EXHIBIT 10.5
ENVIRONMENTAL INDEMNITY
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (this "Indemnity") is entered
into as of the 4th day of June, 2002, by LAS VEGAS SANDS, INC., a Nevada
corporation ("LVSI"), VENETIAN CASINO RESORT, LLC, a Nevada limited liability
company ("VCR", jointly and severally with LVSI, the "Company"), to and for the
benefit of THE BANK OF NOVA SCOTIA, as administrative agent ("Administrative
Agent") for itself and the other agents and lenders under the Credit Agreement
referred to below.
W I T N E S S E T H:
A. Pursuant to the Credit Agreement dated as of even date herewith (as
modified, amended or supplemented from time to time, (the "Credit Agreement") by
and between the Administrative Agent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P.,
("GSCP") as syndication agent (the Administrative Agent, GSCP and any other
agent appointed under the Credit Agreement, each an "Agent" and together the
"Agents") the financial institutions from time-to-time party thereto (the
"Lenders"), and the Company, Lenders have agreed to make loans (the "Loans") to
the Company, which Loans are to be secured by, among other things, (i) that
certain Deed of Trust of even date herewith executed by the Company, as trustor,
to First American Title Insurance Company as trustee, in favor of the
Administrative Agent on behalf of the Lenders, as beneficiary (the "Deed of
Trust") and (ii) such other deeds of trust that may be entered into by the
Company for the benefit of Administrative Agent on behalf of the Lenders,
(together with the Deed of Trust, the "Deeds of Trust") which Deeds of Trust
encumber the real property described on Exhibit A attached hereto (the "Real
Property"), and the improvements now or hereafter constructed thereon (which
improvements, together with the Real Property, shall hereinafter be referred to
as the "Property").
B. The Lenders have made it a condition of the Lenders making the Loans
that this Indemnity be executed and delivered by the Company.
C. The obligations of the Company hereunder are unsecured obligations
of the Company.
NOW, THEREFORE, in consideration of the foregoing and other valuable
consideration, the receipt of which is hereby acknowledged, the Company
covenants and agrees to and for the benefit of the Agents and the Lenders as
follows:
1. DEFINITIONS.
(a) "CLAIMS" means any and all actual out-of-pocket costs incurred
by an Indemnified Party (as defined below) (including, without limitation,
reasonable attorneys' fees and expenses, which fees and expenses shall include,
without limitation, fees and expenses of both outside and staff counsel),
expenses, losses, damages, liabilities, fines, penalties, charges, injury to
person, property, or natural resources, administrative and judicial proceedings
and orders, injunctive relief, judgments, remedial action requirements and
enforcement actions of any kind, arising directly or indirectly, in whole or in
part, out of or attributable to (i) any breach or default by the Company in the
performance of any of its obligations under paragraphs 3(a)-(d) hereof, or (ii)
any Release (as defined below) or threatened Release, whether foreseeable or
unforeseeable, arising prior to any release, reconveyance or foreclosure of any
Deed of Trust (or following any such release, conveyance or foreclosure to the
extent attributable to pre-existing conditions), or conveyance in lieu of
foreclosure; and in each instance, regardless of when such Release, inaccuracy
or breach is discovered and regardless of whether or not caused by or in the
control of the Company, any employees, agents, contractors or subcontractors of
the Company or any third persons. Without limiting the generality of the
foregoing and for purposes of clarification only, Claims also include:
(i) actual out-of-pocket costs reasonably incurred by an
Indemnified Party in connection with (x) determining whether the Property is in
compliance with all applicable Hazardous Substances Laws (as hereinafter
defined), (y) taking any necessary precautions to protect against any Release or
threatened Release, or (z) any removal, remediation of any kind and disposal of
any Hazardous Substances (as hereinafter defined), and
(ii) any repair of any damage to the Property or any other
property caused by any such precautions, removal, remediation or disposal.
The rights of the Indemnified Parties hereunder shall not be limited by
any investigation or the scope of any investigation undertaken by or on behalf
of the Agents or Lenders in connection with the Property prior to the date
hereof. Notwithstanding the foregoing, Claims shall exclude any Release caused
by or resulting from the negligence or misconduct of any of the Indemnified
Parties.
(b) "HAZARDOUS SUBSTANCES" means and includes any flammable
explosives, radioactive materials or hazardous, toxic or dangerous wastes,
substances or related materials or any other chemicals, materials or substances,
exposure to which is prohibited, limited or regulated by any federal, state,
county, regional or local authority or which, even if not so regulated, may or
could pose a hazard to the health and safety of the occupants of the Property or
of property adjacent to the Property, including, but not limited to, asbestos,
PCBs, petroleum products and byproducts (including, but not limited to, crude
oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural
gas, or synthetic gas usable for fuel, or any mixture thereof), substances
defined or listed as "hazardous substances," "hazardous materials," "hazardous
wastes" or "toxic substances" or similarly identified in, pursuant to, or for
purposes of, any of the Hazardous Substances Laws, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act, as now or hereafter amended (42 U.S.C. Section 9601, ET SEQ); the
Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C.
Section 1801, ET SEQ); the Resource Conservation and Recovery Act, as now or
hereafter amended (42 U.S.C. Section 6901, ET SEQ); any so-called "Superfund" or
"Superlien" law; or any other federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material; or any substances or mixture regulated under the
Toxic Substance Control Act of 1976, as now or hereafter amended (15 U.S.C.
Section 2601 ET SEQ); and any "pollutant" under the Clean Water Act, as now or
hereafter amended (33 U.S.C. Section 1251 ET SEQ); and any hazardous air
pollutant under the Clean Air Act (42 U.S.C. Section 7901 ET SEQ), in each case
as now or hereafter amended.
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(c) "HAZARDOUS SUBSTANCES LAWS" means all federal, state and local
environmental, health or safety laws, ordinances, regulations, rules of common
law or policies regulating Hazardous Substances, including, without limitation,
those governing the generation, use, refinement, handling, treatment, removal,
storage, production, manufacture, transportation or disposal of Hazardous
Substances, as such laws, ordinances, regulations, rules and policies may be in
effect from time to time and be applicable to the Property.
(d) "INDEMNIFIED PARTIES" means each Agent and Lender and each of
their respective directors, officers, shareholders, agents, employees,
participants, successors and assigns and shall also include any purchasers of
all or any portion of the Property at any foreclosure sale and the initial
purchaser following the consummation of any deed in lieu of foreclosure, but not
including any other purchasers of the Property.
(e) "RELEASE" means any presence, use, generating, storing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing of Hazardous Substances into the
environment, or about, on, from, under, within or affecting the Property, or
transported to or from the Property, including continuing migration of Hazardous
Substances into or through soil, surface water or groundwater.
2. ENVIRONMENTAL INDEMNIFICATION BY THE COMPANY.
(a) The Company hereby agrees to defend (with counsel reasonably
approved by the Administrative Agent), indemnify and hold the Indemnified
Parties harmless from and against, and shall reimburse the Indemnified Parties
for, any and all Claims.
(b) Indemnified Parties shall have the right to employ independent
counsel reasonably satisfactory to the Company to represent it in any action or
proceeding to which this Indemnity is applicable if and to the extent that the
Indemnified Parties determine in good faith that their rights and interests may
be compromised or not fully and adequately represented by legal counsel acting
for the Company, whether on account of any potential defenses that the Company
may have to its obligations under this Indemnity or otherwise, and in such event
the reasonable fees and expenses of the Indemnified Party's independent counsel
shall be paid by the Company.
(c) Subject to the last sentence of Section 1(a) above, the
Company's obligations hereunder shall not be diminished or affected in any
respect as a result of any notice or disclosure, if any, to, or other knowledge,
if any, by, any Indemnified Party of any Release or threatened Release, or as a
result of any other matter related to the Company's obligations hereunder, nor
shall any Indemnified Party be deemed to have permitted or acquiesced in any
Release or any breach of the Company's other obligations hereunder, solely
because any Indemnified Party had notice, disclosure or knowledge thereof,
whether at the time this Indemnity is delivered or at any time thereafter.
(d) This Indemnity shall not be limited by any representation,
warranty or indemnity of the Company made herein or in connection with any
indebtedness secured by the Deeds of Trust, irrespective of whether the Company
has knowledge as of the date of each Deed of Trust, or during the term of each
Deed
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of Trust, of the matters to which such representation, warranty or indemnity
relates.
3. ENVIRONMENTAL COVENANTS.
(a) The Company shall not, and shall use commercially reasonable
efforts to not permit any tenants or other occupants of the Property to, at any
time in the future, cause or permit a Release, except in compliance with
applicable Hazardous Substances Laws and good and customary practices.
(b) The Company shall give prompt written notice to the
Administrative Agent of any pending Claims, or of any Proceedings (as such term
is defined in the Credit Agreement).
(c) The Company shall give prompt written notice to the
Administrative Agent of the Company's discovery of any occurrence or condition
on any real property adjoining or in the vicinity of the Property that could
cause the Property or any part thereof to be subject to any restrictions on the
ownership, occupancy, transferability or use of the Property under any Hazardous
Substances Laws including, without limitation, the Company's discovery of any
occurrence or condition on the Property or on any real property adjoining or in
the vicinity of the Property that could cause the Property or any part thereof
to be classified as a hazardous waste property or border-zone property, or to be
otherwise subject to any restrictions on the ownership, occupancy,
transferability or use of the Property under any Hazardous Substances Laws.
(d) In the event that any investigation, site monitoring,
containment, cleanup, removal, restoration, precautionary actions or other
remedial work of any kind or nature (hereinafter, "REMEDIAL WORK") is required
under any applicable Hazardous Substances Law as a result of, or in connection
with, any Release, suspected Release, or threatened Release, the Company shall
within thirty (30) days after receipt of information that such Remedial Work is
or may be required (or such shorter period of time as may be required under
applicable law, regulation, order or agreement), commence the performance of, or
cause to be commenced, and thereafter diligently prosecute to completion, the
performance of all such Remedial Work in compliance with all applicable
Hazardous Substances Laws. All Remedial Work shall be performed by one or more
contractors, approved in advance in writing by the Administrative Agent, and
under the supervision of a consulting engineer approved in advance in writing by
the Administrative Agent, which consent shall not be unreasonably withheld. All
costs and expenses of such Remedial Work shall be paid by the Company,
including, without limitation, the charges of such contractor(s) and/or the
consulting engineer, and the Indemnified Parties' reasonable attorneys' fees and
costs, including, without limitation, fees and costs of both outside and staff
counsel incurred in connection with monitoring or review of such Remedial Work.
In the event the Company shall fail to timely commence, or cause to be
commenced, or fail to diligently prosecute to completion, the performance of
such Remedial Work, the Administrative Agent or any other Indemnified Party may,
but shall not be required to, cause such Remedial Work to be performed and all
costs and expenses thereof, or incurred in connection therewith, shall be deemed
Claims hereunder.
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4. LIABILITY.
(a) Notwithstanding any other provisions of this Indemnity or any
of the Loan Documents (as such term is defined in the Credit Agreement), any
liability of the Company hereunder shall be its personal liability (but such
personal liability shall not be deemed to incorporate personal liability of its
directors, officers, employees or agents), and may be asserted against its
interest in the Property as well as against any and all of its other assets.
(b) Without limiting the foregoing, the obligations of the Company
hereunder shall survive the following events, to the maximum extent permitted by
law: (i) repayment of the Obligations (as such term is defined in the Credit
Agreement) and any judicial or nonjudicial foreclosure under any Deed of Trust
or conveyance in lieu of such foreclosure, notwithstanding that all or any
portion of any other obligations secured by the such Deed of Trust shall have
been discharged thereby, (ii) any election by any Indemnified Party to purchase
all or any portion of the Property at a foreclosure sale by crediting all or any
portion of the obligations secured by any Deed of Trust against the purchase
price therefor (except to the extent and only to the extent that such
Indemnified Party has specifically elected in writing in its sole discretion to
credit against the purchase price any Claims hereunder which were liquidated in
amount at the time of such foreclosure sale, it being presumed for these
purposes that the obligations secured by such Deed of Trust shall be discharged
by any such crediting in the order set forth in such Deed of Trust), (iii) any
release or reconveyance of either Deed of Trust, any waiver of the lien of
either Deed of Trust, or any release or waiver of any other security for the
Obligations, and (iv) any termination, cancellation or modification of any Loan
Document. Upon and following the occurrence of any of the foregoing, the
obligations of the Company hereunder shall be unsecured obligations, and shall
be enforceable against the Company to the fullest extent permitted by applicable
law.
(c) The obligations of the Company hereunder are not intended to
be the obligations of a surety or guarantor. The liability of the Company under
this Indemnity shall in no way be limited or impaired by (i) any extensions of
time for performance required by the any Loan Document; (ii) the accuracy or
inaccuracy of any representations and warranties made by the Company in any of
any Loan Documents; or (iii) the release of any person or entity from
performance or observance of any of the agreements, covenants, terms, or
conditions contained in any of the Loan Documents by operation of law or
otherwise.
(d) The rights and remedies of the Indemnified Parties under this
Indemnity (i) shall be in addition to any other rights and remedies of such
Indemnified Parties under any Loan Documents or at law or in equity, and (ii)
may be enforced by any of the Indemnified Parties, to the maximum extent
permitted by law, without regard to or affecting any rights and remedies that
such Indemnified Party may have under any Loan Documents or at law or in equity,
and without regard to any limitations on such Indemnified Party's recourse for
recovery of the Obligations as may be provided in any Loan Documents.
5. SITE VISITS, OBSERVATION AND TESTING. The Administrative Agent and
any of the other Indemnified Parties and their respective agents and
representatives shall have the right at any reasonable time, and upon reasonable
prior notice, but subject to the rights of tenants under their leases, to enter
and visit the Property to make such inspections and inquiries as they
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shall deem appropriate, including inspections for violations of any of the terms
of this Indemnity and for determining the existence, nature and magnitude of any
past or present Release or threatened Release, and they shall also have the
right, following any Event of Default (as defined in the Credit Agreement), or
where the Administrative Agent has a reasonable basis upon which to believe that
the Property may be harmed, unsafe or contaminated, and upon reasonable prior
notice, to enter and visit the Property to make such tests (including, without
limitation, taking and removing soil or groundwater samples) as they shall deem
appropriate. Neither the Administrative Agent nor any of the other Indemnified
Parties have any duty, however, to visit or observe the Property or to conduct
tests, and no site visit, observation or testing by the Administrative Agent or
any other Indemnified Party shall impose any liability on the Administrative
Agent or such other Indemnified Party. In no event shall any site visit,
observation or testing by the Administrative Agent or any other Indemnified
Party be a representation that Hazardous Substances are or are not present in,
on or under the Property, or that there has been or shall be compliance with any
Hazardous Substances Laws or any other applicable governmental law. Neither the
Company nor any other party is entitled to rely on any site visit, observation
or testing by the Administrative Agent or any other Indemnified Party. Neither
the Administrative Agent nor any of the other Indemnified Parties owe any duty
of care to protect the Company or any other party against, or to inform the
Company or any other party of, any Hazardous Substances or any other adverse
condition affecting the Property. The Administrative Agent and any other
Indemnified Party shall give the Company reasonable notice before entering the
Property, and shall make reasonable efforts to avoid interfering with the
Company's use of the Property in exercising any rights provided in this
paragraph 5. The Administrative Agent's rights under this Indemnity are for the
purpose of protecting and preserving the value of its collateral, and neither
the Administrative Agent or any Indemnified Party shall be considered an
operator of the Property by virtue of exercising its rights hereunder.
6. INTEREST ACCRUED. Any amount owed hereunder to an Indemnified Party
not paid within thirty (30) days after written demand from such Indemnified
Party with an explanation of the amounts claimed shall bear interest at a rate
per annum equal to the maximum interest rate applicable to overdue principal set
forth in the Credit Agreement.
7. SUBROGATION OF INDEMNITY RIGHTS. If the Company fails to fully
perform its obligations hereunder, any Indemnified Party shall be entitled to
pursue any rights or claims that the Company may have against any present,
future or former owners, tenants or other occupants or users of the Property,
any portion thereof or any adjacent or proximate properties, relating to any
Claim or the performance of Remedial Work, and the Company hereby assigns all of
such rights and claims to the Indemnified Parties under such circumstances and
shall take all actions required by the Indemnified Parties to cooperate with
such Indemnified Parties in enforcing such rights and claims under such
circumstances.
8. RELIANCE. The Company acknowledges that it is making and giving the
indemnities and representations and covenants contained in this Indemnity with
the knowledge that the Agent and Lenders are relying on such indemnities and
representations and covenants in making the Obligations to the Company.
9. SUCCESSORS AND ASSIGNS. This Indemnity shall inure to the benefit of
each Indemnified Party's successors and assigns, and shall be binding upon the
heirs, successors, and
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assigns of the Company. The Company shall not assign any rights or obligations
under this Indemnity without first obtaining the written consent of the
Administrative Agent, which may be given or withheld in the sole discretion of
the Administrative Agent. Notwithstanding any other provision of this Indemnity
to the contrary, the Company shall not be released from its obligations
hereunder without obtaining the written consent of the Administrative Agent,
which consent may be given or withheld in the sole discretion of the
Administrative Agent. Nothing herein shall be deemed to be a consent to the
transfer of the Property which transfer would be otherwise prohibited by any
Document.
10. MISCELLANEOUS. This Indemnity shall be governed by and construed in
accordance with the laws of the State of Nevada. If this Indemnity is executed
by more than one person or entity, the liability of the undersigned hereunder
shall be joint and several. Separate and successive actions may be brought
hereunder to enforce any of the provisions hereof at any time and from time to
time. No action hereunder shall preclude any subsequent action, and the Company
hereby waives and covenants not to assert any defense in the nature of splitting
of causes of action or merger of judgments. In no event shall any provision of
this Indemnity be deemed to be a waiver of or to be in lieu of any right or
claim, including, without limitation, any right of contribution or other right
of recovery, that any party to this Indemnity might otherwise have against any
other party to this Indemnity under any Hazardous Substances Laws. If any term
of this Indemnity or any application thereof shall be invalid, illegal or
unenforceable, the remainder of this Indemnity and any other application of such
term shall not be affected thereby. No delay or omission in exercising any right
hereunder shall operate as a waiver of such right or any other right.
11. NOTICES. All notices expressly provided hereunder to be given by
Administrative Agent to the Company and all notices and demands of any kind or
nature whatsoever which the Company may be required or may desire to give to or
serve on the Administrative Agent shall be in writing and shall be served by
certified mail, return receipt requested, or by a reputable commercial overnight
carrier that provides a receipt, such as Federal Express. Notice shall be
addressed as follows:
The Company: Las Vegas Sands, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
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Administrative Agent: The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇
Telecopy No.: (▇▇▇)▇▇▇-▇▇▇▇
12. ATTORNEYS' FEES AND EXPENSES. If any Agent or Lender refers this
Indemnity or any of the other Loan Documents to an attorney to enforce, construe
or defend the same, as a consequence of any Event of Default (as such term is
defined in the Credit Agreement), with or without the filing of any legal action
or proceeding, the Company shall pay to the Administrative Agent, immediately
upon demand, the amount of all attorneys' fees and costs incurred by the
Administrative Agent in connection therewith, together with interest thereon
from the date of award at the maximum interest rate applicable to overdue
principal set forth in the Credit Agreement
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IN WITNESS WHEREOF, this Indemnity is executed as of the day and year
first above written.
THE COMPANY:
LAS VEGAS SANDS, INC.,
a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Title: Vice President Finance
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VENETIAN CASINO RESORT, LLC,
a Nevada limited liability company
BY: LAS VEGAS SANDS, INC.,
a Nevada corporation,
its managing member
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Title: Vice President Finance
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