AMENDMENT AND RESTATEMENT AGREEMENT

EX-10.1 2 lvs-ex101x09302014.htm EX-10.1 EX-10.1
EXHIBIT 10.1
 
GRAPHIC

 
  Execution Version
 
 
 
Dated 29 August 2014
 
 

MARINA BAY SANDS PTE. LTD.
as Borrower


 
and



DBS BANK LTD.
as Agent



AMENDMENT AND RESTATEMENT AGREEMENT
(relating to the S$5,100,000,000 Facility Agreement dated 25 June 2012,
as amended by an Amendment Agreement dated 20 November 2013)
 
 
 
 
 
 
 
 
ALLEN & GLEDHILL LLP
ONE MARINA BOULEVARD #28-00
SINGAPORE 018989
 
 
 
 
 

 

TABLE OF CONTENTS
 
Contents Page
     
1.
DEFINITIONS AND INTERPRETATION
1
     
2.
AMENDMENT AND RESTATEMENT
3
     
3.
EFFECTIVE DATE
3
     
4.
CONFIRMATION
4
     
5.
REPRESENTATIONS
4
     
6.
AMENDMENT FEE
4
     
7.
INCORPORATION OF TERMS
4
     
8.
COUNTERPARTS
5
     
9.
GOVERNING LAW
5
     
Schedule 1 Conditions Precedent
6
   
Schedule 2 The Existing Lenders
8
   
Schedule 3 Form of Amended and Restated Facility Agreement
11
 
 
 
 
 
 
 
 
 
 
 

 
i

 
 

THIS AGREEMENT is dated 29 August 2014 and made between:
 
(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”),
 
and is supplemental to a S$5,100,000,000 facility agreement dated 25 June 2012 (as amended by an Amendment Agreement dated 20 November 2013 made between the Borrower and the Agent) (the “Original Facility Agreement”) made between (a) the Borrower, as borrower, (b) the financial institutions and others listed in Part I of Schedule 1 thereto, as mandated lead arrangers, (c) DBS Bank Ltd., Oversea-Chinese Banking Corporation Limited, United Overseas Bank Limited and Malayan Banking Berhad, Singapore Branch, as global coordinators, (d) the financial institutions and others listed in Part II and Part III of Schedule 1 thereto (the “Lenders”), as original lenders, (e) the Agent, as agent and (f) DBS Bank Ltd. (the “Security Trustee”), as security trustee.
 
BACKGROUND
 
(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.
 
IT IS AGREED as follows:
 
1.
DEFINITIONS AND INTERPRETATION
 
1.1
Definitions
 
Unless otherwise defined or construed in this Agreement and except where the context otherwise requires, all terms and references used in the Original Facility Agreement shall have the same meaning and construction in this Agreement and, in addition:
 
Amended Facility Agreement” means the Original Facility Agreement, as amended and restated on the terms of Schedule 3 (Form of Amended and Restated Facility Agreement).
 
Amendment Fee Letter” means the letter dated on or about the date of this Agreement between the Agent and the Borrower setting out the fee referred to in Clause 6 (Amendment Fee).
 
 

 
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Effective Date” has the meaning given to it in Clause 3 (Effective Date).
 
Intercreditor Agreement Amendment and Restatement Agreement” means the amendment and restatement agreement between the Borrower and the Agent, in relation to the Intercreditor Agreement.
 
Mortgage” means a mortgage over the Properties security document between the Borrower and the Security Trustee initially executed in escrow pursuant to Clause 3.1 (Conditions Precedent).
 
New Finance Documents” means this Agreement and the Supplemental Security Documents.
 
Party” means a party to this Agreement.
 
Supplemental Assignment of Development Agreement” means a supplemental assignment of development agreement security document between the Borrower and the Security Trustee, in relation to the Assignment of Development Agreement.
 
Supplemental Assignment of Insurances” means a supplemental assignment of insurances security document between the Borrower and the Security Trustee, in relation to the Assignment of Insurances.
 
Supplemental Assignment of Proceeds” means a supplemental assignment of proceeds security document between the Borrower and the Security Trustee, in relation to the Assignment of Proceeds.
 
Supplemental Debenture” means a supplemental fixed and floating charge security document between the Borrower and the Security Trustee, in relation to the Debenture.
 
Supplemental Security Documents” means the Supplemental Assignment of Development Agreement, the Supplemental Assignment of Insurances, the Supplemental Assignment of Proceeds, the Supplemental Debenture, the Mortgage and the Intercreditor Agreement Amendment and Restatement Agreement.
 
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
 
 
 
 

 
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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
 
In accordance with the Original Facility Agreement, the Borrower and the Agent designate the Supplemental Security Documents as Finance Documents.
 
2.
AMENDMENT AND RESTATEMENT
 
The Parties agree that, with effect on and from the Effective Date, the Original Facility Agreement shall be amended and restated in its entirety in the form of Schedule 3 (Form of Amended and Restated Facility Agreement) so that the rights and obligations under the Original Facility Agreement of the parties thereto shall, on and after the Effective Date, be governed by, and construed in accordance with, the terms of the Amended Facility Agreement.
 
3.
EFFECTIVE DATE
 
3.1
Conditions Precedent
 
Subject to Clause 3.2 (Failure to satisfy Conditions Precedent) and Clause 3.3 (Rights of the Finance Parties), the amendment and restatement of the Original Facility Agreement in accordance with Clause 2 (Amendment and Restatement) shall take effect on and from:
 
 
(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,
 
(the “Effective Date”). The Agent shall notify the Borrower and the Lenders promptly upon being so satisfied.
 
3.2
Failure to satisfy Conditions Precedent
 
If the Agent has not received all the documents and evidence referred to in Clause 3.1 (Conditions Precedent) on or before 12 September 2014 (or such later date as the Lenders may agree in writing):
 
 
(a)
the Agent shall promptly notify the Lenders upon the occurrence of such event; and
 
 
 

 
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(b)
the amendment and restatement pursuant to Clause 2 (Amendment and Restatement) shall not occur.
 
3.3
Rights of the Finance Parties
 
Upon termination of this Agreement under Clause 3.2 (Failure to satisfy Conditions Precedent), the outstanding indebtedness under the Original Facility Agreement shall remain governed by and be payable in accordance with the provisions of the Original Facility Agreement.
 
4.
CONFIRMATION
 
The Borrower hereby represents, warrants and confirms to the Agent (as agent of the other Finance Parties) on the date hereof and on the Effective Date that:
 
 
(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
 
On the date of this Agreement, the Borrower makes the Repeating Representations of the Original Facility Agreement, by reference to the facts and circumstances then existing, but as if references in the Repeating Representations of the Original Facility Agreement to “the Transaction Documents” includes this Agreement, the Amended Facility Agreement and each Supplemental Security Document.
 
6.
AMENDMENT FEE
 
The Borrower shall pay to the Agent (for the account of each Lender) an amendment fee in the amount and at the times agreed in the Amendment Fee Letter.
 
7.
INCORPORATION OF TERMS
 
The provisions of Clause 32 (Notices), Clause 34 (Partial Invalidity), Clause 35 (Remedies and Waivers) and Clause 39 (Enforcement) of the Original Facility Agreement shall be incorporated into this Agreement as if set out in full in this Agreement and as if references in those clauses to “this Agreement” are references to this Agreement.
 
 
 

 
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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
 
This Agreement is governed by Singapore law.
 
This Agreement has been entered into on the date stated at the beginning of this Agreement.
 

 
 
 
 
 
 
 
 
 
 
 
 

 
- 5 -

 
 
 
Schedule 1
Conditions Precedent
 
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.
 
 

 
- 6 -

 
 
 
(b)
Evidence that the relevant caveats have been lodged against the Properties in favour of the Security Trustee.
 
3.
Legal Opinion
 
A legal opinion of Allen & Gledhill LLP, legal advisers to the Arranger and the Agent in Singapore, substantially in the form distributed to the Lenders prior to signing this Agreement.
 
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.
 
 
 
 
 
 
 
 
 
 
 

 
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Schedule 2
The Existing Lenders
 
Part I
The Facility A Lenders
 
 
Name of Original Facility A Lender
Facility A Commitment
   
1.
DBS Bank Ltd.
S$768,347,107
     
2.
Oversea-Chinese Banking Corporation Limited
S$768,347,107
     
3.
United Overseas Bank Limited
S$893,347,107
     
4.
Malayan Banking Berhad, Singapore Branch
S$534,289,256
     
5.
Standard Chartered Bank, Singapore Branch
S$325,173,554
     
6.
Sumitomo Mitsui Banking Corporation, Singapore Branch
S$218,115,703
     
7.
CIMB Bank Berhad, Singapore Branch
S$185,322,315
     
8.
Bank of China Limited, Singapore Branch
S$135,057,851
     
9.
Hong Leong Finance Limited
S$135,000,000
     
10.
Mizuho Corporate Bank, Ltd, Singapore Branch
S$135,000,000
     
11.
The Bank of East Asia Limited, Singapore Branch
S$96,000,000
     
12.
Bank of America N.A., Singapore Branch
S$96,000,000
     
13.
RHB Bank Berhad, Singapore Branch
S$87,000,000
     
14.
Indian Overseas Bank, Singapore Branch
S$55,000,000
     
15.
Chang Hwa Commercial Bank, Ltd., Singapore Branch
S$24,000,000
     
16.
Land Bank of Taiwan, Singapore Branch
S$24,000,000
     
17.
Bank of Taiwan, Singapore Branch
S$20,000,000
     
18.
BNP Paribas, Singapore Branch
S$20,000,000
     
19.
First Commercial Bank, Singapore Branch
S$20,000,000
     
20.
Hua Nan Commercial Bank, Ltd., Singapore Branch
S$20,000,000
 
 
 
 

 
- 8 -

 
 
 
21. Korea Exchange Bank, Singapore Branch 
S$20,000,000
     
22. Mega International Commercial Bank Co., Ltd., Singapore Branch 
S$20,000,000
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
- 9 -

 
 

Part II
The Facility B Lenders
 
 
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

 
 
 
 
 
 

 
- 10 -

 

 
Schedule 3
Form of Amended and Restated Facility Agreement
 
GRAPHIC
 
Schedule 3
 

  Execution Version

 
Originally dated 25 June 2012
(as amended and restated as of the Effective Date)

MARINA BAY SANDS PTE. LTD.
as Borrower

arranged by
THE FINANCIAL INSTITUTIONS AND OTHERS NAMED IN THIS AGREEMENT
as Mandated Lead Arrangers

coordinated by
DBS BANK LTD.
OVERSEA-CHINESE BANKING CORPORATION LIMITED
UNITED OVERSEAS BANK LIMITED
MALAYAN BANKING BERHAD, SINGAPORE BRANCH
as Global Coordinators

with

DBS BANK LTD.
acting as Agent

and

DBS BANK LTD.
acting as Security Trustee

S$5,100,000,000
AMENDED AND RESTATED FACILITY AGREEMENT



 
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TABLE OF CONTENTS
 
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
 
 
 
 

 
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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
 
 

 
- 13 -

 
 
 
Schedule 12 Existing Indebtedness
249
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 
- 14 -

 
 

THIS AGREEMENT is originally dated 25 June 2012 and is amended and restated as of the Effective Date (as defined below) and made between:
 
(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”).
 
IT IS AGREED as follows:
 
1.
Definitions and Interpretation
 
1.1
Definitions
 
In this Agreement:
 
Acceleration Date” means the date (if any) on which the Agent gives a notice under paragraph (a) of Clause 23.17 (Acceleration).
 
Accordion Period” means the period from and including the date of this Agreement to and including the date which is six Months before 28 August 2020.
 
Account” has the meaning given to it in Clause 22.10 (Accounts).
 
Accounting Monthmeans each period of approximately 30 days ending on the last day of each calendar month adopted by the Borrower for the purpose of its financial reporting in any financial year of the Borrower.
 
Accounting Quarter means each period of three Accounting Months ending on or about 31 March, 30 June, 30 September and 31 December.
 
Adjusted Cumulative Consolidated Net Income” means, in relation to any Relevant Date, the Consolidated Net Income of the Borrower Group from the date of this Agreement to that Relevant Date, less (without double counting) all distributions
 
 
 

 
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made by the Borrower to its shareholders or members over the same period pursuant to paragraph (d)(ii) of Clause 22.13 (Restricted payments).
 
Administrative Party” means each of the Agent, the Arranger and the Security Trustee.
 
Administrator” means ABS Benchmarks Administration Co Pte. Ltd. (or its successor as administrator or sponsor of the relevant rate).
 
Affiliate” as applied to any person, means any other person directly or indirectly controlling, controlled by, or under direct or indirect common control with, that person and, for this purpose, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that person, whether through the ownership of voting securities or by contract or otherwise; provided that so long as no other person or group or persons beneficially owns a majority of voting securities of such person, the beneficial owner of 20 per cent. or more of the voting securities of a person shall be deemed to have control.
 
Agreed Form” means, in relation to a document, that:
 
 
(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.
 
Agreement for Lease” means an agreement to grant an Occupational Lease.
 
Aircraft/Watercraft” means aircraft and/or watercraft acquired by an Affiliate of the Borrower and to be utilised in connection with the operation of the Integrated Resort.
 
Amendment and Restatement Agreement” means the amendment and restatement agreement dated 29 August 2014 and made between the Borrower and the Agent.
 
Ancillary Commitment” means, in relation to an Ancillary Lender, the maximum amount (expressed in Singapore Dollars) from time to time agreed (whether or not subject to satisfaction of conditions precedent and whether or not utilised) to be made available by that Ancillary Lender under an Ancillary Facility and authorised under Clause 6 (Ancillary Facilities), to the extent not cancelled or reduced under this Agreement or the Ancillary Facility Documents relating to that Ancillary Facility.
 
Ancillary Facility” means an ancillary facility made available by an Ancillary Lender in accordance with Clause 6 (Ancillary Facilities).
 
Ancillary Facility Document” means:
 
 
(a)
a document setting out the terms of an Ancillary Facility; and
 
 
 
 

 
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(b)
the Ancillary Facility Letter.
 
Ancillary Facility Letter” means a letter or letters dated on or about the date of this Agreement between the Borrower and the Designated Facility B Lenders, setting out the maximum rates of interest, fees and commissions that they will respectively charge in respect of any Ancillary Facilities provided by them.
 
Ancillary Facility Request” means a notice substantially in the form set out in Part III of Schedule 3 (Ancillary Facility Request).
 
Ancillary Lender” means a Designated Facility B Lender which makes available an Ancillary Facility in accordance with Clause 6 (Ancillary Facilities).
 
Ancillary Outstandings” means, at any time and in relation to an Ancillary Facility, the aggregate (calculated in the Base Currency) of the following amounts outstanding at that time under that Ancillary Facility:
 
 
(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,
 
in each case determined by the relevant Ancillary Lender in accordance with its usual practice at that time for calculating its exposure under similar facilities or transactions (acting reasonably and after consultation with the Agent).
 
For the purposes of this definition:
 
 
(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.
 
Approved Insurance Consultant” means Willis (Singapore) Pte. Ltd. and such other persons as are selected by the Borrower from time to time after the date of this Agreement, so long as such other persons are, in the reasonable judgment of the Agent, capable of performing any insurance assessment function in relation to the Properties.
 
 
 
 

 
- 17 -

 
 
 
Approved Valuers” means CBRE Pte. Ltd. and such other reputable persons as are selected by the Borrower from time to time after the date of this Agreement, so long as such other persons are, in the reasonable judgment of the Agent, capable of performing any valuation required under this Agreement.
 
Assignment of Development Agreement” means an assignment of the Development Agreement security document dated 28 June 2012 between the Borrower and the Security Trustee, approved by the Head Lessor, as amended and supplemented by the Supplemental Assignment of Development Agreement.
 
Assignment of Insurances” means an assignment of Insurances security document dated 28 June 2012 between the Borrower and the Security Trustee as amended and supplemented by the Supplemental Assignment of Insurances.
 
Assignment of Proceeds” means an assignment of, inter alia, the Integrated Resort Revenues security document dated 28 June 2012 between the Borrower and the Security Trustee as amended and supplemented by the Supplemental Assignment of Proceeds.
 
Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation, lodgement or registration.
 
Availability Period” means:
 
 
(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.
 
Available Ancillary Commitment” means, in relation to an Ancillary Facility, an Ancillary Lender's Ancillary Commitment under that Ancillary Facility minus the amount of Ancillary Outstandings under that Ancillary Facility.
 
Available Ancillary Facilities” means the aggregate for the time being of each Ancillary Lender's Available Ancillary Commitments.
 
Available Commitment” means, in relation to a Facility, a Lender's Commitment under that Facility minus:
 
(a)           the amount of its participation in any outstanding Loans under that Facility; and
 
 
(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,
 
 
 
 

 
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other than, in relation to any proposed Facility B Loan only, that Lender's participation in any Facility B Loans that are due to be repaid or prepaid on or before the proposed Utilisation Date.
 
Available Facility” means, in relation to a Facility, the aggregate for the time being of each Lender's Available Commitment in respect of that Facility.
 
Bank SBLC” has the meaning given to it in Clause 21.5 (Financial definitions).
 
Base Case Financial Model” means the economic projections and assumptions in relation to the Borrower and the Integrated Resort, prepared by the Borrower and posted on Debt Domain on 8 June 2012 labelled “MBS Model”.
 
Base Currency” means Singapore Dollars.
 
Borrower Group” means the Borrower and its Restricted Subsidiaries for the time being (but excluding, for the avoidance of doubt, any Excluded Subsidiary).
 
Borrower Group Subordinated Guarantee” means a Guarantee issued by a member of the Borrower Group:
 
(a)           in respect of any HoldCo Subordinated Debt; and
 
 
(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.
 
Borrower Offshore Collection Account Security Document” means the Borrower Offshore Collection Account Security Document (Hong Kong), the Borrower Offshore Collection Account Security Document (Macau) and each other security document (other than the Debenture) executed by the Borrower as Security over an Offshore Collection Account required to be charged in favour of the Security Trustee in accordance with Clause 22.10 (Accounts).
 
Borrower Offshore Collection Account Security Document (Hong Kong)” means the charge over the Borrower’s Offshore Collection Account opened and maintained in Hong Kong dated 3 January 2013 between the Borrower and the Security Trustee.
 
Borrower Offshore Collection Account Security Document (Macau)” means the pledge over the Borrower’s Offshore Collection Account opened and maintained in Macau dated 3 January 2013 between the Borrower and the Security Trustee.
 
Borrowings” has the meaning given to it in Clause 8.7 (Mandatory prepayment from Borrowings).
 
Break Costs” means the amount (if any) by which:
 
 
(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
 
 
 

 
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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;
 
exceeds:
 
 
(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.
 
Business Day” means a day (other than a Saturday or Sunday or gazetted public holiday) on which banks are open for general business in Singapore and (in relation to the determination of any interest rate under this Agreement) London.
 
Car Park” means the vehicle parking areas located in the basement levels of the Integrated Resort.
 
Cash Equivalent Investments” means:
 
 
(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
 
 
 

 
- 20 -

 
 
 
 
 
rated at least BBB+ by Standard & Poor's Ratings Group, Baa1 by Moody's Investors Service, Inc. or BBB+ by Fitch Ratings),
 
and, in each case, with a maturity of less than 12 months;
 
 
(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;
 
 
 

 
- 21 -

 
 
 
 
(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,
 
in each case not subject to any Security (other than pursuant to any Security Document or any Permitted Security), denominated and payable in Singapore Dollars, Hong Kong Dollars, United States Dollars, Euros or Sterling, and the proceeds of which are capable of being remitted to the Borrower in Singapore.
 
Cash Investment Limit” means, in relation to the date (the “Cash Investment Date”) of any Investments contemplated by paragraph (b)(xiii) of Clause 22.15 (Acquisitions and investments), the aggregate of (without double counting):
 
 
(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
 
 
 
 
 
 

 
- 22 -

 
 
 
 
 
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,
 
as evidenced by a Compliance Certificate delivered to the Agent on or before the Cash Investment Date, setting out (in reasonable detail) computations as to the Cash Investment Limit.
 
Casino” has the meaning given to it in the Development Agreement or (once issued) the Head Lease.
 
Casino Licence” has the meaning given to it in the Development Agreement or (once issued) the Head Lease.
 
Casino Regulatory Authority” means the Casino Regulatory Authority of Singapore, established under the Casino Control Act, Chapter 33A of Singapore.
 
Charged Assets” means the assets over which Security is expressed to be created pursuant to any Security Document, to the extent not discharged in accordance with this Agreement.
 
Commercial Documents” means the Development Agreement, the Head Lease and any other document designated as such by the Agent and the Borrower.
 
Commitment” means a Facility A Commitment, a Facility B Commitment or a Facility C Commitment.
 
Compliance Certificate” means a certificate delivered:
 
 
(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);
 
 
 

 
- 23 -

 
 
 
 
(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
 
 
 
 

 
- 24 -

 
 
 
 
 
reasonable detail) computations as to compliance with the ratio set out in paragraph (b)(ii) of Clause 22.24 (Mezzanine Indebtedness),
 
in each case signed by an authorised officer or authorised signatory of the Borrower, substantially in the form set out in Schedule 5 (Form of Compliance Certificate).
 
Consent” means the consent of the Head Lessor to be provided pursuant to item 6(b) of Part I of Schedule 2 (Conditions Precedent to Initial Utilisation).
 
Consolidated Adjusted EBITDA” means, in relation to the Borrower Group, for any period, the sum of the amounts (without duplication) for such period of:
 
 
(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)           land premium under the Development Agreement; and
 
(ii)           land premium under any other development agreement;
 
 
(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
 
 
 

 
- 25 -

 
 
 
 
 
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,
 
all of the foregoing as determined on a consolidated basis for the Borrower Group in conformity with GAAP. Any cash equity contributions or Internal Subordinated Debt made by a member of the Sponsor Group to Borrower and/or the face amount of any Bank SBLC delivered to Agent for the benefit of the Lenders in accordance with Clause 21.2 (Rectification) may at the written election of Borrower be included in the Consolidated Adjusted EBITDA. To the extent an Excluded Subsidiary is converted to a Restricted Subsidiary during any reference period, Consolidated Adjusted EBITDA shall include the Consolidated Adjusted EBITDA of such Restricted Subsidiary on a pro forma basis since the beginning of such reference period. For the avoidance of doubt, any dividends made by the Borrower to any HoldCo to permit that HoldCo to make any licence payments shall not be taken into account in the calculation of, without double counting, Consolidated Adjusted EBITDA and/or Consolidated Net Income.
 
Consolidated Net Income” means, for any period, the net income (or loss) of the members of the Borrower Group on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP and before any reduction in respect of preferred stock dividends; provided that there shall be excluded, without duplication:
 
 
(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
 
 
 
 
 

 
- 26 -

 
 
 
 
 
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.
 
Consolidated Total Interest Expense” means, for any period, total interest expense (including that portion attributable to capital leases in accordance with GAAP and capitalized interest), net of interest income, of the Borrower Group on a consolidated basis with respect to all outstanding Financial Indebtedness of the members of the Borrower Group that constitutes Relevant Debt (other than non-cash interest on Internal Subordinated Debt), including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under hedging arrangements, excluding, however:
 
 
(a)
amortisation of debt issuance costs and deferred financing fees including any
 
 
 
 

 
- 27 -

 
 
 
 
 
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).
 
Controlled Transaction” means:
 
 
(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.
 
Debenture” means a fixed and floating charge security document dated 28 June 2012 between the Borrower and the Security Trustee, as amended and supplemented by the Supplemental Debenture.
 
Debt” means, as at any particular time, without double counting, the aggregate outstanding principal, capital or nominal amount of the Financial Indebtedness of the Borrower Group:
 
 
(a)
including:
 
 
(i)
all External Subordinated Debt;
 
 
(ii)
any Borrower Group Subordinated Guarantees;
 
 
 

 
- 28 -

 
 
 
 
(iii)
any Guarantee of any Permitted Aircraft/Watercraft Indebtedness; and
 
 
(iv)
all Permitted FF&E Indebtedness,
 
provided that, for the avoidance of doubt, any payment, repayment, prepayment, redemption, purchase, defeasance, satisfaction or discharge of any indebtedness referred to in paragraphs (i) to (iv) above at any time shall have the effect of reducing the amount of Debt at that time,
 
 
(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).
 
For this purpose, any amount outstanding or repayable in a currency other than Singapore Dollars shall on that day be taken into account:
 
 
(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.
 
Debt Purchase Transaction” means, in relation to a person, a transaction where such person purchases by way of assignment or transfer any Commitment or amount outstanding under this Agreement.
 
Default” means an Event of Default or any event or circumstance specified in Clause 23 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.
 
Designated Facility B Lender” means a Facility B Lender listed in paragraphs 1, 2 and 3 of Part III of Schedule 1 (The Original Facility B Lenders).
 
 
 

 
- 29 -

 
 
 
Designated RPS” means shares in a member of the Borrower Group which are expressed to be redeemable and:
 
 
(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,
 
is less than or equal to 3.50 to 1, as evidenced by a Compliance Certificate delivered to the Agent on or before the date of such issuance, setting out (in reasonable detail) computations as to compliance with the above ratio.
 
Designated Sale” has the meaning given to it in paragraph (b) of the definition of “Permitted Transaction (Designated Sale)”.
 
Development Agreement means the development agreement originally dated 23 August 2006 (and as amended, modified and supplemented by the Supplemental Agreement) made between the Head Lessor and the Borrower relating to the acquisition, ownership and development of the Properties (including all annexures and schedules to such development agreement).
 
Development Agreement Event of Default” means any “Event of Default” defined in Clause 1.1 (Definitions) of the Development Agreement.
 
Dividend” has the meaning given to it in Clause 22.13 (Restricted payments).
 
Effective Date” has the meaning given to it in the Amendment and Restatement Agreement.
 
 
 

 
- 30 -

 
 
 
Eligible Lender” means:
 
 
(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
 
 
 

 
- 31 -

 
 
 
 
(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.
 
Notwithstanding the foregoing, the Borrower may in its sole and absolute discretion waive the restrictions set out in paragraphs (a)(iv), (b)(iii) or (c)(iv) of this definition as to any person that would otherwise be an Eligible Lender by notifying the Agent in writing of such waiver.
 
Environment” means living organisms including the ecological systems of which they form part and the following media:
 
 
(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).
 
Environmental Law” means any applicable law in any jurisdiction in which any member of the Borrower Group conducts business which relates to the pollution or protection of the environment or harm to or the protection of human health (as it relates to exposure to Hazardous Substances) or the health of animals or plants.
 
Environmental Permits” means any Authorisation required under any Environmental Law for the operation of the business of any member of the Borrower Group conducted on or from the properties owned or used by the relevant member of the Borrower Group.
 
Establishment Date” has the meaning given to it in Clause 2.3 (Accordion Feature – Increase in Facility C).
 
Event of Default” means any event or circumstance specified as such in Clause 23 (Events of Default).
 
Excluded Subsidiary” means any Subsidiary of the Borrower that the Borrower designates as an Excluded Subsidiary as provided for in the next sentence and any Subsidiary of an Excluded Subsidiary that satisfies the criteria set out in the next sentence. The Borrower may designate any Subsidiary (other than the Borrower or any Subsidiary which:
 
 
(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),
 
 
 
 

 
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in each case, as determined by the Borrower) to be an Excluded Subsidiary by providing written notice of such designation to the Agent and certifying that, after giving effect to such designation, no Default or Event of Default shall have occurred and be continuing. Nothing in the foregoing shall prevent the Borrower from designating any of its Subsidiaries as an Excluded Subsidiary by reason that that Subsidiary:
 
 
(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.
 
Exempt Disposal” has the meaning given to it in Clause 8.5 (Mandatory prepayment from Net Sale Proceeds).
 
Existing Facilities” means the S$5,442,604,530 facilities made available to the Borrower by various banks and financial institutions pursuant to a Facility Agreement dated 28 December 2007 made between (a) the Borrower, as borrower, (b) Goldman Sachs Foreign Exchange (Singapore) Pte, DBS Bank Ltd., UOB Asia Limited and Oversea-Chinese Banking Corporation Limited, as coordinators and (c) the Existing Facilities Agent, as agent and security trustee.
 
Existing Facilities Agent” means DBS Bank Ltd.
 
Existing Facilities Security” means the Security created to secure the Existing Facilities, as more particularly described in the Facility Agreement for the Existing Facilities.
 
External Subordinated Creditor” means any person (other than an Internal Subordinated Creditor or an Obligor).
 
External Subordinated Debt” means:
 
 
(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,
 
 
 

 
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in each case:
 
 
(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,
 
and the Borrower shall:
 
 
(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.
 
External Subordination Agreement” means a subordination agreement between an External Subordinated Creditor, the Borrower (or the relevant Obligor) and the Security Trustee, substantially in the form set out in Part II of Schedule 11 (Form of Subordination
 
 
 

 
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Agreement) or otherwise in form and substance reasonably satisfactory to the Security Trustee, and the Borrower shall provide (or procure the provision) to the Agent all such legal opinions, consents, assurances, resolutions and other documents as the Agent may reasonably request in connection with that subordination agreement.
 
Euros” or “” means the lawful currency of the Participating Member States.
 
Facility” means Facility A, Facility B or Facility C.
 
Facility A” means the term loan facility made available under this Agreement as described in paragraph (a) of Clause 2.1 (The Facilities).
 
Facility A Commitment” means:
 
 
(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,
 
to the extent not cancelled, reduced, extinguished or transferred by it under this Agreement.
 
Facility A Lender” means:
 
 
(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,
 
which in each case has not ceased to be a Party in accordance with the terms of this Agreement.
 
Facility A Loan” means a loan made or to be made under Facility A or the principal amount outstanding for the time being of that loan.
 
Facility A Repayment Dates” means each date specified in Schedule 9 (Repayment Schedule for Facility A Loans) including, for the avoidance of doubt, the Facility A Termination Date.
 
Facility A Repayment Instalment” means each instalment for repayment of the Facility A Loans specified in Schedule 9 (Repayment Schedule for Facility A Loans).
 
Facility A Termination Date” means, subject to Clause 7.5 (Extension Option), 28 August 2020.
 
 
 

 
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Facility B” means the revolving credit facility made available under this Agreement as described in paragraph (b) of Clause 2.1 (The Facilities), part of which may be designated as an Ancillary Facility in accordance with Clause 6 (Ancillary Facilities).
 
Facility B Commitment” means:
 
 
(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,
 
to the extent not cancelled, reduced or transferred by it under this Agreement.
 
Facility B Lender” means:
 
 
(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,
 
which in each case has not ceased to be a Party in accordance with the terms of this Agreement.
 
Facility B Loan” means a loan made or to be made under Facility B or the principal amount outstanding for the time being of that loan.
 
Facility B Rollover Loan” means one or more Facility B Loans:
 
 
(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).
 
Facility B Termination Date” means, subject to Clause 7.5 (Extension Option), 28 February 2020.
 
Facility C” means the term loan facility made available or (as the case may be) to be made available under this Agreement as described in paragraph (c) of Clause 2.1 (The Facilities).
 
Facility C Commitment” means in relation to any Facility C Lender, the amount in Singapore Dollars of any Facility C Commitment assumed by it in accordance with Clause
 
 
 
 

 
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2.3 (Accordion Feature – Increase in Facility C) or transferred to it under this Agreement, to the extent not cancelled, reduced, extinguished or transferred by it under this Agreement.
 
Facility C Lender” means any Eligible Lender which is or has become a Party in accordance with Clause 2.3 (Accordion Feature – Increase in Facility C) or Clause 24 (Changes to the Lenders) and which is transferred an interest in Facility C, which in each case has not ceased to be a Party in accordance with the terms of this Agreement.
 
Facility C Loan” means a loan made or to be made under Facility C or the principal amount outstanding for the time being of that loan.
 
Facility C Longstop Termination Date” means 30 August 2030.
 
Facility Office” means the office or offices notified by a Lender to the Agent in writing on or before the date it becomes a Lender (or, following a change of office or offices after that date, by not less than five Business Days' written notice) as the office or offices through which it will perform its obligations under this Agreement.
 
Fee Letter” means any letter or letters dated on or about the date of this Agreement between one or more Administrative Parties and the Borrower setting out any of the fees referred to in Clause 12 (Fees) or Clause 6 (Amendment Fee) of the Amendment and Restatement Agreement.
 
FF&E” means fixtures, furniture, fittings and/or equipment acquired, built, affixed and/or installed by or for the Borrower on or in the Integrated Resort for the purpose of implementing or carrying on the business of the Integrated Resort, and shall include each and every item or unit of such property acquired by substitution or replacement thereof, all parts, components and other items pertaining to such property, all documents (including warehouse receipts, dock receipts, bills of lading and the like) relating to such property, all licenses, warranties, guarantees, service contracts and related rights and interests covering all or any portion of such property, and to the extent not otherwise included, all proceeds (including insurance proceeds) of any of the foregoing and all accessions to, substitutions and replacements for, and the rents, profits and products of, each of the foregoing (including collateral accounts) and such other collateral reasonably determined by the Agent in its reasonable discretion.
 
Finance Document” means this Agreement, the Amendment and Restatement Agreement, each Ancillary Facility Document, each Guarantor Accession Letter, each Increase Confirmation, each Security Document, each Bank SBLC and any other document (other than a Security Document) that may at any time be given as guarantee or assurance for any of the Senior Liabilities pursuant to or in connection with any Finance Document and any other document designated as such by the Agent and the Borrower.
 
Finance Party” means the Agent, an Ancillary Lender, the Arranger, a Lender or the Security Trustee.
 
Financial Indebtedness” means any indebtedness for or in respect of:
 
 
 

 
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(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,
 
in each case without double-counting and excluding:
 
 
(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
 
 
 

 
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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.
 
GAAP” means:
 
 
(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,
 
in each case, in effect at the relevant time.
 
Governmental Agency” means any government or any governmental agency, semi-governmental or judicial entity, or authority (including, without limitation, any stock exchange or any self-regulatory organisation established under any law or regulation).
 
Gross Revenues” has the meaning given to it in the Development Agreement or (once issued) the Head Lease.
 
Guarantee” means any guarantee, bond, indemnity, counter-indemnity or similar instrument howsoever described issued by any person in respect of any obligation of any other person.
 
Guarantor” means a Restricted Subsidiary which becomes a Guarantor in accordance with Clause 26 (Changes to the Obligors).
 
Guarantor Accession Letter” means a document substantially in the form set out in Schedule 6 (Form of Guarantor Accession Letter).
 
Hazardous Substance” means any waste, pollutant, contaminant or other substance (including any liquid, solid, gas, ion, living organism or noise) that is harmful to human health or other life or the Environment or a nuisance to any person or the presence of which in the Environment may make the use or ownership of any affected land or property more costly.
 
Head Lease” has the meaning given to the term “Lease” in the Development Agreement.
 
 
 

 
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Head Lease Event of Default” means any “Event of Default” defined in the Head Lease.
 
Head Lessor” means the Singapore Tourism Board.
 
"Hedging Bank" means a person which:
 
 
(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),
 
and a Hedging Bank (and in such capacity only) shall have no voting rights for the purposes of this Agreement unless a contrary indication appears.
 
"Hedging Documents" means the documents entered into between the Borrower and a Hedging Bank for the purpose of implementing any hedging in connection with interest payable in respect of the Senior Liabilities, the Secured Incremental Liabilities and/or the Secured Permitted Refinancing Liabilities.
 
HoldCo” means any company, corporation or other entity that directly owns shares in the share capital of the Borrower.
 
HoldCo Subordinated Debt” means unsecured Financial Indebtedness of a HoldCo to an External Subordinated Creditor (or an Internal Subordinated Creditor not being a direct Holding Company of the Borrower):
 
 
(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.
 
Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
 
Hong Kong Dollars” or “HK$” means the lawful currency of the Hong Kong Special Administrative Region.
 
Increase Confirmation” means a document substantially in the form set out in Schedule 7 (Form of Lender Increase Confirmation).
 
 
 

 
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Increase Lender” has the meaning given to it in paragraph (a)(i) of Clause 2.3 (Accordion Feature – Increase in Facility C).
 
Incremental Indebtedness” means Financial Indebtedness incurred or to be incurred by the Borrower:
 
 
(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),
 
are not more favourable to the creditors of such Financial Indebtedness than those for the benefit of the Finance Parties as contained in the Finance Documents;
 
 
(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));
 
 
 

 
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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,
 
is:
 
 
(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,
 
as evidenced by a Compliance Certificate delivered to the Agent on or before the date of such incurrence, setting out (in reasonable detail) computations as to compliance with the above ratio,
 
provided that the Borrower may, but shall not be obliged to, request that such Financial Indebtedness be secured by the Transaction Security with the same ranking and priority as the Senior Liabilities and the Secured Permitted Refinancing Liabilities in accordance with the Intercreditor Agreement, and where the Borrower makes such a request, each relevant Incremental Indebtedness Creditor of such Financial Indebtedness shall be entitled to accede to the Intercreditor Agreement as a Secured Incremental Indebtedness Creditor in accordance with the terms thereof.
 
 
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.
 
Incremental Liabilitiesmeans all present and future moneys, debts and liabilities due, owing or incurred by the Borrower or any other Obligor to any Incremental Indebtedness Creditor which constitute Incremental Indebtedness (in each case, whether alone or jointly,
 
 

 
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or jointly and severally, with any other person, whether actually or contingently and whether as principal, surety or otherwise).
 
Information Memorandum” means the confidential information memorandum concerning the Borrower which, at the Borrower's request and on its behalf, was prepared in relation to this transaction and distributed by the Global Coordinator to selected financial institutions on or about 5 April 2012, as supplemented from time to time.
 
Insurance Report” means in relation to the Properties, a report substantially in the form of the Original Insurance Report carried at the cost and expense of the Borrower, specifying the maximum foreseeable loss and estimated maximum loss for the Properties, carried out by an Approved Insurance Consultant such report to be addressed to the Agent.
 
Insurances” means all contracts and policies of insurance of any kind relating to the Integrated Resort taken out or, as the context requires, to be taken out from time to time and maintained, in each case, in accordance with Clause 22.17 (Insurance) by or on behalf of the Borrower, and such other policy or contract of insurance as the Agent and the Borrower agree shall be an Insurance.
 
Integrated Resort” has the meaning given to it in the Development Agreement or (once issued) the Head Lease.
 
Integrated Resort Revenues” means, in respect of any period, the aggregate of all actual sums of a revenue or income nature actually received (or, as the case may be, to be received) by or on behalf of the Borrower or any Restricted Subsidiary during that period including:
 
 
(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;
 
 
 

 
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(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),
 
but excluding (A) any amounts of security deposits received under Occupational Leases (unless and until the Borrower or any Restricted Subsidiary has the right to retain such amounts for its own account and benefit), and (B) any service charge collected by the Borrower or a Restricted Subsidiary for which the same is distributed to employees of the Borrower or that Restricted Subsidiary;
 
 
(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.
 
Intellectual Property Rights” means all patents, designs, copyrights, trade marks, service marks, trade names, domain names, rights in know-how, any other intellectual property and any associated or similar rights anywhere in the world, and any interest in any of the foregoing (in each case, whether registered or unregistered and including any applications and rights to apply for the same).
 
Intercreditor Agreement Amendment and Restatement Agreement” means the amendment and restatement agreement between the Security Trustee, the Borrower and the Agent, in relation to the Intercreditor Agreement.
 
Intercreditor Agreement” means the intercreditor agreement between, among others, the Obligors, the Finance Parties (other than the Arranger) and, when they accede, the Increase Lenders, the Hedging Banks, the Secured Incremental Indebtedness Creditors, the Secured Mezzanine Indebtedness Creditors and the Secured Permitted Refinancing Indebtedness Creditors (as applicable), as amended and restated pursuant to the Intercreditor Agreement Amendment and Restatement Agreement.
 
 
 

 
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Interest Period” means, in relation to a Loan, each period determined in accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 9.3 (Default interest).
 
Internal Subordinated Creditor” means, in respect of any Internal Subordinated Debt, any member of the Sponsor Group (other than an Obligor).
 
Internal Subordinated Debt” means unsecured Financial Indebtedness of any member of the Borrower Group to an Internal Subordinated Creditor:
 
 
(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.
 
Internal Subordination Agreement” means a subordination agreement between an Internal Subordinated Creditor, the Borrower (or the relevant Obligor) and the Security Trustee, substantially in the form set out in Part I of Schedule 11 (Form of Subordination Agreement) or otherwise in form and substance reasonably satisfactory to the Security Trustee, and the Borrower shall provide (or procure the provision) to the Agent all such legal opinions, consents, assurances, resolutions and other documents as the Agent may reasonably request in connection with that subordination agreement.
 
Investment” means any investment, acquisition, capital contribution, joint venture, consortium, partnership or similar arrangement, whether as debt or equity, entered into or made (or to be entered into or made) by the Borrower or any Obligor in relation to any asset or business (other than any Aircraft/Watercraft or FF&E). The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment less all returns of principal or equity thereon.
 
 
 
 

 
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IR Project Vehicle” means any retail, restaurant, clubs, theatres, entertainment or other similar offerings that form a part of (or are located in) the Integrated Resort operated by an Excluded Subsidiary funded as a Permitted Investment under paragraph (a) of the definition of Permitted Investment, which the Borrower either directly or indirectly owns 100 per cent (or less) of the equity interests thereof.
 
Lease Document” means:
 
 
(a)
an Agreement for Lease; or
 
 
(b)
an Occupational Lease.
 
Lender” means an Ancillary Lender, a Facility A Lender, a Facility B Lender, a Facility C Lender or a Permitted Sands Lender provided that (except as provided in paragraphs (g) and (h) of Clause 36.2 (Exceptions)) a Permitted Sands Lender which is a Lender shall not be entitled to 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, subject to any contrary indication in the Intercreditor Agreement, the other Lenders on a pro rata basis.
 
Loan” means a Facility A Loan, a Facility B Loan or a Facility C Loan.
 
Majority Facility A Lenders” means, at any time, the Majority Lenders calculated, for the purpose of this definition, by excluding the Facility B Loans, the Facility C Loans, utilisations under the Ancillary Facilities, the Facility B Commitments, the Facility C Commitments and the Ancillary Commitments.
 
Majority Facility B Lenders” means, at any time, the Majority Lenders calculated, for the purpose of this definition, by excluding the Facility A Loans, the Facility C Loans, the Facility A Commitments and the Facility C Commitments.
 
Majority Facility C Lenders” means, at any time, the Majority Lenders calculated, for the purpose of this definition, by excluding the Facility A Loans, the Facility B Loans, utilisations under the Ancillary Facilities, the Facility A Commitments, the Facility B Commitments and the Ancillary Commitments.
 
Majority Lenders” means at any time, a Lender or Lenders whose Available Commitments, Available Ancillary Commitments and participations in the Utilisations then outstanding aggregate more than 50 per cent. of the Available Facilities, Available Ancillary Facilities and all the utilisations then outstanding, and for the purposes of this definition:
 
 
(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
 
 
 
 

 
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(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.
 
Margin” means:
 
 
(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
 
However:
 
 
(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 Clause 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
 
 
 

 
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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.
 
Material Adverse Effect means a material adverse effect or a material adverse change in:
 
 
(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.
 
Mezzanine Indebtedness” means Financial Indebtedness incurred or to be incurred by the Borrower:
 
 
(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;
 
 
 

 
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(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,
 
is less than or equal to 3.50 to 1, as evidenced by a Compliance Certificate delivered to the Agent on or before the date of such incurrence, setting out (in reasonable detail) computations as to compliance with the above ratio,
 
provided that the Borrower may, but shall not be obliged to, request that such Financial Indebtedness be secured by the Transaction Security ranking after the Senior Liabilities, the Secured Incremental Liabilities and the Secured Permitted Refinancing Liabilities in accordance with the Intercreditor Agreement, and where the Borrower makes such a request, each relevant Mezzanine Indebtedness Creditor of such Financial Indebtedness shall be entitled to accede to the Intercreditor Agreement as a Secured Mezzanine Indebtedness Creditor in accordance with the terms thereof.
 
 
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.
 
Mezzanine Liabilitiesmeans all present and future moneys, debts and liabilities due, owing or incurred by the Borrower or any other Obligor to any Mezzanine Indebtedness Creditor which constitute Mezzanine Indebtedness (in each case, whether alone or jointly, or jointly and severally, with any other person, whether actually or contingently and whether as principal, surety or otherwise).
 
Month” means a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month, except that:
 
 
(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;
 
 
 

 
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(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.
 
The above rules will apply only to the last Month of any period.
 
Mortgage” means a mortgage over the Properties security document between the Borrower and the Security Trustee initially executed in escrow pursuant to Clause 4.1 (Initial conditions precedent).
 
 
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”.
 
Non-Consenting Lender” has the meaning given to it in paragraph (i) of Clause 36.2 (Exceptions).
 
Non-Funding Lender” means any Lender under a Facility which has failed to make or participate in a Utilisation as required by this Agreement provided that it shall cease
 
 
 

 
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to be a Non-Funding Lender immediately upon its having made available its Non-Funding Lending Amount to the Borrower (which shall be promptly accepted by the Borrower).
 
Non-Funding Lender Amount” means in relation to a Non-Funding Lender, the amount of any Utilisation or any participation in any Utilisation that such Non-Funding Lender has not made available.
 
Notifiable Debt Purchase Transaction” has the meaning given to it Clause 25.2 (Notification).
 
Obligors” means the Borrower and the Guarantors and “Obligor” means each one of them.
 
Occupational Lease” means any occupational lease or licence or other right of occupation to which the Retail Properties (or any part of the Retail Properties) and/or the ArtScience Museum (or any part of the ArtScience Museum) may be subject from time to time.
 
Offshore Collection Account” has the meaning given to it in Clause 22.10 (Accounts).
 
Offshore Collection Account Security Document” means each Restricted Subsidiary Offshore Collection Account Security Document and each Borrower Offshore Collection Account Security Document.
 
Original Facility A Lender” means a Lender listed in Part II of Schedule 1 (The Original Facility A Lenders) as having a Facility A Commitment.
 
Original Facility B Lender” means a Lender listed in Part III of Schedule 1 (The Original Facility B Lenders) as having a Facility B Commitment.
 
Original Financial Statements” means in relation to the Borrower, its audited financial statements (consolidated, if applicable) for the financial year ended 31 December 2011.
 
Original Insurance Report” means the Methodology and Summary of the 2011 Maximum Foreseeable Loss (MFL) & Estimated Maximum Loss (EML) for Marina Bay Sands, Singapore dated 27 February 2012 prepared by Willis (Singapore) Pte Ltd. addressed to the Agent.
 
"Participating Member State" means any member state of the European Communities that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Community relating to Economic and Monetary Union.
 
Party” means a party to this Agreement.
 
Perfection Requirements” means:
 
 
(a)
in relation to the Mortgage and Intercreditor Agreement, in each case, when
 
 

 
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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.
 
Permitted Aircraft/Watercraft Indebtedness” means any Financial Indebtedness incurred or to be incurred by any Affiliate of the Borrower:
 
 
(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.
 
Permitted Aircraft/Watercraft Security” means any Security created or to be created by an Affiliate of the Borrower over or affecting any Aircraft/Watercraft where:
 
 
(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
 
 
 

 
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(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.
 
Permitted Corporate Restructuring” means any solvent corporate restructuring or reorganisation of the Borrower (that complies with paragraph (b) of Clause 22.12 (Merger)).
 
Permitted FF&E Indebtedness” means Financial Indebtedness incurred or to be incurred by the Borrower or any Obligor:
 
 
(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.
 
Permitted FF&E Security” means any Security created or to be created by the Borrower or any Obligor over or affecting any FF&E, where:
 
 
(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
 
 
 

 
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(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.
 
Permitted Investment” means any Investment by any Obligor:
 
 
(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.
 
Permitted Refinancing Indebtedness” means Financial Indebtedness incurred or to be incurred by the Borrower (other than RP/CP Hivedown Refinancing Indebtedness):
 
 
(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
 
 
 

 
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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,
 
provided that the Borrower may, but shall not be obliged to, request that such Financial Indebtedness be secured by the Transaction Security with the same ranking and priority as the Senior Liabilities and the Secured Incremental Liabilities in accordance with the Intercreditor Agreement, and where the Borrower makes such a request, each relevant Permitted Refinancing Indebtedness Creditor of such Financial Indebtedness shall be entitled to accede to the Intercreditor Agreement as a Secured Permitted Refinancing Indebtedness Creditor in accordance with the terms thereof.
 
Permitted Refinancing Indebtedness Creditor” means a creditor (including any agent or trustee on its behalf) of the Borrower or any other Obligor in respect of any Permitted Refinancing Indebtedness.
 
Permitted Reorganisation” means:
 
 
(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
 
 
 
 

 
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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).
 
Permitted Sands Lender” means any Affiliate of the Borrower that is permitted to make, purchase or invest in loans and has obtained all necessary Authorisations to do so.
 
Permitted Security” means, in relation to all assets of an Obligor:
 
 
(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
 
 

 
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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;
 
 
 
 
 

 
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(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,
 
provided that such liens were in existence prior to the consummation of, and were not entered into in contemplation of, such acquisition, merger or consolidation or winding up and do not extend to any other assets other than that acquired property or (as the case may be) those of the person acquired by, merged into or consolidated with such member of the Borrower Group or such Restricted Subsidiary;
 
 
(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
 
 
 

 
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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.
 
Permitted Transaction (Designated Sale)” means any Controlled Transaction:
 
 
(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.
 
 
 
 

 
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Permitted Transaction (Leverage Ratio)” means any Controlled Transaction:
 
 
(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
 
Permitted Transaction (Miscellaneous)” means any Controlled Transaction:
 
 
(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.
 
Prepayment Account” means a Singapore Dollar denominated account of the Borrower with the principal Singapore offices of the Security Trustee which is, or will be, the subject of a Debenture and designated as a “Prepayment Account” by the Borrower and the Agent.
 
 
 

 
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Proforma Consolidated Adjusted EBITDA” means:
 
 
(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.
 
Properties” means the properties set out in Schedule 8 (Properties).
 
Purchase Money Indebtedness” means any Financial Indebtedness (including, subject to the proviso in paragraph (d) of the definition of “Financial Indebtedness”, any indebtedness for or in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease) incurred or to be incurred by the Borrower or any Obligor:
 
 
(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.
 
Purchase Money Security” means any Security created or to be created by the Borrower or any Obligor over or affecting any asset described in paragraph (a)(i) of the definition of “Purchase Money Indebtedness” where:
 
 
 

 
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(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.
 
Quantum Notice” means a Proceeds Quantum Notice or a Borrowings (Permitted Refinancing Indebtedness) Quantum Notice, each as defined in the Intercreditor Agreement.
 
Quotation Day” means, in relation to any period for which an interest rate is to be determined, two Business Days before the first day of that period.
 
Redemption” has the meaning given to it in Clause 22.13 (Restricted payments).
 
Reference Banks” means the principal Singapore offices of DBS Bank Ltd., Malayan Banking Berhad, Oversea-Chinese Banking Corporation Limited and United Overseas Bank Limited, or such other banks as may be appointed by the Agent in consultation with the Borrower.
 
Relevant Date” means the last day of each Accounting Quarter.
 
Relevant Debt” means Debt, excluding any Guarantee of any Permitted Aircraft/Watercraft Indebtedness (other than the amount of any claim or demand made on such Guarantee).
 
Relevant Net Sale Proceeds” has the meaning given to it in Clause 8.5 (Mandatory prepayment from Net Sale Proceeds).
 
Relevant Period” means in the case of Consolidated Adjusted EBITDA, Consolidated Total Interest Expense and Proforma Consolidated Adjusted EBITDA, each period of four rolling Accounting Quarters ending on the applicable Relevant Date.
 
Repeating Representations” means:
 
 
(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.
 
 
 

 
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Restricted Person” means:
 
 
(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.
 
Restricted Subsidiary” means a Subsidiary of the Borrower that is not an Excluded Subsidiary, whether existing on the date of this Agreement or subsequently formed or acquired.
 
Restricted Subsidiary Debenture” means a fixed and floating charge security document between a Restricted Subsidiary and the Security Trustee in respect of the assets of that Restricted Subsidiary (but excluding any assets comprising capital stock or other equity interests owned by such Restricted Subsidiary and other assets that the Majority Lenders may agree (acting reasonably) to exclude), in form and substance reasonably satisfactory to the Agent.
 
Restricted Subsidiary Offshore Collection Account Security Document” means each security document (other than a Restricted Subsidiary Debenture) executed by a Restricted Subsidiary as Security over an Offshore Collection Account required to be
 
 
 

 
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charged in favour of the Security Trustee in accordance with Clause 22.10 (Accounts).
 
Retail Properties” means the Marina Bay Sands Shoppes, an enclosed air conditioned area located within the Integrated Resort low rise buildings occupying Basement 2, Basement 1, B2 Mezzanine and Level 1 consisting of several hundred retail outlets with accompanying food precinct and public thoroughfares, together with any other retail and/or restaurant areas located within the Integrated Resort.
 
Rollover Termination Event” means an Acceleration Date occurs.
 
RP/CP Hivedown Refinancing Indebtedness” means Financial Indebtedness incurred or to be incurred by the Borrower or any Restricted Subsidiary (other than Permitted Refinancing Indebtedness):
 
 
(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
 
 
 

 
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Clause 2 (Mandatory prepayment) of the Intercreditor Agreement.
 
RP/CP Hivedown Refinancing Indebtedness Creditor” means a creditor (including any agent or trustee on its behalf) of the Borrower or any other Obligor in respect of any RP/CP Hivedown Refinancing Indebtedness.
 
RP/CP Hivedown Security” means any Security created or to be created by the Borrower or any Restricted Subsidiary over or affecting the Retail Properties (or the relevant portion thereof) and/or the Car Park (or the relevant portion thereof) which are or will be the subject of a RP/CP Hivedown Refinancing Indebtedness, where:
 
 
(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.
 
Sands FinCo” means the Subsidiary of the Sponsor which the Borrower has designated to the Agent as the “Sands FinCo”.
 
Screen Rate” means the rate per annum (expressed as a percentage) for the relevant period appearing under the caption “ASSOCIATION OF BANKS IN SINGAPORE TRADE-BASED BENCHMARKS” and the column headed “SGD SOR RATES AS OF 11:00 HRS LONDON TIME” on the page “ABSFIX01” of the Reuters Monitor Money Rates Services (or such other page as may replace that page for the purpose of displaying the swap offer rates of leading reference banks).  If the agreed page is replaced or service ceases to be available, the Agent may specify another page or service displaying the appropriate rate after consultation with the Borrower and the Lenders.
 
Secured Documents” means the Finance Documents, the Hedging Documents, the Secured Incremental Indebtedness Documents, the Secured Mezzanine Indebtedness Documents and the Secured Permitted Refinancing Indebtedness Documents.
 
Secured Incremental Indebtedness” means any Incremental Indebtedness which is secured by the Transaction Security in accordance with the provisions of the definition of “Incremental Indebtedness”.
 
 
 

 
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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 Incremental Liabilities” means all present and future moneys, debts and liabilities due, owing or incurred by the Borrower or any Obligor to any Secured Incremental Indebtedness Creditor which constitute Secured Incremental Indebtedness (in each case, whether alone or jointly, or jointly and severally, with any other person, whether actually or contingently and whether as principal, surety or otherwise).
 
Secured Mezzanine Indebtedness” means any Mezzanine Indebtedness which is secured by the Transaction Security in accordance with the provisions of the definition of “Mezzanine 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 Mezzanine Liabilities” means all present and future moneys, debts and liabilities due, owing or incurred by the Borrower or any other Obligor to any Secured Mezzanine Indebtedness Creditor which constitute Secured Mezzanine Indebtedness (in each case, whether alone or jointly, or jointly and severally, with any other person, whether actually or contingently and whether as principal, surety or otherwise).
 
Secured Party” means a Finance Party, a Hedging Bank, a Secured Incremental Indebtedness Creditor, a Secured Mezzanine Indebtedness Creditor or a Secured Permitted Refinancing Indebtedness Creditor.
 
Secured Permitted Refinancing Indebtedness” means any Permitted Refinancing Indebtedness which is secured by the Transaction Security in accordance with the provisions of the definition of “Permitted Refinancing 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.
 
 
 

 
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Secured Permitted Refinancing Liabilities” means all present and future moneys, debts and liabilities due, owing or incurred by the Borrower or any other Obligor to any Secured Permitted Refinancing Indebtedness Creditor which constitute Secured Permitted Refinancing Indebtedness (in each case, whether alone or jointly, or jointly and severally, with any other person, whether actually or contingently and whether as principal, surety or otherwise).
 
Security” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
 
Security Documents” means the Assignment of Development Agreement, the Assignment of Insurances, the Assignment of Proceeds, the Debenture, the Intercreditor Agreement, the Mortgage, each Borrower Offshore Collection Account Security Document, each Restricted Subsidiary Debenture, each Restricted Subsidiary Offshore Collection Account Security Document, each Subordination Agreement, each Supplemental Security Document and any other Security or other document that may at any time be given as Security for any of the Senior Liabilities pursuant to or in connection with any Finance Document.
 
Selection Notice” means a notice substantially in the form set out in Part II of Schedule 3 (Requests) given in accordance with Clause 10 (Interest Periods) in relation to Facility A or Facility C.
 
Senior Liabilities” means all present and future moneys, debts and liabilities due, owing or incurred by the Obligors to any Finance Party under or in connection with any Finance Document (in each case, whether alone or jointly, or jointly and severally, with any other person, whether actually or contingently and whether as principal, surety or otherwise).
 
Singapore Dollars” or “S$” means the lawful currency of Singapore.
 
Specified Time” means a time determined in accordance with Schedule 10 (Timetables).
 
Sponsor” means Las Vegas Sands Corp., corporate identification number C21244-2004, a corporation incorporated under the laws of the State of Nevada, United States of America.
 
Sponsor Group” means the Sponsor and its Subsidiaries for the time being.
 
Sterling” or “£” means the lawful currency of the United Kingdom.
 
Subordinated Creditor” means an External Subordinated Creditor or an Internal Subordinated Creditor.
 
Subordinated Debt” means Internal Subordinated Debt or External Subordinated Debt.
 
Subordinated Payment” has the meaning given to it in Clause 22.13 (Restricted payments).
 
 
 

 
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Subordination Agreement” means an External Subordination Agreement or an Internal Subordination Agreement.
 
Subsidiary” means, in relation to any company or corporation (a “holding company”), a company or corporation:
 
 
(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,
 
and, for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to determine the composition of the majority of its board of directors or equivalent body.
 
Supplemental Agreement” means the supplemental agreement dated 11 December 2009 made between the Head Lessor and the Borrower which amends, modifies and supplements the Development Agreement.
 
Supplemental Assignment of Developmental Agreement” means a supplemental assignment of development agreement security document between the Borrower and the Security Trustee, in relation to the Assignment of Development Agreement.
 
Supplemental Assignment of Insurances” means a supplemental assignment of insurances security document between the Borrower and the Security Trustee, in relation to the Assignment of Insurances.
 
Supplemental Assignment of Proceeds” means a supplemental assignment of proceeds security document between the Borrower and the Security Trustee, in relation to the Assignment of Proceeds.
 
Supplemental Debenture” means a supplemental fixed and floating charge security document between the Borrower and the Security Trustee, in relation to the Debenture.
 
Supplemental Security Documents” means the Supplemental Assignment of Development Agreement, the Supplemental Assignment of Insurances, the Supplemental Assignment of Proceeds, the Supplemental Debenture and the Intercreditor Agreement Amendment and Restatement Agreement.
 
SWAP Rate” means, in relation to any Loan or Unpaid Sum:
 
 
(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
 
 
 

 
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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.
 
Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
 
Tax Deduction” has the meaning given to such term in Clause 13.1 (Tax definitions).
 
Term Facility” means Facility A or Facility C.
 
Term Facility Lender” means a Facility A Lender or a Facility C Lender.
 
Term Loan” means a Facility A Loan or a Facility C Loan.
 
Termination Date” means:
 
 
(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.
 
Total Ancillary Commitments” means the aggregate of the Ancillary Commitments.
 
Total Ancillary Limit” means S$100,000,000 or, if less, the Total Facility B Commitments.
 
 
 

 
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Total Commitments” means the aggregate of the Total Facility A Commitments, the Total Facility B Commitments, the Total Facility C Commitments and the Total Ancillary Commitments, being S$5,100,000,000 at the date of this Agreement.
 
Total Facility A Commitments” means the aggregate of the Facility A Commitments, being S$4,600,000,000 at the date of this Agreement.
 
Total Facility B Commitments” means the aggregate of the Facility B Commitments, being S$500,000,000 at the date of this Agreement.
 
Total Facility C Commitments” means, subject to any increase in Facility C under Clause 2.3 (Accordion Feature – Increase in Facility C) the aggregate of the Facility C Commitments, being nought at the date of this Agreement.
 
Transaction Documents” means the Finance Documents and the Commercial Documents.
 
Transaction Security” means the Security created or evidenced or expressed to be created or evidenced under or pursuant to the Security Documents.
 
Transfer Certificate” means a certificate substantially in the form set out in Schedule 4 (Form of Transfer Certificate) or any other form agreed between the Agent and the Borrower.
 
Transfer Date” means, in relation to an assignment or a transfer, the later of:
 
 
(a)
the proposed Transfer Date specified in the relevant Transfer Certificate; and
 
 
(b)
the date on which the Agent executes the relevant Transfer Certificate.
 
Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance Documents.
 
US Dollars” or “US$” means the lawful currency of the United States of America.
 
Utilisation” means a Loan or a utilisation under an Ancillary Facility.
 
Utilisation Date” means the date on which a Loan is, or is to be, made.
 
Utilisation Request” means a notice substantially in the form set out in Part I of Schedule 3 (Utilisation Request).
 
Valuation Report” means in relation to the Properties (or any part of the Properties), a full valuation report (or in relation to Clause 20.11 (Valuation Reports), a valuation report substantially in the form of the valuation report to be provided pursuant to item 6(e) of Part I of Schedule 2 (Conditions Precedent to Initial Utilisation)) carried at the cost and expense of the Borrower, specifying “as is” value  of the Properties (or that part of the Properties), carried out by an Approved Valuer in accordance with standards and practices for the time
 
 
 

 
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being accepted in the professional valuer's profession in Singapore, such valuation to be addressed to the Agent (as Agent for the Lenders).
 
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
 
 
 

 
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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,
 
and the amount by which that facility is repaid or prepaid under sub-paragraphs (xii)(A) and (xii)(B) above is the amount of the relevant cash cover or reduction;
 
 
(xiii)
shares” or “share capital” includes equivalent ownership interests (and “shareholder” and similar expressions shall be construed accordingly);
 
 
 
 

 
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(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.
 
 
 

 
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1.4
Eligible Lender
 
Each Original Lender confirms to the Borrower that, on the date of this Agreement, it is an Eligible Lender.
 
2.
The Facilities
 
2.1
The Facilities
 
Subject to the terms of this Agreement:
 
 
(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
 
 
 

 
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(B)
any other person which is an Eligible Lender,
 
(each an “Increase Lender”) selected by the Borrower and each of which has confirmed its willingness to assume and does assume such part of the increased Facility C Commitments which it is to assume;
 
 
(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,
 
in each case, in accordance with the provisions of the Finance Documents;
 
 
(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
 
 
 

 
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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),
 
as, in the reasonable opinion of the Agent, may be necessary or appropriate for giving full effect to the provisions of this Clause 2.3.
 
(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,
 
provided that no Default is continuing or would reasonably be expected to result from such increase.
 
(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
 
 
 

 
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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:
 
 
 
 
 

 
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(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