BANK ENVIRONMENTAL INDEMNITY
THIS UNSECURED INDEMNITY AGREEMENT (this "Indemnity") is entered into
as of the 14th day of November, 1997, by LAS VEGAS SANDS, INC., a Nevada
corporation ("LVSI"), VENETIAN CASINO RESORT, LLC, a Nevada limited liability
company ("VCR") and GRAND CANAL SHOPS MALL CONSTRUCTION, LLC., a Delaware
limited liability company ("GCCLC" and jointly and severally with LVSI and VCR,
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.
WITNESSETH:
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, Xxxxxxx Xxxxx Credit Partners L.P.,
("GSCP") as syndication agent and arranger (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") LVSI and VCR, Lenders have agreed to make loans (the
"Loans") to LVSI and VCR, which Loans are to be secured by, among other things,
(i) that certain Deed of Trust of even date herewith executed by LVSI and VCR,
as trustors, to Lawyers Title of Nevada, Inc. as trustee, in favor of the
Administrative Agent on behalf of the Lenders, as beneficiary (the "Deed of
Trust"), (ii) that certain Leasehold Deed of Trust of even date herewith
executed by GCCLLC, as trustor, to Lawyers Title of Nevada, Inc. as trustee, in
favor of Administrative Agent on behalf of the Lenders, as beneficiary (the
"Leasehold Deed of Trust") and (iii) such other deeds of trust that may be
entered into by Company for the benefit of Administrative Agent on behalf of the
Lenders, (together with the Deed of Trust and the Leasehold 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 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) 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 of Trust, of the matters to which such representation, warranty or
indemnity relates.
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3. Environmental Covenants
(a) The Company shall not, nor shall the Company 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.
(b) The Company shall give prompt written notice to the
Administrative Agent of any Pending Claims, or of any Proceedings.
(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.
4. Liability.
(a) Notwithstanding any other provisions of this Indemnity or any
of the Loan Documents (as 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.
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(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 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, to enter and visit the Property to make such inspections and
inquiries as they 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
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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.
6. Interest Accrued. Any amount claimed hereunder by 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 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
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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.
0000 Xxx Xxxxx Xxxxxxxxx, Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx,
Chairman of the Board
Telecopy No: (000) 000-0000
with a copy to: Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attn: Xxxxxx B Fredius, Esq.
Telecopy No: (000) 000-0000
Administrative Agent: The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxxx
Telecopy No.: (000) 000-0000
with a copy to: The Bank of Nova Scotia
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx Xxxxxx
Telecopy No.: (000)000-0000
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 defined in the
Indenture, 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/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
VENETIAN CASINO RESORT, LLC,
a Nevada limited liability company
BY: LAS VEGAS SANDS, INC.,
a Nevada corporation,
its managing member
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
GRAND CANAL SHOPS MALL CONSTRUCTION, LLC,
a Delaware limited liability company
BY: VENETIAN CASINO RESORT, LLC,
a Nevada limited liability company,
its member
BY: LAS VEGAS SANDS, INC.,
a Nevada corporation,
its managing member
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
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