indebtedness except to the extent the principal amount of that Financial Indebtedness exceeds the amount stated in that Schedule.
|
(c)
|
For the avoidance of doubt, nothing in paragraph (a) above shall prohibit the establishment by any member of the Borrower Group (whether as issuer or guarantor) of a medium term note programme (an “
MTN Programme
”) provided that the incurrence by a member of the Borrower Group of any Financial Indebtedness under any MTN Programme shall be subject to the provisions of this Clause 22.6.
|
22.7
|
Loans and guarantees
|
(a)
|
No Obligor shall (and the Borrower shall ensure that no other member of the Borrower Group will):
|
|
(i)
|
make any loan, or provide any form of credit or financial accommodation, to any other person; or
|
|
(ii)
|
give or issue any guarantee, indemnity, bond or letter of credit to or for the benefit of, or in respect of liabilities or obligations of, any other person or voluntarily assume any liability (whether actual or contingent) of any other person.
|
(b)
|
Paragraph (a) above does not apply to:
|
|
(i)
|
up to the first Utilisation Date, any Guarantees or indemnities in respect of the Existing Facilities;
|
|
(ii)
|
any loans, Guarantees or indemnities under the Finance Documents;
|
|
(iii)
|
any customary indemnities in respect of any Permitted FF&E Indebtedness, any Permitted Refinancing Indebtedness, any Permitted Aircraft/Watercraft Indebtedness, any External Subordinated Debt, any Incremental Indebtedness, any Mezzanine Indebtedness or any Purchase Money Indebtedness;
|
|
(iv)
|
any Guarantee issued by any member of the Borrower Group in respect of any Incremental Indebtedness to the extent it complies with paragraph (b)(v) of Clause 22.6 (
Financial Indebtedness
);
|
|
(v)
|
any Guarantee issued by any member of the Borrower Group in respect of any Mezzanine Indebtedness to the extent it complies with paragraph (b)(vi) of Clause 22.6 (
Financial Indebtedness
);
|
|
(vi)
|
any Guarantee issued by any member of the Borrower Group in respect of any Permitted Aircraft/Watercraft Indebtedness to the extent it complies with paragraph (b)(vii) of Clause 22.6 (
Financial Indebtedness
));
|
|
(vii)
|
any Guarantee issued by any member of the Borrower Group in respect of any Permitted FF&E Indebtedness to the extent it complies with paragraph (b)(viii) of Clause 22.6 (
Financial Indebtedness
));
|
|
(viii)
|
any Guarantee issued by any member of the Borrower Group in respect of any Purchase Money Indebtedness to the extent it complies with paragraph (b)(ix) of Clause 22.6 (
Financial Indebtedness
));
|
|
(ix)
|
any Guarantee issued by any member of the Borrower Group in respect of any Permitted Refinancing Indebtedness to the extent it complies with paragraph (b)(x) of Clause 22.6 (
Financial Indebtedness
));
|
|
(x)
|
any Guarantee issued by any member of the Borrower Group in respect of any Subordinated Debt to the extent it complies with paragraph (b)(iii) of Clause 22.6 (
Financial Indebtedness
));
|
|
(xi)
|
any investments permitted under Clause
22.15
(Acquisitions and investments
) to the extent they constitute loans, guarantees, indemnities or other contingent liabilities;
|
|
(xii)
|
any trade credit, guarantees, indemnities, bonds and letters of credit granted, given or issued by an Obligor on arm's length terms and in the ordinary course of its trading, not in respect of Financial Indebtedness;
|
|
(xiii)
|
any loans, guarantees, indemnities, bonds and letters of credit permitted by paragraph (b) of Clause 22.6 (
Financial Indebtedness
);
|
|
(xiv)
|
any Borrower Group Subordinated Guarantees; or
|
|
(xv)
|
any loans by the Borrower to:
|
|
(A)
|
the HoldCo which directly holds, legally and beneficially, more than half of the issued share capital of the Borrower; or
|
|
(B)
|
all HoldCos (whether
pro rata
in accordance with the proportion of each HoldCo’s shareholding in the Borrower or otherwise) on a joint and several basis;
|
|
(xvi)
|
loans, guarantees or indemnities with respect to Financial Indebtedness and other obligations of another member of the Borrower Group (which Financial Indebtedness or obligation is otherwise permitted under this Agreement, provided that the ranking and priority of such guarantees and/or indemnities shall be no more favourable than the ranking and priority of the Financial Indebtedness or obligation to which it relates); or
|
|
(xvii)
|
any loans or advances made by any member of the Borrower Group to employees or directors or former employees or directors of any member of the Borrower Group in an amount not to exceed S$5,000,000 in the aggregate outstanding at any time.
|
22.8
|
Hedging
|
(a)
|
No Obligor shall (and the Borrower shall ensure that no member of the Borrower Group will) enter into any derivative transaction, other than:
|
|
(i)
|
in respect of the Facilities and any other Financial Indebtedness permitted to be incurred pursuant to this Agreement;
|
|
(ii)
|
spot and forward delivery foreign exchange contracts entered into in the ordinary course of business and not for speculative purposes; and
|
|
(iii)
|
any derivative transaction entered into for the hedging of actual or projected real exposures arising in the ordinary course of trading activities of a member of the Borrower Group and not for speculative purposes.
|
(b)
|
The Borrower may, but shall not be obliged to, request that a Lender (or an Affiliate of a Lender) which provides the Borrower with any hedging in connection with interest payable in respect of the Senior Liabilities, the Secured Incremental Liabilities and/or the Secured Permitted Refinancing Liabilities accedes to the Intercreditor Agreement as a Hedging Bank.
|
22.9
|
Commercial Documents
|
(a)
|
The Borrower shall:
|
|
(i)
|
perform and comply with:
|
|
(A)
|
its obligations under or in connection with the Development Agreement and the Head Lease, other than obligations of a minor or technical
|
|
|
nature, the non-fulfilment of which would not be materially adverse to the interests of the Lenders;
|
|
(B)
|
the Consent; and
|
|
(C)
|
in all material respects with its material obligations under or in connection with the other Commercial Documents;
|
|
(ii)
|
notify the Agent (promptly upon becoming aware of the same) of:
|
|
(A)
|
any breach by any party of its obligations or any default under the Development Agreement, the Head Lease or the Consent; and
|
|
(B)
|
any material breach by any party of its obligations or any default under the Commercial Documents;
|
|
(iii)
|
take all reasonable steps to enforce (except to the extent permitted by paragraph (b) below):
|
|
(A)
|
any claim or right it has under or in connection with the Development Agreement, the Head Lease or the Consent; and
|
|
(B)
|
any material claim or right it has under or in connection with any other Commercial Document;
|
|
(iv)
|
notify the Agent promptly of any material claim made under a Commercial Document; and
|
|
(v)
|
provide the Agent with reasonable details of any claim under sub-paragraph (iv) above and its progress and notify the Agent as soon as practicable upon that claim being resolved.
|
(b)
|
The Borrower shall not amend, terminate, give any waiver or consent under, or agree or decide not to enforce, in whole or in part, any term or condition of:
|
|
(i)
|
the Development Agreement, the Head Lease or the Consent, save for amendments, waivers, consents or non-enforcements which:
|
|
(A)
|
are not materially adverse to the interests of the Lenders;
|
|
(B)
|
are minor or technical; or
|
|
(C)
|
have been approved in writing by the Agent (acting on the instructions of the Majority Lenders (which approval shall not be unreasonably withheld)); or
|
|
(ii)
|
any other Commercial Document, save for non-material amendments, waivers, consents or non-enforcements or amendments, waivers, consents or non-enforcements which are not materially adverse to the interests of the Lenders, are
|
|
|
minor or technical or have been approved in writing by the Agent (acting on the instructions of the Majority Lenders (such consent not to be unreasonably withheld)).
|
22.10
|
Accounts
|
(a)
|
The Borrower shall, in good time before the date that it estimates that any prepayment amount will become payable, open and at all times thereafter during the continuance of this Agreement, maintain the Prepayment Account with the Security Trustee.
|
(b)
|
Subject to paragraph (c) below, each Obligor shall promptly ensure that each of its bank, deposit, savings, current or other account (each, an “
Account
”) opened and maintained with a bank or financial institution is:
|
|
(i)
|
(in the case where that Account is opened and maintained with a bank or financial institution located in Singapore) charged in favour of the Security Trustee in accordance with a Debenture or (as the case may be) the Restricted Subsidiary Debenture to which it is a party; and
|
|
(ii)
|
(in the case where that Account is opened and maintained with a bank or financial institution located in a jurisdiction other than Singapore (an “
Offshore Collection Account
”)) charged in favour of the Security Trustee on substantially the same terms as those contained in a Debenture or (as the case may be) the Restricted Subsidiary Debenture to which it is a party pursuant to an Offshore Collection Account Security Document governed by the law of such jurisdiction, in form and substance satisfactory to the Security Trustee.
|
(c)
|
Paragraph (b) above does not apply to any Account:
|
|
(i)
|
(in the case where that Account is an Offshore Collection Account) to the extent that the amount standing to the credit of that Offshore Collection Account, when aggregated with the amount standing to the credit of all other Offshore Collection Accounts which are not charged in favour of the Security Trustee, does not exceed S$35,000,000 (or its equivalent in another currency or currencies) at any time, it being understood that:
|
|
(A)
|
no Offshore Collection Account shall be required to be charged in favour of the Security Trustee where the aggregate amount standing to the credit of all Offshore Collection Accounts, does not exceed S$35,000,000 (or its equivalent in another currency or currencies) at any time; and
|
|
(B)
|
where the aggregate amount standing to the credit of all Offshore Collection Accounts at any time exceeds S$35,000,000 (or its equivalent in another currency or currencies) (such excess amount, the “
Excess Amount
”) the requirement in paragraph (b)(ii) above
|
|
|
shall only apply in respect of such Offshore Collection Accounts representing the Excess Amount;
|
|
(ii)
|
which solely contains cash owned by customers of an Obligor or cash held by an Obligor in a fiduciary capacity for its customers or employees or is otherwise a fiduciary account where none of the Obligors is a beneficiary; or
|
|
(iii)
|
which are used solely to receive proceeds of any Permitted FF&E Indebtedness.
|
22.11
|
Change of business
|
|
(a)
|
as results from the ownership and operation of the Integrated Resort; or
|
|
(b)
|
where the change involves any activity or business incidental, related or similar thereto, or any business or activity that is a reasonable extension, development or expansion thereof or ancillary thereto, including, but not limited to, any internet gaming, hotel, entertainment, recreation, convention, trade show, meeting, retail sales, leasing, transportation or other activity or business designated to promote, market, support, develop, construct or enhance the casino gaming, hotel, retail and entertainment, mall and/or resort business operated by the Borrower Group.
|
22.12
|
Merger
|
|
(a)
|
in relation to a Restricted Subsidiary:
|
|
(i)
|
any Permitted Reorganisation; or
|
|
(ii)
|
any internal corporate reconstruction or reorganisation that:
|
|
(A)
|
does not result in any amalgamation, demerger or merger; and
|
|
(B)
|
will not result in a Default or a Material Adverse Effect; and
|
|
(b)
|
in relation to the Borrower,
any internal corporate reconstruction or reorganisation (including a transfer of assets to a wholly-owned Restricted Subsidiary) that
:
|
|
(i)
|
is made principally for purposes of corporate efficiency and with the consent of the Majority Lenders (provided that where such corporate reconstruction or reorganisation involves or relates to any matter
|
|
|
(including, without limitation, the release of any Security created pursuant to any Security Document or of any Charged Assets) requiring the consent of any group of Finance Parties (including all Lenders), the consent of such group of Finance Parties shall also be required);
|
|
(ii)
|
will not result in a Default or a Material Adverse Effect; and
|
|
(iii)
|
either:
|
|
(A)
|
does not result in any amalgamation, demerger or merger; or
|
|
(B)
|
where it results in a merger with a Restricted Subsidiary, the Borrower is, and will be, the surviving legal entity and the Agent receives a legal opinion (in form and substance reasonably satisfactory to the Agent) from the legal advisers to the Borrower in Singapore, confirming this.
|
22.13
|
Restricted payments
|
(a)
|
No Obligor shall (and the Borrower shall ensure that no other member of the Borrower Group will):
|
|
(i)
|
pay, repay or prepay any principal, interest (provided that interest (A) may accrue or be capitalised and (B) may be evidenced by any instrument which constitutes Subordinated Debt or equity) or other amount on or in respect of, or redeem, purchase or defease, any Subordinated Debt (each, a “
Subordinated Payment
”); or
|
|
(ii)
|
reduce, return, purchase, repay, cancel or redeem any of its shares (each, a “
Redemption
”).
|
(b)
|
Paragraph (a) above does not apply to, if no Event of Default is continuing, the payment of interest, fees, commissions, costs and expenses and other payments not in the nature of principal, due and payable in respect of External Subordinated Debt.
|
(c)
|
The Borrower shall not declare, pay or make any dividend or other equivalent payment or equivalent distribution of any kind (each, a “
Dividend
”) to its shareholders on or in respect of any of its shares.
|
(d)
|
Paragraphs (a) and (c) above do not apply to:
|
|
(i)
|
any Subordinated Payment, Dividend or Redemption which is a Permitted Transaction (Designated Sale) provided that the amount of any Subordinated Payment or Redemption under this paragraph (i) may not exceed such amount, prescribed by any applicable law, had it been a Dividend;
|
|
(ii)
|
any payments (including any Dividend) to any HoldCo or any member of the consolidated group of which that HoldCo is the common parent, for the purpose of reimbursing that HoldCo or such member for any Taxes incurred by
|
|
|
that HoldCo or such member that are directly attributable to its ownership of the Borrower (as certified by an authorised officer or authorised signatory of the Borrower to the Agent), where no Default is continuing or would reasonably be expected to result from such payment;
|
|
(iii)
|
any payment to any HoldCo or its Affiliates:
|
|
(A)
|
for the sole purpose of reimbursing that HoldCo or its Affiliates for any project costs or operating costs (including any royalty payments) incurred by that HoldCo or its Affiliates on behalf of the Borrower (as certified by an authorised officer or authorised signatory of the Borrower to the Agent); and
|
|
(B)
|
where no Default is continuing or would reasonably be expected to result from such payment;
|
|
(iv)
|
any Dividend declared, paid or made to any HoldCo to enable that HoldCo to pay interest, fees, commissions, costs and expenses and other payments not in the nature of principal on HoldCo Subordinated Debt, where no Default is continuing or would reasonably be expected to result from such Dividend;
|
|
(v)
|
where no Default is continuing or would reasonably be expected to result from such Dividend, Dividends to any Holdco (A) in an aggregate amount not to exceed S$2,000,000 in any financial year of the Borrower, to the extent necessary to permit that Holdco to pay general administrative costs and expenses and (B) to the extent necessary to permit that Holdco to pay franchise taxes, and accounting, legal and other professional fees in relation to (1) the Borrower and/or the Integrated Resort, (2) that Holdco in its capacity as the owner of the equity interests of the Borrower, and (3) all activities of that Holdco in such capacity referred to in the foregoing item (2);
|
|
(vi)
|
any Subordinated Payment, Dividend or Redemption which is a Permitted Transaction (Leverage Ratio) provided that the amount of any Subordinated Payment or Redemption under this paragraph (vi) may not exceed such amount, prescribed by any applicable law, had it been a Dividend; or
|
|
(vii)
|
any Subordinated Payment, Dividend or Redemption which is a Permitted Transaction (Miscellaneous) provided that the amount of any Subordinated Payment or Redemption under this paragraph (vii) may not exceed such amount, prescribed by any applicable law, had it been a Dividend.
|
|
(e)
|
Paragraphs (a) and (c) above do not apply to any payment, dividend, distribution or release made in accordance with paragraph (b) of Clause 21.2 (
Rectification
).
|
22.14
|
Arm's length terms
|
|
(a)
|
on arm's length terms;
|
|
(b)
|
any transaction, agreement, contract or arrangement permitted by Clause 22.5 (
Disposals
), Clause 22.6 (
Financial Indebtedness)
), Clause 22.7 (
Loans and guarantees
), Clause 22.13 (
Restricted payments
) or Clause 22.15
(Acquisitions and investments
);
|
|
(c)
|
any inter-company services and/or procurement contract or arrangement to be entered into by the Borrower on terms consistent with the past practice of other Subsidiaries of the Sponsor for performing similar functions;
|
|
(d)
|
transfers of Intellectual Property Rights permitted by paragraph (c)(x) of Clause 22.5 (
Disposals
);
|
|
(e)
|
any equity contributions or Internal Subordinated Debt which are made to the Borrower solely to finance the prepayment or repayment of Loans or for any other purpose permitted by this Agreement;
|
|
(f)
|
any employment, compensation, indemnification, non-competition or confidentiality agreement or arrangement entered into by a member of the Borrower Group with its employees or directors in the ordinary course of business or as approved by a majority of the members of the board of directors (or functional equivalent thereof) of such member of the Borrower Group in its reasonable determination;
|
|
(g)
|
loans or advances to employees of the members of the Borrower Group permitted under paragraphs (b)(v) and (b)(xii) of Clause 22.15
(Acquisitions and investments
);
|
|
(h)
|
transactions contemplated by each Commercial Document;
|
|
(i)
|
reciprocal easement and other similar agreements required or permitted to be entered into pursuant to the Finance Documents;
|
|
(j)
|
(A) license agreements with an Excluded Subsidiary (including licenses permitting an Excluded Subsidiary to use Intellectual Property Rights of the members of the Borrower Group) and (B) any other agreements with an Excluded Subsidiary, provided the terms of such other agreement under this item (B) or any amendment to such agreement are no less favorable to the members of the Borrower Group than those that would have been obtained in a comparable transaction by such member with an unrelated person;
|
|
(k)
|
any agreement not specifically prohibited hereunder by an Excluded Subsidiary to pay management fees to a member of the Borrower Group directly or indirectly;
|
|
(l)
|
any arrangement permitted or contemplated by this Agreement;
|
|
(m)
|
any contract or arrangement agreed by the Majority Lenders;
|
|
(n)
|
the Trademark License Agreement effective as of 27 April 2010 made between the Borrower and LVS Dutch Intermediate Holding B.V., a private Dutch company with limited liability, and the transfer, from time to time, of Intellectual Property Rights to the Sponsor and/or its Affiliates so long as the transferor retains or will obtain a licence to use such Intellectual Property Rights;
|
|
(o)
|
any transaction, in connection with any charitable purpose, between an Obligor and the Excluded Subsidiary described in paragraph (xx) in Clause 22.5 (
Disposals
);
|
|
(p)
|
any transaction arising between members of the Borrower Group not specifically prohibited by this Agreement; or
|
|
(q)
|
payments to the Borrower and repayments by the Borrower of Sponsor Group Contributions permitted by paragraph (b) of Clause 21.2 (
Rectification
).
|
22.15
|
Acquisitions and investments
|
(a)
|
No Obligor shall (and the Borrower shall ensure that no other member of the Borrower Group will):
|
|
(i)
|
invest in or acquire any share in or any security issued by any person, or any interest therein or in the capital of any person, or make any capital contribution to any person; or
|
|
(ii)
|
invest in or acquire any business or going concern, or the whole or substantially the whole of the assets or business of any person, or any assets that constitute a division or operating unit of the business of any person.
|
|
(b)
|
Paragraph (a) above does not apply to:
|
|
(i)
|
the operation of the Integrated Resort (including the acquisition of any FF&E);
|
|
(ii)
|
Investments (including the formation or creation of a Subsidiary in compliance with the terms of this Agreement) by any member of the Borrower Group in any other member of the Borrower Group;
|
|
(iii)
|
any Investment made as a result of the receipt of non-cash consideration from the sale of any asset that was made pursuant to and in compliance with this Agreement;
|
|
(iv)
|
trade receivables owing to any member of the Borrower Group if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms, provided that such trade terms may include such concessionary trade terms as such member of the Borrower Group deems reasonable under the circumstances;
|
|
(v)
|
payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business;
|
|
(vi)
|
Investments by the members of the Borrower Group in any Excluded Subsidiary, where those Investments are made with proceeds that the Borrower is permitted to invest (or not restricted from investing) pursuant to the paragraph (iii) of the definition of “Excluded Subsidiary”;
|
|
(vii)
|
any Investment of property (other than cash) by the Borrower where such property was originally contributed to the Borrower by a member of the Sponsor Group in exchange for common equity of the Borrower or for Financial Indebtedness owing by the Borrower to that member of the Sponsor Group constituted as Internal Subordinated Debt;
|
|
(viii)
|
Investments of cash or property in any joint venture, partnership, consortium or Excluded Subsidiary the amount of which when aggregated with all other Investments permitted under this sub-paragraph (viii), does not exceed S$25,000,000 in any financial year of the Borrower;
|
|
(ix)
|
Investments by the members of the Borrower Group consisting of securities or other obligations received in settlement of debt created in the ordinary course of business where the debt is not incurred in contemplation of the acquisition of those Investments;
|
|
(x)
|
to the extent constituting Investments, transfers of Intellectual Property Rights permitted pursuant to paragraph (c)(x) of Clause 22.5 (
Disposals
);
|
|
(xi)
|
any Investment in or purchase of any Cash Equivalent Investments;
|
|
(xii)
|
any indebtedness incurred by the members of the Borrower Group permitted under Clause 22.6 (
Financial Indebtedness
) and any Guarantee, indemnity or contingent liability permitted under Clause 22.7 (
Loans and guarantees
), to the extent such indebtedness or contingent liability constitutes an Investment;
|
|
(xiii)
|
any Investments in the form of cash:
|
|
(A)
|
which (when aggregated with the amount of all other Investments permitted under this sub-paragraphs (xiii)) does not, at any time, exceed the Cash Investment Limit as at the date of such Investments;
|
|
(B)
|
where no Default is continuing or would reasonably be expected to result from such Investment; and
|
|
(C)
|
where the ratio of Debt as of the last Relevant Date falling on or before the date of such Investments to Consolidated Adjusted EBITDA for the Relevant Period ending on that Relevant Date is less than 3.50 to 1, as evidenced by a Compliance Certificate delivered to the Agent on or
|
|
|
before the date of such Investments, setting out (in reasonable detail) computations as to compliance with the above ratio);
|
|
(xiv)
|
any Investment:
|
|
(A)
|
which falls within the description of paragraph (d) of the definition of “Controlled Transaction”; and
|
|
(B)
|
which is a Permitted Transaction (Designated Sale), a Permitted Transaction (Leverage Ratio) or a Permitted Transaction (Miscellaneous);
|
|
(xv)
|
any Permitted Investment;
|
|
(xvi)
|
any other Investment approved by the Majority Lenders; or
|
|
(xvii)
|
any Investment where the amount of such Investments (when aggregated with the amount of all other Investments other than any permitted under sub-paragraphs (i) to (xvi) above) does not exceed S$50,000,000 at any time.
|
22.16
|
Assets
|
22.17
|
Insurance
|
(a)
|
Each Obligor shall (and the Borrower shall ensure that each other member of the Borrower Group will) maintain insurances on and in relation to its business and assets with reputable underwriters or insurance companies:
|
|
(i)
|
against those risks, and to the extent, usually insured against by prudent companies located in the same or a similar location and carrying on a similar business; and
|
|
(ii)
|
against those risks, and to the extent, required by applicable law or by contract,
|
(b)
|
Without limiting paragraph (a) above, each Borrower shall maintain insurance on all of its assets of an insurable nature (including, without limitation, the Properties):
|
|
(i)
|
against loss or damage by fire and other risks normally insured against by persons carrying on a similar business in a sum or sums at least equal to the higher of:
|
|
(A)
|
US$3,000,000,000 (or its equivalent in another currency or currencies); and
|
|
(B)
|
the estimated maximum loss in respect of the Properties as set out in the most recent Insurance Report (or if none, the Original Insurance Report) delivered to the Agent pursuant to this Agreement; and
|
|
(ii)
|
against loss or damage by terrorism in a sum or sums at least equal to US$1,500,000,000 (or its equivalent in another currency or currencies) provided that:
|
|
(A)
|
the Borrower may maintain such insurance for a lower amount (including, for the avoidance of doubt, zero) if that amount represents the maximum insurance coverage against loss or damage by terrorism which the Borrower can reasonably obtain for the time being; and
|
|
(B)
|
the Borrower may elect not to maintain such insurance in any financial year if the aggregate premium payable in respect of such insurance in that financial year is equal to or more than 125 per cent. of the aggregate premium paid or payable in respect of any equivalent original insurances existing in the immediately preceding financial year (or if none, the most recent financial year before that year) which such insurance is intended to replace.
|
(c)
|
Each Obligor acknowledges that it is the sole party liable to pay premiums and shall (and the Borrower shall ensure that each other member of the Borrower Group will) promptly pay such premiums and do all things necessary to maintain insurances required of it by paragraphs (a) and (b) above.
|
(d)
|
The Borrower shall:
|
|
(i)
|
supply to the Agent prior to the first Utilisation Date and promptly upon subsequent written request (such request to be made not more than once a year), certified true copies of each insurance policy or certificate of insurance issued by insurance brokers or underwriters relating to it and required by this Clause 22.17;
|
|
(ii)
|
promptly notify the Agent of any fact, act or omission which has caused or may cause it to be in breach of any provision of this Clause 22.17 in relation to the Borrower and of any purported or threatened avoidance of any insurance policy in relation to the Borrower required by this Clause 22.17; and
|
|
(iii)
|
promptly notify the Agent of any claim or notification under any of its insurance policies which is for, or would reasonably be expected to result in a claim under that policy for, at least S$35,000,000 (or its equivalent in another currency or currencies).
|
(e)
|
No Obligor shall (and the Borrower shall ensure that no other member of the Borrower Group will) do or omit to do anything which:
|
|
(i)
|
would reasonably be expected to render any insurance required by this Clause 22.17 void, voidable or unenforceable; or
|
|
(ii)
|
would entitle any insurer of that Obligor to reduce or avoid its liability under any such insurance which would reasonably be expected to be materially adverse to the interests of the Finance Parties.
|
22.18
|
Environmental undertakings
|
|
(a)
|
comply in all material respects with all Environmental Laws to which it may be subject; and
|
|
(b)
|
obtain all material Environmental Licences required or desirable in connection with its business and comply in all material respects with the terms of all those Environmental Licences
,
|
22.19
|
Taxes
|
(a)
|
Each Obligor shall (and the Borrower shall ensure that each other member of the Borrower Group) shall pay all Taxes required to be paid by it when due (or, if earlier, before any penalty is or could be imposed, and before any Security is or could be imposed ranking in priority to the claims of any Finance Party or to any Security created pursuant to the Security Documents).
|
(b)
|
Paragraph (a) above does not apply to any Taxes:
|
|
(i)
|
being contested by the relevant Obligor or member of the Borrower Group in good faith and in accordance with the relevant procedures;
|
|
(ii)
|
which have been adequately disclosed in its financial statements, and for which adequate reserves are being maintained in accordance with GAAP; and
|
|
(iii)
|
where payment can be lawfully withheld and will not result in the imposition of any penalty or Security as described in paragraph (a) above.
|
22.20
|
Financial assistance
|
22.21
|
External Subordinated Debt
|
22.22
|
Incremental Indebtedness
|
(a)
|
Notwithstanding anything in Clause 6.2 (
Payment of Secured Incremental Liabilities
) of the Intercreditor Agreement,
where any Obligor makes any voluntary payment, repayment or prepayment in the nature of principal on all or any part of any Incremental Indebtedness (an “
Incremental Indebtedness Voluntary Prepayment
”), the Borrower shall (and shall ensure that each other member of the Borrower Group will), on or about the same date, prepay the Facility A Loans in accordance with Clause 8.9 (
Voluntary prepayment of Facility A Loans
) by an amount representing a fraction of all Facility A Loans where:
|
|
(i)
|
the numerator of such fraction is the amount the Incremental Indebtedness Voluntary Prepayment; and
|
|
(ii)
|
the denominator of such fraction is the aggregate principal amount of all Incremental Indebtedness immediately prior to the Incremental Indebtedness Voluntary Prepayment.
|
(b)
|
Paragraph (a) above does not apply where:
|
|
(i)
|
no Event of Default has occurred and is continuing; and
|
|
(ii)
|
on the date of the Incremental Indebtedness Voluntary Prepayment:
|
|
(A)
|
the Debt (but without taking into account the effect that Incremental Indebtedness Voluntary Prepayment) as of the last Relevant Date falling on or before the date of the Incremental Indebtedness Voluntary Prepayment;
|
|
to:
|
|
|
(B)
|
the Consolidated Adjusted EBITDA for the Relevant Period ending on the Relevant Date described in paragraph (A) above,
|
22.23
|
Permitted Refinancing Indebtedness
|
(a)
|
Notwithstanding anything in Clause 7.2 (
Payment of Secured Permitted Refinancing Liabilities
) of the Intercreditor Agreement,
where any Obligor makes any voluntary payment, repayment or prepayment in the nature of principal on all or any part of any Permitted Refinancing Indebtedness (a “
Permitted Refinancing Indebtedness Voluntary Prepayment
”), the Borrower shall (and shall ensure that each other member of the Borrower Group will), on or about the same date, prepay the Facility A Loans in accordance with Clause 8.9 (
Voluntary prepayment of Facility A Loans
) by an amount representing a fraction of all Facility A Loans where:
|
|
(i)
|
the numerator of such fraction is the amount the Permitted Refinancing Indebtedness Voluntary Prepayment; and
|
|
(ii)
|
the denominator of such fraction is the aggregate principal amount of all Permitted Refinancing Indebtedness immediately prior to the Permitted Refinancing Indebtedness Voluntary Prepayment.
|
(b)
|
Paragraph (a) above does not apply where:
|
|
(i)
|
no Event of Default has occurred and is continuing; and
|
|
(ii)
|
on the date of the Permitted Refinancing Indebtedness Voluntary Prepayment:
|
|
(A)
|
the Debt (but without taking into account the effect that Permitted Refinancing Indebtedness Voluntary Prepayment) as of the last Relevant Date falling on or before the date of the Permitted Refinancing Indebtedness Voluntary Prepayment;
|
|
to:
|
|
|
(B)
|
the Consolidated Adjusted EBITDA for the Relevant Period ending on the Relevant Date described in paragraph (A) above,
|
22.24
|
Mezzanine Indebtedness
|
(a)
|
Notwithstanding anything in Clause 8.2 (
Payment of Secured Mezzanine Liabilities
) of the Intercreditor Agreement, where any Obligor makes any voluntary payment, repayment or prepayment in the nature of principal on all or any part of any Mezzanine Indebtedness (a “
Mezzanine Indebtedness Voluntary Prepayment
”), the Borrower shall (and shall ensure that each other member of the Borrower Group will), on or about the same date, prepay the Facility A Loans in accordance with Clause 8.9 (
Voluntary prepayment of Facility A Loans
) by an amount representing a fraction of all Facility A Loans where:
|
|
(i)
|
the numerator of such fraction is the amount the Mezzanine Indebtedness Voluntary Prepayment; and
|
|
(ii)
|
the denominator of such fraction is the aggregate principal amount of all Mezzanine Indebtedness immediately prior to the Mezzanine Indebtedness Voluntary Prepayment.
|
(b)
|
Paragraph (a) above does not apply where:
|
|
(i)
|
no Event of Default has occurred and is continuing; and
|
|
(ii)
|
on the date of the Mezzanine Indebtedness Voluntary Prepayment:
|
|
(A)
|
the Debt (but without taking into account the effect that Mezzanine Indebtedness Voluntary Prepayment) as of the last Relevant Date falling on or before the date of the Mezzanine Indebtedness Voluntary Prepayment;
|
|
to:
|
|
|
(B)
|
the Consolidated Adjusted EBITDA for the Relevant Period ending on the Relevant Date described in paragraph (A) above,
|
22.25
|
Guarantees and Security
|
|
(a)
|
promptly notify the Agent:
|
|
(i)
|
if any new Subsidiary of the Borrower is incorporated or formed; and
|
|
(ii)
|
whether or not that Subsidiary is (or will be) a Restricted Subsidiary; and
|
|
(b)
|
if such Subsidiary is a Restricted Subsidiary, within 30 days of a request by the Agent, ensure that it will:
|
|
(i)
|
become a Guarantor and provide a Restricted Subsidiary Debenture in favour of the Secured Parties to secure all of the obligations of the Obligors under the Secured Documents; and
|
|
(ii)
|
accede to the Intercreditor Agreement as an Obligor.
|
23.
|
Events of Default
|
23.1
|
Non-payment
|
|
(a)
|
in the case of principal or interest or guarantee fee or commitment fee, payment is made within three Business Days of its due date;
|
|
(b)
|
in the case of fees and other amounts not constituting principal, interest, guarantee fee or costs and expenses, payment is made within seven Business Days of its due date; and
|
|
(c)
|
in the case of costs, expenses and any other sums, payment is made within 15 Business Days of its due date, following the giving of the notice or demand (if any) required by the terms of the Finance Document.
|
23.2
|
Financial covenants
|
23.3
|
Other obligations
|
(a)
|
An Obligor does not comply with any provision of the Finance Documents to which it is a party (other than those referred to in Clause 23.1 (
Non-payment
) and Clause 23.2 (
Financial covenants
)).
|
(b)
|
No Event of Default under paragraph (a) above in relation to any provision of the Finance Documents will occur if the failure to comply is capable of remedy and is remedied within 30 days of the earlier of (i) the relevant Obligor becoming aware of such default and (ii) the Agent or any Lender giving notice to the relevant Obligor of the failure to comply.
|
23.4
|
Misrepresentation
|
(a)
|
Any representation or statement made or deemed to be made by an Obligor in the Finance Documents to which it is a party or any other document delivered by or on behalf of any Obligor under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.
|
(b)
|
No Event of Default under paragraph (a) above will occur if the misrepresentation or misstatement, or the circumstances giving rise to it, is capable of remedy and is remedied within 30 days of the earlier of (i) the relevant Obligor becoming aware of the misrepresentation or misstatement and (ii) the Agent or any Lender giving notice to the relevant Obligor of the misrepresentation or misstatement.
|
23.5
|
Cross default
|
(a)
|
Any Financial Indebtedness of any Obligor is not paid when due nor within any applicable grace period.
|
(b)
|
Any Financial Indebtedness of any Obligor is declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
|
(c)
|
No Event of Default will occur under this Clause 23.5 if:
|
|
(i)
|
in relation to paragraphs (a) and (b) above, the holder of the relevant Financial Indebtedness waives the applicable failure to pay or other event of default (howsoever described) or such event of default is cured; or
|
|
(ii)
|
if the aggregate amount of Financial Indebtedness or commitment for Financial Indebtedness falling within paragraphs (a) and (b) above at any time, is less than S$200,000,000 (or its equivalent in any other currency or currencies).
|
23.6
|
Insolvency
|
(a)
|
An Obligor is (or is presumed or deemed by applicable law or a court to be) unable or admits inability to pay its debts as they fall due, suspends, or threatens to suspend, making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling any of its indebtedness.
|
(b)
|
A moratorium is declared by an Obligor or a court of competent jurisdiction in respect of any indebtedness of any Obligor or by any person on behalf of any Obligor in respect of any of its indebtedness.
|
23.7
|
Insolvency proceedings
|
(a)
|
Any corporate action, legal proceedings or other procedure or step is taken in relation to:
|
|
(i)
|
the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration, judicial management or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of any Obligor other than any Permitted Reorganisation, reconstruction or reorganisation permitted by Clause 22.12 (
Merger
);
|
|
(ii)
|
a composition, assignment or arrangement with any creditor of any Obligor;
|
|
(iii)
|
the appointment of a liquidator (other than in respect of a solvent liquidation of a Restricted Subsidiary permitted by this Agreement), receiver, judicial manager, administrator, administrative receiver, compulsory manager or other similar officer in respect of any Obligor or any of its respective assets; or
|
|
(iv)
|
the enforcement of any Security over any assets of any Obligor,
|
(b)
|
No Event of Default will occur under paragraph (a) above in connection with any legal proceedings or other procedure or step taken:
|
|
(i)
|
under paragraph (a)(i) above in relation to a winding-up, dissolution, reorganisation, judicial management or an administration; or
|
|
(ii)
|
under paragraph (a)(iii) above,
|
(c)
|
No Event of Default will occur under paragraph (a) above in connection with any legal proceedings or other procedure or step taken under paragraph (a)(iv) above,
|
|
(i)
|
which is discharged or stayed within 30 days of its commencement; or
|
|
(ii)
|
which is in respect of non-recourse indebtedness (being indebtedness where the provider or beneficiary of such indebtedness has no right of recovery for such indebtedness beyond the limited right of recourse against the relevant asset and, having realised the same, such provider or beneficiary is not entitled to take any further steps against the relevant Obligor or any of its other assets to recover any sums due under such indebtedness and in particular, that such provider or beneficiary is not entitled to petition to take any steps for the winding-up of the Obligor) aggregating not more than S$50,000,000 (or its equivalent in any other currency or currencies) at any one time and would not reasonably be expected to have a Material Adverse Effect.
|
23.8
|
Creditors' process
|
|
(a)
|
any part of the Properties, any rights of the Borrower under the Development Agreement or the Head Lease or any other material asset or assets of the Borrower and is not discharged within 60 days; or
|
|
(b)
|
any material asset or assets of any other Obligor and is not discharged within 60 days.
|
23.9
|
Unlawfulness
|
23.10
|
Repudiation
|
(a)
|
Any Obligor repudiates a Finance Document or a Commercial Document to which it is a party.
|
(b)
|
The Head Lessor or any other relevant Governmental Agency repudiates a Commercial Document.
|
23.11
|
Security and guarantees
|
(a)
|
Any Security Document or any guarantee in or any subordination under any Finance Document is not in full force and effect or any Security Document does not create in favour of the Security Trustee for the benefit of the Secured Parties the Security which it is expressed to create fully perfected and with the ranking and priority it is expressed to have.
|
(b)
|
Any Security Document is declared null and void by a Governmental Agency of competent jurisdiction, or any such Governmental Agency or any Obligor shall contest the validity, perfection or priority of the Security granted pursuant to any Security Document in favour of the Security Trustee.
|
(c)
|
The Head Lessor:
|
|
(i)
|
cancels, terminates or (to the detriment of the Secured Parties as secured parties (as reasonably determined by the Majority Lenders)) amends the Consent (other than an amendment permitted by paragraph (b)(i) of Clause 22.9 (
Commercial Documents
)); or
|
|
(ii)
|
amends (to the detriment of the Secured Parties as secured parties (as reasonably determined by the Majority Lenders)) (other than any amendment permitted by Clause 22.9 (
Commercial Documents
), cancels or terminates the leasing arrangements contemplated by the Head Lease,
|
23.12
|
Carry on business
|
23.13
|
Nationalisation
|
|
(a)
|
any imposition of expropriatory or confiscatory taxes, or any nationalization, re-entry, requisition, expropriation, seizure, compulsory acquisition, modification, suspension, or confiscation (except routine actions for rights-of-way and similar actions that do not and are not reasonably expected to materially interfere with the operation of the Integrated Resort) of the ownership or control of:
|
|
(i)
|
all or any part (reasonably determined by the Majority Lenders to be material and notified to the Agent and the Borrower) of the Properties or the Integrated Resort; or
|
|
(ii)
|
more than 49 per cent. of the equity interests in:
|
|
(A)
|
the Borrower;
|
|
(B)
|
any Obligor which holds the Casino Licence; or
|
|
(C)
|
any of the Restricted Subsidiaries, the total assets or revenues of which (consolidated where that Restricted Subsidiary itself has Subsidiaries), as at the date as at which the latest semi-annual or annual consolidated financial statements of the Borrower Group were prepared or, as the case may be, for the financial period to which those financial statements relate, account for 10 per cent. or more of the consolidated total assets or (as the case may be) revenues of the Borrower Group (all as calculated by reference to the latest semi-annual or annual consolidated financial statements of the Group); or
|
|
(b)
|
an extinguishment of any material rights benefiting, or imposition of any restrictions affecting or impacting, any governmental act or series of acts affecting or impacting, any delivery of any official governmental notice affecting or impacting or any change in any law of Singapore (other than the enactment of the Legislation (as defined in the Development Agreement)) governing, affecting or impacting, the Development Agreement or the Head Lease, that would, in each case, deprive the Lenders of any of their material rights or remedies in respect of this Agreement or the other Finance Documents (including rights under the Security Documents).
|
23.14
|
Integrated Resort
|
(a)
|
The Integrated Resort is wholly or in any material part (as reasonably determined by the Majority Lenders) damaged or destroyed, whether insured or not, unless in respect of any such material part, the Borrower makes all commercially reasonable efforts to reinstate, rebuild or replace such material part within a reasonable period of time.
|
(b)
|
The Integrated Resort is not being operated substantially in accordance with the Commercial Documents.
|
(c)
|
The Development Agreement or (once issued) the Head Lease is terminated.
|
(d)
|
The Casino License is cancelled, suspended, revoked or (to an extent which would be reasonably likely to have a Material Adverse Effect) varied (each a “
Licence Event
”), except where within 14 days of the occurrence of such Licence Event, that Licence Event is itself cancelled or withdrawn and the Casino Licence is reinstated to at least the form it took prior to the occurrence of such Licence Event.
|
(e)
|
Legislation is adopted, and the terms of such legislation are such that either the Borrower or the Head Lessor is unable to fulfil its material obligations (as reasonably determined by the Majority Lenders) under any Commercial Document.
|
23.15
|
Development Agreement Event of Default/Head Lease Event of Default
|
23.16
|
Declared Company
|
23.17
|
Acceleration
|
(a)
|
On and at any time after the occurrence of an Event of Default which is continuing the Agent may, and shall if so directed by the Majority Lenders, by notice to the Borrower:
|
|
(i)
|
cancel the Total Commitments whereupon they shall immediately be cancelled;
|
|
(ii)
|
declare that all or part of the Loans, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable; and/or
|
|
(iii)
|
declare that all or part of the Loans be payable on demand, whereupon they shall immediately become payable on demand by the Agent on the instructions of the Majority Lenders.
|
(b)
|
Promptly after being notified by the Agent of the Acceleration Date or any date on which the Facilities are cancelled under Clause
8.2 (
Change of control
) each Ancillary Lender shall by notice to the Borrower:
|
|
(i)
|
cancel its Ancillary Commitment whereupon it shall immediately be cancelled;
|
|
(ii)
|
declare that all or the corresponding part of the utilisations under any Ancillary Facility provided by that Ancillary Lender, together with accrued interest, full cash cover in respect of all or the corresponding part of the contingent liabilities of that Lender under that Ancillary Facility, and all or the corresponding part of
all other amounts accrued or outstanding in respect of that Ancillary Facility be immediately due and payable, whereupon they shall become immediately due and payable; and/or
|
|
(iii)
|
declare that all or the corresponding part of the utilisations under any Ancillary Facility provided by that Ancillary Lender, together with accrued interest, full cash cover in respect of all or the corresponding part of the contingent liabilities of that Lender under that Ancillary Facility, and all or the corresponding part of all other amounts accrued or outstanding in respect of that Ancillary Facility be payable upon demand, whereupon they shall immediately become payable on demand by that Ancillary Lender (on the instructions of the Agent, if so directed by the Majority Lenders).
|
(c)
|
No Ancillary Lender may at any time cancel the whole or any part of its Ancillary Commitment, declare that all or part of the utilisations under an Ancillary Facility provided by that Ancillary Lender be immediately due and payable or require the payment of cash cover in respect of all or any part of any contingent liabilities of that Lender under an Ancillary Facility unless the Agent has delivered a notice to the Borrower pursuant to sub-paragraph (ii) of paragraph (a) of this Clause 23.17 or the Facilities have been cancelled under Clause
8.2 (
Change of control
).
|
24.
|
Changes to the Lenders
|
24.1
|
Transfers by the Lenders
|
24.2
|
Conditions of transfer
|
(a)
|
The consent of the Borrower (but not the other Obligors) is required for a transfer by a Lender unless the transfer is to another Lender or an Affiliate of a Lender or an Event of Default is continuing, in which case, no consent from the Borrower is required (unless the transfer would result in the Borrower having to make any payment described in paragraph (d)(ii) below).
|
(b)
|
The consent of the Borrower to a transfer must not be unreasonably withheld or delayed.
For the avoidance of doubt, it will be reasonable for the Borrower to refuse its consent, where the transfer would result in the Borrower having to make any payment described in paragraph (d)(ii) below.
|
(c)
|
Other than in the case of a transfer permitted by paragraph (b) of Clause 25.1 (
Permitted Debt Purchase Transactions
),
a transfer will be effective only if the procedure set out in Clause 24.5 (
Procedure for transfer
) is complied with.
|
(d)
|
If:
|
|
(i)
|
a Lender transfers any of its rights or obligations under the Finance Documents or changes its Facility Office; and
|
|
(ii)
|
as a result of circumstances existing at the date the transfer or change occurs, the Borrower would be obliged to make a payment to the New Lender or Lender acting through its new Facility Office under:
|
|
(A)
|
Clause
13 (
Tax gross-up and indemnities
); or
|
|
(B)
|
Clause
14 (
Increased costs
),
|
24.3
|
Transfer fee
|
24.4
|
Limitation of responsibility of Existing Lenders
|
(a)
|
Unless expressly agreed to the contrary, an Existing Lender makes no representation or warranty and assumes no responsibility to a New Lender for:
|
|
(i)
|
the legality, validity, effectiveness, adequacy or enforceability of the Transaction Documents or any other documents;
|
|
(ii)
|
the financial condition of any Obligor or other person;
|
|
(iii)
|
the performance and observance by any Obligor or other person of its obligations under the Transaction Documents or any other documents; or
|
|
(iv)
|
the accuracy of any statements (whether written or oral) made in or in connection with any Transaction Document or any other document,
|
(b)
|
Each New Lender confirms to the Existing Lender and the other Finance Parties that it:
|
|
(i)
|
has made (and shall continue to make) its own independent investigation and assessment of the financial condition and affairs of the Borrower and its related entities in connection with its participation in this Agreement and has not relied exclusively on any information provided to it by the Existing Lender in connection with any Transaction Document;
|
|
(ii)
|
will continue to make its own independent appraisal of the creditworthiness of any Obligor and their respective related entities and any other person whilst any amount is or may be outstanding under the Finance Documents or any Commitment is in force; and
|
|
(iii)
|
confirms to the Borrower that it is an Eligible Lender on the Transfer Date
.
|
(c)
|
Nothing in any Finance Document obliges an Existing Lender to:
|
|
(i)
|
accept a re-transfer from a New Lender of any of the rights and obligations transferred under this Clause 24; or
|
|
(ii)
|
support any losses directly or indirectly incurred by the New Lender by reason of the non-performance by any Obligor or other person of its obligations under the Finance Documents or otherwise.
|
24.5
|
Procedure for transfer
|
(a)
|
Subject to the conditions set out in this Clause 24, a transfer is effected in accordance with paragraph (c) below when the Agent and the Borrower execute an otherwise duly completed Transfer Certificate delivered to it by the Existing Lender and the New Lender. The Agent and the Borrower shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Certificate appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Certificate, provided that the transfer must comply with Clause 24.2 (
Conditions of transfer
).
|
(b)
|
The Agent shall not be obliged to execute a Transfer Certificate delivered to it by the Existing Lender and the New Lender unless it is satisfied that it has completed all “know your customer” and other similar procedures that it is required (or deems desirable) to conduct in relation to the transfer to such New Lender.
|
(c)
|
On the Transfer Date:
|
|
(i)
|
to the extent that in the Transfer Certificate the Existing Lender seeks to transfer by novation its rights and obligations under the Finance Documents each of the Obligors and the Existing Lender shall be released from further obligations towards one another under the Finance Documents and their respective rights against one another under the Finance Documents shall be cancelled (being the “
Discharged Rights and Obligations
”);
|
|
(ii)
|
each of the Obligors and the New Lender shall assume obligations towards one another and/or acquire rights against one another which differ from the Discharged Rights and Obligations only insofar as that Obligor and the New Lender have assumed and/or acquired the same in place of that Obligor and the Existing Lender;
|
|
(iii)
|
the Agent, the Arranger, the Security Trustee, the New Lender and other Lenders shall acquire the same rights and assume the same obligations between themselves as they would have acquired and assumed had the New Lender been an Original Lender with the rights and/or obligations acquired or assumed by it as a result of the transfer and to that extent the Agent, the Arranger, the Security Trustee and the Existing Lender shall each be released from further obligations to each other under the Finance Documents; and
|
|
(iv)
|
the New Lender shall become a Party as a “Lender”.
|
(d)
|
Notwithstanding anything to the contrary in this Clause 24, the rights of the Lenders to make assignments or transfers of, and grant participations in, any or all of its Commitments, Ancillary Commitments, any Utilisation or utilisation under any Ancillary Facility, or any interest therein, herein or in any other Senior Liabilities owed to any such Lender, shall be subject to the same conditions as those governing transfers set out in Clause 24.1 (
Transfers by the Lenders
) and paragraphs (a) and (b) of Clause 24.2 (
Conditions of transfer
), and to the approval of any applicable gaming authorities, to the
|
|
extent required by law and to the extent failure to obtain such approval could jeopardise the Casino License or any other gaming licenses of the Borrower or any of its parents or Affiliates. For the avoidance of doubt, any participations under this paragraph (d) shall mean customary funded and risk participations only.
|
24.6
|
Existing consents and waivers
|
24.7
|
Exclusion of Agent's liability
|
25.
|
Debt Purchase Transactions
|
25.1
|
Permitted Debt Purchase Transactions
|
(a)
|
The Borrower shall not enter into any Debt Purchase Transaction other than in accordance with the other provisions of this Clause 25.
|
(b)
|
The Borrower may purchase by way of transfer, pursuant to Clause 24
(
Changes to the Lenders
), a participation in any Term Loan and any related Commitment where:
|
|
(i)
|
such purchase is made for a consideration of less than par;
|
|
(ii)
|
such purchase is made using one of the processes set out at paragraphs (c) and (d) below; and
|
|
(iii)
|
such purchase is made at a time when no Default is continuing;
|
|
(i)
|
A Debt Purchase Transaction referred to in paragraph (b) above may be entered into pursuant to a solicitation process (a “
Solicitation Process
”) which is carried out as follows.
|
|
(ii)
|
Prior to 11:00 am on a given Business Day (the “
Solicitation Day
”) the Borrower or a financial institution acting on its behalf (the “
Purchase Agent
”) will approach each Lender which participates in the relevant Term Facility to enable it to offer to sell to the Borrower an amount of its participation in one or more Term Facilities. Any Lender wishing to make such an offer shall, by 11:00 am on the second Business Day following such Solicitation Day, communicate to the Borrower or the Purchase Agent, as applicable, details of the amount of its participations, and in which Term Facilities, it is offering to sell and the price at which it is offering to sell such participations. Any such offer shall be
|
|
|
irrevocable until 11:00 am on the fourth Business Day following such Solicitation Day and shall be capable of acceptance by the Borrower on or before such time by communicating its acceptance in writing to the Purchase Agent or, if it is the Purchase Agent, the relevant Lenders. The Purchase Agent or the Borrower, as applicable, will communicate to the relevant Lenders which offers have been accepted by 12 noon on the fourth Business Day following such Solicitation Day. In any event by 11:00 am on the fifth Business Day following such Solicitation Date, the Borrower shall notify the Agent of the amounts of the participations purchased through the relevant Solicitation Process, the identity of the Term Facility Lenders to which they relate and the average price paid for the purchase of participations in each relevant Term Facility. The Agent shall disclose such information to any Lender that requests such disclosure.
|
|
(iii)
|
Any purchase of participations in the Term Facilities pursuant to a Solicitation Process shall be completed and settled on or before the sixth Business Day after the relevant Solicitation Day.
|
|
(iv)
|
In accepting any offers made pursuant to a Solicitation Process the Borrower shall be free to select which offers and in which amounts it accepts but on the basis that in relation to a participation in a particular Term Facility it accepts offers in inverse order of the price offered (with the offer or offers at the lowest price being accepted first) and that if in respect of participations in a particular Term Facility it receives two or more offers at the same price it shall only accept such offers on a
pro rata
basis.
|
|
(i)
|
A Debt Purchase Transaction referred to in paragraph (b) above may also be entered into pursuant to an open order process (an “
Open Order Process
”) which is carried out as follows.
|
|
(ii)
|
The Borrower may by itself or through another Purchase Agent or Purchase Agents place an open order (an “
Open Order
”) to purchase participations in one or more of the Term Facilities up to a set aggregate amount at a set price by notifying at the same time all the Lenders participating in the relevant Term Facilities of the same. Any Lender wishing to sell pursuant to an Open Order will, by 11:00 am on any Business Day following the date on which the Open Order is placed but no earlier than the first Business Day, and no later than the fifth Business Day, following the date on which the Open Order is placed, communicate to the Purchase Agent details of the amount of its participations and in which Term Facilities, it is offering to sell. Any such offer to sell shall be irrevocable until 11:00 am on the Business Day following the date of such offer from the Lender and shall be capable of acceptance by the Borrower on or before such time by it communicating such acceptance in writing to the relevant Lender.
|
|
(iii)
|
Any purchase of participations in the Term Facilities pursuant to an Open Order Process shall be completed and settled by the Borrower on or before the fifth Business Day after the date of the relevant offer by a Lender to sell under the relevant Open Order.
|
|
(iv)
|
If in respect of participations in a Term Facility the Purchase Agent receives on the same Business Day two or more offers at the set price such that the maximum amount of such Term Facility to which an Open Order relates would be exceeded, the Borrower shall only accept such offers on a
pro rata
basis.
|
|
(v)
|
The Borrower shall, by 11:00 am on the sixth Business Day following the date on which an Open Order is placed, notify the Agent of the amounts of the participations purchased through such Open Order Process and the identity of the Term Facility Lenders to which they relate. The Agent shall disclose such information to any Lender that requests the same.
|
(e)
|
For the avoidance of doubt, there is no limit on the number of occasions a Solicitation Process or an Open Order Process may be implemented.
|
(f)
|
In relation to any Debt Purchase Transaction entered into pursuant to this Clause 25.1, notwithstanding any other term of this Agreement or the other Finance Documents:
|
|
(i)
|
on completion of the relevant transfer pursuant to Clause 24
(
Changes to the Lenders
), the portions of the Term Loans to which it relates shall be extinguished and:
|
|
(A)
|
(in relation to Facility A Loans) the obligations under Clause 7.1 (
Repayment of Facility A Loans
) shall be satisfied rateably; and
|
|
(B)
|
(in relation to Facility C Loans) the obligations under Clause 7.3 (
Repayment of Facility C Loans
) shall be satisfied in such manner as the Facility C Lenders may agree;
|
|
(ii)
|
the Borrower (which is the transferee) shall be deemed to be an entity which fulfils the requirements of Clause 24.1 (
Transfers by the Lenders
) to be a New Lender (as defined in such Clause);
|
|
(iii)
|
Clause 29 (
Sharing among the Finance Parties
) shall not be applicable to the consideration paid under such Debt Purchase Transaction; and
|
|
(iv)
|
for the avoidance of doubt, any extinguishment of any part of the Term Loans shall not affect any amendment or waiver which prior to such extinguishment had been approved by or on behalf of the requisite Lender or Lenders in accordance with this Agreement.
|
25.2
|
Notification
|
(a)
|
Each Lender shall, unless such Debt Purchase Transaction is a transfer, promptly notify the Agent in writing if it knowingly enters into a Debt Purchase Transaction with a Permitted Sands Lender (a “
Notifiable Debt Purchase Transaction
”).
|
(b)
|
A Lender shall promptly notify the Agent if a Notifiable Debt Purchase Transaction to which it is a party:
|
|
(i)
|
is terminated; or
|
|
(ii)
|
ceases to be with a Permitted Sands Lender.
|
26.
|
Changes to the Obligors
|
26.1
|
Assignments and transfers by Obligors
|
|
(a)
|
in relation to a Guarantor, part of any merger, consolidation, amalgamation or other combination with another Guarantor as permitted by this Agreement;
|
|
(b)
|
with the prior written consent of all the Lenders; or
|
|
(c)
|
pursuant to a Permitted Corporate Restructuring or Permitted Reorganisation.
|
26.2
|
Guarantors
|
(a)
|
Subject to compliance with the provisions of paragraphs (c) and (d) of Clause 20.13 (
“Know your customer” checks
), each Restricted Subsidiary of the Borrower shall become a Guarantor in accordance with Clause 22.25 (
Guarantees and Security
) and accordingly the Borrower shall:
|
|
(i)
|
deliver to the Agent a duly completed and executed Guarantor Accession Letter; and
|
|
(ii)
|
ensure that the Agent receives all of the documents and other evidence listed in Part II of Schedule 2 (
Conditions Precedent Required to be Delivered by a Guarantor
) in relation to that Guarantor, each in form and substance satisfactory to the Agent.
|
|
(b)
|
The Agent shall notify the Borrower and the Lenders promptly upon being satisfied that it has received (in form and substance reasonably satisfactory to it) all the documents and other evidence listed in Part II of Schedule 2 (
Conditions Precedent Required to be Delivered by a Guarantor
).
|
26.3
|
Repetition of Representations
|
27.
|
Disclosure of information
|
(a)
|
Each Finance Party shall hold all non-public information obtained pursuant to the requirements of this Agreement and any other Finance Document in accordance with that Finance Party's customary procedures for handling confidential information of this nature and in accordance with safe and sound banking or investment practices and to ensure that such non-public information is protected with security measures and at least with a degree of care that would apply to such Finance Party’s own confidential information, it being understood and agreed by the Obligors that in any event each Finance Party:
|
|
(i)
|
may make disclosure to its affiliates, head office, representative offices, subsidiaries, related corporation and branch offices (whether in Singapore or overseas) in accordance with its internal compliance and disclosure policies so long as such affiliates, head office, representative offices, related corporation, subsidiaries or branch offices keep such disclosed non-public information confidential;
|
|
(ii)
|
may, on a confidential basis, make disclosures to any actual, prospective or potential bona fide assignee, transferee or participant in connection with the contemplated assignment, transfer or the granting of any participation by that Finance Party of any Loans or any participations therein (provided that such actual, prospective or potential assignee, transferee or participant agrees to be bound by this Clause 27);
|
|
(iii)
|
(where that Finance Party is the Agent or the Security Trustee) may make disclosures to any bona fide person who is succeeding that Finance Party in that capacity (provided that such person agrees to be bound by this Clause 27);
|
|
(iv)
|
may make disclosures to any other Secured Party;
|
|
(v)
|
may make disclosures to any Obligor or the Sponsor;
|
|
(vi)
|
may, on a confidential basis, make disclosures to its professional advisers (provided that such adviser agrees to be bound by provisions no less restrictive than this Clause 27);
|
|
(vii)
|
may make disclosures required or requested by any Governmental Agency or representative thereof or pursuant to legal process; provided that, unless specifically prohibited by applicable law or court order, that Finance Party shall notify the Borrower of any request by any Governmental Agency or representative thereof (other than any such request in connection with any examination of the financial condition of such Finance Party by such Governmental Agency) for disclosure of any such non-public information; or
|
|
(viii)
|
may make disclosures to any person who is a person, or who belongs to a class of persons, specified in the second column of the Third Schedule to the Banking Act, Chapter 19 of Singapore (the “
Banking Act
”), in accordance with Section 47(2) of the Banking Act.
|
(b)
|
For the purposes of paragraph (a) above, “
non-public information
” shall not include information that is not acquired from (i) any of the Obligors, the Sponsor or any of their respective Subsidiaries or Affiliates (or persons acting on behalf of or retained by any of the Obligors, the Sponsor or any of their respective Subsidiaries or Affiliates), (ii) persons retained by or acting on behalf of any Finance Party in connection with this Agreement and the transactions contemplated hereby or (iii) persons known by such Finance Party to be under a duty or an obligation of confidentiality to the Borrower (it being understood that the Finance Parties, their respective Affiliates shall be under an obligation of confidentiality).
|
(c)
|
Concurrently with the delivery of any document or notice required to be delivered pursuant to this Clause 27, the Borrower shall indicate in writing whether such document or notice contains non-public information (and if the Borrower does not so indicate (acting reasonably), it shall be deemed to contain non-public information). The Borrower and each Finance Party acknowledge that certain of the Lenders may be “public-side” Lenders (Lenders that do not wish to receive material non-public information with respect to Borrower, its Subsidiaries or their securities) and, if documents or notices required to be delivered pursuant to this Clause 27 or otherwise are being distributed through Debt Domain, IntraLinks, IntraAgency, SyndTrak or another relevant website or other information platform (the “
Platform
”), any document or notice that the Borrower has indicated contains non-public information shall not be posted on that portion of the Platform designated for such public-side Lenders. The Platform and any Approved Electronic Communications are provided “as is” and “as available”. None of the Finance Parties or any of their respective officers, directors, employees, agents, advisors or representatives (the “
Relevant Affiliates
”) warrant the accuracy, adequacy, or completeness of the Approved Electronic Communications or the Platform and each expressly disclaims liability for errors or omissions in the Platform and the Approved Electronic Communications. No warranty of any kind, express, implied or statutory, including any warranty of merchantability, fitness for a particular purpose, non-infringement of third party rights or freedom from viruses or other code defects is made by the Relevant Affiliates in connection with the Platform or the Approved Electronic Communications.
|
(d)
|
For the purpose of paragraph (c) above, “
Approved Electronic Communications
” means any notice, demand, communication, information, document or other material that any Obligor provides to the Agent pursuant to any Transaction Document or the transactions contemplated therein which is distributed to the Finance Parties by means of electronic communications.
|
28.
|
Role of the Administrative Parties
|
28.1
|
Appointment of the Agent
|
(a)
|
Each of the other Finance Parties appoints the Agent to act as its agent under and in connection with the Finance Documents.
|
(b)
|
Each of the other Finance Parties authorises the Agent to exercise the rights, powers, authorities and discretions specifically given to the Agent under or in connection with the Finance Documents together with any other incidental rights, powers, authorities and discretions.
|
28.2
|
Duties of the Agent
|
(a)
|
The Agent shall promptly forward to a Party the original or a copy of any document which is delivered to the Agent for that Party by any other Party.
|
(b)
|
Except where a Finance Document specifically provides otherwise, the Agent is not obliged to review or check the adequacy, accuracy or completeness of any document it forwards to another Party.
|
(c)
|
If the Agent receives notice from a Party referring to this Agreement, describing a Default and stating that the circumstance described is a Default, it shall promptly notify the Finance Parties.
|
(d)
|
If the Agent is aware of the non-payment of any principal, interest, commitment fee or other fee payable to a Finance Party (other than to any Administrative Party) under this Agreement it shall promptly notify the other Finance Parties.
|
(e)
|
The Agent's duties under the Finance Documents are solely mechanical and administrative in nature. The Agent shall have no other duties save as expressly provided for in the Finance Documents.
|
28.3
|
Role of the Arranger
|
28.4
|
Role of the Security Trustee
|
28.5
|
No fiduciary duties
|
(a)
|
Nothing in this Agreement constitutes the Agent or the Arranger as a trustee or fiduciary of any other person.
|
(b)
|
Neither the Agent nor the Arranger shall be bound to account to any Lender for any sum or the profit element of any sum received by it for its own account.
|
28.6
|
Business with the Obligors
|
28.7
|
Rights and discretions of the Agent
|
(a)
|
The Agent may rely on:
|
|
(i)
|
any representation, notice or document believed by it to be genuine, correct and appropriately authorised; and
|
|
(ii)
|
any statement purportedly made by a director, manager, authorised signatory or employee of any person regarding any matters which may reasonably be assumed to be within his knowledge or within his power to verify.
|
(b)
|
The Agent may assume, unless it has received notice to the contrary in its capacity as agent for the Lenders or, as the case may be, as security trustee for the Secured Parties that:
|
|
(i)
|
no Default has occurred (unless it has actual knowledge of a Default arising under Clause 23.1 (
Non-payment
));
|
|
(ii)
|
any right, power, authority or discretion vested in any Party or any group of Lenders has not been exercised;
|
|
(iii)
|
any notice or request made by the Borrower is made on behalf of and with the consent and knowledge of all the Obligors; and
|
|
(iv)
|
no Notifiable Debt Purchase Transaction (A) has been entered into, (B) has been terminated or (C) has ceased to be with a Permitted Sands Lender.
|
(c)
|
The Agent may engage, pay for and rely on the advice or services of any lawyers, accountants, surveyors or other experts.
|
(d)
|
The Agent may act in relation to the Finance Documents through its personnel and agents.
|
(e)
|
The Agent may disclose to any other Party any information it reasonably believes it has received as agent under this Agreement.
|
(f)
|
Notwithstanding any other provision of any Finance Document to the contrary, no Administrative Party is obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation or a breach of a fiduciary duty or duty of confidentiality.
|
28.8
|
Majority Lenders'/Lenders’ instructions
|
(a)
|
Unless a contrary indication appears in a Finance Document and subject to paragraphs (f) and (g) below, the Agent or (as the case may be) the Security Trustee shall (i) exercise any right, power, authority or discretion vested in it as Agent or Security Trustee (as the case may be) in accordance with any instructions given to it by the Majority Lenders (or, if
|
|
so instructed by the Majority Lenders, refrain from exercising any right, power, authority or discretion vested in it as Agent) and (ii) not be liable for any act (or omission) if it acts (or refrains from taking any action) in accordance with an instruction of the Majority Lenders.
|
(b)
|
Unless a contrary indication appears in a Finance Document, any instructions given by the Majority Lenders will be binding on all the Finance Parties.
|
(c)
|
The Agent or the Security Trustee may refrain from acting in accordance with the instructions of the Majority Lenders (or, if appropriate, the Lenders) or under paragraph (d) below until it has received such security as it may require for any cost, loss or liability (together with any associated goods and services Tax) which it may incur in complying with the instructions.
|
(d)
|
In the absence of instructions from the Majority Lenders, (or, if appropriate, the Lenders) the Agent or the Security Trustee may engage in any act (or refrain from taking such action) as it considers to be in the best interest of the Lenders.
|
(e)
|
The Agent is not authorised to act on behalf of a Lender (without first obtaining that Lender's consent) in any legal or arbitration proceedings relating to any Finance Document.
|
(f)
|
If the Borrower or any other Obligor requests that the Agent or the Lenders grant a consent or approval as provided in any Finance Document, that the Agent or the Lenders waive compliance with any provision of the same, or that the Agent or the Lenders make any determination in any Finance Document, and in the request therefor to the Lenders, the Agent specifies that such consent, approval, waiver or determination is to be deemed to be approved or made by each Lender who fails to respond negatively in writing within ten Business Days (or such longer period as the Agent may specify, acting reasonably) (and the Agent hereby agrees that it will so specify in any such request), then for all purposes hereof, each Lender who does not respond in the negative within such period thus specified shall be deemed to have approved such request.
|
(g)
|
Any right, power, authority or discretion vested in the Agent or the Security Trustee under:
|
(i)
|
the definition of “Agreed Form” in Clause 1.1 (
Definitions
);
|
(ii)
|
the definition of “Approved Valuers” in Clause 1.1 (
Definitions
);
|
(iii)
|
the definition of “External Subordination Agreement” in Clause 1.1 (
Definitions
);
|
(iv)
|
the definition of “Internal Subordination Agreement” in Clause 1.1 (
Definitions
);
|
(v)
|
the definition of “Reference Banks” in Clause 1.1 (
Definitions
);
|
(vi)
|
the definition of “Restricted Subsidiary Debenture” in Clause 1.1 (
Definitions
);
|
(vii)
|
the definition of “Screen Rate” in Clause 1.1 (
Definitions
);
|
(viii)
|
the definition of “Transfer Certificate” in Clause 1.1 (
Definitions
);
|
(ix)
|
paragraph (a)(iii)(C) of Clause 1.2 (
Construction
);
|
(x)
|
paragraph (a)(vii) of Clause 2.3 (
Accordion Feature – Increase in Facility C
);
|
(xi)
|
paragraph (c)(ii) of Clause 4.2 (
Further conditions precedent
);
|
(xii)
|
paragraph (b)(viii) of Clause 6.3 (
Request for Ancillary Facilities
);
|
(xiii)
|
paragraph (a) of Clause 6.5 (
Adjustments to Facility B Commitment
);
|
(xiv)
|
paragraph (a) of Clause 10.2 (
Changes to Interest Periods
);
|
(xv)
|
paragraph (c)(xiii) of Clause 22.5 (
Disposals
);
|
(xvi)
|
paragraph (b)(iii)(B) of Clause 22.12 (
Merger
);
|
(xvii)
|
paragraph (b)(ii) of Clause 22.10 (
Accounts
);
|
(xviii)
|
paragraphs (a)(ii) and (b) of Clause 26.2 (
Guarantors
); and
|
(xix)
|
Clause 28.16 (
Reference Banks
),
|
28.9
|
Responsibility for documentation
|
|
(a)
|
is responsible for the adequacy, accuracy and/or completeness of any information (whether oral or written) supplied by any Administrative Party, an Obligor or any other person given in or in connection with any Transaction Document or the Information Memorandum;
|
|
(b)
|
is responsible for the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document or any other agreement, arrangement or document entered into, made or executed in anticipation of or in connection with any Transaction Document; or
|
|
(c)
|
is responsible for any determination as to whether any information provided or to be provided to any Finance Party is non-public information the use of which may be regulated or prohibited by applicable law or regulation relating to insider dealing or otherwise.
|
28.10
|
Exclusion of liability
|
(a)
|
Without limiting paragraph (b) below, the Agent shall not be liable for any cost, loss or liability incurred by any Party as a consequence of:
|
|
(i)
|
the Agent having taken or having omitted to take any action under or in
|
|
|
connection with any Finance Document, unless directly caused by the Agent's gross negligence or wilful misconduct; or
|
|
(ii)
|
any delay in the crediting to any account of an amount required under the Finance Documents to be paid by the Agent, if the Agent shall have taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Agent for the purpose of such payment.
|
(b)
|
No Party (other than the Agent) may take any proceedings against any officer, employee or agent of the Agent in respect of any claim it might have against the Agent or in respect of any act or omission of any kind by that officer, employee or agent in relation to any Finance Document and any officer, employee or agent of the Agent may rely on this Clause. Any third party referred to in this paragraph (b) may enjoy the benefit of or enforce the terms of this paragraph in accordance with the provisions of the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore.
|
(c)
|
Nothing in this Agreement shall oblige any Administrative Party to conduct any “know your customer” or other procedures in relation to any person on behalf of any Lender and each Lender confirms to each Administrative Party that it is solely responsible for any such procedures it is required to conduct and that it shall not rely on any statement in relation to such procedures made by any Administrative Party.
|
28.11
|
Lenders' indemnity to the Agent
|
(a)
|
Subject to paragraph (b) below, each Lender shall (in proportion to its Available Commitments and participations in the Loans then outstanding to the Available Facilities and all the Loans then outstanding) indemnify the Agent, within three Business Days of demand, against any cost, loss or liability incurred by the Agent (otherwise than by reason of the Agent's gross negligence or wilful misconduct) in acting as Agent under the Finance Documents (unless the Agent has been reimbursed by an Obligor pursuant to a Finance Document).
|
(b)
|
If the Available Facilities are then zero, each Lender’s indemnity in paragraph (a) above shall be in proportion to its Available Commitments to the Available Facilities immediately prior to their reduction to zero, unless there are then any Loans outstanding in which case it shall be in proportion to its participations in the Loans then outstanding to all the Loans then outstanding.
|
28.12
|
Resignation of the Agent
|
(a)
|
The Agent may resign and appoint one of its Affiliates acting through an office in Singapore as successor by giving notice to the other Finance Parties and the Borrower.
|
(b)
|
Alternatively the Agent may resign by giving notice to the other Finance Parties and the Borrower, in which case the Majority Lenders (with the consent of the Borrower) may appoint a successor Agent.
|
(c)
|
If the Majority Lenders have not appointed a successor Agent in accordance with paragraph (b) above within 30 days after notice of resignation was given, the retiring Agent (after consultation with the Borrower) may appoint a successor Agent (acting through an office in Singapore).
|
(d)
|
The retiring Agent shall, at its own cost, make available to the successor Agent such documents and records and provide such assistance as the successor Agent may reasonably request for the purposes of performing its functions as Agent under the Finance Documents.
|
(e)
|
The Agent's resignation notice shall take effect only upon the appointment of a successor.
|
(f)
|
Upon the appointment of a successor, the retiring Agent shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of this Clause 28. Its successor and each of the other Parties shall have the same rights and obligations amongst themselves as they would have had if such successor had been an original Party.
|
(g)
|
After consultation with the Borrower, the Majority Lenders may, at their own cost, by notice to the Agent, require it to resign in accordance with paragraph (b) above. In this event, the Agent shall resign in accordance with paragraph (b) above.
|
28.13
|
Confidentiality
|
(a)
|
In acting as agent for the Finance Parties, the Agent shall be regarded as acting through its respective agency or security trustee division which in each case shall be treated as a separate legal person from any other of its branches, divisions or departments.
|
(b)
|
If information is received by another branch, division or department of the legal person which is the Agent, it may be treated as confidential to that branch, division or department and the Agent shall not be deemed to have notice of it.
|
(c)
|
The Agent shall not be obliged to disclose to any Finance Party any information supplied to it by the Borrower or any Affiliates of the Borrower on a confidential basis and for the purpose of evaluating whether any waiver or amendment is or may be required or desirable in relation to any Finance Document.
|
28.14
|
Relationship with the Lenders
|
28.15
|
Credit appraisal by the Lenders
|
|
(a)
|
the financial condition, status and nature of any Obligor or any other person;
|
|
(b)
|
the legality, validity, effectiveness, adequacy or enforceability of any Transaction Document and any other agreement, Security arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document;
|
|
(c)
|
whether that Lender has recourse, and the nature and extent of that recourse, against any Party or any of its respective assets under or in connection with any Transaction Document, the transactions contemplated by the Transaction Documents or any other agreement, Security, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document; and
|
|
(d)
|
the adequacy, accuracy and/or completeness of the Information Memorandum and any other information provided by the Agent, any Party or by any other person under or in connection with any Transaction Document, the transactions contemplated by the Transaction Documents or any other agreement, Security, arrangement or document entered into, made or executed in anticipation of, under or in connection with any Transaction Document.
|
28.16
|
Reference Banks
|
28.17
|
Deduction from amounts payable by the Agent
|
28.18
|
Security Documents
|
28.19
|
Transfer Certificate
|
29.
|
Sharing among the Finance Parties
|
29.1
|
Payments to Finance Parties
|
|
(a)
|
the Recovering Finance Party shall, within three Business Days, notify details of the receipt or recovery, to the Agent;
|
|
(b)
|
the Agent shall determine whether the receipt or recovery is in excess of the amount the Recovering Finance Party would have been paid had the receipt or recovery been received or made by the Agent and distributed in accordance with Clause 30 (
Payment mechanics
), without taking account of any Tax which would be imposed on the Agent in relation to the receipt, recovery or distribution; and
|
|
(c)
|
the Recovering Finance Party shall, within three Business Days of demand by the Agent, pay to the Agent an amount (the “
Sharing Payment
”) equal to such receipt or recovery less any amount which the Agent determines may be retained by the Recovering Finance Party as its share of any payment to be made, in accordance with Clause 30.5 (
Partial payments
).
|
29.2
|
Redistribution of payments
|
29.3
|
Recovering Finance Party's rights
|
(a)
|
On a distribution by the Agent under Clause 29.2 (
Redistribution of payments
), the Recovering Finance Party will be subrogated to the rights of the Finance Parties which have shared in the redistribution.
|
(b)
|
If and to the extent that the Recovering Finance Party is not able to rely on its rights under paragraph (a) above, the relevant Obligor shall be liable to the Recovering Finance Party for a debt equal to the Sharing Payment which is immediately due and payable.
|
29.4
|
Reversal of redistribution
|
|
(a)
|
each Sharing Finance Party shall, upon request of the Agent, pay to the Agent for the account of that Recovering Finance Party an amount equal to the appropriate part of its share of the Sharing Payment (together with an amount as is necessary to reimburse that Recovering Finance Party for its proportion of any interest on the Sharing Payment which that Recovering Finance Party is required to pay) (the “
Redistributed Amount
”); and
|
|
(b)
|
that Recovering Finance Party's rights of subrogation in respect of any reimbursement shall be cancelled and the relevant Obligor will be liable to the reimbursing Finance Party for the amount so reimbursed.
|
29.5
|
Exceptions
|
(a)
|
This Clause 29 shall not apply to:
|
|
(i)
|
the extent that the Recovering Finance Party would not, after making any payment pursuant to this Clause, have a valid and enforceable claim against the relevant Obligor;
|
|
(ii)
|
any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement; or
|
|
(iii)
|
any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant.
|
(b)
|
A Recovering Finance Party is not obliged to share with any other Finance Party any amount which the Recovering Finance Party has received or recovered as a result of taking legal or arbitration proceedings, if:
|
|
(i)
|
it notified that other Finance Party of the legal or arbitration proceedings; and
|
|
(ii)
|
that other Finance Party had an opportunity to participate in those legal or arbitration proceedings but did not do so as soon as reasonably practicable having received notice and did not take separate legal or arbitration proceedings.
|
30.
|
Payment mechanics
|
30.1
|
Payments to the Agent
|
(a)
|
On each date on which an Obligor or a Lender is required to make a payment under a Finance Document, that Obligor
(subject to Clause 30.9 (
Payments to the Security Trustee
)
or that Lender shall make the same available to the Agent (unless a contrary indication appears in a Finance Document) for value on the due date at the time and in such funds specified by the Agent as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b)
|
Payment shall be made to such account in the principal financial centre of the country of that currency with such bank as the Agent specifies.
|
30.2
|
Distributions by the Agent
|
(a)
|
Each payment received by the Agent under the Finance Documents for another Party shall, subject to Clause 30.3 (
Distributions to an Obligor
), Clause 30.4 (
Clawback
) and Clause
30.9 (
Payments to the Security Trustee
)
be made available by the Agent as soon as practicable after receipt to the Party entitled to receive payment in accordance with this Agreement (in the case of a Lender, for the account of its Facility Office), to such account as that Party may notify to the Agent by not less than five Business Days' notice with a bank in the principal financial centre of the country of that currency.
|
(b)
|
The Agent shall distribute payments received by it in relation to all or any part of a Loan to the Lender indicated in the records of the Agent as being so entitled on that date Provided that the Agent is authorised to distribute payments to be made on the date on which any transfer becomes effective pursuant to Clause 24 (
Changes to the Lenders
) to the Lender so entitled immediately before such transfer took place regardless of the period to which such sums relate.
|
30.3
|
Distributions to an Obligor
|
30.4
|
Clawback
|
(a)
|
Where a sum is to be paid to the Agent or the Security Trustee under the Finance Documents for another Party, the Agent or, as the case may be, the Security Trustee is not obliged to pay that sum to that other Party (or to enter into or perform any related exchange contract) until it has been able to establish to its satisfaction that it has actually received that sum.
|
(b)
|
If the Agent or the Security Trustee pays an amount to another Party and it proves to be the case that the Agent or, as the case may be, the Security Trustee, had not actually received that amount, then the Party to whom that amount (or the proceeds of any related exchange contract) was paid shall on demand refund the same to the Agent or, as the case may be, the Security Trustee together with interest on that amount from the date of payment to the date of receipt by the Agent or, as the case may be, the Security Trustee, calculated by it to reflect its cost of funds.
|
30.5
|
Partial payments
|
(a)
|
If the Agent receives a payment that is insufficient to discharge all the amounts then due and payable by an Obligor under the Finance Documents, the Agent shall apply that payment towards the obligations of that Obligor under the Finance Documents in the following order:
|
|
(i)
|
first
, in or towards payment
pro rata
of any unpaid fees, costs and expenses of any Administrative Party under the Finance Documents;
|
|
(ii)
|
secondly
, in or towards payment
pro rata
of any accrued interest, fee (other than as provided in (i) above) or commission due but unpaid under this Agreement or any Ancillary Facility Document;
|
|
(iii)
|
thirdly
, in or towards payment
pro rata
of any principal due but unpaid under this Agreement or any Ancillary Facility Document; and
|
|
(iv)
|
fourthly
, in or towards payment
pro rata
of any other sum due but unpaid under the Finance Documents or any Ancillary Facility Document,
|
(b)
|
The Agent shall, if so directed by the Majority Facility A Lenders, the Majority Facility B Lenders and the Majority Facility C Lenders, vary the order set out in paragraphs (a)(i) to (a)(iv) above.
|
(c)
|
Paragraphs (a) and (b) above will override any appropriation made by an Obligor.
|
30.6
|
No set-off by Obligors
|
30.7
|
Business Days
|
(a)
|
Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
|
(b)
|
During any extension of the due date for payment of any principal or Unpaid Sum under this Agreement, interest is payable on the principal or Unpaid Sum at the rate payable on the original due date.
|
30.8
|
Currency of account
|
(a)
|
Subject to paragraphs (c) and (d) below, Singapore Dollars is the currency of account and payment for any sum due from an Obligor under any Finance Document.
|
(b)
|
A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum shall be made in the currency in which that Loan or Unpaid Sum is denominated on its due date.
|
(c)
|
Each payment in respect of costs, expenses or Taxes shall be made in the currency in which the costs, expenses or Taxes are incurred.
|
(d)
|
Any amount expressed to be payable in a currency other than Singapore Dollars shall be paid in that other currency.
|
30.9
|
Payments to the Security Trustee
|
|
(a)
|
any Obligor to pay all sums due under any Finance Document; or
|
|
(b)
|
the Agent to pay all sums received or recovered from an Obligor under any Finance Document,
|
31.
|
Set-off
|
32.
|
Notices
|
32.1
|
Communications in writing
|
32.2
|
Addresses
|
|
(a)
|
in the case of the Borrower, that identified with its name below;
|
|
(b)
|
in the case of each Lender or any Guarantor, that notified in writing to the Agent on or prior to the date on which it becomes a Party; and
|
|
(c)
|
in the case of the Agent and the Security Trustee, that identified with its name below,
|
32.3
|
Delivery
|
(a)
|
Any communication or document made or delivered by one person to another under or in connection with the Finance Documents will be effective:
|
|
(i)
|
if by way of fax, only when received in legible form;
|
|
(ii)
|
if by way of letter, only when it has been left at the relevant address or three Business Days after being deposited in the post postage prepaid in an envelope addressed to it at that address; or
|
|
(iii)
|
(where applicable) if by way of email, if it complies with the conditions under Clause
32.5 (
Electronic communication
).
|
(b)
|
Any communication or document to be made or delivered to the Agent or the Security Trustee will be effective only when actually received by it and then only if it is expressly marked for the attention of the department or officer identified with its signature below (or any substitute department or officer as it shall specify for this purpose).
|
(c)
|
All notices from or to an Obligor shall be sent through the Agent.
|
(d)
|
Any communication or document made or delivered to the Borrower in accordance with this Clause will be deemed to have been made or delivered to each of the Obligors.
|
32.4
|
Notification of address and fax number
|
32.5
|
Electronic communication
|
(a)
|
For the purposes of delivering a scanned copy of a duly completed Utilisation Request by email under paragraph (b)(i) of Clause 5.1 (
Delivery of a Utilisation Request
),
the Agent and the Borrower shall:
|
|
(i)
|
notify each other in writing of their electronic mail address and/or any other information required to enable the sending and receipt of information by that means; and
|
|
(ii)
|
notify each other of any change to their electronic mail address or any other such information supplied by them.
|
(b)
|
Any electronic communication made for the purpose of paragraph (b)(i) of Clause 5.1 (
Delivery of a Utilisation Request
) by the Borrower to the Agent will be effective only when actually received by the Agent and then only if it is addressed in such a manner as the Agent shall specify to the Borrower for this purpose.
|
(c)
|
The Agent and the Borrower shall notify each other promptly upon becoming aware that its electronic mail system or other electronic means of communication cannot be used due to technical failure (and that failure is or is likely to be continuing for more than 24 hours). Until the Agent or the Borrower has notified each other that the failure has been remedied, all notices between those parties shall be sent by fax or letter in accordance with this Clause 32.
|
32.6
|
English language
|
(a)
|
Any notice given under or in connection with any Finance Document must be in English.
|
(b)
|
All other documents provided under or in connection with any Finance Document must be:
|
|
(i)
|
in English; or
|
|
(ii)
|
if not in English, and if so required by the Agent, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document or a Security Document.
|
33.
|
Calculations and certificates
|
33.1
|
Accounts
|
33.2
|
Certificates and determinations
|
33.3
|
Day count convention
|
34.
|
Partial invalidity
|
35.
|
Remedies and waivers
|
36.
|
Amendments and waivers
|
36.1
|
Required consents
|
(a)
|
Subject to Clause 36.2 (
Exceptions
) any term of the Finance Documents may be amended or waived only with the consent of the Majority Lenders and the Obligors and any such amendment or waiver will be binding on all Parties, provided that the Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement or any other Finance Document to cure any ambiguity, mutual mistake among all Parties hereto or thereto, typographical error, defect or inconsistency.
|
(b)
|
The Agent may effect, on behalf of any Finance Party, any amendment or waiver permitted by this Clause 36.
|
36.2
|
Exceptions
|
(a)
|
An amendment or waiver that has the effect of changing or which relates to:
|
|
(i)
|
the definition of “Majority Lenders” in Clause 1.1 (
Definitions
), shall not be made without the prior consent of all the Lenders;
|
|
(ii)
|
the definition of “Majority Facility A Lenders”, “Majority Facility B Lenders” or “Majority Facility C Lenders” in Clause 1.1 (
Definitions
), shall not be made without the prior consent of all the Lenders under the relevant Facility;
|
|
(iii)
|
an extension to the date of payment of any amount under the Finance Documents (save as contemplated by Clause 7.5 (
Extension Option
)), shall not be made without the prior consent of each Lender directly affected by such extension;
|
|
(iv)
|
a reduction in the Margin or a reduction in the amount of any payment of principal, interest, fees or commission payable, shall not be made without the prior consent of all the Lenders directly affected by such reduction;
|
|
(v)
|
an increase in or an extension of any Commitment (save as contemplated by Clause 2.3 (
Accordion Feature – Increase in Facility C
) and/or Clause 7.5 (
Extension Option
)), shall not be made without the prior consent of each Lender directly affected by such increase or extension;
|
|
(vi)
|
any provision which expressly requires the consent of all the Lenders, shall not be made without the prior consent of all the Lenders;
|
|
(vii)
|
Clause 2.2 (
Finance Parties' rights and obligations
), Clause 24 (
Changes to the Lenders
), Clause 29 (
Sharing among the Finance Parties
) or this Clause 36.2 shall not be made without the prior consent of all the Lenders; or
|
|
(viii)
|
(notwithstanding paragraph (b) of Clause 20.2 (
Amendments and Waivers: Security Documents
) of the Intercreditor Agreement) the release of any Security created pursuant to any Security Document or of any Charged Assets or the release of any guarantee or subordination in any Finance Document (except, in each case, as permitted in any Finance Document), shall not be made without the prior consent of all the Lenders (other than, in relation to a release of any such Security not constituting part of the Properties comprising the hotel, conference, meeting, convention, exhibition and/or Casino facilities, where the fair market value of the Charged Assets subject to such release (when aggregated with the fair market value of all Charged Assets released pursuant to this sub-paragraph (viii)) does not exceed 25 per cent. of the total fair market value of all Charged Assets immediately prior to the date of the first such release, in which case the release shall not be made without the prior consent of the Majority Lenders) (it being understood that the provision of additional Security permitted by this Agreement on any Charged Assets shall not be deemed to be a release of Security created pursuant to any Security Document or of any Charged Asset),
|
(b)
|
An amendment or waiver which relates to the rights or obligations of any Administrative Party may not be effected without the consent of such Administrative Party.
|
(c)
|
Except where the consent of all Lenders is required by any Finance Document, an amendment or waiver which relates solely to the rights and obligations of the Facility A Lenders shall not be effective without the consent of the Majority Facility A Lenders and shall not require the consent of any Facility B Lender, any Facility C Lender or Ancillary Lender.
|
(d)
|
Except where the consent of all Lenders is required by any Finance Document, an amendment or waiver which relates solely to the rights or obligations of the Facility B Lenders shall not be effective without the consent of the Majority Facility B Lenders and
|
|
shall not require the consent of any Facility A Lender, any Facility C Lender or Ancillary Lender.
|
(e)
|
Except where the consent of all Lenders is required by any Finance Document, an amendment or waiver which relates solely to the rights and obligations of the Facility C Lenders shall not be effective without the consent of the Majority Facility C Lenders and shall not require the consent of any Facility A Lender, Facility B Lender or Ancillary Lender.
|
(f)
|
Except where the consent of all Lenders is required by any Finance Document, an amendment or waiver which relates solely to the rights and obligations of an Ancillary Lender shall not be effective without the consent of that Ancillary Lender and shall not require the consent of any Facility A Lender, Facility B Lender or Facility C Lender.
|
(g)
|
Any amendment or waiver which puts any Permitted Sands Lender in its capacity as a Lender in a worse position, whether economically or otherwise, with respect to its participation in the Facilities (other than in a way which affects or would affect Lenders of that Permitted Sands Lender’s class generally), may not be effected without its consent.
|
(h)
|
Any provision of this Agreement or any other Finance Document which requires the consent, approval or determination of all the Lenders shall not require the consent, approval or determination of any Permitted Sands Lender (unless it relates to paragraph (a)(i), (a)(ii) or (g) above) and any such consent, approval or determination shall be made by all the other Lenders.
|
(i)
|
Notwithstanding the foregoing, if any Lender (a “
Non-Consenting Lender
”) does not agree to any amendment or waiver hereunder which has been consented to by the Majority Lenders, then the Borrower may cancel the Commitments of such Non-Consenting Lender and prepay such Non-Consenting Lender’s participation in the Loans and the utilisations of any Ancillary Facility in accordance with paragraph (a) of Clause 8.12 (
Right of prepayment and cancellation in relation to a single Lender
), at its sole expense and effort, upon notice to such Non-Consenting Lender and the Agent, require such Non-Consenting Lender to transfer in accordance with Clause 8.11 (
Right of replacement of a single Lender
), without recourse, all such Lender’s interests, rights and obligations under this Agreement to a transferee that shall assume such interests, rights and obligations (which such transferee must be a bank or financial institution or a Permitted Sands Lender or may be another Lender, if a Lender accepts such transfer) provided that:
|
|
(i)
|
such Non-Consenting Lender shall have received irrevocable payment in full in cash of an amount equal to the outstanding principal of its Loans, accrued interest thereon, and accrued fees and all other Senior Liabilities and other amounts payable to it hereunder, or (if agreed between the Borrower and the Non-Consenting Lender) at less than par, from the transferee or the Borrower; and
|
|
(ii)
|
such cancellation and prepayment or transfer (together with any other cancellations and prepayments or transfers pursuant to this paragraph (i) or otherwise) will result in such amendment being approved.
|
37.
|
Counterparts
|
(a)
|
Each Finance Document and any Transfer Certificate may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document or, as the case may be, Transfer Certificate.
|
(b)
|
Each counterpart of this Agreement shall constitute an original of this Agreement and may be signed and executed by the Parties and transmitted by facsimile transmission or other electronic transmission (including Portable Document Format) and shall be as valid and effectual as if executed as an original, but all counterparts shall constitute one and the same instrument. Each Party shall deliver its original counterpart to the Agent as soon as practicable, provided that in relation to the Borrower, it shall deliver its original counterpart to the Agent, no later than 11:00 a.m. on the first Utilisation Date.
|
38.
|
Governing law
|
39.
|
Enforcement
|
39.1
|
Jurisdiction of Singapore courts
|
(a)
|
Except as provided in paragraph (c) below, the courts of Singapore have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including any dispute regarding the existence, validity or termination of this Agreement) (a “
Dispute
”).
|
(b)
|
The Parties agree that the courts of Singapore are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
|
(c)
|
This Clause 39.1 is for the benefit of the Finance Parties only. As a result, no Finance Party shall be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Finance Parties may take concurrent proceedings in any number of jurisdictions.
|
39.2
|
Service of process
|
|
(a)
|
irrevocably appoints the Borrower as its agent for service of process in relation to any proceedings before the Singapore courts in connection with any Finance Document (and the Borrower hereby accepts such appointment); and
|
|
(b)
|
agrees that failure by a process agent to notify the relevant Obligor of the process will not invalidate the proceedings concerned.
|
40.
|
Certain Matters Affecting Lenders
|
41.
|
Gaming Authorities
|
1. |
DBS Bank Ltd.
|
|
2. |
Oversea-Chinese Banking Corporation Limited
|
|
3. |
United Overseas Bank Limited
|
|
4. |
Malayan Banking Berhad, Singapore Branch
|
|
5. |
Standard Chartered Bank
|
|
6. |
Sumitomo Mitsui Banking Corporation
|
|
7. |
CIMB Bank Berhad, Singapore Branch
|
22. |
First Commercial Bank, Singapore Branch
|
S$20,000,000
|
23. |
Hua Nan Commercial Bank, Ltd., Singapore Branch
|
S$20,000,000
|
24. |
Indian Bank
|
S$20,000,000
|
25. |
Korea Exchange Bank, Singapore Branch
|
S$20,000,000
|
26. |
Mega International Commercial Bank Co., Ltd., Singapore Branch
|
S$20,000,000
|
Name of Original Facility B Lender |
Facility B Commitment
|
|
1. |
DBS Bank Ltd.
|
S$89,652,893
|
2. |
Oversea-Chinese Banking Corporation Limited
|
S$89,652,893
|
3. |
United Overseas Bank Limited
|
S$89,652,893
|
4. |
Malayan Banking Berhad, Singapore Branch
|
S$74,710,744
|
5. |
Standard Chartered Bank
|
S$44,826,446
|
6. |
Sumitomo Mitsui Banking Corporation
|
S$29,884,297
|
7. |
CIMB Bank Berhad, Singapore Branch
|
S$18,677,685
|
8. |
Bank of China Limited, Singapore Branch
|
S$14,942,149
|
9. |
Barclays Bank PLC, Singapore Branch
|
S$24,000,000
|
10. |
The Royal Bank of Scotland plc, Singapore Branch
|
S$24,000,000
|
1.
|
The Borrower
|
(a)
|
A copy of the constitutional documents of the Borrower.
|
(b)
|
A copy of a resolution of the board of directors or equivalent body of the Borrower:
|
|
(i)
|
approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
|
|
(ii)
|
authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
|
|
(iii)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices (including, if relevant, any Utilisation Request and Selection Notice) to be signed and/or despatched by it under or in connection with the Finance Documents to which it is a party.
|
(c)
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph (b) above.
|
(d)
|
A certificate from the Borrower (signed by a director or a chief financial officer) confirming that borrowing the Total Commitments would not cause any borrowing or similar limit binding on it to be exceeded.
|
(e)
|
A certificate of an authorised signatory of the Borrower certifying that each copy document relating to it specified in this Part I of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of this Agreement.
|
2.
|
Security
|
(a)
|
Confirmation from the Security Trustee that it has received in form and substance satisfactory to it, a copy of each of the following documents, executed in escrow by the parties to it:
|
|
(i)
|
the Assignment of Development Agreement;
|
|
(ii)
|
the Assignment of Insurances;
|
|
(iii)
|
the Assignment of Proceeds;
|
|
(iv)
|
the Debenture;
|
|
(v)
|
the Mortgage; and
|
|
(vi)
|
the Intercreditor Agreement.
|
(b)
|
Evidence that the
relevant
cavea
t
s have been lodged against the Properties in favour of the Security Trustee.
|
3.
|
Legal opinions
|
4.
|
Base Case Financial Model
|
5.
|
Financial information
|
6.
|
Integrated Resort information
|
(a)
|
Evidence that the notice of the execution of the Finance Documents by the Borrower has been delivered to the Casino Regulatory Authority.
|
(b)
|
A copy of the approval of the Head Lessor to:
|
|
(i)
|
the execution of, and the creation of the Security under, the Assignment of Development Agreement and the Mortgage by the Borrower; and
|
|
(ii)
|
the creation of such Security in favour of the Secured Parties.
|
(c)
|
A satisfactory report on the titles of the Properties.
|
(d)
|
Satisfactory requisitions in respect of the Properties.
|
(e)
|
A copy of the valuation report by an Approved Valuer addressed to the Agent (for the benefit of the Secured Parties), in the form delivered to the Agent prior to the date of this Agreement and dated not earlier than six Months before the date of this Agreement (or, if the valuation report is dated earlier than six Months before the date of this Agreement, together with a letter (such letter to be dated no earlier than six Months before the date of this Agreement) from that Approved Valuer issuing the valuation report confirming that such valuation report remains up-to-date on the date of the letter).
|
(f)
|
The original or a copy (certified true by the relevant insurer or insurance broker) of each of the insurance policies effected by the Borrower and payment evidence of the most recent premium.
|
(g)
|
The Original Insurance Report.
|
7.
|
Other documents and evidence
|
1.
|
A Guarantor Accession Letter, duly executed by the Guarantor and the Borrower.
|
2.
|
A copy of the constitutional documents of the Guarantor.
|
3.
|
A copy of a resolution of the board of directors of the Guarantor:
|
|
(a)
|
approving the terms of, and the transactions contemplated by, the Guarantor Accession Letter and the Finance Documents and resolving that it execute the Guarantor Accession Letter and each Finance Document;
|
|
(b)
|
authorising a specified person or persons to execute the Guarantor Accession Letter and each Finance Document on its behalf;
|
|
(c)
|
authorising a specified person or persons, on its behalf, to sign and/or despatch all other documents and notices to be signed and/or despatched by it under or in connection with the Finance Documents; and
|
|
(d)
|
if so required by the Agent, resolving that it is in the best interests of that Guarantor to enter into the transactions contemplated by the Guarantor Accession Letter and the Finance Documents to which that Guarantor is a party, giving reasons.
|
4.
|
A specimen of the signature of each person authorised by the resolution referred to in paragraph 3 above.
|
5.
|
In the case of a Guarantor incorporated in Singapore, or if so required by the Agent, a copy of a resolution signed by all the holders of the issued shares of the Guarantor, approving the terms of, and the transactions contemplated by, the Finance Documents to which the Guarantor is a party.
|
6.
|
A certificate of the Guarantor (signed by a director) confirming that guaranteeing the Total Commitments would not cause any borrowing, guaranteeing or similar limit binding on it to be exceeded.
|
7.
|
A certificate of an authorised signatory of the Guarantor certifying that each copy document listed in this Part II of Schedule 2 is correct, complete and in full force and effect as at a date no earlier than the date of the Guarantor Accession Letter.
|
8.
|
If required pursuant to this Agreement, a copy of a Restricted Subsidiary Debenture, duly executed by the Guarantor and the Security Trustee.
|
9.
|
If available, the latest audited financial statements of the Guarantor.
|
10.
|
A legal opinion of Allen & Gledhill LLP, legal advisers to the Arranger and the Agent in Singapore.
|
11.
|
If the Guarantor is incorporated in a jurisdiction other than Singapore, a legal opinion of the legal advisers to the Arranger and the Agent in the jurisdiction in which the Guarantor is incorporated.
|
12.
|
If the Guarantor is incorporated in a jurisdiction other than Singapore, a legal opinion of the legal advisers to the Guarantor in the jurisdiction in which the Guarantor is incorporated.
|
From:
|
Marina Bay Sands Pte. Ltd.
|
To:
|
DBS Bank Ltd. as Agent
|
1.
|
We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
|
2.
|
We wish to borrow a Loan on the following terms:
|
Proposed Utilisation Date:
|
[
__________
] (or, if that is not a Business Day, the next Business Day)
|
Facility to be utilised:
|
[Facility A]
/
[Facility B]/[Facility C]
|
Purpose:
|
[Insert appropriate description from Clause 3.1 (Purpose)]
|
Amount:
|
[
__________
] or, if less, the Available Facility
|
Interest Period:
|
[
__________
]
|
3.
|
We confirm that each condition specified in Clause 4.2 (
Further conditions precedent
) applicable to this Loan is satisfied on the date of this Utilisation Request.
|
4.
|
The proceeds of this Loan should be [insert bank accounts into which cash proceeds are to be paid].
|
5.
|
This Utilisation Request is irrevocable.
|
From:
|
Marina Bay Sands Pte. Ltd.
|
To:
|
DBS Bank Ltd. as Agent
|
1.
|
We refer to the Agreement. This is a Selection Notice. Terms defined in the Agreement have the same meaning in this Selection Notice unless given a different meaning in this Selection Notice.
|
2.
|
We refer to the following Facility [A]/[C] Loan[s] in [
identify currency
] with an Interest Period ending on [
].
|
3.
|
[We request that the above Facility [A]/[C] Loan[s] be divided into [
] Facility [A]/[C] Loans with the following amounts and Interest Periods:]
|
|
or
|
|
[We request that the next Interest Period for the above Facility [A]/[C] Loan[s] is [
]]
.
|
4.
|
This Selection Notice is irrevocable.
|
From:
|
Marina Bay Sands Pte. Ltd.
|
To:
|
DBS Bank Ltd. as Agent
|
1.
|
We refer to the Agreement. This is an Ancillary Facility Request. Terms defined in the Agreement have the same meaning in this Ancillary Facility Request unless given a different meaning in this Ancillary Facility Request.
|
2.
|
We wish to establish an Ancillary Facility on the following terms:
|
|
Proposed Ancillary Lender: [
]
|
|
Type or types of facility: [
]
|
|
Commencement Date: [
]
|
|
Expiry date: [
]
|
|
Ancillary Commitment amount: [
]
|
|
Currency/ies available:
|
|
[Other details required by the Agent:]
[
]
|
3.
|
We confirm that each condition specified in paragraphs (a) and (b) of Clause 6.4 (
Grant of Ancillary Facility
) is satisfied on the date of this Ancillary Facility Request.
|
To:
|
DBS Bank Ltd. as Agent
|
From:
|
[
the Existing Lender
] (the “
Existing Lender
”) and
|
1.
|
We refer to Clause 24.5 (
Procedure for transfer
) of the Facility Agreement. This is a Transfer Certificate. Terms used in the Agreement shall have the same meaning in this Transfer Certificate.
|
2.
|
The Existing Lender and the New Lender agree to the Existing Lender transferring to the New Lender by novation in accordance with Clause 24.5 (
Procedure for transfer
) all or part of the Existing Lender's Commitment specified in the Schedule and/or all or part of the Existing Lender's participation(s) in any Loan(s) specified in the Schedule, in each case together with related rights and obligations.
|
3.
|
The proposed Transfer Date is [
].
|
4.
|
The Facility Office and address, fax number and attention particulars for notices of the New Lender for the purposes of Clause 32.2 (
Addresses
) are set out in the Schedule.
|
5.
|
The New Lender agrees to be bound by the terms of the Agreement and the Intercreditor Agreement as a Lender
.
|
6.
|
The New Lender expressly acknowledges:
|
|
(a)
|
the limitations on the Existing Lender's obligations set out in paragraphs (a) and (c) of Clause 24.4 (
Limitation of responsibility of Existing Lenders
); and
|
|
(b)
|
that it is the responsibility of the New Lender to ascertain whether any document is required or any formality or other condition requires to be satisfied to effect or perfect the transfer contemplated by this Transfer Certificate or otherwise to enable the New Lender to enjoy the full benefit of each Finance Document.
|
7.
|
The New Lender confirms that it is a “New Lender” within the meaning of Clause 24.1 (
Transfers by the Lenders
).
|
8.
|
The New Lender confirms that it is an Eligible Lender as at the date of this Transfer Certificate pursuant to paragraph [____] of the definition thereof.
|
9.
|
This Transfer Certificate may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Transfer Certificate.
|
10.
|
This Transfer Certificate is governed by Singapore law.
|
11.
|
This Transfer Certificate has been entered into on the date stated at the beginning of this Transfer Certificate.
|
Drawn Loan(s) participation(s) amount(s): | [__________] |
Available Commitment amount: | [__________] |
Administration particulars: | |
New Lender’s receiving account: | [__________] |
Address: | [__________] |
Telephone: | [__________] |
Facsimile: | [__________] |
Attn/Ref: | [__________] |
[the Existing Lender]
|
[the New Lender]
|
By:
|
By:
|
To:
|
DBS Bank Ltd. as Agent
|
From:
|
Marina Bay Sands Pte. Ltd.
|
1.
|
We refer to the Facility Agreement. This is a Compliance Certificate. Terms used in the Facility Agreement shall have the same meaning in this Compliance Certificate.
|
2.
|
We confirm that: [Insert details of covenants to be certified including calculations]
|
Signed:
|
…............
|
…............
|
Authorised Signatory
|
Authorised Signatory
|
|
for
|
for
|
|
Marina Bay Sands Pte. Ltd.
|
Marina Bay Sands Pte. Ltd.
|
To:
|
DBS Bank Ltd. as Agent
|
From:
|
[
Subsidiary
] and Marina Bay Sands Pte. Ltd.
|
1.
|
We refer to the Agreement. This is a Guarantor Accession Letter. Terms defined in the Agreement have the same meaning in this Guarantor Accession Letter unless given a different meaning in this Guarantor Accession Letter.
|
2.
|
[
Subsidiary
] agrees to:
|
(a)
|
become a Guarantor and to be bound by the terms of the Facility Agreement as a Guarantor and an Obligor pursuant to Clause 26.2 (
Guarantors
) of the Agreement:
|
(b)
|
to be bound by the terms of the Intercreditor Agreement as a Guarantor and an Obligor
.
|
3.
|
[
Subsidiary
] is a company duly incorporated under the laws of [
name of relevant jurisdiction
].
|
4.
|
[
Subsidiary's
] administrative details are as follows:
|
5.
|
This Guarantor Accession Letter is governed by Singapore law.
|
The COMMON SEAL of
|
)
|
[____________________]
|
)
|
was hereunto affixed in the
|
)
|
presence of:
|
)
|
Director | |
Director/Secretary |
SIGNED, SEALED and DELIVERED
|
)
|
by
|
)
|
as attorney for and on behalf of
|
)
|
DBS BANK LTD.
|
)
|
To:
|
DBS Bank Ltd. as Agent and Marina Bay Sands Pte. Ltd. as Borrower, for and on behalf of each Obligor
|
From:
|
[
] as Increase Lender (the “
Increase Lender
”)
|
1.
|
We refer to the Agreement. This is an Increase Confirmation. Terms defined in the Agreement have the same meaning in this Increase Confirmation unless given a different meaning in this Increase Confirmation.
|
2.
|
We refer to Clause 2.3 (
Accordion Feature – Increase in Facility C
) of the Agreement.
|
3.
|
The Increase Lender agrees to assume and will assume all of the obligations corresponding to the Facility C Commitment specified in the Schedule (the “
Relevant Facility C Commitment
”) in accordance with the provisions of the Facility Agreement.
|
4.
|
The proposed date on which the increase in relation to the Increase Lender and the Relevant Facility C Commitment is to take effect is
[ ]
.
|
5.
|
On the later of the proposed increase date and the satisfaction of all conditions set out in Clause 2.3 (
Accordion Feature – Increase in Facility
) of the Agreement, the Increase Lender becomes party to the Agreement as a Facility C Lender.
|
6.
|
The repayment schedule in relation to the Facility C Loans borrowed or to be borrowed under the Relevant Facility C Commitment (which the Increase Lender represents and warrants complies with the requirements in Clause 7.3 (
Repayment of Facility C Loans
)) are set out in the Schedule.
|
7.
|
The Margin applicable to the Facility C Loans borrowed or to be borrowed under the Relevant Facility C Commitment is set out in the Schedule.
|
8.
|
The fees applicable to the Facility C Loans borrowed or to be borrowed under the Relevant Facility C Commitment are set out in the Schedule
|
9.
|
The terms relating to mandatory prepayment applicable to the Facility C Loans borrowed or to be borrowed under the Relevant Facility C Commitment is set out in the Schedule.
|
10.
|
The Facility Office and address, fax number and attention details for notices to the Increase Lender for the purposes of Clause 32.2 (
Addresses
) are set out in the Schedule.
|
11.
|
The Increase Lender expressly acknowledges the limitations on the Lenders' obligations referred to in paragraph (f) of Clause 2.3 (
Accordion Feature – Increase in Facility C
).
|
12.
|
We refer to Clause 16.10 (
New Senior Lender
) of the Intercreditor Agreement. In consideration of the Increase Lender being accepted as a Senior Lender for the purposes of the Intercreditor Agreement (and as defined in the Intercreditor Agreement), the Increase Lender confirms that it intends to be party to the Intercreditor Agreement as a Senior Lender, and undertakes to perform all the obligations expressed in the Intercreditor Agreement to be assumed by a Senior Lender and agrees that it shall be bound by all the provisions of the Intercreditor Agreement, as if it had been an original party to the Intercreditor Agreement.
|
13.
|
The Increase Lender confirms that it is an Eligible Lender as at the date of this Increase Confirmation.
|
14.
|
This Increase Confirmation may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this Increase Confirmation.
|
15.
|
This Increase Confirmation is governed by Singapore law.
|
Facility A Repayment Date
|
Facility A Repayment Instalment
|
30 September 2014
|
Nil
|
31 December 2014
|
0.50 per cent.
|
31 March 2015
|
0.50 per cent.
|
30 June 2015
|
0.50 per cent.
|
30 September 2015
|
0.50 per cent.
|
31 December 2015
|
0.50 per cent.
|
31 March 2016
|
0.50 per cent.
|
30 June 2016
|
0.50 per cent.
|
30 September 2016
|
0.50 per cent.
|
31 December 2016
|
0.50 per cent.
|
31 March 2017
|
0.50 per cent.
|
30 June 2017
|
0.50 per cent.
|
30 September 2017
|
0.50 per cent.
|
31 December 2017
|
0.50 per cent.
|
31 March 2018
|
0.50 per cent.
|
30 June 2018
|
0.50 per cent
|
30 September 2018
|
0.50 per cent.
|
31 December 2018
|
5.00 per cent.
|
31 March 2019
|
5.00 per cent.
|
30 June 2019
|
5.00 per cent.
|
30 September 2019
|
5.00 per cent.
|
31 December 2019
|
18.00 per cent.
|
31 March 2020
|
18.00 per cent.
|
30 June 2020
|
18.00 per cent.
|
Facility A Termination Date
|
18.00 per cent.
|
1. |
Delivery by email of a scanned copy of a duly completed Utilisation Request (paragraph (b)(i) of Clause 5.1 (
Delivery of a Utilisation Request
)), delivery of an original duly completed Utilisation
Request (paragraph (a) of Clause 5.1 (
Delivery of a Utilisation Request
) or delivery of a duly completed Selection Notice (Clause 10.1 (
Selection of Interest Periods
))
|
First Facility A Loan
and first Facility B
Loan
Subsequent Facility
A Loans,
subsequent Facility
B Loans and all
Facility C Loans
|
D - 3
11:00 a.m.
(Singapore time)
D - 4
11:00 a.m.
(Singapore time)
|
2. |
Agent notifies the Lenders of the Loan in accordance with Clause 5.4 (
Lenders' participations
)
|
First Facility A
Loan
and first Facility B
Loan
Subsequent Facility
A Loans,
subsequent Facility
B Loans and all
Facility C Loans
|
D - 3
4:00 p.m.
(Singapore time)
D - 3
11:00 a.m.
(Singapore time)
|
3. |
SWAP Rate is fixed
|
(a) Quotation Day
as of 11:00 a.m.
(London time)
(b) Quotation Day
as of 9:00 p.m.
(Singapore time)
(c) Quotation Day
as of 4:30 p.m.
(Singapore time)
|
|
4. |
(In the case where a scanned copy of a duly completed Utilisation Request is
|
D - 1
11:00 a.m.
|
delivered by email under paragraph (b)(i) of Clause 5.1 (
Delivery of a Utilisation Request
)) delivery of the original duly completed Utilisation Request (or a fax copy of the duly completed Utilisation Request) (paragraph (b)(ii) of Clause 5.1 (
Delivery of a Utilisation Request
))
|
|
Description
|
Amount
|
Permitted FF&E Indebtedness (hire purchase)
|
S$1,303,209.36
|
Address:
|
10 Bayfront Avenue
Singapore 018956
|
Fax No:
|
+65 6688 0714
|
Attention:
|
Robert Harayda / Amy Chan
|
Note:
|
(1)
|
The Original Facility Agreement is dated 25 June 2012.
|
|
(2)
|
This Amended and Restated Facility Agreement is executed by way of an Amendment and Restatement Agreement dated 29 August 2014.
|
Address:
|
12 Marina Boulevard
#44-01/04
Marina Bay Financial Centre Tower 3
Singapore 018982
|
Fax No:
|
6324 4427
|
Attention:
|
Priscillia Lee / Anne Lim Sze Pheng / Siti Junainah Hasani
|
Address:
|
12 Marina Boulevard
#44-01/04
Marina Bay Financial Centre Tower 3
Singapore 018982
|
Fax No:
|
6324 442
|
Attention:
|
Priscillia Lee / Anne Lim Sze Pheng / Siti Junainah Hasani
|
Address:
|
10 Bayfront Avenue
Singapore 018956
|
Fax Number:
|
+65 6688 0714
|
Attention:
|
Robert Harayda / Amy Chan
|
By | : | /s/ George Tanasijevich | |
Name | : | George Tanasijevich | |
Title | : | Director |
Address:
|
12 Marina Boulevard
#44-01/04
Marina Bay Financial Centre Tower 3
Singapore 018982
|
Fax:
|
+65 6324 4427
|
Attention:
|
Priscillia Lee / Anne Lim Sze Pheng / Siti Junainah Hasani
|
By | : | /s/ Edward Chan | |
Name | : | Edward Chan | |
Title | : | Senior Vice President |
Date:
|
November 5, 2014
|
By:
|
|
/s/ Sheldon G. Adelson
|
|
|
|
|
Sheldon G. Adelson
Chief Executive Officer
|
Date:
|
November 5, 2014
|
By:
|
|
/s/ Michael A. Quartieri
|
|
|
|
|
Michael A. Quartieri
Chief Accounting Officer
(Principal Financial Officer)
|
Date:
|
November 5, 2014
|
By:
|
|
/s/ Sheldon G. Adelson
|
|
|
|
|
Sheldon G. Adelson
Chief Executive Officer
|
Date:
|
November 5, 2014
|
By:
|
|
/s/ Michael A. Quartieri
|
|
|
|
|
Michael A. Quartieri
Chief Accounting Officer
(Principal Financial Officer)
|