EXHIBIT 10.4
------------
VENETIAN CASINO RESORT, LLC
LAS VEGAS SANDS, INC.
LIMITED WAIVER AND SECOND AMENDMENT
TO CREDIT AGREEMENT
This LIMITED WAIVER AND SECOND AMENDMENT TO CREDIT AGREEMENT (this
"Agreement") is dated as of November 12, 1999 and entered into by and among LAS
VEGAS SANDS, INC., ("LVSI") a Nevada corporation and VENETIAN CASINO RESORT, LLC
("VCR") a Nevada limited liability company, as joint and several obligors (each
of LVSI and VCR, a "Borrower" and, collectively, the "Borrowers"), GOLDMAN SACHS
CREDIT PARTNERS L.P. ("GSCP"), as arranger (in such capacity, "Arranger"), THE
BANK OF NOVA SCOTIA, as administrative agent for Lenders (in such capacity,
"Administrative Agent") by and on behalf of the financial institutions party to
the Credit Agreement referred to below ("Lenders") and the Lenders listed on the
signature pages hereto and is made with reference to that certain Credit
Agreement dated as of November 14, 1997 (amended from time to time, the "Credit
Agreement"), by and among Borrowers, Lenders, Arranger and Administrative Agent,
as the same has heretofore been amended or modified from time to time.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement or if not defined therein then the
meaning ascribed thereto in the Disbursement Agreement.
RECITALS
WHEREAS, the Administrative Agent believes that certain Events of Default
and Potential Events of Default, as set forth on Schedule 1 hereto, exist as of
the date hereof;
WHEREAS, Borrowers and Lenders desire to enter into this Agreement to (i)
waive those certain Events of Default and Potential Events of Default set forth
on Schedule 1 hereto (if and to the extent such defaults exist as of the date
hereof) so that Mall Release and Completion may occur on or before November 14,
1999 and so that an Advance can be made on the Mall Release Date and/or the
Completion Date, and (ii) make certain other agreements and amendments as set
forth below, all upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the promises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. WAIVER AND CONSENT
Subject to the terms and conditions and in reliance on the representations,
warranties and covenants of the Borrowers set forth herein, Administrative Agent
and Requisite Lenders on behalf of the Lenders hereby (a) waive each of the
Events of Default and Potential Events of Default set forth on Schedule 1
attached hereto (to the extent, if any, they exist) to the extent and for the
period expressly set forth therein and (b) consent to the Master Leases (as
defined in Section 8 of the Limited Waiver of Defaults under the Disbursement
Agreement attached hereto as Exhibit G (the "FAADA Waiver") on the terms
described in the FAADA Waiver.
Section 2. LIMITATION ON WAIVER AND CONSENTS
This Agreement shall constitute a Limited Waiver, which shall be limited in
all respects precisely as set forth herein and in Schedule 1 and nothing
contained herein shall be deemed to:
(a) constitute a waiver of (i) compliance by the Borrowers with
respect to any term, provision or condition of the Credit
Agreement or any other instrument or agreement referred to
therein, except as expressly set forth in Schedule 1, or (ii)
any Event of Default or Potential Event of Default, except as
expressly set forth on Schedule 1;
(b) constitute a waiver of any of the Mall Release Conditions or
any of the conditions for Completion or extend the time for
satisfaction of such conditions; or
(c) prejudice any right or remedy that the Administrative Agent or
the Lenders have (except to the extent such right or remedy
was based upon a default that will not exist after giving
effect to this Limited Waiver) under or in connection with the
Credit Agreement or any other instrument or agreement referred
to therein or delivered thereunder.
Except as expressly set forth herein, the terms, provisions
and conditions of the Credit Agreement and the other Loan
Documents shall remain in full force and effect and in all
other respects are hereby ratified and confirmed.
Section 3. REPRESENTATIONS AND WARRANTIES OF BORROWERS
In order to induce Lenders to enter into this Agreement and to provide the
limited waivers and consents and amend the Credit Agreement in the manner
provided herein, each of VCR and LVSI represents and warrants to each Lender
that the following statements are true, correct and complete as of the date
hereof and as of the date the conditions set forth in Section 4 are satisfied:
(1) Each of VCR and LVSI has all requisite corporate or limited
liability company power and authority to enter into this
Agreement and to carry out the transactions contemplated
hereby and perform its obligations hereunder;
(2) The execution and delivery of this Agreement by VCR and LVSI
and the performance of their obligations hereunder have been
duly authorized by all necessary corporate action on the part
of VCR and LVSI;
(3) The execution and delivery by VCR and LVSI of this Agreement
and the performance by VCR and LVSI of this Agreement do not
and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to the Project or
to VCR or LVSI or any of their Affiliates, the organizational
documents of VCR or LVSI or any of their Affiliates or any
order, judgment or decree of any court or other agency of
government binding on VCR or LVSI or any of their Affiliates,
(ii) conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any
Contractual Obligation of VCR or LVSI or any of their
Affiliates, (iii) result in or require the creation or
imposition of any Lien upon any of the properties or assets of
VCR or LVSI or any of their Affiliates, or (iv) require any
approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of VCR or LVSI or any
of their Affiliates;
(4) The execution and delivery by VCR and LVSI of this Agreement
and the performance by VCR and LVSI of this Agreement do not
and will not require any registration with, consent or
approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory
body;
(5) This Agreement has been duly executed and delivered by VCR and
LVSI and constitutes the legally valid and binding obligation
of VCR and LVSI, enforceable against VCR and LVSI in
accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar
laws relating to or limiting creditors' rights generally or by
equitable principles relating to enforceability;
(6) The representations and warranties contained in Section 5 of
the Credit Agreement are and will be true, correct and
complete in all material respects on and as of the date hereof
and on the date the conditions in Section 4 hereof are
satisfied to the same extent as though made on and as of that
date, except (i) to the extent such representations and
warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material
respects on and as of such earlier date and (ii) with respect
to the matters described on Schedule 1;
(7) The Remaining Costs are accurately reflected on that certain
chart previously delivered to the Disbursement Agent and
attached hereto as Exhibit A;
(8) The schedule to achieve Completion previously delivered to
the Disbursement Agent and attached hereto as Exhibit B is
accurate and true;
(9) The litigation arising out of the lawsuit filed by Borrowers
against the Construction Manager in United States District
Court for the District of Nevada and the countersuit filed by
the Construction Manager against the Borrowers and any other
outstanding lawsuit, action, claim or Lien arising out of or
relating to the construction of the Mall or the Project (the
"Construction Litigation"), including any claim made or Lien
filed by Construction Manager or any contractor or
subcontractor or to the bonding company insuring over any Lien
relating to or binding upon the Mall or the Project or to VCR,
LVSI, GCCLC or any of their Affiliates in connection
therewith, and any judgment or settlement amount owed by the
Borrowers to the Construction Manager or any contractor or
subcontractor or to the bonding company insuring over any such
Lien as a result of the Construction Litigation (such amount,
the "Additional Contingent Claims") cannot reasonably be
expected to have, when taken in the aggregate, a Material
Adverse Effect;
(10) the status summary of the Construction Litigation attached
hereto as Exhibit C is true and correct in all material
respects as of the date hereof;
(11) the Borrowers have sufficient Available Funds such that
Available Funds will equal or exceed Remaining Costs after
giving effect to the Additional Contingent Claims as a
Remaining Cost;
(12) no Events of Default or Potential Events of Default under the
Credit Agreement exist or are continuing (other than those
Events of Default and Potential Events of Default set forth on
Schedule 1);
(13) there are no defaults beyond any applicable grace or cure
period with respect to any financing secured by the Sands
Expo and Convention Center;
(14) Adelson has complied with the terms and conditions of that
certain Subordination and Intercreditor Agreement (Trade
Claims) (the "Adelson Subordination Agreement"), the form of
which is attached hereto as Exhibit E, with respect to Adelson
Trade Claims (as defined in the Adelson Subordination
Agreement);
(15) the Master Leases referred to in Section 8 of the FADAA Waiver
to be entered into by Borrowers contains terms which are not
less favorable to Borrowers and their Subsidiaries than would
be obtainable in an arms length transaction, including
economic terms consistent with the current rental market for
comparable space in Las Vegas, Nevada; and
(16) The Project is free of all Liens and encumbrances other than
Permitted Liens.
Section 4. CONDITIONS TO EFFECTIVENESS
The waivers, consents and amendments set forth in Sections 1, 5 (b), 7 and
8 of this Agreement shall become effective only upon satisfaction of each of the
following conditions precedent on or before the Outside Completion Deadline:
(a) execution and delivery to Administrative Agent of waivers of
all presently uncured defaults and events of default under
each of (i) the Interim Mall Credit Agreement and (ii) that
certain Term Loan and Security Agreement dated as of December
22, 1997 by and among LVSI, VCR, the lenders named therein,
BancBoston Leasing Inc. and General Electric Capital
Corporation (collectively, the "Facility Waivers"), each
substantially in the form of Exhibit D-1 and D-2 hereto;
(b) The Company shall have caused the Project to be free of all
Liens and encumbrances other than Permitted Liens, and the
Title Insurer shall have issued to Administrative Agent
endorsements insuring that the Project is free of all Liens
and encumbrances other than Permitted Liens;
(c) The Unallocated Contingency Balance shall equal or exceed the
Required Minimum Contingency and Available Funds shall equal
or exceed Remaining Costs after giving effect to the
Additional Contingent Claims as a Remaining Cost (it being
understood that Administrative Agent may rely on the
certificate set forth in (d) below in making such
determination);
(d) Borrowers shall have certified to the Administrative Agent, in
form and substance acceptable to Administrative Agent and
Construction Consultant, that (i) the schedule to achieve
Completion attached hereto as Exhibit B is accurate and
complete and all conditions for Completion will be satisfied
by November 12, 1999 and (ii) the Unallocated Contingency
Balance equals or exceeds the Required Minimum Contingency and
Available Funds equals or exceeds Remaining Costs after giving
effect to the Additional Contingent Claims as a Remaining Cost
and such certification shall set forth in detail the
derivation of all such figures and calculations (setting forth
in detail the sources for payment of all Remaining Costs and
the sources of Available Funds);
(e) The Construction Consultant shall have certified to the
Administrative Agent, in form and substance acceptable to the
Administrative Agent, that (i) the schedule to achieve
Completion attached hereto as Exhibit B is reasonable and all
conditions for Completion may be satisfied by November 12,
1999 and (ii) the Unallocated Contingency Balance equals or
exceeds the Required Minimum Contingency and Available Funds
equals or exceeds Remaining Costs after giving effect to the
Additional Contingent Claims as a Remaining Cost and such
certification shall set forth in detail the derivation of all
such figures and calculations (setting forth in detail the
sources for payment of all Remaining Costs and the sources of
Available Funds);
(f) The Borrowers shall have made the payment of principal and
interest in full in respect of the Mortgage Notes and the
Subordinated Notes due on November 15, 1999;
(g) Borrowers shall have paid to the Lenders the fee described in
Section 5 below;
(h) Delivery to the Administrative Agent of an estoppel
certificate from the HVAC Provider in form and substance
satisfactory to the Administrative Agent, stating that, as of
the date of such certificate, (i) there are no uncured
defaults, nor is the HVAC Provider aware of any condition or
state of events that with the passage of time may result in a
default, by the Company under the HVAC Services Agreement, the
Construction Agency Agreement or the HVAC Ground Lease and
(ii) that such agreements remain in full force and effect;
(i) Delivery to Administrative Agent of an opinion or opinions
of counsel to the Company in form and substance reasonably
acceptable to the Administrative Agent;
(j) the Company shall have delivered to Administrative Agent, for
the benefit of Lenders, revised financial projections covering
the term of the Loans;
(k) Borrowers have delivered all certificates and documentation
required under the Credit Agreement to the Administrative
Agent so that VCR may enter into the Master Leases (as defined
in the Limited Waiver attached hereto as Exhibit G);
(l) Administrative Agent shall have received the letter from
the bonding company referred to in Section 8(i) of the FADAA
Waiver; and
(m) To the extent not otherwise set forth herein, all the
conditions precedent set forth in Section 4 of the FADAA
Waiver shall have been satisfied.
Notwithstanding the foregoing, if an Advance is made on or after the date
hereof, Section 1, Section 5, Section 6, Section 7, Section 8 and Section 10
shall become immediately effective (provided that this Limited Waiver has been
executed and delivered by each of the parties hereto and the Bank Agent has
received Requisite Lender Consent), provided, however that such effectiveness
shall not be deemed a waiver of the conditions set forth above for any other
purpose or under any other agreement.
Section 5. WAIVER; FEE
(a) Prior to the effectiveness of this Agreement, in lieu of
paying default interest as required by Section 2.2E of the
Credit Agreement (if any) with respect to the Events of
Default waived herein and as a condition to granting the
waivers set forth herein, Borrowers agree to pay to each
Lender that approves this Amendment by 12:00 PM EST on
November 10, 1999 a non-refundable fee of .25% of the
outstanding principal amount of the Loan and unfunded
commitment for such Lender. The fee obligation set forth
herein is in addition to, and not in lieu of, all other fees
owed to Agents or Lenders pursuant to any other document or
agreement.
(b) Upon effectiveness of the waivers provided for in Section 1
hereof, Lenders waive any requirement for the conversion of
Eurodollar Rate Loans to Base Rate Loans set forth in the
Credit Agreement based on any Events of Default waived
hereunder and for the period of such waiver.
Section 6. CERTAIN ADDITIONAL AGREEMENTS OF BORROWERS
(a) the Borrowers agree that they shall not directly or indirectly
make any payment to or for the benefit of Adelson until the
Additional Contingent Claims shall be finally determined and
paid in full except for (i) payments made pursuant to and as
permitted by the Adelson Subordination Agreement, (ii)
payments made in respect of Adelson's taxes, salary and as
reimbursement for reasonable expenses, in each case, if and
to the extent permitted under the Facility Agreements,
and (iii) payments made to Affiliates that are required
under the Cooperation Agreement or any other arm's-length
agreement entered into with an Affiliate, provided that
nothing contained herein shall be deemed to permit any such
payment to or for the benefit of Adelson if such payment
shall be otherwise prohibited or restricted under the Credit
Agreement any other agreement or document;
(b) The Borrowers acknowledge and agree that, notwithstanding
the definition of Applicable Margin in the Credit Agreement,
the Applicable Margin will not be reduced from 2.00% per annum
for Base Rate Loans and 3.00% per annum for Eurodollar Rate
Loans to 1.50 % and 2.50% per annum respectively, until the
later of (i) the date that is six months from the date that
this Agreement becomes effective and (ii) the Substantial
Completion Date (and that in order for the Substantial
Completion Date to occur all requirements and conditions
therefor under the Credit Agreement and Disbursement Agreement
must be satisfied, including, but not limited to, the
settlement or final adjudication of the Construction
Litigation and the payment of the Additional Contingent
Claims in full); and
(c) Borrowers' failure to comply with any covenant hereunder shall
constitute a default hereunder and an Event of Default under
the Credit Agreement.
Section 7. ACKNOWLEDGEMENT AND CONSENT REGARDING MULTI-PARTY AGREEMENT
REGARDING GRAND CANAL SHOPS MALL, LAS VEGAS NEVADA
Lenders hereby acknowledge that Mall Construction Subsidiary and certain
other parties have entered into that certain Multiparty Agreement Regarding
Grand Canal Shops Mall , Las Vegas, Nevada, dated as of September 30, 1999, a
true, correct and complete copy of which is attached hereto as Exhibit F (the
"Mall Agreement"). Lenders hereby consent to (i) the consummation of the
transactions contemplated by the Mall Agreement on the terms described therein,
(ii) the creation of New Mall Subsidiary (as defined in the Mall Agreement) as a
wholly owned Subsidiary of Mall Subsidiary, (iii) the creation of "Mall Inc.
Subsidiary," (as defined in the Mall Agreement) (the "New Mall Manager") as a
wholly owned subsidiary of Mall Manager, and (iv) the transfer of a one percent
interest in Mall Subsidiary and/or New Mall Subsidiary to New Mall Manager upon
consummation of the transactions contemplated by the Mall Agreement and waive
any applicable restrictions under Article VII of the Credit Agreement to the
extent necessary to permit consummation of such transactions and the ownership
and operation of such companies after giving effect to the consummation of such
transactions in accordance with the terms of the Mall Agreement. Borrowers and
Lenders agree that the Credit Agreement is hereby amended effective immediately
upon consummation of the transactions contemplated by the Mall Agreement to
change the defined term "Mall Subsidiary" to mean "New Mall Subsidiary."
Borrowers hereby covenant and agree that (i) until consummation of the
transactions contemplated by the Mall Agreement, neither New Mall Subsidiary nor
New Mall Manager will engage in any business or transactions except as expressly
contemplated by the Mall Agreement, (ii) from and after consummation of the
transactions contemplated by the Mall Agreement, (w) Grand Canal Shops Mall, LLC
shall be bound by all of the covenants of the Credit Agreement applicable to
Mall Direct Holdings and references to Mall Direct Holdings shall be deemed to
include a reference to Grand Canal Shops Mall, LLC, (x) New Mall Manager shall
be bound by all of the covenants of the Credit Agreement applicable to Mall
Manager and references to Mall Manager shall be deemed to include a reference to
New Mall Manager, (y) Grand Canal Shops Mall, LLC and Mall Direct Holdings will
not engage in any business or transactions except (1) in the case of Grand Canal
Shops Mall, LLC, ownership of equity in New Mall Subsidiary and the pledge of
such equity to lenders to New Mall Subsidiary and (2) in the case of Grand Canal
Shops Mall Holding Company, LLC, ownership of equity interests in Grand Canal
Shops Mall, LLC. Borrowers further represent and warrant that upon consummation
of the transactions contemplated by the Mall Agreement, ownership of Mall
Intermediate Holding Company, LLC, Grand Canal Shops Mall Holding Company, LLC,
Grand Canal Shops Mall, LLC, New Mall Subsidiary, Grand Canal Shops Mall MM,
Inc. and New Mall Manager shall be as set forth on Schedule 2 hereto and
Borrowers agree (without limiting any other applicable restrictions set forth
herein or in the Credit Agreement) that from and after the consummation of the
transactions contemplated by the Mall Agreement, no equity interests in Grand
Canal Shops Mall, LLC or New Mall Manager shall be sold or transferred. The
representations and covenants set forth herein shall be deemed to be
representations and covenants set forth in the Credit Agreement and any breach
thereof shall constitute an Event of Default, provided that breaches of
representations and warranties shall only constitute an Event of Default to the
extent such breach is material in nature. Nothing set forth herein shall be
deemed to constitute a waiver or modification of any of the conditions to the
Mall Release Date.
Section 8. AMENDMENT TO SECTION 7.1 OF THE CREDIT AGREEMENT
Section 7.1 of the Credit Agreement is hereby amended by adding the following
clause (xv):
"(xv) Adelson and the Borrowers hereby agree that, from and after the
Completion Date, Borrowers may incur Indebtedness in an aggregate principal
amount not to exceed $15,000,000 (plus any accrued and unpaid interest thereon
added to principal) at any time outstanding ("Additional Indebtedness"),
provided that (a) such Additional Indebtedness shall not be secured by, directly
or indirectly, any Liens on any property or assets owned directly or indirectly
by VCR or LVSI or any Subsidiary of VCR or LVSI or by any stock, securities,
membership interest, partnership interest or other direct or indirect equity
interests in VCR or LVSI or any Subsidiary of VCR or LVSI; (b) such Additional
Indebtedness shall be subordinated to all Obligations under this Agreement and
all Indebtedness under the Mortgage Notes Indenture, the Subordinated Notes
Indenture and the FF&E Facilities (collectively, the "Superior Facilities") on
terms reasonably acceptable to the Administrative Agent and the Arranger and no
payments in respect thereof may be made or demanded prior to the payment in full
of all Obligations (and further the principal of such Additional Indebtedness
may not be paid back until all Obligations and all Indebtedness with respect to
the Superior Facilities has been paid in full and this covenant of Borrowers
shall survive the earlier termination of this Credit Agreement), other than
payment of interest in kind provided that any instruments or documents
evidencing such payments contain the same terms and conditions as the Additional
Indebtedness (provided that such subordination shall not prohibit the exchange
of any note evidencing any such Additional Indebtedness or of the payment of any
amounts under any such note in whole or in part for securities of any Borrower)
provided that no Restricted Junior Payment may be made in respect of such
securities; (c) prior to incurring any Additional Indebtedness all documents and
instruments evidencing such Indebtedness shall be delivered to Administrative
Agent and Arranger and such documents and instruments shall (x) incorporate the
terms set forth in the other clauses of this proviso and otherwise be in form
and substance reasonably satisfactory to Administrative Agent and Arranger (y)
provide that the Lenders shall be third party beneficiaries of such documents
and instruments and (z) contain provisions prohibiting any amendment,
modification or waiver thereof binding on Borrowers or their Subsidiaries
without the prior written consent of Administrative Agent and Arranger (which
consent shall not be unreasonably withheld); and (d) the Additional Indebtedness
shall be permitted under the other Superior Facilities and all other agreements
to which Adelson and/or the Borrowers are a party, and prior to the incurrence
thereof counsel to the Borrowers shall have delivered an opinion to the Lenders
to that effect (with respect to the Superior Facilities only) in form and
substance reasonably satisfactory (including reasonably satisfactory
assumptions) to the Administrative Agent and Arranger on behalf of the Lenders."
Section 9. ACKNOWLEDGEMENT AND CONSENT OF LENDERS
By executing this Agreement below, each of the Lenders consents to (a) the
Administrative Agent, in its capacity as Bank Agent under the Disbursement
Agreement, executing on the behalf of the Lenders a limited waiver of defaults
under the Disbursement Agreement substantially in the form attached hereto as
Exhibit G and (b) the Adelson Subordination Agreement in the form attached
hereto as Exhibit E. The consent set forth in this paragraph is solely for the
benefit of Administrative Agent and neither Borrowers nor any of their
Affiliates shall have any rights hereunder.
Section 10. ACKNOWLEDGMENTS AND CONSENTS OF LOAN PARTIES
Each of the undersigned Loan Parties, by executing this Agreement, confirms
that it has reviewed this Agreement and consents to the terms hereof and further
confirms and agrees that, notwithstanding the effectiveness of the Agreement,
the obligations of the undersigned under the Guaranty and/or Collateral
Documents to which it is a party shall not be impaired or affected and each such
Loan Document shall continue in full force and effect and is hereby confirmed
and ratified in all respects. Each of the undersigned Loan Parties acknowledges
and agrees that it is not required by the terms of any Loan Document to consent
to the terms of this Agreement and nothing in this Agreement or any Loan
Document shall be deemed to require its consent to any future amendments or
modifications to the Credit Agreement.
Section 11. ACKNOWLEDGEMENT REGARDING FEES AND EXPENSES
Borrowers hereby acknowledge that all reasonable costs, fees and expenses
as described in subsections 6.12D and 10.2 of the Credit Agreement incurred by
Administrative Agent, Syndication Agent and their counsel with respect to this
Agreement and the documents and transactions contemplated hereby, shall be for
the account of the Borrowers and hereby agree that all such amounts, and any
other amounts due and owing to such parties at that time, shall be paid out of
advances made in connection with the occurrence of the Mall Release Date and
Completion.
Section 12. GOVERNING LAW
THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
Section 13. COUNTERPARTS; EFFECTIVENESS
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement (other than the provisions of Sections 1, 5(b), 7 and
8) shall become effective upon the execution of a counterpart hereof by
Requisite Lenders and each of the other parties hereto and receipt by
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
THE BANK OF NOVA SCOTIA, as Administrative Agent
By: /s/ A. Pendergast
-------------------------------------
Name: A. Pendergast
Title: Managing Director
GOLDMAN SACHS CREDIT PARTNERS L.P.,
as Arranger and Syndication Agent
By: /s/ Elizabeth Fischer
-------------------------------------
Name: Elizabeth Fischer
Title: Authorized Signatory
VENETIAN CASINO RESORT, LLC,
a Nevada limited liability company
By: Las Vegas Sands, Inc., its managing member
By: /s/ David Friedman
-------------------------------------
Name: David Friedman
Title: Secretary
LAS VEGAS SANDS, INC., a Nevada corporation
By: /s/ David Friedman
-------------------------------------
Name: David Friedman
Title: Secretary
The undersigned Lenders constituting Requisite Lenders hereby agree to the
terms of the attached agreement and hereby consent to (a) the Administrative
Agent, in its capacity as Bank Agent under the Disbursement Agreement, executing
a limited waiver of defaults under the Disbursement Agreement substantially in
the form attached hereto as Exhibit G and (b) the Adelson Subordination
Agreement in the form attached hereto as Exhibit E.
LENDERS:
GOLDMAN SACHS CREDIT PARTNERS L.P., individually
By: /s/ Elizabeth Fischer
-------------------------------------
Name: Elizabeth Fischer
Title: Authorized Signatory
THE BANK OF NOVA SCOTIA, individually
By: /s/ A. Pendergast
-------------------------------------
Name: A. Pendergast
Title: Managing Director
VAN KAMPEN PRIME RATE INCOME TRUST
By: /s/ In D. Pierce
-------------------------------------
Name: In D. Pierce
Title: Vice President
THE INTERNATIONAL COMMERCIAL BANK OF
CHINA, NEW YORK AGENCY
By: /s/ Wen-Hui Wang
-------------------------------------
Name: Wen-Hui Wang
Title: Assistant Vice-President
ARCHIMEDES FUNDING, L.L.C.
By: ING CAPITAL ADVISORS, INC., as Collateral Manager
By: /s/ Helen Y. Rhee
-------------------------------------
Name: Helen Y. Rhee
Title: Vice President & Portfolio Manager
TORONTO DOMINION (TEXAS), INC.
By: /s/ Bolia Jordan
-------------------------------------
Name: Bolia Jordan
Title: Vice President
TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY
By: /s/ John Casparian
-------------------------------------
Name: John Casparian
Title: Investment Officer
SRV-HIGHLAND, INC.
By: /s/ Kelly Walker
-------------------------------------
Name: Kelly Walker
Title: Vice President
PAM CAPITAL FUNDING
By: HIGHLAND CAPITAL MANAGEMENT, L.P., as Collateral Manager
By: /s/ James Donder
-------------------------------------
Name: James Donder
Title: President
HIGHLAND LEGACY LIMITED
By: HIGHLAND CAPITAL MANAGEMENT, L.P., as Collateral Manager
By: /s/ James Donders
-------------------------------------
Name: James Donders
Title: President
PINEHURST TRADING, INC.
By: /s/ Kelly Walker
-------------------------------------
Name: Kelly Walker
Title: Vice President
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Koren Volk
-------------------------------------
Name: Koren Volk
Title: Authorized Signatory
NATIONAL WESTMINSTER BANK P.L.S.
By: NATWEST CAPITAL MARKETS LIMITED, its agent
By: GREENWICH CAPITAL MARKETS INC., its agent
By: /s/ Richard Jacoby
-------------------------------------
Name: Richard Jacoby
Title: Assistant Vice President
Each of the undersigned is a Loan Party under the Credit Agreement and is a
party to certain Guaranties and/or Collateral Documents. Each of the undersigned
confirms that it has reviewed this Agreement and consents to the terms hereof
and further confirms and agrees that, notwithstanding the effectiveness of the
Agreement, the obligations of the undersigned under the Guaranty and/or
Collateral Documents to which it is a party shall not be impaired or affected
and each such Loan Document shall continue in full force and effect and is
hereby confirmed and ratified in all respects. Each of the undersigned
acknowledges and agrees that it is not required by the terms of any Loan
Document to consent to the terms of this Agreement and nothing in this Agreement
or any Loan Document shall be deemed to require its consent to any future
amendments or modifications to the Credit Agreement.
MALL INTERMEDIATE HOLDING COMPANY, LLC
By: VENETIAN CASINO RESORT, LLC, its sole member
By: LAS VEGAS SANDS, INC., its managing member
By: /s/ David Friedman
-------------------------------------
Name: David Friedman
Title: Secretary
LIDO INTERMEDIATE HOLDING COMPANY, LLC
By: VENETIAN CASINO RESORT, LLC, its sole member
By: LAS VEGAS SANDS, INC., its managing member
By: /s/ David Friedman
-------------------------------------
Name: David Friedman
Title: Secretary
GRAND CANAL SHOPS MALL CONSTRUCTION, LLC
By: VENETIAN CASINO RESORT, LLC, its sole member
By: LAS VEGAS SANDS, INC., its managing member
By: /s/ David Friedman
-------------------------------------
Name: David Friedman
Title: Secretary
SCHEDULE 1
EVENTS OF DEFAULT AND
POTENTIAL EVENTS OF DEFAULT
1. The failure to remove any Liens resulting from the Construction
Litigation that are not Permitted Liens in a timely manner, provided
that all Liens have been removed or bonded over as of the date hereof
and continue to be bonded over until removed (this waiver shall be
effective with respect to any Lien that has been and continues to be
bonded and insured over by the Title Insurer, notwithstanding the
Company's failure to complete the legal procedure for having such Lien
removed of record.)
2. The failure to satisfy each of the Opening Conditions prior to
Opening Date as required pursuant to Section 7.20 of the
Credit Agreement.
3. The failure to remedy or have waived any default under the Disbursement
Agreement existing on or prior to the date hereof within 30 days of the
occurrence of such default as required pursuant to Section 8.5 of the
Credit Agreement, but only to the extent such defaults are listed on
Schedule 1 of the waiver attached as Exhibit G hereto.
4. A default by the Borrowers under any of the other Financing Agreements
existing on or prior to the date hereof, provided that such default has
been cured or waived as of the date hereof pursuant to a Facility
Waiver.
5. A default under Section 8.13 of the Credit Agreement that has occurred
because of any default under the Construction Management Agreement
relating to or arising out of the Construction Litigation, provided
that such waiver shall not extend beyond the Completion Date.
6. Any default under any of the Operative Documents arising out of or
relating to any of the matters covered in 1-5 above to the extent such
matters have been waived as of the date hereof.
7. Any default under Section 7.4 of the Credit Agreement by reason of any
of the Additional Contingent Claims being deemed to be Contingent
Obligations (as defined in the Credit Agreement), but only to the
extent that such Additional Contingent Claims are being contested by
the Borrowers in good faith. If such Additional Contingent Obligations
become due and payable, the waivers contained in this Item 7 shall no
longer be applicable.