EXHIBIT 10.1
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LAS VEGAS SANDS, INC.
and
VENETIAN CASINO RESORT, LLC
AMENDED AND RESTATED CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is dated as of June 14, 2000 and
entered into by and among LAS VEGAS SANDS, INC. ("LVSI"), a Nevada corporation,
and VENETIAN CASINO RESORT, LLC ("Venetian"), a Nevada limited liability
company, as joint and several obligors (each of LVSI and Venetian, a "Borrower"
and, collectively, the "Borrowers"), THE FINANCIAL INSTITUTIONS LISTED ON THE
SIGNATURE PAGES HEREOF (each individually referred to herein as a "Lender" and
collectively as "Lenders"), and GOLDMAN SACHS CREDIT PARTNERS L.P. ("GSCP") and
THE BANK OF NOVA SCOTIA ("Scotiabank"), as Joint-Lead Arrangers (each of GSCP
and Scotiabank in such capacity an "Arranger" and together, the "Arrangers"),
GSCP as syndication agent (in such capacity, "Syndication Agent"), and
Scotiabank, as administrative agent for Lenders (in such capacity, the
"Administrative Agent").
R E C I T A L S
WHEREAS, pursuant to that certain Credit Agreement dated as of November 14,
1997, as amended by the First Amendment thereto dated as of January 30, 1998,
and further amended by the Limited Waiver and Second Amendment to Credit
Agreement dated as of November 12, 1999, by and among Borrowers, Lenders,
Syndication Agent and Administrative Agent (such Credit Agreement, as amended,
the "Existing Credit Agreement" ). Lenders extended the senior secured credit
facilities set forth in the Existing Credit Agreement to Borrowers to provide a
portion of the financings necessary to develop and construct the Project (this
and other capitalized terms used herein shall have the meanings given in
subsection 1.1 of this Agreement), and in the case of the Revolving Loans, to
provide working capital for the Project hotel and casino following the
Completion Date;
WHEREAS, Borrowers financed the development and construction of the Project
with (i) equity contributions to Borrowers from Adelson consisting of the Real
Estate Contribution (approximately 14 acres of which has been released to the
Phase II Subsidiary upon the completion of a subdivision of such land) and cash
in an aggregate amount of $320,000,000, (ii) proceeds of the issuance of senior
secured Mortgage Notes in an aggregate principal amount of not less than
$425,000,000, (iii) proceeds of the issuance of Subordinated Notes of
approximately $90,000,000 in cash, (iv) the proceeds of the Interim Mall
Facility (as defined in the Existing Credit Agreement) in an aggregate principal
amount of not less than $140,000,000, (v) the proceeds of an equipment finance
loan from the FF&E Lenders of not less than approximately $98,000,000 to finance
furniture, fixtures and equipment (including, without limitation, gaming
equipment and power station equipment) a portion of which may be financed on an
interim basis with proceeds of the revolving loan portion of the senior secured
credit facilities contemplated hereby, (vi) the proceeds of a contribution from
a joint venture between Atlantic Thermal Systems, Inc., and Pacific Enterprises
Energy Services, in an amount up to approximately $70,000,000 as necessary to
purchase, construct and install (x) certain equipment that is located at or used
in connection with the heating, ventilation and air conditioning facility for
the Project and (y) certain equipment that is part of the Project's mechanical
and/or electrical systems, and (vii) the term loan portion of the senior secured
credit facilities contemplated hereby;
WHEREAS, the parties to the Existing Credit Agreement desire to amend and
restate the Existing Credit Agreement in order to (i) provide additional term
loans in the aggregate principal amount of $50,000,000, the proceeds of which,
to the extent of $30,000,000, will be applied to the existing Terms Loans (as
defined in the Existing Credit Agreement) in forward order of maturity, and the
balance of which proceeds (net of fees and expenses) will be applied to the
principal amount of the Revolving Loans outstanding, (ii) revise the financial
covenants set forth in the Existing Credit Agreement and (iii) make certain
other amendments to the Existing Credit Agreement; and
WHEREAS, it is the intention of Borrowers, Syndication Agent and
Administrative Agent and each of the Lenders that this amendment and restatement
of the Existing Credit Agreement shall not constitute a refinancing of the Loans
outstanding on the Restatement Closing Date and that all Obligations hereunder
(including the new term loans to be made hereunder) and under the other Loan
Documents, shall continue to be secured by the grant to Administrative Agent, on
behalf of Lenders, of a First Priority Lien on the First Priority Collateral;
and that the Subsidiary Guaranty previously executed by each Subsidiary of
Borrowers shall continue in full force in effect and that each Subsidiary other
than the Intermediate Holding Companies shall continue to secure all of the
Obligations under the Subsidiary Guaranty by granting to Administrative Agent,
on behalf of Lenders, a First Priority Lien on the First Priority Collateral.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Borrowers, Lenders and Agents agree
as follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms.
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The following terms used in this Agreement shall have the following
meanings:
"Adelson" means Sheldon G. Adelson, an individual.
"Adelson Completion Guaranty" means that certain Completion
Guaranty dated as of the Closing Date executed by Adelson in
favor of the Administrative Agent, Interim Mall Lender and the
Mortgage Notes Indenture Trustee (acting on behalf of the
Mortgage Note Holders).
"Adelson Contributions" means the Real Estate Contribution and
the Adelson Equity Contribution.
"Adelson Equity Contribution" means the cash equity contributions
received by Borrowers from Adelson or his Affiliates in the
aggregate amount of not less than $95,000,000.
"Adelson Intercreditor Agreement" means the Intercreditor
Agreement (Adelson) dated as of November 14, 1997 among Adelson,
Venetian, Mall Construction Subsidiary, Administrative Agent,
Mortgage Note Indenture Trustee, Interim Mall Lender and the
Subordinated Notes Indenture Trustee in substantially the form of
Exhibit XVI hereto.
"Adelson Subordination Agreement" has the meaning assigned to
that term in subsection 5.20.
"Additional Contingent Claims" has the meaning assigned to that
term in subsection 5.17A.
"Additional Billboard Space" has the meaning assigned to that
term in the Cooperation Agreement.
"Additional Indebtedness" has the meaning assigned to that term
in subsection 7.1(xv).
"Adjusted Eurodollar Rate" means, for any Interest Rate
Determination Date with respect to an Interest Period for a
Eurodollar Rate Loan, the rate per annum obtained by dividing (i)
the arithmetic average (rounded upward to the nearest 1/16 of one
percent) of the offered quotations, if any, to first class banks
in the interbank Eurodollar market Lenders for U.S. dollar
deposits of amounts in same day funds comparable to the
respective principal amounts of the Eurodollar Rate Loans of
Scotiabank for which the Adjusted Eurodollar Rate is then being
determined with maturities comparable to such Interest Period as
of approximately 10:00 A.M. (New York time) on such Interest Rate
Determination Date by (ii) a percentage equal to 100% minus the
stated maximum rate of all reserve requirements (including any
marginal, emergency, supplemental, special or other reserves)
applicable on such Interest Rate Determination Date to any member
bank of the Federal Reserve System in respect of "Eurocurrency
liabilities" as defined in Regulation D (or any successor
category of liabilities under Regulation D).
"Administrative Agent" has the meaning assigned to that term in
the introduction to this Agreement and also means and includes
any successor Administrative Agent appointed pursuant to
subsection 9.5.
"Advance Confirmation Notice" has the meaning assigned that term
in the Disbursement Agreement.
"Affected Lender" has the meaning assigned to that term in
subsection 2.6C.
"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. For the
purposes of this definition, "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.
"Agent" means, individually, each of the Administrative Agent,
each Arranger and each Syndication Agent, and "Agents" means
Administrative Agent, Arrangers and Syndication Agent,
collectively.
"Agreement" means this Amended and Restated Credit Agreement
dated as of June 14, 2000.
"Anticipated Future Work" has the meaning assigned to that term
in the Disbursement Agreement.
"Applicable Tax Percentage" means the highest aggregate effective
marginal rate of federal, state and local income tax or, when
applicable, alternative minimum tax, to which any direct or
indirect member or S corporation shareholder of the Borrowers
subject to the highest marginal rate of tax would be subject in
the relevant year of determination (as certified to the
Administrative Agent by a nationally recognized tax accounting
firm), taking into account only that member's or S corporation
shareholder's share of income and deductions attributable to its
interest in the Borrowers.
"Approved Equipment Funding Commitment" has the meaning assigned
that term in the Disbursement Agreement.
"Arranger" and "Arrangers" has the meaning assigned to such terms
in the introduction to this Agreement.
"Asset Sale" means the sale by a Borrower or any of its
Subsidiaries to any Person of (i) any of the stock of any of such
Person's Subsidiaries, (ii) substantially all of the assets of
any division or line of business of a Borrower or any of its
Subsidiaries, or (iii) any other assets (whether tangible or
intangible) of a Borrower or any of its Subsidiaries (other than
(a) inventory or goods (other than equipment) sold in the
ordinary course of business, (b) any other assets to the extent
that the aggregate fair market value of such assets sold during
any Fiscal Year, is less than or equal to $1,000,000 or (c) any
transfers or dispositions permitted by clauses (v) through (xix),
inclusive, and (xxi) of subsection 7.7).
"Assignment Agreement" means an Assignment Agreement in
substantially the form of Exhibit VII annexed hereto.
"Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy", as now and hereafter in effect, or any
successor statute.
"Base Rate" means, at any time, the higher of (x) the Prime Rate
or (y) the rate which is 1/2 of 1% in excess of the Federal Funds
Effective Rate.
"Base Rate Loans" means Loans bearing interest at rates
determined by reference to the Base Rate as provided in
subsection 2.2A.
"Billboard" means H & H of Nevada, LLC.
"Billboard Master Lease" means that certain Lease Agreement dated
November 14, 1997 by and between Venetian and New Mall
Subsidiary, as successor to Mall Subsidiary (as successor to Mall
Construction Subsidiary) pursuant to which the New Mall
Subsidiary, as successor to Mall Subsidiary (as successor to Mall
Construction Subsidiary), is leasing from Venetian the Additional
Billboard Space.
"Billboard Operating Lease" means that certain Amended and
Restated Restaurant Lease dated June 26, 1997 by and between New
Mall Subsidiary, as successor to Mall Subsidiary and Venetian and
Billboard, as successor to B.L. International of Nevada, Inc.
(together with all assignments, modifications, amendments, riders
and addendas thereto).
"Billboard Space" means the space covered by the Billboard
Operating Lease (including the Additional Billboard Space).
"Borrowers" has the meaning assigned to that term in the
introduction to this Agreement and shall mean, as the context
requires, any or all of the Borrowers.
"Business Day" means (i) for all purposes other than as covered
by clause (ii) below, any day excluding Saturday, Sunday and any
day which is a legal holiday under the laws of the State of New
York or Nevada or is a day on which banking institutions located
in either such state are authorized or required by law or other
governmental action to close, and (ii) with respect to all
notices, determinations, fundings and payments in connection with
the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, any
day that is a Business Day described in clause (i) above and that
is also a day for trading by and between banks in Dollar deposits
in the London interbank market.
"Capital Lease", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as
lessee that, in conformity with GAAP, is accounted for as a
capital lease on the balance sheet of that Person.
"Cash" means (i) money, (ii) currency or (iii) a credit balance
in a Deposit Account.
"Cash Equivalents" means (a) [intentionally deleted] (b)(i)
direct obligations of the United States of America (including
obligations issued or held in book-entry form on the books of the
Department of the Treasury of the United States of America) or
obligations fully guaranteed by the United States of America,
(ii) obligations, debentures, notes or other evidence of
indebtedness issued or guaranteed by any other agency or
instrumentality of the United States, (iii) interest-bearing
demand or time deposits (which may be represented by certificates
of deposit) issued by banks having general obligations rated (on
the date of acquisition thereof) at least "A" or the equivalent
by Standard & Poor's Corporation ("S&P") or Moody's Investors
Service, Inc. ("Moody's") (S&P and Moody's together with any
other nationally recognized credit rating agency if neither of
such corporations is then currently rating the pertinent
currently rating the pertinent obligations, a "Rating Agency")
or, if not so rated, secured at all times, in the manner and to
the extent provided by law, by collateral security in clause (i)
or (ii) of this definition, of a market value of no less than the
amount of monies so invested, (iv) commercial paper rated (on the
date of acquisition thereof) at least "A-1" or "P-1" or the
equivalent by any Rating Agency issued by any Person, (v)
repurchase obligations for underlying securities of the types
described in clause (i) or (ii) 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 "A" or "A2" or the equivalent by
any Rating Agency in connection with which such underlying
securities are held in trust or by a third-party custodian, (vi)
guaranteed investment contracts of any financial institution
which has a long-term debt rated (on the date of acquisition
thereof) at least "A" or "A2" or the equivalent by any Rating
Agency, (vii) obligations (including both taxable and non-taxable
municipal securities) issued or guaranteed by, and any other
obligations the interest on which is excluded from income for
Federal income tax purposes issued by, and any state of the
United States of America or District of Columbia or the
Commonwealth or Puerto Rico or any political subdivision, agency,
authority or instrumentality thereof, which issuer or guarantor
has (A) a short-term debt rated (on the date of acquisition
thereof) at least "A-1" or "P-1" or the equivalent by any Rating
Agency and (B) a long-term debt rated (on the date of acquisition
thereof) at least "A" or "A2" or the equivalent by any Rating
Agency, (viii) investment contracts of any financial institution
either (A) fully secured by (1) direct obligations of the United
States, (2) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States
or (3) securities or receipts evidencing ownership interest in
obligations or special portions thereof described in clause (1)
or (2), in each case guaranteed as full faith and credit
obligations of the United States of America, having a market
value at least equal to 102% of the amount deposited thereunder,
or (B) with long-term debt rated (on the date of acquisition
thereof) at least "A" or "A2" or the equivalent by any Rating
Agency and short-term debt rated (on the date of acquisition
thereof) at least "A-1" or "P-1" or the equivalent by any Rating
Agency, (ix) a contract or investment agreement with a provider
or guarantor (A) which provider or guarantor is rated (on the
date of acquisition thereof) at least "A" or "A2" or the
equivalent by any Rating Agency (provided that if a guarantor is
a party to the rating, the guaranty must be unconditional and
must be confirmed in writing prior to any assignment by the
provider to any subsidiary of such guarantor), (B) providing that
monies invested shall be payable to the Disbursement Agent while
the Disbursement Agreement is in effect and thereafter to
Administrative Agent without condition (other than notice) and
without brokerage fee or other penalty, upon not more than two
Business Days' notice for application when and as required or
permitted under the Collateral Documents, and (C) stating that
such contract or agreement is unconditional, expressly
disclaiming any right of setoff and providing for immediate
termination in the event of insolvency of the provider and
termination upon demand of the Disbursement Agent while the
Disbursement Agreement is in effect and thereafter to
Administrative Agent (which demand shall only be made at the
direction of the Borrowers) after any payment or other covenant
default by the provider, or (x) any debt instruments of any
Person which instruments are rated (on the date of acquisition
thereof) at least "A," "A2", "A-1" or "P-1" or the equivalent by
any Rating Agency, provided that in each case of clauses (i)
through (x), such investments are denominated in Dollars and
maturing not more than 13 months from the date of acquisition
thereof; (c) investments in any money market fund which is rated
(on the date of acquisition thereof) at least "A" or "A2" or the
equivalent by any Rating Agency; (d) investments in mutual funds
sponsored by any securities broker-dealer of recognized 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 clauses
and having a rating of at least "A" or "A2" or the equivalent by
any Rating Agency; or (e) investments in both taxable and
nontaxable (i) periodic auction reset securities which have final
maturities between one and 30 years from the date of issuance and
are repriced through a dutch auction or other similar method
every 35 days or (ii) auction preferred shares which are senior
securities of leveraged closed end municipal bond funds and are
repriced pursuant to a variety of rate reset periods, in each
case having a rating (on the date of acquisition thereof) of at
least "A" or "A2" or the equivalent of any Rating Agency.
"Casino Lease" means that certain Casino Lease between Venetian
as lessor and LVSI as lessee dated effective as of the Closing
Date with respect to the operation of the casino for the Project.
"Certificate re Non-Bank Status" means a certificate
substantially in the form of Exhibit IX annexed hereto delivered
by a Lender to Administrative Agent pursuant to subsection
2.7B(iii).
"Class" means, as applied to Lenders, each of the following three
classes of Lenders: (i) Lenders having Tranche A Term Loan
Exposure, (ii) Lenders having Tranche B Term Loan Exposure and
(iii) Lenders having Revolving Loan Exposure.
"Closing Date" means the date on which the Existing Credit
Agreement and Disbursement Agreement were executed and delivered,
which date was November 14, 1997.
"Code" means the Internal Revenue Code of 1986, as amended to the
date hereof and from time to time hereafter, and any successor
statute.
"Collateral" means, collectively, all of the real, personal and
mixed property (including capital stock) in which Liens are
purported to be granted pursuant to the Collateral Documents as
security for the Obligations.
"Collateral Account Agreements" has the meaning assigned to that
term in the Disbursement Agreement.
"Collateral Documents" means the Company Security Agreement, the
Deed of Trust, the Mall Construction Subsidiary Security
Agreement, the Collateral Account Agreements (other than the
Mortgage Notes Collateral Account Agreement), any Subsidiary
Security Agreements and all other instruments or documents
delivered by a Loan Party pursuant to this Agreement or any of
the other Loan Documents in order to grant to Intercreditor
Agent, Disbursement Agent or Administrative Agent, on behalf of
Lenders, a Lien on any real, personal or mixed property of that
Loan Party as security for the Obligations.
"Collection Account" has the meaning assigned that term in the
Disbursement Agreement.
"Commercial Letter of Credit" means any letter of credit or
similar instrument issued for the purpose of providing the
financing payment mechanism in connection with the purchase of
any materials, goods or services by a Borrower in the ordinary
course of business of such Borrower.
"Commitment" means the commitment of a Lender to make Loans as
set forth in subsection 2.1A, and "Commitments" means such
commitments of all Lenders in the aggregate.
"Company Security Agreement" means the Company Security Agreement
executed and delivered by Borrowers and Mall Construction
Subsidiary on the Closing Date, substantially in the form of
Exhibit XII annexed hereto.
"Completion Date" means November 12, 1999.
"Completion Guaranty" means each of the Direct Construction
Guaranty, the Indirect Construction Guaranty and the Adelson
Completion Guaranty or any one of them and "Completion
Guaranties" means the Direct Construction Guaranty, the Indirect
Construction Guaranty and the Adelson Completion Guaranty
collectively.
"Completion Guaranty Loan" means any amounts advanced by Adelson
under the Adelson Completion Guaranty, which is treated as a loan
to Venetian in an aggregate principal amount not to exceed
$25,000,000 at any time, plus accrued and unpaid interest
thereon, evidenced by a Completion Guaranty Note and subject to
the terms of the Adelson Intercreditor Agreement.
"Completion Guaranty Note" means a note in the form attached to
the Interim Mall Credit Agreement (as in effect on the Closing
Date).
"Compliance Certificate" means a certificate substantially in the
form of Exhibit IV annexed hereto delivered to Administrative
Agent and Lenders by Borrowers pursuant to subsection 6.1(iv).
"Conforming Adelson L/C" means an unconditional, direct pay
letter of credit which (a) is obtained by Adelson or one of his
Affiliates (but not Borrowers or any of their Subsidiaries), (b)
either (x) has an expiration date of not less than twenty-four
(24) months or (y) has an expiration date of not less than twelve
(12) months with an automatic extension of one twelve (12) month
period unless the issuer of such letter of credit gives Drawing
Agent not less than sixty (60) days prior written notice that it
will not renew the letter of credit for such successive term, (c)
either (x) is irrevocable or (y) provides that the issuer will
deliver not less than sixty (60) days prior written notice to
Drawing Agent of its intention to revoke such letter of credit,
(d) is issued by a financial institution acceptable to each of
the Agents in their reasonable judgment and (e) is otherwise in
form and substance acceptable to each of the Agents in their
reasonable judgment, provided that any such letter of credit
shall only qualify as a Conforming Adelson L/C if it states that
it may be drawn upon by the Conforming Adelson L/C Drawing Agent
and applied in accordance with the terms of this Agreement and
the Conforming Adelson L/C Drawing Agreement upon the occurrence
of any Conforming Adelson L/C Draw Event, and provided further
that neither Borrower nor any of their Subsidiaries shall have
any obligations (contingent or otherwise) in respect of any such
letter of credit.
"Conforming Adelson L/C Draw Event" shall mean, during the time
that the Conforming Adelson L/C remains in full force and effect,
the occurrence of any of the following (a) an Event of Default
(which is continuing and has not been waived) (i) set forth in
Section 8.1 hereof (failure to make payments when due), (ii) set
forth in Section 8.2 hereof (default under Other Indebtedness or
Contingent Obligations), (iii) set forth in Section 8.6 hereof
(involuntary bankruptcy; appointment of receiver, etc.) or
Section 8.7 hereof (voluntary bankruptcy, appointment of
receiver, etc.), (iv) set forth in Section 8.13 (default under or
termination of Operative Documents), and (v) resulting from a
breach of any of the covenants set forth in Section 7.6 hereof
(financial covenants); (b) a draw on the Conforming Adelson L/C
by or on behalf of the agent under the FF&E Facility; (c) if such
Conforming Adelson L/C has a maturity of less than twenty-four
(24) months, either (x) Drawing Agent's receipt of notice from
the issuer of the Conforming Adelson L/C that such issuer will
not renew the Conforming Adelson L/C or (y) the date that is five
days prior to the expiration of the Conforming Adelson L/C if the
Administrative Agent has not received evidence of the renewal
thereof, provided that the Administrative Agent may not draw down
on the Adelson Conforming L/C under such circumstances if and
only if (1) the failure to obtain the renewal of such Conforming
Adelson L/C was not caused by Adelson or his Affiliates and
Adelson and/or his Affiliates have made reasonable efforts to
obtain the renewal thereof and (2) Adelson or his Affiliates
substitute cash equity in Borrowers in an amount equal to the
face amount of the Conforming Adelson L/C in lieu of the
Conforming Adelson L/C on or before the date that is five (5)
days prior to the expiration thereof (such equity to be
substituted for the withdrawn Conforming Adelson L/C in the
calculation of Consolidated Adjusted EBITDA); or (d) Drawing
Agent's receipt of notice from the issuer of the Conforming
Adelson L/C that such issuer intends to revoke, terminate or
cancel the Conforming Adelson L/C.
"Conforming Adelson L/C Drawing Agent" means the "Drawing Agent"
as defined in the Conforming Adelson L/C Drawing Agreement.
"Conforming Adelson L/C Drawing Agreement" means the Conforming
Adelson Drawing Agreement, dated as of the Restatement Closing
Date, between the Administrative Agent and General Electric
Capital Corporation, as agent for the FF&E Lenders under the FF&E
Facility Agreement, in substantially the form of Exhibit XX
attached hereto, pursuant to which drawings, if any, on the
Conforming Adelson L/Cs shall be made and the proceeds thereof
distributed ratably to the Lenders and the FF&E Lenders.
"Consents" means consents to the collateral assignment by
Borrowers of Project Documents in substantially the form of
Exhibit S to the Disbursement Agreement.
"Consolidated Adjusted EBITDA" means, for any period, the sum of
the amounts (without duplication) for such period of (i)
Consolidated Net Income, (ii) Consolidated Interest Expense,
(iii) provision for taxes based on income to the extent deducted
in calculating Consolidated Net Income, (iv) total depreciation
expense, (v) total amortization expense, and (vi) other non-cash
items reducing Consolidated Net Income (including without
limitation any reductions to Consolidated Net Income as a result
of minority or preferred interests of Venetian) less other
non-cash items increasing Consolidated Net Income, all of the
foregoing as determined on a consolidated basis for Borrowers and
their Subsidiaries in conformity with GAAP. Any cash equity
contributions made by Adelson or any of his Affiliates (other
than one of the Borrowers) to Borrowers and/or the face amount of
any Conforming Adelson L/C delivered to Drawing Agent for the
benefit of the Lenders and the FF&E Lenders during any quarter,
in an aggregate amount for such cash equity contributions and
face amounts of Conforming Adelson L/Cs not to exceed $15,000,000
per quarter, may at the written election of Borrowers be included
in Consolidated Adjusted EBITDA for such quarter for all purposes
hereunder, provided that Borrowers may not include such cash
equity contributions or the face amount of the Conforming Adelson
L/C, or any combination thereof, in Consolidated Adjusted EBITDA
(a) if any Conforming Adelson L/C Draw Event or any Event of
Default or Potential Event of Default has occurred and is
continuing at the time such cash contribution is made or such
Conforming Adelson L/C is provided to Drawing Agent or (b) in any
event, after two consecutive quarters unless, following any
exercise of such election to include any such cash equity
contributions and/or face amount of any Conforming Adelson L/C in
Consolidated Adjusted EBITDA, Borrowers have thereafter been in
compliance with subsection 7.6 on a rolling four quarter basis on
any test date occurring after such election (without giving
affect to any previous cash contributions or Conforming Adelson
L/C).
"Consolidated Capital Expenditures" means, for any period, the
sum of (i) the aggregate of all expenditures (whether paid in
cash or other consideration or accrued as a liability and
including that portion of Capital Leases which is capitalized on
the consolidated balance sheet of Borrowers) by Borrowers and
their Subsidiaries during that period that, in conformity with
GAAP, are included in "additions to property, plant or equipment"
or comparable items reflected in the consolidated statement of
cash flows of Borrowers plus (ii) to the extent not covered by
clause (i) of this definition, any expenditures by Borrowers
(excluding any Excluded Subsidiaries) during that period to
acquire (by purchase or otherwise) the business, property or
fixed assets of any Person, or the stock or other evidence of
beneficial ownership of any Person that, as a result of such
acquisition, becomes a Subsidiary of the Borrowers or either of
them.
"Consolidated Cash Interest Expense" means, for any period,
Consolidated Interest Expense for such period, excluding,
however, any interest expense not payable in Cash (including
amortization of discount and amortization of debt issuance
costs).
"Consolidated Current Assets" means, as at any date of
determination, the total assets of Borrowers and their
Subsidiaries on a consolidated basis (excluding any Excluded
Subsidiaries) which may properly be classified as current assets
in conformity with GAAP, excluding Cash and cash equivalents.
"Consolidated Current Liabilities" means, as at any date of
determination, the total liabilities of Borrowers and their
Subsidiaries on a consolidated basis (excluding any Excluded
Subsidiaries) which may properly be classified as current
liabilities in conformity with GAAP, excluding the current
portions of Funded Debt and any liabilities otherwise classified
as current liabilities in conformity with GAAP to the extent
incurred under the Operative Documents with respect to
construction of the Project.
"Consolidated Excess Cash Flow" means, for any period, an amount
(if positive) equal to (i) the sum, without duplication, of the
amounts for such period of (a) Consolidated Adjusted EBITDA and
(b) the Consolidated Working Capital Adjustment minus (ii) the
sum, without duplication, of the amounts for such period of (a)
voluntary and scheduled repayments of Consolidated Total Debt to
the extent actually paid (excluding repayments of Revolving Loans
except to the extent the Commitments are permanently reduced in
connection with such repayments), (b) Consolidated Capital
Expenditures (net of any proceeds of any related financings with
respect to such expenditures), (c) Consolidated Cash Interest
Expense other than any interest expense in respect of Employee
Repurchase Notes, (d) any amounts distributed by Borrowers for
tax payments in accordance with subsection 7.5 with respect to
such period and (without duplication) the provision for current
taxes based on income of Borrowers (excluding any Subsidiaries)
and payable by Borrowers to any Governmental Instrumentality in
cash with respect to such period, (e) any amounts distributed to
Borrowers or their Subsidiaries from New Mall Subsidiary, Mall
Subsidiary, Mall Direct Holdings, New Mall Manager or Mall
Manager following the sale or other disposition of all or any
portion of the Mall or any interest therein (including by sale or
other disposition of any equity interest in New Mall Subsidiary,
Mall Subsidiary, Mall Direct Holdings, Mall Holdings, Mall
Manager or New Mall Manager) or any issuance of debt or equity
securities of such entities to the extent included in
Consolidated Adjusted EBITDA up to the amount of the proceeds of
such sale, disposition or issuance (net of any distribution for
Permitted Quarterly Tax Distributions made in accordance with the
last sentence of subsection 2.4B(iii)(g)) and (f) the amount of
any Conforming Adelson L/C to the extent included in Consolidated
Adjusted EBITDA.
"Consolidated Fixed Charges" means, for any period, the sum
(without duplication) of the amounts for such period of (i)
Consolidated Cash Interest Expense, (ii) scheduled repayments of
principal on Indebtedness (other than repayment of the Revolving
Loan on the Revolving Loan Commitment Termination Date), (iii)
any amounts distributed by Borrowers for tax payments in
accordance with subsection 7.5 with respect to such period and
(without duplication) provisions for taxes based on income
payable by Borrowers to any Governmental Instrumentality, (iv)
Consolidated Rental Payments, and (v) Consolidated Capital
Expenditures, all of the foregoing as determined on a
consolidated basis for Borrowers and their Subsidiaries in
conformity with GAAP.
"Consolidated Interest Expense" means, for any period, total
interest expense (including that portion attributable to Capital
Leases in accordance with GAAP and capitalized interest) of
Borrowers and their Subsidiaries on a consolidated basis with
respect to all outstanding Indebtedness of Borrowers, including
all commissions, discounts and other fees and charges owed with
respect to letters of credit and bankers' acceptance financing
and net costs under Interest Rate Agreements, but excluding,
however, any amounts referred to in subsection 2.3 payable to
Agents and Lenders on or before the Closing Date.
"Consolidated Net Income" means, for any period, the net income
(or loss) of Borrowers and their Subsidiaries on a consolidated
basis for such period taken as a single accounting period
determined in conformity with GAAP; provided that there shall be
excluded (i) the income (or loss) of any Person (other than a
Subsidiary of a Borrower), except to the extent of the amount of
dividends or other distributions actually paid to Borrowers or
any of their Subsidiaries by such Person during such period, (ii)
the income (or loss) of any Person accrued prior to the date it
is merged into or consolidated with Borrowers or that Person's
assets are acquired by Borrowers, (iii) any after-tax gains or
losses attributable to Asset Sales or returned surplus assets of
any Pension Plan, (iv) dividends or distributions from any
Excluded Subsidiary to Borrowers or any Subsidiary which are used
to fund Permitted Quarterly Tax Distributions and (v) (to the
extent not included in clauses (i), (ii) and (iii) above) any net
extraordinary gains or net non-cash extraordinary losses.
"Consolidated Net Worth" means, as of any date of determination,
(i) the sum of the following items, as shown on the consolidated
balance sheet of LVSI and its Subsidiaries as of such date (a)
the common equity of LVSI and its Subsidiaries, (b)(1) the
aggregate liquidation preference of preferred stock or preferred
membership interests of LVSI and its Subsidiaries and (2) any
increase in depreciation and amortization resulting from any
purchase accounting treatment from an acquisition or related
financing; (ii) less any goodwill incurred subsequent to the
Closing Date and (iii) less any write up of assets (in excess of
fair market value) after the Closing Date, in each case on a
consolidated basis for LVSI and its Subsidiaries, determined in
accordance with GAAP; provided, that in calculating Consolidated
Net Worth, any gain or loss from any Asset Sale shall be
excluded.
"Consolidated Rental Payments" means, for any period, the
aggregate amount of all rents paid or payable by Borrowers and
their Subsidiaries on a consolidated basis (excluding any
Excluded Subsidiaries) during that period under all Capital
Leases to which either Borrower or any of their respective
Subsidiaries is a party as lessee. Notwithstanding the foregoing,
payments under the HVAC Services Agreement shall in no event be
included in Consolidated Rental Payments.
"Consolidated Total Debt" means, as at any date of determination,
the aggregate stated balance sheet amount of all Indebtedness of
Borrowers and their Subsidiaries, determined on a consolidated
basis in accordance with GAAP, excluding, however, any Employee
Purchase Notes entered into in accordance with subsection 7.1
(xi).
"Consolidated Working Capital" means, as at any date of
determination, the excess (or deficit) of Consolidated Current
Assets over Consolidated Current Liabilities.
"Consolidated Working Capital Adjustment" means, for any period
on a consolidated basis, the amount (which may be a negative
number) by which Consolidated Working Capital as of the beginning
of such period exceeds (or is less than) Consolidated Working
Capital as of the end of such period.
"Construction Agency Agreement" means that certain Construction
Agency Agreement dated as of the Closing Date by and between HVAC
Provider and Venetian.
"Construction Consultant" means Tishman Construction Corporation
of Nevada, or any other person designated from time to time by
the Administrative Agent, the Interim Mall Lender and the
Mortgage Notes Indenture Trustee, in their sole discretion,
acting pursuant to the Intercreditor Agreement, to serve as the
Construction Consultant under the Disbursement Agreement.
"Construction Consultant Engagement Agreement" means that certain
engagement letter dated November 14, 1997 by and among the
Construction Consultant, Borrowers, Administrative Agent, Interim
Mall Lender, Goldman Sachs Mortgage Company, the Mortgage Notes
Indenture Trustee and Goldman Sachs & Co.
"Construction Litigation" has the meaning assigned to that term
in subsection 5.17A.
"Construction Management Agreement" means that certain
Construction Management Agreement dated as of February 15, 1997
between Borrowers and Construction Manager for the construction
of the Project as amended and assigned to Venetian pursuant to a
certain Assignment, Assumption and Amendment of Construction
Management Agreement dated as of the Closing Date.
"Construction Manager" means Lehrer McGovern Bovis Inc., a New
York corporation and its successors and assigns permitted under
the Construction Management Agreement.
"Construction Related Obligations" means certain Legal
Requirements in connection with the development of the Project
including, without limitation, obligations under the Harrah's
Shared Roadway Agreement and the obligations referred to in
clause (v) of the definition of "Standby Letter of Credit".
"Contingent Obligation", as applied to any Person, means any
direct or indirect liability, contingent or otherwise, of that
Person (i) with respect to any Indebtedness, lease, dividend or
other obligation of another if the primary purpose or intent
thereof by the Person incurring the Contingent Obligation is to
provide assurance to the obligee of such obligation of another
that such obligation of another will be paid or discharged, or
that any agreements relating thereto will be complied with, or
that the holders of such obligation will be protected (in whole
or in part) against loss in respect thereof, (ii) with respect to
any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of
drawings, or (iii) under Interest Rate Agreements. Contingent
Obligations shall include (a) the direct or indirect guaranty,
endorsement (otherwise than for collection or deposit in the
ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation
of another, (b) the obligation to make take-or-pay or similar
payments if required regardless of non-performance by any other
party or parties to an agreement, and (c) any liability of such
Person for the obligation of another through any agreement
(contingent or otherwise) (X) to purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital
contributions or otherwise) or (Y) to maintain the solvency or
any balance sheet item, level of income or financial condition of
another if, in the case of any agreement described under
subclauses (X) or (Y) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The
amount of any Contingent Obligation shall be equal to the amount
of the obligation so guaranteed or otherwise supported or, if
less, the amount to which such Contingent Obligation is
specifically limited.
"Contractors" means any architects, consultants, designers,
contractors, sub-contractors, suppliers, laborers or any other
Person engaged by any Borrower(s) in connection with the design,
engineering, installation and construction of the Project (other
than Construction Manager).
"Contracts" means, collectively, the contracts entered into, from
time to time, between any Borrower(s) and any Contractor for
performance of services or sale of goods in connection with the
design, engineering, installation or construction of the Project.
"Contractual Obligation", as applied to any Person, means any
provision of any Security issued by that Person or of any
material indenture, mortgage, deed of trust, contract,
undertaking, agreement or other instrument to which that Person
is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
"Cooperation Agreement" means that certain Amended and Restated
Reciprocal Easement, Use and Operating Agreement dated as of the
Closing Date by and between LVSI, Venetian, Mall Construction
Subsidiary (replaced by New Mall Subsidiary pursuant to an
amendment dated December 20, 1999), Phase II Subsidiary and
Interface.
"Deed of Trust" means that certain Deed of Trust, Assignment of
Rents and Leases and Security Agreement in the form of Exhibit
XIII annexed hereto, dated effective as of the Closing Date
granted by Borrowers to the Title Company, for the benefit of
Administrative Agent, as agent for the Lenders.
"Deposit Account" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union
or like organization, other than an account evidenced by a
negotiable certificate of deposit.
"Direct Construction Guarantor" means Bovis, Inc., a New York
corporation or any successor permitted under the Direct
Construction Guaranty.
"Direct Construction Guaranty" means that certain Guaranty of
Performance and Completion dated as of August 19, 1997 executed
by the Direct Construction Guarantor in favor of LVSI.
"Disbursement Agent" means Scotiabank, in its capacity as
Disbursement Agent under the Disbursement Agreement, and any
successor Disbursement Agent appointed pursuant to the terms of
the Disbursement Agreement.
"Disbursement Agreement" means that certain Funding Agents'
Disbursement and Administration Agreement dated as of the Closing
Date among Borrowers, the Mall Construction Subsidiary, the
Administrative Agent, the Mortgage Notes Indenture Trustee, the
Interim Mall Lender, the HVAC Provider and the Disbursement
Agent.
"Disbursement Agreement Event of Default" means any Event of
Default under and as defined in the Disbursement Agreement.
"Dollars" and the sign "$" mean the lawful money of the United
States of America.
"Eighth Month Certificate" has the meaning set forth in the
Disbursement Agreement.
"Eligible Assignee" means (A) (i) a commercial bank organized
under the laws of the United States or any state thereof; (ii) a
savings and loan association or savings bank organized under the
laws of the United States or any state thereof; (iii) a
commercial bank organized under the laws of any other country or
a political subdivision thereof; provided that (x) such bank is
acting through a branch or agency located in the United States or
(y) such bank is organized under the laws of a country that is a
member of the Organization for Economic Cooperation and
Development or a political subdivision of such country; and (iv)
any other entity which is an "accredited investor" (as defined in
Regulation D under the Securities Act) which extends credit or
buys loans as one of its businesses including insurance
companies, mutual funds and lease financing companies; and (B)
any Lender and any Affiliate of any Lender; provided that no
Affiliate of Borrowers shall be an Eligible Assignee; and
provided further that so long as no Event of Default shall have
occurred and be continuing, no (i) Person that owns or operates a
casino located in the State of Nevada or the State of New Jersey
(or is an Affiliate of such a Person) (provided that a passive
investment constituting less than 20% of the common stock of any
such casino shall not constitute ownership thereof for the
purposes of this definition), (ii) Person that owns or operates a
convention, trade show or exhibition facility in Las Vegas,
Nevada or Clark County, Nevada (or an Affiliate of such a Person)
(provided that a passive investment constituting less than 20% of
the common stock of any such convention or trade show facility
shall not constitute ownership for the purpose of this
definition), or (iii) union pension fund (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 Assignee hereunder so
long as the manager of such fund is not controlled by a union),
shall be an Eligible Assignee, in each case which Person shall
not have been denied an approval or a license, or found
unsuitable under the Nevada Gaming Laws applicable to Lenders.
"Employee Benefit Plan" means any "employee benefit plan" as
defined in Section 3(3) of ERISA which is or was maintained or
contributed to by Borrowers, any of its Subsidiaries or any of
their respective ERISA Affiliates.
"Employee Repurchase Notes" has the meaning set forth in
subsection 7.1.
"Environmental Claim" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement
order or other order or directive (conditional or otherwise), by
any governmental authority or any other Person, arising (i)
pursuant to or in connection with any actual or alleged violation
of any Environmental Law, (ii) in connection with any Hazardous
Materials or any actual or alleged Hazardous Materials Activity,
or (iii) in connection with any actual or alleged damage, injury,
threat or harm to health, safety, natural resources or the
environment.
"Environmental Laws" means any and all current or future
statutes, ordinances, orders, rules, regulations, guidance
documents, judgments, Permits, or any other requirements of
governmental authorities relating to (i) environmental matters,
including those relating to any Hazardous Materials Activity,
(ii) the generation, use, storage, transportation or disposal of
Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or
animal health or welfare, in any manner applicable to Borrowers
or any of its Subsidiaries or any Facility, including the
Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C.ss. 9601 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C.ss. 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C.ss. 6901 et seq.), the
Federal Water Pollution Control Act (33 U.S.C.ss. 1251 et seq.),
the Clean Air Act (42 U.S.C.ss. 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C.ss. 2601 et seq.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C.ss.136 et
seq.), the Occupational Safety and Health Act (29 U.S.C.ss. 651
et seq.), the Oil Pollution Act (33 U.S.C.ss. 2701 et seq) and
the Emergency Planning and Community Right-to-Know Act (42
U.S.C.ss. 11001 et seq.), each as amended or supplemented, any
analogous present or future state or local statutes or laws, and
any regulations promulgated pursuant to any of the foregoing.
"Equipment Component" has the meaning assigned to that term in
the Disbursement Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor thereto.
"ERISA Affiliate" means, as applied to any Person, (i) any
corporation which is a member of a controlled group of
corporations within the meaning of Section 414(b) of the Code of
which that Person is a member; (ii) any trade or business
(whether or not incorporated) which is a member of a group of
trades or businesses under common control within the meaning of
Section 414(c) of the Code of which that Person is a member; and
(iii) any member of an affiliated service group within the
meaning of Section 414(m) or (o) of the Code of which that
Person, any corporation described in clause (i) above or any
trade or business described in clause (ii) above is a member. Any
former ERISA Affiliate of Borrowers or any of their Subsidiaries
shall continue to be considered an ERISA Affiliate of Borrowers
or such Subsidiary within the meaning of this definition with
respect to the period such entity was an ERISA Affiliate of
Borrowers or such Subsidiary and with respect to liabilities
arising after such period for which Borrowers or such Subsidiary
could be liable under the Code or ERISA.
"ERISA Event" means (i) a "reportable event" within the meaning
of Section 4043 of ERISA and the regulations issued thereunder
with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by
regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Code with respect to any Pension
Plan (whether or not waived in accordance with Section 412(d) of
the Code) or the failure to make by its due date a required
installment under Section 412(m) of the Code with respect to any
Pension Plan or the failure to make any required contribution to
a Multiemployer Plan; (iii) the provision by the administrator of
any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a
notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by
Borrowers, any of its Subsidiaries or any of their respective
ERISA Affiliates from any Pension Plan with two or more
contributing sponsors or the termination of any such Pension Plan
resulting in liability pursuant to Section 4063 or 4064 of ERISA;
(v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which
might constitute grounds under ERISA for the termination of, or
the appointment of a trustee to administer, any Pension Plan;
(vi) the imposition of liability on Borrowers, any of its
Subsidiaries or any of their respective ERISA Affiliates pursuant
to Section 4062(e) or 4069 of ERISA or by reason of the
application of Section 4212(c) of ERISA; (vii) the withdrawal of
Borrowers, any of its Subsidiaries or any of their respective
ERISA Affiliates in a complete or partial withdrawal (within the
meaning of Sections 4203 and 4205 of ERISA) from any
Multiemployer Plan if there is any potential liability therefor,
or the receipt by Borrowers, any of its Subsidiaries or any of
their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency
pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA;
(viii) the occurrence of an act or omission which could give rise
to the imposition on Borrowers, any of its Subsidiaries or any of
their respective ERISA Affiliates of fines, penalties, taxes or
related charges under Chapter 43 of the Code or under Section
409, Section 502(c), (i) or (l), or Section 4071 of ERISA in
respect of any Employee Benefit Plan; (ix) the assertion of a
material claim (other than routine claims for benefits) against
any Employee Benefit Plan other than a Multiemployer Plan or the
assets thereof, or against Borrowers, any of its Subsidiaries or
any of their respective ERISA Affiliates in connection with any
Employee Benefit Plan; (x) receipt from the Service of notice of
the failure of any Pension Plan (or any other Employee Benefit
Plan intended to be qualified under Section 401(a) of the Code)
to qualify under Section 401(a) of the Code, or the failure of
any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Code; or (xi)
the imposition of a Lien pursuant to Section 401(a)(29) or 412(n)
of the Code or pursuant to ERISA with respect to any Pension
Plan.
"Estimation Period" means the period for which a shareholder,
partner or member, who is an individual is required to estimate
for federal income tax purposes his allocation of taxable income
from a Subchapter S corporation or a partnership for federal
income tax purposes in connection with determining his estimated
federal income tax liability for such period.
"Eurodollar Rate Loans" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as
provided in subsection 2.2A.
"Event of Default" means each of the events set forth in Section
8.
"Event of Loss" means, with respect to any property or asset
(tangible or intangible, real or personal), any of the following:
(A) any loss, destruction or damage of such property or asset;
(B) any actual condemnation, seizure or taking by exercise of the
power of eminent domain or otherwise of such property or asset,
or confiscation of such property or asset or the requisition of
the use of such property or asset; or (C) any settlement in lieu
of clause (B) above.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Excluded Subsidiary" means any Person excluded from the
definition of Subsidiary by virtue of the last sentence of such
definition set forth in this Section 1.1 (including, without
limitation, New Mall Subsidiary, Mall Subsidiary, Phase II
Subsidiary, Mall Direct Holdings, Phase II Direct Holdings, Mall
Manager, New Mall Manager, and Phase II Manager).
"Existing Credit Agreement" has the meaning set forth in the
first Recital.
"Facilities" means any and all real property (including all
buildings, fixtures or other improvements located thereon) now,
hereafter or heretofore owned, leased, operated or used by
Borrowers or any of their Subsidiaries or any of their respective
predecessors or Affiliates including, without limitation, the
Site.
"FDIC" means the Federal Deposit Insurance Corporation.
"Federal Funds Effective Rate" means, for any period, a
fluctuating interest rate equal for each day during such period
to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by
Agent from three Federal funds brokers of recognized standing
selected by Administrative Agent.
"FF&E Facility" means the credit facilities, equipment leases or
similar agreements with the FF&E Lenders in an aggregate
principal amount of approximately $97,700,000 (plus accrued and
unpaid interest thereon) to finance the purchase and installment
of the Specified FF&E.
"FF&E Facility Agreement" means (i) that certain credit agreement
among Borrowers, General Electric Capital Corporation and the
other FF&E Lenders party thereto dated December 22, 1997, (ii)
such other agreements among FF&E Lender(s) and Borrowers
providing for all or a portion of the FF&E Facility (not covered
under clause (i)) on substantially the same terms as the
financing described in clause (i) above, or otherwise reasonably
satisfactory to the Arrangers and Administrative Agent, provided
in each case that the applicable FF&E Lenders have entered into
intercreditor agreement(s) in form and substance satisfactory to
the Administrative Agent.
"FF&E Intercreditor Agreement" means that certain Intercreditor
Agreement dated as of December 22, 1997 entered into among the
Administrative Agent, the Mortgage Notes Indenture Trustee, the
Interim Mall Lender and General Electric Capital Corporation as
agent for the FF&E Lenders and such other Persons as may be
necessary parties thereunder.
"FF&E Lenders" means (i) General Electric Capital Corporation,
and the other lenders that are parties to the FF&E Facility
Agreement described in clause (i) of the definition of such term
and (ii) any other lenders under any other FF&E Facility
Agreement, provided that each such other lender described in
clause (ii) would be an Eligible Assignee hereunder.
"Final Completion" has the meaning set forth in the Disbursement
Agreement.
"Final Completion Date" has the meaning set forth in the
Disbursement Agreement.
"Financial Plan" has the meaning assigned to that term in
subsection 6.1(xiii).
"Financing Agreements" means, collectively, this Agreement, the
Disbursement Agreement, the Interim Mall Credit Agreement, the
Mortgage Notes Indenture, the Collateral Documents, the Other
Security Documents, the Mortgage Notes, any Approved Equipment
Funding Commitment, the FF&E Facility Agreements, any Completion
Guaranty Note, any Substitute Tranche B Note (as such term is
defined in the Existing Credit Agreement), and any other loan or
security agreements entered into by Borrowers or any of their
Subsidiaries on, prior to or after the Closing Date (excluding
the Permanent Mall Loan Agreement) to finance the Project in
accordance with subsection 7.13 and, while applicable, the
Disbursement Agreement.
"First Priority" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document,
that such Lien is the only Lien (other than Liens permitted
pursuant to subsection 7.2) to which such Collateral is subject.
"First Priority Collateral" means all assets, property, real,
personal and mixed of Borrowers and their Subsidiaries, other
than the Mortgage Notes Proceeds Account, the GECC Proceeds
Account, the Interim Mall Proceeds Account, the HVAC Component,
the stock or membership interests of Subsidiaries and Excluded
Subsidiaries, provided, that any assets expressly excluded from
the Lien in favor of Administrative Agent on behalf of Lenders
under the Collateral Documents shall not constitute First
Priority Collateral and provided further to the extent that the
Lien of Administrative Agent in favor of the Lenders in any of
the Specified FF&E shall be released in accordance with the terms
of the Company Security Agreement, such Specified FF&E shall
thereafter be excluded from the First Priority Collateral.
"Fiscal Quarter" means a fiscal quarter of any Fiscal Year.
"Fiscal Year" means the fiscal year of Borrowers ending on
December 31 of each calendar year.
"Funded Debt", as applied to any Person, means all Indebtedness
of that Person (including any current portions thereof) which by
its terms or by the terms of any instrument or agreement relating
thereto matures more than one year from, or is directly renewable
or extendable at the option of that Person to a date more than
one year from (including an option of that Person under a
revolving credit or similar agreement obligating the lender or
lenders to extend credit over a period of one year or more from),
the date of the creation thereof.
"Funding and Payment Office" means (i) the office of
Administrative Agent located at 600 Peachtree Street NE, Suite
2700, Atlanta, Georgia 30308 or (ii) such other office of
Administrative Agent as may from time to time hereafter be
designated as such in a written notice delivered by
Administrative Agent to Borrowers and each Lender.
"Funding Date" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application
thereof set forth in subsection 1.2, generally accepted
accounting principles set forth in opinions and pronouncements of
the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a
significant segment of the accounting profession, in each case as
the same are applicable to the circumstances as of the date of
determination.
"Gaming License" means every license, franchise or other
authorization to own, lease, operate or otherwise conduct gaming
activities of the Borrowers or any of their Subsidiaries,
including without limitation, all such licenses granted under the
Nevada Gaming Control Act, and the regulations promulgated
pursuant thereto, and other applicable federal, state, foreign or
local laws.
"GECC Proceeds Account" means an account funded solely by
proceeds of loans made pursuant to a credit agreement made by and
between LVSI and/or Venetian and General Electric Capital
Corporation and other Lenders party thereto.
"GMAC Guaranty" means the guaranty dated as of November 14, 1997
by Adelson in favor of Interim Mall Lender.
"Governmental Instrumentality" means any national, state or local
government (whether domestic or foreign), any political
subdivision thereof or any other governmental,
quasi-governmental, judicial, public or statutory
instrumentality, authority, body, agency, bureau or entity,
(including the Nevada Gaming Authorities, any zoning authority,
the FDIC, the Comptroller of the Currency or the Federal Reserve
Board, any central bank or any comparable authority) or any
arbitrator with authority to bind a party at law.
"Harrah's Shared Roadway Agreement" has the meaning assigned that
term in the Disbursement Agreement.
"Hazardous Materials" means (i) any chemical, material or
substance at any time defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous
materials", "extremely hazardous waste", acutely hazardous
waste", "radioactive waste", "biohazardous waste", "pollutant",
"toxic pollutant", "contaminant", "restricted hazardous waste",
"infectious waste", "toxic substances", or any other term or
expression intended to define, list or classify substances by
reason of properties harmful to health, safety or the indoor or
outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity,
reproductive toxicity, "TCLP toxicity" or "EP toxicity" or words
of similar import under any applicable Environmental Laws); (ii)
any oil, petroleum, petroleum fraction or petroleum derived
substance; (iii) any drilling fluids, produced waters and other
wastes associated with the exploration, development or production
of crude oil, natural gas or geothermal resources; (iv) any
flammable substances or explosives; (v) any radioactive
materials; (vi) any asbestos-containing materials; (vii) urea
formaldehyde foam insulation; (viii) electrical equipment which
contains any oil or dielectric fluid containing polychlorinated
biphenyls; (ix) pesticides; and (x) any other chemical, material
or substance, exposure to which is prohibited, limited or
regulated by any governmental authority or which may or could
pose a hazard to the health and safety of the owners, occupants
or any Persons in the vicinity of any Facility or to the indoor
or outdoor environment.
"Hazardous Materials Activity" means any past, current, proposed
or threatened activity, event or occurrence involving any
Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release,
threatened Release, discharge, placement, generation,
transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any
Hazardous Materials, and any corrective action or response action
with respect to any of the foregoing.
"HC/Mall Component" has the meaning given that term in Exhibit A
to the Disbursement Agreement.
"HVAC Ground Lease" means that certain Ground Lease made
effective as of the Closing Date between Venetian and the HVAC
Provider.
"HVAC Component" has the meaning given that term in Exhibit A to
the Disbursement Agreement.
"HVAC Letters of Credit" has the meaning given to that term in
Section 2.4 of the Disbursement Agreement.
"HVAC Provider" means Atlantic-Pacific, Las Vegas LLC, a Delaware
limited liability company or its permitted successors under the
HVAC Services Agreement. "HVAC Services Agreements" means
collectively (i) that certain Energy Services Agreement dated as
of the Closing Date between Venetian and the HVAC Provider, (ii)
the HVAC Ground Lease, (iii) the Construction Agency Agreement
and (iv) that certain Energy Services Agreement dated as of the
Closing Date between Mall Construction Subsidiary and the HVAC
Provider.
"Improvements" means the buildings, fixtures and other
improvements to be situated on the Site.
"Indebtedness", as applied to any Person, means (i) all
indebtedness for borrowed money, (ii) that portion of obligations
with respect to Capital Leases that is properly classified as a
liability on a balance sheet in conformity with GAAP, (iii) notes
payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money, (iv)
any obligation owed for all or any part of the deferred purchase
price of property or services (excluding any such obligations
incurred under ERISA and trade payables and accruals incurred in
the ordinary course of business), and (v) all indebtedness
secured by any Lien on any property or asset owned or held and
under Contracts by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that
Person or is nonrecourse to the credit of that Person.
Obligations under Interest Rate Agreements constitute Contingent
Obligations and not Indebtedness. All obligations under the
Financing Agreements shall constitute Indebtedness. Obligations
under the HVAC Services Agreement (as in effect on the Closing
Date) shall be treated as a service contract and not
Indebtedness.
"Indemnitee" has the meaning assigned to that term in subsection
10.3.
"Indentures" means the Mortgage Notes Indenture and the
Subordinated Notes Indenture or either one of them.
"Independent Consultants" means collectively the Construction
Consultant, the Insurance Advisor or in either case their
successors appointed pursuant to the Disbursement Agreement.
"Independent Financial Advisor" means an accounting, appraisal or
investment banking firm of nationally recognized standing that
is, in the judgment of LVSI's Board of Directors, (i) qualified
to perform the task for which it has been engaged and (ii)
disinterested and independent with respect to LVSI and its
Subsidiaries and each Affiliate of LVSI and Adelson.
"Indirect Construction Guarantor" means The Peninsular and
Oriental Steam Navigation Company, a corporation organized under
the laws of England and Wales.
"Indirect Construction Guaranty" means that certain Guaranty
dated as of August 19, 1997 executed by Indirect Construction
Guarantor in favor of LVSI.
"Insurance Advisor" means Sedgwick James of Tennessee, Inc., or
its successor, appointed pursuant to the Disbursement Agreement.
"Intellectual Property" means all patents, trademarks,
tradenames, copyrights, technology, know-how and processes used
in or necessary for the conduct of the business of Borrowers as
proposed to be conducted pursuant to the Operative Documents that
are material to the condition (financial or otherwise), business
or operations of the Borrowers.
"Intercreditor Agent" means Scotiabank, in its capacity as
Intercreditor Agent under the Intercreditor Agreement, and any
successor Intercreditor Agent appointed pursuant to the terms of
the Intercreditor Agreement.
"Intercreditor Agreement" means that certain Intercreditor
Agreement dated as of the Closing Date among the Administrative
Agent, the Intercreditor Agent, the Mortgage Notes Indenture
Trustee, the Interim Mall Lender and the Subordinated Notes
Indenture Trustee, in substantially the form of Exhibit XIV
annexed hereto.
"Interest Payment Date" means (i) with respect to any Base Rate
Loan, each March 31, June 30, September 30 and December 31 of
each year, commencing on the first such date to occur after the
Closing Date, and (ii) with respect to any Eurodollar Rate Loan,
the last day of each Interest Period applicable to such Loan;
provided that in the case of each Interest Period of longer than
three months "Interest Payment Date" shall also include each date
that is three months, or an integral multiple thereof, after the
commencement of such Interest Period.
"Interest Period" has the meaning assigned to that term in
subsection 2.2B.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or
other similar agreement or arrangement.
"Interest Rate Determination Date" means, with respect to any
Interest Period, two Business Days prior to the first day of such
Interest Period.
"Interface" means Interface Group-Nevada, Inc., a Nevada
corporation.
"Interface Lease" means the lease agreement dated November 1,
1996 between Interface and LVSI.
"Interim Mall Credit Agreement" means that certain Credit
Agreement dated as of the Closing Date among Borrowers, Mall
Construction Subsidiary and Interim Mall Lender.
"Interim Mall Lender" means GMAC Commercial Mortgage Corporation
and its permitted successors and assigns.
"Interim Mall Proceeds Account" has the meaning assigned that
term in the Disbursement Agreement.
"Intermediate Holding Companies" means Mall Holdings and the
Phase II Holdings.
"Investment" means (i) any direct or indirect purchase or other
acquisition by Borrowers or any of their Subsidiaries of, or of a
beneficial interest in, any Securities of any other Person
(including any Subsidiary), (ii) any direct or indirect
redemption, retirement, purchase or other acquisition for value,
by Borrowers or any of their Subsidiaries from any Person, of any
equity Securities of any Subsidiary of Borrowers, or (iii) any
direct or indirect loan, advance (other than advances to
employees for moving, entertainment and travel expenses, drawing
accounts and similar expenditures in the ordinary course of
business) or capital contribution by Borrowers or any of their
Subsidiaries to any other Person, including all indebtedness and
accounts receivable from that other Person that are not current
assets or did not arise from sales to that other Person in the
ordinary course of business other than Interest Rate Agreements
required or permitted hereunder to hedge against fluctuations in
interest rates. 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.
"Issuing Lender" means, with respect to any Letter of Credit, the
Lender which agrees or is otherwise obligated to issue such
Letter of Credit, determined as provided in subsection 3.1B(ii).
"Joint Venture" means a joint venture, partnership or other
similar arrangement, whether in corporate, partnership, limited
liability company or other legal form; provided that in no event
shall any corporate Subsidiary of any Person be considered to be
a Joint Venture to which such Person is a party.
"Legal Requirements" means all laws, statutes, orders, decrees,
injunctions, licenses, permits, approvals, agreements and
regulations of any Governmental Instrumentality having
jurisdiction over the matter in question.
"Lender" and "Lenders" means the persons identified as "Lenders"
and listed on the signature pages of this Agreement, whether or
not executed by such Lenders, together with their successors and
permitted assigns pursuant to subsection 10.1; provided that the
term "Lenders", when used in the context of a particular
Commitment, shall mean Lenders having that Commitment.
"Letter of Credit" or "Letters of Credit" means Commercial
Letters of Credit and Standby Letters of Credit issued or to be
issued by Issuing Lenders for the account of Borrowers pursuant
to subsection 3.1.
"Letter of Credit Usage" means, as at any date of determination,
the sum of (i) the maximum aggregate amount which is or at any
time thereafter may become available for drawing under all
Letters of Credit then outstanding plus (ii) the aggregate amount
of all drawings under Letters of Credit honored by Issuing
Lenders and not theretofore reimbursed by Borrowers (including
any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B).
"Leverage Ratio" has the meaning assigned that term in subsection
7.6B.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in
respect of such asset, whether or not filed, recorded or
otherwise perfected under applicable law (including any
conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give
a security interest in and any filing of or agreement to give any
financing statement under the UCC).
"Liquidated Damages" means any proceeds or liquidated damages
paid pursuant to any obligation, default or breach under the
Contracts and Indirect Construction Guaranty and Direct
Construction Guaranty (net of actual and documented reasonable
costs incurred by Borrowers in connection with adjustment or
settlement thereof, including taxes and any reasonable provisions
made in respect of such costs and expenses (including any such
taxes paid or payable by an owner of either Borrower or any of
its Subsidiaries)). For purposes of this definition, so-called
"liquidated damages" insurance policies shall be deemed to be
Contracts.
"Loan" or "Loans" means one or more of the Term Loans or the
Revolving Loans or any combination thereof.
"Loan Documents" means this Agreement, the Notes, the Letters of
Credit (and any applications for, or reimbursement agreements or
other documents or certificates executed by Borrowers in favor of
an Issuing Lender relating to, the Letters of Credit) the
Subsidiary Guaranties, the Disbursement Agreement and the
Collateral Documents.
"Loan Exposure" means, with respect to any Lender as of any date
of determination, the sum of (i) such Lender's Tranche A Term
Loan Exposure, (ii) such Lender's Tranche B Term Loan Exposure
and (iii) such Lender's Revolving Loan Exposure.
"Loan Party" means each Borrower, Mall Construction Subsidiary,
each Intermediate Holding Company and each other Subsidiary of a
Borrower which may hereafter become a party to any Loan Document
and "Loan Parties" means all such Persons, collectively.
"Loss Proceeds" has the meaning assigned to that term in the
Disbursement Agreement.
"LVSI" means Las Vegas Sands, Inc., a Nevada corporation.
"Mall" means the retail mall component of the Project described
in more detail on Exhibit T-7 to the Disbursement Agreement.
"Mall Construction Subsidiary" means Grand Canal Shops Mall
Construction, LLC, a Delaware limited liability company and a
wholly-owned subsidiary of Venetian.
"Mall Construction Subsidiary Security Agreement" means the
Security Agreement executed and delivered by Mall Construction
Subsidiary on the Closing Date, substantially in the form of
Exhibit XIX annexed hereto.
"Mall Direct Holdings" means Grand Canal Shops Mall Holding
Company, LLC, a Delaware limited liability company.
"Mall Escrow Agreement" has the meaning set forth in the
Disbursement Agreement.
"Mall Holdings" means Mall Intermediate Holding Company LLC, a
Delaware limited liability company and a wholly-owned Subsidiary
of Venetian.
"Mall Management Agreement" means that certain Management
Agreement between LVSI and Mall Operator pursuant to which Mall
Operator has agreed to perform certain management services
related to the Mall, as the same has been assigned to Mall
Subsidiary and subsequently to New Mall Subsidiary.
"Mall Manager" means Grand Canal Shops Mall MM, Inc., a Nevada
corporation and a wholly-owned subsidiary of LVSI.
"Mall Operator" means Forest City Commercial Management, Inc., an
Ohio corporation, and any replacement Mall Operator selected in
accordance with the terms hereof.
"Mall Parcel" means the mall space subdivided from the Site as
one or more legally separate parcel and recorded with the
applicable Governmental Authorities as described in more detail
in Exhibit T-7 to the Disbursement Agreement.
"Mall Parcel Creation Date" has the meaning assigned to that term
in the Disbursement Agreement.
"Mall Release Date" means November 12, 1999.
"Mall Retainage/Punchlist Account" has the meaning set forth in
the Disbursement Agreement.
"Mall Subsidiary" means Grand Canal Shops Mall LLC, a Delaware
limited liability company.
"Margin Stock" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve
System as in effect from time to time.
"Material Adverse Effect" means (i) a material adverse effect
upon the business, operations, properties, assets, condition
(financial or otherwise) or prospects of either (a) Borrowers and
any of their Subsidiaries, taken as a whole or (b) Borrowers and
any of their Subsidiaries and Excluded Subsidiaries, taken as a
whole or (ii) the material impairment of the ability of any Loan
Party to observe or perform, or of Administrative Agent or
Lenders to enforce, the Obligations.
"Material Contract" means any contract or other arrangement to
which any Borrower(s), or any of their Subsidiaries are a party
(other than the Loan Documents) for which breach, nonperformance,
cancellation or failure to renew could reasonably be expected to
have a Material Adverse Effect.
"Mortgage Notes" means the 12.25% Mortgage Notes due 2004 issued
by Borrowers pursuant to the Mortgage Notes Indenture. "Mortgage
Notes Collateral Account Agreement" has the meaning assigned to
that term in the Disbursement Agreement.
"Mortgage Note Holders" means the holders of the Mortgage Notes.
"Mortgage Notes Indenture" means that certain Indenture dated as
of November 14, 1997 between Borrowers, certain guarantors named
therein and the Mortgage Notes Indenture Trustee.
"Mortgage Notes Indenture Trustee" means US Bank Trust National
Association (formerly known as First Trust National Association)
in its capacity as the trustee under the Mortgage Notes Indenture
and its successors in such capacity.
"Mortgage Notes Proceeds" means the gross proceeds from the
issuance of the Mortgage Notes in the amount of at least
$425,000,000 (before deduction for underwriter's discounts, fees
and expenses).
"Mortgage Notes Proceeds Account" has the meaning set forth in
the Disbursement Agreement.
"Mortgage Policy" has the meaning assigned to that term in the
Existing Credit Agreement.
"Mortgaged Property" means the real property described in
Schedule 5.5.
"Multiemployer Plan" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"Net Asset Sale Proceeds" means the aggregate cash proceeds
received by any Borrower or any of its Subsidiaries in respect of
any Asset Sale, net of the direct costs relating to such Asset
Sale (including, without limitation legal, accounting and
investment banking fees and expenses, employee severance and
termination costs, any trade payables or similar liabilities
related to the assets sold and required to be paid by the seller
as a result thereof and sales, finders' or broker's commission),
and any relocation expenses incurred as a result thereof and
taxes paid or payable as result thereof (including, without
limitation, any such taxes paid or payable by an owner of
Borrower or any of its Subsidiaries) (after taking into account
any available tax credits or deductions and any tax sharing
arrangements), amounts required to be applied to the repayment of
Indebtedness secured by a Lien (or amounts permitted by the terms
of such Indebtedness to be otherwise reinvested in the Project to
the extent so reinvested) which is prior to the Lien under the
Collateral Documents on the asset or assets that are the subject
of such Asset Sale, all distributions and other payments required
to be made to minority interest holders in a Subsidiary or joint
venture as a result of the Asset Sale and 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
Asset Sale.
"Net Loss Proceeds" means the aggregate cash proceeds received by
any Borrower or any of its Subsidiaries in respect of any Event
of Loss, including, without limitation, insurance proceeds,
condemnation awards or damages awarded by any judgment, net of
the direct costs in recovery of such Net Loss Proceeds
(including, without limitation, legal, accounting, appraisal and
insurance adjuster fees and expenses) and any taxes paid or
payable as a result thereof (including, without limitation, any
such taxes paid or payable by an owner of Borrower or any of its
Subsidiaries) (after taking into account any available tax
credits or deductions and any tax sharing arrangements) and
amounts required to be applied to the repayment of Indebtedness
secured by a Lien (or amounts permitted by the terms of such
Indebtedness to be otherwise reinvested in the Project to the
extent so reinvested) which is prior to the Liens of Lenders
under the Collateral Documents on the asset or assets that are
the subject of the Event of Loss. Notwithstanding the foregoing,
all proceeds of so-called "liquidated damages" insurance policies
shall not be Net Loss Proceeds but shall be Liquidated Damages.
"Nevada Gaming Authorities" shall mean, collectively, the Nevada
Gaming Commission, the Nevada State Gaming Control Board, and the
Clark County Liquor and Gaming Licensing Board.
"Nevada Gaming Laws" shall mean the Nevada Gaming Control Act, as
modified in Chapter 463 of the Nevada Revised Statutes, as
amended from time to time, and the regulations of the Nevada
Gaming Commission promulgated thereunder, as amended from time to
time.
"New Mall Manager" means Grand Canal Shops Mall MM Subsidiary,
Inc., a Nevada corporation and a wholly-owned subsidiary of Mall
Manager.
"New Mall Subsidiary" means Grand Canal Shops Mall Subsidiary,
LLC, a Delaware limited liability company.
"Non-Recourse Financing" means Indebtedness incurred in
connection with the purchase or lease of personal or real
property useful in the business of Borrowers and their
Subsidiaries and (i) as to which the lender upon default may seek
recourse or payment as against a Borrower or any of its
Subsidiaries only through the return or sale of the property or
equipment so purchased or leased and (ii) may not otherwise
assert a valid claim for payment on such Indebtedness against a
Borrower or any of its Subsidiaries or any other property of a
Borrower or any of its Subsidiaries.
"Notes" means one or more of the Term Notes or Revolving Notes or
any combination thereof.
"Notice of Borrowing" means a notice substantially in the form of
Exhibit I-A and/or Exhibit I-B annexed hereto delivered by
Borrowers to Administrative Agent pursuant to subsection 2.1B
with respect to a proposed borrowing.
"Notice of Conversion/Continuation" means a notice substantially
in the form of Exhibit II annexed hereto delivered to
Administrative Agent pursuant to subsection 2.2D with respect to
a proposed conversion or continuation of the applicable basis for
determining the interest rate with respect to the Loans specified
therein.
"Notice of Funding Request" has the meaning assigned that term in
the Disbursement Agreement.
"Notice of Issuance of Letter of Credit" means a notice
substantially in the form of Exhibit XV annexed hereto delivered
by Borrowers to Administrative Agent pursuant to subsection
3.1B(i) with respect to the proposed issuance of a Letter of
Credit.
"Obligations" means all obligations of every nature of each Loan
Party from time to time owed to Administrative Agent, Arrangers,
Syndication Agent, Lenders or any of them under the Loan
Documents, whether for principal, interest, reimbursement of
amounts drawn under Letters of Credit, fees, expenses,
indemnification or otherwise.
"Officers' Certificate" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its
chairman of the board (if an officer) or its president or one of
its vice presidents and by its chief financial officer or its
treasurer (in their capacity as such officer); provided that
every Officers' Certificate with respect to the compliance with a
condition precedent to the making of any Loans hereunder shall
include (i) a statement that the officer or officers making or
giving such Officers' Certificate have read such condition and
any definitions or other provisions contained in this Agreement
relating thereto, (ii) a statement that, in the opinion of the
signers, they have made or have caused to be made such
examination or investigation as is reasonably necessary to enable
them to express an informed opinion as to whether or not such
condition has been complied with, and (iii) a statement as to
whether, in the opinion of the signers, such condition has been
complied with in all material respects.
"Opening Conditions" has the meaning set forth in the
Disbursement Agreement.
"Opening Date" means the date on which the hotel, casino, or mall
portion of the Project opened for business.
"Operating Lease" means, as applied to any Person, any lease
(including leases that may be terminated by the lessee at any
time) of any property (whether real, personal or mixed) that is
not a Capital Lease other than any such lease under which that
Person is the lessor.
"Operative Documents" means the Financing Agreements and the
Project Documents.
"Organizational Documents" means (i) with respect to any
corporation, its certificate or articles of incorporation and its
bylaws, (ii) with respect to any limited partnership, its
certificate of limited partnership and its partnership agreement,
(iii) with respect to any general partnership, its partnership
agreement, (iv) with respect to any limited liability company,
its articles or certificate of organization and its operating
agreement and (v) with respect to any other entity, its
equivalent organizational, governing documents.
"Other Indebtedness" means (i) the Indebtedness of any Borrower
or any of its Subsidiaries evidenced by the Mortgage Notes, (ii)
the Indebtedness of any Borrower or any of its Subsidiaries
evidenced by the Subordinated Notes, (iii) [intentionally
omitted], (iv) the Indebtedness of any Borrower or any of its
Subsidiaries evidenced by the FF&E Facility Agreement, (v) any
Indebtedness of any Borrower or any of its Subsidiaries in
respect of any Completion Guaranty Loan and (vi) any Indebtedness
of any Borrower under an Employee Repurchase Note.
"Other Security Documents" means, the Security Documents as
defined in the Disbursement Agreement, other than the Collateral
Documents.
"Outside Completion Deadline" means April 21, 1999, as such date
was extended pursuant to Section 6.4 of the Disbursement
Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Code
or Section 302 of ERISA.
"Permanent Mall Lender" means any lender party from time to time
to the Permanent Mall Loan Agreement including, but not limited
to, Goldman Sachs Mortgage Company, Scotiabank and any permitted
successor or replacement thereto.
"Permanent Mall Loan Agreement" means that certain Loan Agreement
dated as of December 20, 1999 by and among New Mall Subsidiary,
as borrower, Goldman Sachs Mortgage Company, as Syndication
Agent, Scotiabank, as Collateral Agent and Administrative Agent,
and the Permanent Mall Lenders party thereto from time to time.
"Permits" means all authorizations, consents, decrees, permits,
waivers, privileges, approvals from and filings with all
Governmental Instrumentalities including, without limitation, the
Nevada Gaming Authorities necessary for the realization of the
Project in accordance with the Operative Documents.
"Permitted Employee Repurchase" has the meaning set forth in
subsection 7.1.
"Permitted Liens" means the following types of Liens (excluding
any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of
the Code or by ERISA, any such Lien relating to or imposed in
connection with any Environmental Claim, and any such Lien
expressly prohibited by any applicable terms of any of the
Collateral Documents provided in each case that such Liens do not
secure Indebtedness for borrowed money:
(i) Liens for taxes, assessments or governmental charges or
claims the payment of which is not, at the time, required by
subsection 6.3;
(ii) statutory Liens of landlords, statutory 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 or (b) for amounts that
are overdue and that (in the case of any such amounts overdue for
a period in excess of 5 days) are being contested in good faith
by appropriate proceedings, so long as (1) such reserves or other
appropriate provisions, if any, as shall be required by GAAP
shall have been made for any such contested amounts, and (2) in
the case of a Lien with respect to any portion of the Collateral,
such contest proceedings conclusively operate to stay the sale of
any portion of the Collateral on account of such Lien;
(iii) 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
borrowed money), incurred in the ordinary course of business (a)
for amounts not yet overdue or (b) for amounts that are overdue
and that (in the case of any such amounts overdue for a period in
excess of 5 days) are being contested in good faith by
appropriate proceedings, so long as (1) such reserves or other
appropriate provisions, if any, as shall be required by GAAP
shall have been made for any such contested amounts and (2) in
the case of a Lien with respect to any portion of the Collateral,
such contest proceedings conclusively operate to stay the sale of
any portion of the Collateral on account of such Lien;
(iv) any attachment or judgment Lien not constituting an
Event of Default under subsection 8.8;
(v) leases or subleases granted to third parties in
accordance with any applicable terms of this Agreement and the
Collateral Documents and not interfering in any material respect
with the ordinary conduct of the business of a Borrower or any of
its Subsidiaries;
(vi) easements, rights-of-way, restrictions, encroachments,
and other minor defects or irregularities in title, in each case
which do not and will not interfere in any material respect with
the ordinary conduct of the business of a Borrower or any of its
Subsidiaries or result in a material diminution in the value of
any Collateral as security for the Obligations;
(vii) leases permitted under subsection 7.7 and any
leasehold mortgage in favor of any party financing the lessee
under any lease permitted under subsection 7.7 provided that (a)
none of the Borrowers nor any of their Subsidiaries is liable for
the payment of any principal of, or interest, premiums or fees
on, such financing and (b) the affected lease and leasehold
mortgage are expressly made subject and subordinate to the Lien
of the Deed of Trust;
(viii) Liens created or contemplated by the Cooperation
Agreement (as in effect on the Closing Date);
(ix) Liens on real property of Borrowers arising pursuant to
that certain Harrah's Shared Roadway Agreement (as in effect on
the Closing Date);
(x) Liens incurred in connection with the construction of a
pedestrian bridge or a pedestrian tunnel under Las Vegas
Boulevard and Sands Avenue provided that such Liens will not (i)
materially interfere with, impair or detract from the operation
of the business of Borrowers and their Subsidiaries or the
construction or operation of the Project and (ii) cause a
material decrease in the value of the Collateral.
(xi) Liens arising from filing UCC financing statements
relating solely to leases permitted by this Agreement; (xii)
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;
(xiii) 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;
(xiv) licenses of patents, trademarks and other intellectual
property rights granted by a Borrower or any of its Subsidiaries
in the ordinary course of business and not interfering in any
material respect with the ordinary conduct of the business of
such Borrower or such Subsidiary; and
(xv) Liens created under the HVAC Services Agreements (as in
effect on the Closing Date);
(xvi) Liens created under the Predevelopment Agreement (as
in effect on the Closing Date);
(xvii) easements, restrictions, rights of way, encroachments
and other minor defects or irregularities in title incurred in
connection with the traffic study relating to increased traffic
on Las Vegas Boulevard as a result of completion of the Project;
(xviii) Liens incurred in connection with Interest Rate
Agreements required or permitted to be maintained hereunder and
any Interest Rate Agreement intended to hedge interest rate risk
in respect of the FF&E Facility;
(xix) restrictions created under the Sale and Contribution
Agreement (as in effect on the Closing Date);
(xx) prior to the Final Completion Date any "Permitted
Liens" under the Disbursement Agreement; and
(xxi) Liens listed on Schedule 7.7.
"Permitted Quarterly Tax Distributions" means quarterly
distributions of Tax Amounts determined on the basis of the
estimated taxable income of LVSI or Venetian, as the case may be
(in each case including any such taxable income attributable to
such entity's ownership of interest in any other pass-through
entity for Federal income tax purposes except that if all or any
portion of the Completion Guaranty Loan is outstanding and held
by Adelson or a Related Party and is not paying current cash
interest, then such estimated taxable income shall be determined
without giving effect to any non-cash interest payments on such
loans held by Adelson or the Related Parties to the extent such
non-cash interest is deductible), for the related Estimation
Period, as in a statement filed with the Administrative Agent,
provided, however, that (A) prior to any distributions of Tax
Amounts the Borrowers shall deliver an officers' certificate with
a statement to the effect that in the case of distributions to be
made by Venetian, Venetian qualifies as a partnership or a
substantially similarly treated pass-through entity for federal
income tax purposes or that, in the case of distributions to be
made by LVSI, LVSI qualifies as a Subchapter S corporation under
the Code or a substantially similarly treated pass-through entity
for federal income tax purposes, as the case may be, and (B) at
the time of such distributions, the most recent audited financial
statements of LVSI reflect that LVSI was treated as a Subchapter
S corporation under the Code or a substantially similarly treated
pass-through entity for federal income tax purposes and Venetian
was treated as a partnership or substantially similarly treated
pass-through entity for Federal income tax purposes for the
period covered by such financial statements; provided, further,
that, for an Estimation Period that includes a True-up
Determination Date, (A) if the True-up Amount is due to the
members or shareholders, as the case may be, the Permitted
Quarterly Tax Distribution payable by LVSI or Venetian, as the
case may be, for the Estimation Period shall be increased by such
True-up Amount, and (B) if the True-up Amount is due to LVSI or
Venetian, the Permitted Quarterly Tax Distribution payable by
LVSI or Venetian as the case may be, for the Estimation Period
shall be reduced by such True-up Amount and the excess, if any,
of the True-up Amount over such Permitted Quarterly Tax
Distribution shall be applied to reduce the immediately following
Permitted Quarterly Tax Distribution(s) until such True-up Amount
is entirely offset. The amount of Permitted Quarterly Tax
Distribution relating to an Estimation Period including a True-up
Determination Date shall be determined by a Tax Amounts CPA, and
the amount of Permitted Quarterly Tax Distribution relating to
all other Estimation Periods shall be determined by LVSI or
Venetian, as the case may be.
"Person" means and includes natural persons, corporations,
limited partnerships, general partnerships, limited liability
companies, limited liability partnerships, joint stock companies,
Joint Ventures, associations, companies, trusts, banks, trust
companies, land trusts, business trusts or other organizations,
whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political
subdivisions thereof) and agencies or other administrative or
regulatory bodies thereof.
"Phase II" means a hotel, casino and mall complex proposed to be
developed on the Phase II Land.
"Phase II Casino Lease" means the gaming operations lease between
the Phase II Subsidiary and LVSI or Venetian pursuant to which
LVSI or Venetian will operate the gaming operations of the Phase
II, entered into in accordance with subsection 7.10.
"Phase II Direct Holdings" means Lido Casino Resort Holding
Company, LLC, a Delaware limited liability company.
"Phase II Holdings" means Lido Intermediate Holding Company, LLC,
a Delaware limited liability company, and a wholly-owned
Subsidiary of Venetian.
"Phase II Land" means the real property consisting of
approximately 14 acres of the Real Estate Contribution as
described in more detail in Exhibit T-5 of the Disbursement
Agreement together with all improvements thereon.
"Phase II Manager" means Lido Casino Resort MM, Inc., a Nevada
corporation, and wholly-owned subsidiary of LVSI and the managing
member of Phase II Subsidiary.
"Phase II Release Conditions" has the meaning assigned to that
term in the Disbursement Agreement.
"Phase II Subsidiary" means Lido Casino Resort, LLC, a Nevada
limited liability company.
"Plans and Specifications" has the meaning assigned to that term
in the Disbursement Agreement.
"Potential Event of Default" means a condition or event that,
after notice or lapse of time or both, would constitute an Event
of Default.
"Pre-Completion Revenues Account" has the meaning assigned to
that term in the Disbursement Agreement.
"Predevelopment Agreement" means the Sands Resort Hotel Casino
Agreement dated February 18, 1997 by and between Clark County and
LVSI.
"Prime Rate" means the rate that Scotiabank announces from its
New York office from time to time as its Dollar prime lending
rate, as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or
best rate actually charged to any customer. Scotiabank or any
other Lender may make commercial loans or other loans at rates of
interest at, above or below the Prime Rate.
"Pro Rata Share" means (i) with respect to all payments,
computations and other matters relating to the Tranche A Term
Loan Commitment or the Tranche A Term Loan of any Lender, the
percentage obtained by dividing (x) the Tranche A Term Loan
Exposure of that Lender by (y) the aggregate Tranche A Term Loan
Exposure of all Lenders, (ii) with respect to all payments,
computations and other matters relating to the Tranche B Term
Loan Commitment or the Tranche B Term Loan of any Lender, the
percentage obtained by dividing (x) the Tranche B Term Loan
Exposure of that Lender by (y) the aggregate Tranche B Term Loan
Exposure of all Lenders, (iii) with respect to all payments,
computations and other matters relating to the Revolving Loan
Commitment or the Revolving Loans of any Lender or any Letters of
Credit issued or participations therein purchased by any Lender,
the percentage obtained by dividing (x) the Revolving Loan
Exposure of that Lender by (y) the aggregate Revolving Loan
Exposure of all Lenders, and (iv) for all other purposes with
respect to each Lender, the percentage obtained by dividing (x)
the sum of the Tranche A Term Loan Exposure of that Lender plus
the Tranche B Term Loan Exposure of that Lender plus the
Revolving Loan Exposure of that Lender by (y) the sum of the
aggregate Tranche A Term Loan Exposure of all Lenders plus the
aggregate Tranche B Loan Exposure of all Lenders plus the
aggregate Revolving Loan Exposure of all Lenders, in any such
case as the applicable percentage may be adjusted by assignments
permitted pursuant to subsection 10.1. The Pro Rata Share of each
Lender as of the Restatement Closing Date for purposes of each of
clauses (i), (ii), (iii) and (iv) of the preceding sentence is
set forth opposite the name of that Lender in Schedule 2.1
annexed hereto.
"Professional Services Agreement" means that certain Agreement
between Owner and Architect dated as of the Closing Date, between
Borrowers and Project Architect.
"Project" means the Venetian-themed hotel, casino, retail,
meeting and entertainment complex, with related heating,
ventilation and air conditioning and power station facilities to
be developed at the Site, all as more particularly described in
Exhibit T-1 to the Disbursement Agreement.
"Project Architect" means collectively, TSA of Nevada, LLP, and
WAT&G, Inc. Nevada.
"Project Budget" has the meaning assigned that term in the
Disbursement Agreement.
"Project Costs" has the meaning assigned to that term in the
Disbursement Agreement.
"Project Documents" means the Construction Management Agreement,
the Completion Guaranties, the Contracts, the Cooperation
Agreement, the Professional Services Agreement, the HVAC Services
Agreements, the HVAC Ground Lease, the Mall Management Agreement,
the Predevelopment Agreement, the Billboard Master Lease, the
Harrah's Shared Roadway Agreement, the Services Agreement, the
Sale and Contribution Agreement, the Casino Lease, the Treadway
Agreement, the Work Continuation Agreement, the operating
agreements for each of Venetian and the Intermediate Holding
Companies and any other document or agreement entered into on,
prior to or after the Closing Date, in accordance with Section
7.13 and, while applicable, the Disbursement Agreement relating
to the development, construction, maintenance or operation of the
Project provided, that following the Mall Release Date any
contracts and agreements relating to the Mall which are
transferred to Mall Subsidiary or New Mall Subsidiary shall no
longer constitute Project Documents.
"Project Schedule" has the meaning assigned that term in the
Disbursement Agreement.
"Quarterly Date" means the last day of each Fiscal Quarter.
"Quarterly Payment Period" means the period commencing on the
tenth day and ending and including the twentieth day of each
month in which federal estimated tax payments are due (provided
that payments in respect of estimated state income taxes due in
January may instead, at the option of Borrowers, be paid during
the last five days of the immediately preceding December).
"Real Estate Contribution" has the meaning assigned to that term
in the introduction to this Agreement and as that term is defined
in the Existing Credit Agreement.
"Register" has the meaning assigned to that term in subsection
2.1D.
"Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Reimbursement Date" has the meaning assigned to that term in
subsection 3.3B.
"Related Parties" means and shall include: (i) Family Members, as
hereafter defined; (ii) directors of LVSI or Venetian and
employees of LVSI or Venetian who are senior managers or officers
of LVSI, Venetian, Interface or any of their Affiliates; (iii)
any person who receives an interest in LVSI or Venetian from any
individual referenced in clauses (i)-(ii) in a gratuitous
transfer, whether by gift, bequest or otherwise, to the extent of
such interest; (iii) the estate of any individual referenced in
clauses (i)-(iii); (iv) a trust for the benefit of one or more of
the individuals referenced in clauses (i)-(iii); and/or (v) an
entity owned or controlled, directly or indirectly, by one or
more of the individuals, estates of trusts referenced in clauses
(i)-(iv). For the purpose of this paragraph, a `Family Member'
shall include: (i) Sheldon G. Adelson; (ii) Dr. Miriam Adelson;
(iii) any sibling of either of the foregoing; (iv) any issue of
any one or more of the individuals referenced in the preceding
clauses (i)-(iii); and (v) the spouse or issue of the spouse of
one or more of the individuals referenced in the preceding
clauses (i)-(iv).
"Release" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge,
dispersal, dumping, leaching or migration of Hazardous Materials
into the indoor or outdoor environment (including the abandonment
or disposal of any barrels, containers or other closed
receptacles containing any Hazardous Materials), including the
movement of any Hazardous Materials through the air, soil,
surface water or groundwater.
"Requisite Class Lenders" means, at any time of determination (i)
for the Class of Lenders having Tranche A Term Loan Exposure,
Lenders having or holding more than 50% of the sum of the
aggregate Tranche A Term Loan Exposure of all Lenders, (ii) for
the Class of Lenders having Tranche B Term Loan Exposure, Lenders
having or holding more than 50% of the sum of aggregate Tranche B
Term Loan Exposure of all Lenders and (iii) for the Class of
Lenders having Revolving Loan Exposure, Lenders having or holding
more than 50% of the aggregate Revolving Loan Exposure of all
Lenders.
"Requisite Lenders" means Lenders having or holding more than 50%
of the sum of the aggregate Loans and unused Commitment of all
Lenders.
"Restatement Closing Date" means the date, on or before June __,
2000, on which this Agreement is executed and delivered and the
Tranche B Term Loans are made.
"Restaurant Leases" means together (i) the lease between
Valentino Las Vegas, LLC, a Nevada limited liability company and
Venetian dated as of May 15, 1999, (ii) the lease between
Positano Las Vegas, LLC, a Nevada limited liability company and
New Mall Subsidiary, as successor-in-interest to Mall
Construction Subsidiary dated as of November 4, 1999 and (iii)
the lease between Carnevale Coffee Bar, LLC, a Nevada limited
liability company and New Mall Subsidiary, dated as of April 26,
2000.
"Restricted Junior Payment" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any
class of stock of either Borrower now or hereafter outstanding,
except a dividend or distribution payable solely in shares of
that class of stock to the holders of that class (or the
accretion of such dividends or distribution), (ii) any
redemption, retirement, sinking fund or similar payment, purchase
or other acquisition for value, direct or indirect, of any shares
of any class of stock of either Borrower now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights
to acquire shares of any class of stock of either Borrower now or
hereafter outstanding, (iv) any payment or prepayment of
principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to
Other Indebtedness and (v) any payment in respect of a repayment
or reimbursement of amounts advanced to Borrowers or any of their
Subsidiaries by Adelson or any Affiliate of Adelson under the
Adelson Completion Guaranty.
"Revolving Loan Availability Date" means the date on which
Construction Consultant delivers the Six-Month Certificate to
Administrative Agent.
"Revolving Loan Commitment" means the commitment of a Lender to
make Revolving Loans to Borrowers pursuant to subsection
2.1A(ii), and "Revolving Loan Commitments" means such commitments
of all Lenders in the aggregate.
"Revolving Loan Commitment Termination Date" means March 15,
2001.
"Revolving Loan Exposure" means, with respect to any Lender as of
any date of determination (i) prior to the termination of the
Revolving Loan Commitments, that Lender's Revolving Loan
Commitment and (ii) after the termination of the Revolving Loan
Commitments, the sum of (a) the aggregate outstanding principal
amount of the Revolving Loans of that Lender plus (b) in the
event that Lender is an Issuing Lender, the aggregate Letter of
Credit Usage in respect of all Letters of Credit issued by that
Lender (in each case net of any participations purchased by other
Lenders in such Letters of Credit or any unreimbursed drawings
thereunder) plus (c) the aggregate amount of all participations
purchased by that Lender in any outstanding Letters of Credit or
any unreimbursed drawings under any Letters of Credit.
"Revolving Loans" means the Loans made by Lenders to Borrowers
pursuant to subsection 2.1A(ii).
"Revolving Notes" means (i) the promissory notes of Borrowers
issued pursuant to subsection 2.1E on the Closing Date and (ii)
any promissory notes issued by Borrowers pursuant to the last
sentence of subsection 10.1B(i) in connection with assignments of
the Revolving Loan Commitments and Revolving Loans of any
Lenders, in each case substantially in the form of Exhibit III-B
annexed hereto, as they may be amended, supplemented or otherwise
modified from time to time.
"Sale and Contribution Agreement" means that certain Sale and
Contribution Agreement dated as of the Closing Date among
Venetian, Mall Construction Subsidiary and Mall Subsidiary.
"Sands Expo and Convention Center" means the exposition and
meeting facilities commonly known as the Sands Expo and
Convention Center.
"Scotiabank" has the meaning assigned to that term in the
introduction to this Agreement.
"Securities" means any stock, shares, partnership interests,
voting trust certificates, certificates of interest or
participation in any profit-sharing agreement or arrangement,
options, warrants, bonds, debentures, notes, or other evidences
of indebtedness, secured or unsecured, convertible, subordinated
or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or
participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"Securities Act" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"Services Agreement" means that amended and restated Services
Agreement dated as of the Closing Date, by and among LVSI,
Interface, Interface Holding Company, Inc., and the parties
stated on the schedule thereto.
"Site" means the land on which the Project is to be constructed
as described in more detail in Exhibit T-4 to the Disbursement
Agreement.
"Six-Month Certificate" has the meaning set forth in the
Disbursement Agreement.
"Solvent" means, with respect to any Person, that as of the date
of determination both (A) (i) the then fair saleable value of the
property of such Person is (y) greater than the total amount of
liabilities (including contingent liabilities) of such Person and
(z) not less than the amount that will be required to pay the
probable liabilities on such Person's then existing debts as they
become absolute and matured considering all financing
alternatives and potential asset sales reasonably available to
such Person; (ii) such Person's capital is not unreasonably small
in relation to its business or any contemplated or undertaken
transaction; and (iii) such Person does not intend to incur, or
believe (nor should it reasonably believe) that it will incur,
debts beyond its ability to pay such debts as they become due;
and (B) such Person is "solvent" within the meaning given that
term and similar terms under applicable laws relating to
fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time
shall be computed as the amount that, in light of all of the
facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or
matured liability.
"Specified FF&E" means any furniture, fixtures, equipment and
other personal property financed with the proceeds from the FF&E
Facility.
"Standby Letter of Credit" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i)
Indebtedness of Borrowers in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation
liabilities of Borrowers, (iii) the obligations of third party
insurers of Borrowers arising by virtue of the laws of any
jurisdiction requiring third party insurers, (iv) obligations
with respect to Capital Leases or Operating Leases of Borrowers
or with respect to the Harrah's Shared Roadway Agreement, (v)
performance, payment, deposit or surety obligations of Borrowers,
in any case if required by law or governmental rule or regulation
(including, without limitation, if required by any Governmental
Instrumentality or otherwise necessary in order to obtain any
Permit related to the Project) or in accordance with custom and
practice in the industry and (vi) Construction Related
Obligations; provided that Standby Letters of Credit may not be
issued for the purpose of supporting (a) trade payables or (b)
any Indebtedness constituting "antecedent debt" (as that term is
used in Section 547 of Bankruptcy Code).
"Stop Funding Notice" has the meaning set forth in the
Disbursement Agreement.
"Subordinated Indebtedness" means (i) any Indebtedness in respect
of the Subordinated Notes or the Completion Guaranty Loan and
(ii) any Indebtedness in respect of Employee Repurchase Notes.
"Subordinated Notes" means the $97,500,000 in aggregate principal
amount of split coupon Senior Subordinated Notes due 2005 of
Borrowers issued pursuant to the Subordinated Notes Indenture.
"Subordinated Notes Indenture" means the Indenture dated as of
November 14, 1997 between Borrowers, certain guarantors named
therein and the Subordinated Notes Indenture Trustee.
"Subordinated Notes Indenture Trustee" means First Union National
Bank in its capacity as trustee under the Subordinated Notes
Indenture and its successors in such capacity.
"Subsidiary" means, with respect to any Person, (i) any
corporation, partnership, limited liability company, association,
joint venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership
interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or Persons
(whether directors, managers, trustees or other Persons
performing similar functions) having the power to direct or cause
the direction of the management and policies thereof is at the
time owned or controlled, directly or indirectly, by that Person
or one or more of the other Subsidiaries of that Person or a
combination thereof and (ii) any partnership or limited liability
company of which more than 50% of such entities' capital
accounts, distribution rights, general or limited partnership
interests or membership interests are owned or controlled
directly or indirectly by such Person or one of more other
Subsidiaries of that Person or a combination thereof.
Notwithstanding the foregoing, New Mall Subsidiary, Mall
Subsidiary, Phase II Subsidiary, Phase II Manager, Phase II
Direct Holdings, New Mall Manager, Mall Manager and Mall Direct
Holdings and their respective Subsidiaries shall not constitute
Subsidiaries under this Agreement or any other Loan Document,
except for purposes of Article 5 (representations and warranties)
(other than subsection 5.8) and subsection 6.1 (as specified
therein) and for purposes of any definitions as used in Article 5
or subsection 6.1.
"Subsidiary Guarantor" means each of the Intermediate Holding
Companies and any other Subsidiary of any of the Borrowers
excluding Venetian Marketing, Inc. that executes and delivers a
counterpart of the Subsidiary Guaranty on the Closing Date or
from time to time thereafter pursuant to subsection 6.13.
"Subsidiary Guaranty" means the Subsidiary Guaranty executed and
delivered by each of the Intermediate Holding Companies and
existing Subsidiaries of Borrowers on the Closing Date and to be
executed and delivered by additional Subsidiaries of Borrowers
from time to time thereafter in accordance with subsection 6.13,
substantially in the form of Exhibit XI annexed hereto, as such
Subsidiary Guaranty may hereafter be amended, supplemented or
otherwise modified from time to time.
"Subsidiary Security Agreement" means each Subsidiary Security
Agreement executed and delivered by any Subsidiary Guarantor
other than the Intermediate Holding Companies from time to time
thereafter in accordance with subsection 6.13, in each case
substantially in the form of Exhibit VIII annexed hereto, as such
Subsidiary Security Agreement may be amended, supplemented or
otherwise modified from time to time, and "Subsidiary Security
Agreements" means all such Subsidiary Security Agreements,
collectively.
"Substantial Completion" means all conditions to Final Completion
have occurred other than completion of any Anticipated Future
Work, as certified by the Borrowers and the Construction
Consultant.
"Substantial Completion Date" means the date on which Substantial
Completion occurs.
"Superior Facilities" has the meaning assigned to that term in
subsection 7.1(xv).
"Supplemental Agent" has the meaning assigned to that term in
subsection 9.1B.
"Supplier Joint Venture" means any Person that supplies or
provides materials or services to any Borrower, the Construction
Manager or any contractor in the Project and in which a Borrower
or one of its Subsidiaries have Investments.
"Syndication Agent" has the meaning assigned to such term in the
introduction to this Agreement.
"Tax" or "Taxes" means any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and
whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed; provided that
"Tax on the overall net income" of a Person shall be construed as
a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person's principal office
(and/or, in the case of a Lender, its lending office) is located
or in which that Person (and/or, in the case of a Lender, its
lending office) is deemed to be doing business on all or part of
the net income, profits or gains (whether worldwide, or only
insofar as such income, profits or gains are considered to arise
in or to relate to a particular jurisdiction, or otherwise) of
that Person (and/or, in the case of a Lender, its lending
office).
"Tax Amount" means, with respect to a Estimation Period or a
taxable year, as the case may be an amount equal to (A) the
product of (x) the taxable income (including all separate items
of income) of LVSI or Venetian, as the case may be, for such
Estimation Period or taxable year, as the case may be, and (y)
the Applicable Tax Percentage reduced by (B) to the extent not
previously taken into account, any income tax benefit
attributable to LVSI or Venetian, as the case may be, which could
be utilized (without regard to the actual utilization) by its
members or shareholders, as the case may be, in the current or
prior taxable year, or portion thereof, commencing on or after
the Closing Date (including any tax losses or tax credits),
computed at the Applicable Tax Percentage of the year that such
benefit is taken into account for purposes of this computation;
provided, however, that, the computation of Tax Amount shall also
take into account (C) the deductibility of state and local taxes
for federal income tax purposes, and (D) any difference in the
Applicable Tax Percentage resulting from the nature of taxable
income (such as capital gain as opposed to ordinary income).
"Tax Amounts CPA" means a nationally recognized certified public
accounting firm.
"Term Loan Commitments" shall have the meaning assigned to that
term in the Existing Credit Agreement.
"Term Loans" means the Tranche A Term Loans and the Tranche B
Term Loans; provided that for purposes of subsection 10.6, "Term
Loans" shall have the meaning assigned to that term in the
Existing Credit Agreement.
"Title Company" means, Lawyers Title of Nevada, Inc. or an
Affiliate thereof and/or one or more other title insurance
companies reasonably satisfactory to Administrative Agent.
"Total Utilization of Revolving Loan Commitments" means, as at
any date of determination, the sum of (i) the aggregate principal
amount of all outstanding Revolving Loans (other than Revolving
Loans made for the purpose of reimbursing the applicable Issuing
Lender for any amount drawn under any Letter of Credit but not
yet so applied) plus (ii) the Letter of Credit Usage.
"Tranche A Term Loan Commitment" means the commitment of a Lender
to make a Tranche A Term Loan to Borrowers pursuant to subsection
2.1A(i) of the Existing Credit Agreement, and "Tranche A Term
Loan Commitments" means such commitments of all Lenders in the
aggregate.
"Tranche A Term Loan Exposure" means, with respect to any Lender
as of any date of determination, the outstanding principal amount
of the Tranche A Term Loans made by that Lender.
"Tranche A Term Loan" or "Tranche A Term Loans" means one or more
of the Loans made by Lenders to Borrowers pursuant to subsection
2.1A(i) of the Existing Credit Agreement.
"Tranche A Term Notes" means (i) the promissory notes of
Borrowers issued pursuant to subsection 2.1E(i) of the Existing
Credit Agreement on the Closing Date and (ii) any promissory
notes issued by Borrowers pursuant to the last sentence of
subsection 10.1B(i) hereof or, of the Existing Credit Agreement
if issued prior to the Restatement Closing Date, in connection
with assignments of the Tranche A Term Loan Commitments or
Tranche A Term Loans of any Lenders, in each case substantially
in the form of Exhibit III-A annexed hereto.
"Tranche B Term Loan Commitment" means the commitment of a Lender
to make a Tranche B Term Loan to Borrowers pursuant to subsection
2.1A(iii), and "Tranche B Term Loan Commitments" means such
commitments of all Lenders in the aggregate.
"Tranche B Term Loan Exposure" means, with respect to any Lender
as of any date of determination (i) prior to the funding of the
Tranche B Term Loans, that Lender's Tranche B Term Loan
Commitment and (ii) after the funding of the Tranche B Term
Loans, the outstanding principal amount of the Tranche B Term
Loans made by that Lender.
"Tranche B Term Loan" or "Tranche B Term Loans" means one or more
of the Loans made by Lenders to Borrowers pursuant to subsection
2.1A(iii).
"Tranche B Term Notes" means (i) the promissory notes of
Borrowers issued pursuant to subsection 2.1E on the Restatement
Closing Date and (ii) any promissory notes issued by Borrowers
pursuant to the last sentence of subsection 10.1B(i) in
connection with assignments of the Tranche B Term Loan
Commitments or Tranche B Term Loans of any Lenders, in each case
substantially in the form of Exhibit III-C annexed hereto.
"Transaction Costs" means the fees, costs and expenses payable by
Borrowers on or before the Closing Date in connection with the
transactions contemplated by the Loan Documents and the Project
Documents.
"Treadway Agreement" means that certain Time and Materials
Agreement dated February 10, 1997 by and between LVSI and
Treadway Industries of Phoenix, Inc., an Arizona corporation.
"True-up Amount" means, in respect of a particular taxable year,
an amount determined by the Tax Amounts CPA equal to the
difference between (i) the aggregated Permitted Quarterly Tax
Distributions actually distributed in respect of such taxable
year, without taking into account any adjustments to such
Permitted Quarterly Tax Distributions made with respect to any
other taxable year (including any adjustment to take into account
a True-up Amount for the immediately preceding taxable year) and
(ii) the Tax Amount permitted to be distributed in respect of
such year as determined by reference to LVSI's Internal Revenue
Service Form 1120-S or Venetian's IRS Form 1065 filed for such
year; provided, however, that if there is an audit or other
adjustment with respect to a return filed by the LVSI or Venetian
(including a filing of an amended return), upon a final
determination or resolution of such audit or other adjustment,
the Tax Amounts CPA shall redetermine the True-up Amount for the
relevant taxable year. The amount equal to the excess, if any, of
the amount described in clause (i) above over the amount
described in clause (ii) above shall be referred to as the
"True-up Amount due to LVSI" or the "True-up Amount due to
Venetian", as the case may be and the excess, if any, of the
amount described in clause (ii) over the amount described in
clause (i) shall be referred to as the "True-up Amount due to the
shareholders or members."
"True-up Determination Date" means the date on which the Tax
Amounts CPA delivers a statement to the Administrative Agent
indicating the True-up Amount; provided, however, that the
True-up Determination Date shall not be later than 30 days after
the occurrence of an event requiring the determination of the
True-up Amount (including, the filing of the federal and state
tax returns or the final determination or resolution of an audit
or other adjustment, as the case may be).
"UCC" means the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect in any applicable
jurisdiction.
"Venetian" means Venetian Casino Resort, LLC, a Nevada limited
liability company.
"Work Continuation Agreement" has the meaning set forth in the
Disbursement Agreement.
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement.
------------------------------------------------------------------------
Except as otherwise expressly provided in this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP. Financial statements and other information required to be
delivered by Borrowers to Lenders pursuant to clauses (i), (ii), (iii), (iv) and
(xiii) of subsection 6.1 shall be prepared in accordance with GAAP as in effect
at the time of such preparation (and delivered together with the reconciliation
statements provided for in subsection 6.1(v)). Calculations in connection with
the definitions, covenants and other provisions of this Agreement shall utilize
accounting principles and policies in conformity with those used to prepare the
financial statements referred to in subsection 5.3.
1.3 Other Definitional Provisions and Rules of Construction.
-------------------------------------------------------
A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
B. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided.
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
D. Any reference to any agreement or instrument shall be deemed to include
a reference to such agreement or instrument as assigned, amended, supplemented
or otherwise modified from time to time in accordance with subsection 7.13 and,
while applicable, the Disbursement Agreement.
E. Any reference to a term defined in the Disbursement Agreement shall have
the meaning assigned to it in the Disbursement Agreement whether or not such
agreement remains in effect.
Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; the Register; Notes.
-------------------------------------------------
A. Commitments. Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of Borrowers herein set
forth and, while in effect, the representations and warranties set forth in the
Disbursement Agreement, each Lender hereby severally agrees to make the Loans
described in this subsection 2.1.A.
(i) Tranche A Term Loans. Each Lender, which had a Tranche A Term Loan
Commitment under the Existing Credit Agreement, has loaned to Borrowers an
aggregate amount not exceeding its Pro Rata Share of the aggregate amount
of the Tranche A Term Loan Commitments, which amount was used for the
purposes identified in subsection 2.5A(i). The amount of each Lender's
outstanding Tranche A Term Loan as of the opening of business on the
Restatement Closing Date is set forth opposite its name on Schedule 2.1
annexed hereto and the aggregate amount of the Tranche A Term Loans as of
the opening of business on the Restatement Closing Date is $133,125,000.
Amounts borrowed under this subsection 2.1A and subsequently repaid or
prepaid may not be reborrowed. For the avoidance of doubt, all Tranche A
Term Loans made under the Existing Credit Agreement shall continue under
this Agreement except to the extent of the prepayment from proceeds of
Tranche B Term Loans referred to in Subsection 2.5A(ii).
(ii) Revolving Loans. Each Lender severally agrees, subject to the
limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to lend to Borrowers
from time to time during the period from the Closing Date to but excluding
the Revolving Loan Commitment Termination Date an aggregate amount not
exceeding its Pro Rata Share of the aggregate amount of the Revolving Loan
Commitments to be used for the purposes identified in subsection 2.5B. The
amount of each Lender's Revolving Loan Commitment as of the Restatement
Closing Date is set forth opposite its name on Schedule 2.1 annexed hereto
and the aggregate amount of the Revolving Loan Commitments as of the
Restatement Closing Date is $40,000,000; provided that the Revolving Loan
Commitments of Lenders shall be adjusted to give effect to any assignments
of the Revolving Loan Commitments pursuant to subsection 10.1B; and
provided, further that the amount of the Revolving Loan Commitments shall
be reduced from time to time by the amount of any reductions thereto made
pursuant to subsections 2.4B(ii) and 2.4B(iii). Each Lender's Revolving
Loan Commitment shall expire on the Revolving Loan Commitment Termination
Date and all Revolving Loans and all other amounts owed hereunder with
respect to the Revolving Loans and the Revolving Loan Commitments shall be
paid in full no later than that date. Amounts borrowed under this
subsection 2.1A(ii) may be repaid and reborrowed to but excluding the
Revolving Loan Commitment Termination Date. For the avoidance of doubt, all
Revolving Loans made and Letters of Credit issued under the Existing Credit
Agreement shall continue under this Agreement.
Anything contained in this Agreement to the contrary notwithstanding, in no
event shall the Total Utilization of Revolving Loan Commitments at any time
exceed the Revolving Loan Commitments then in effect.
(iii) Tranche B Term Loans. Each Lender having a Tranche B Term Loan
Commitment severally agrees to lend to Borrowers in one disbursement on the
Restatement Closing Date an amount not exceeding its Pro Rata Share of the
aggregate amount of the Tranche B Term Loan Commitments, to be used for the
purposes identified in subsection 2.5A(ii). The amount of each Lender's
Tranche B Term Loan Commitment is set forth opposite its name on Schedule
2.1 annexed hereto and the aggregate amount of the Tranche B Term Loan
Commitments as of the Restatement Closing Date is $50,000,000; provided
that the Tranche B Term Loan Commitments of Lenders shall be adjusted to
give effect to any assignments of the Tranche B Term Loan Commitments
pursuant to subsection 10.1B; and provided further that the amount of the
Tranche B Term Loan Commitments shall be reduced from time to time by the
amount of any reductions thereto made pursuant to subsections 2.4B(ii) and
2.4B(iii). Each Lender's Tranche B Term Loan Commitment shall expire
immediately and without further action when the Tranche B Term Loans are
made on the Restatement Closing Date. Amounts borrowed under this
subsection 2.1A(iii) and subsequently repaid or prepaid may not be
reborrowed.
B. Borrowing Mechanics. Term Loans or Revolving Loans made on any Funding
Date (other than Revolving Loans made pursuant to subsection 3.3B for the
purpose of reimbursing any Issuing Lender for the amount of a drawing under a
Letter of Credit issued by it), shall be in an aggregate minimum amount of (y)
$3,000,000 and integral multiples of $1,000,000 in excess of that amount in the
case of Term Loans and (z) $1,000,000 and integral multiples of $500,000 in the
case of Revolving Loans; provided that the Tranche B Term Loans shall be made at
one time and in full on the Restatement Closing Date.
Whenever Borrowers desire that Lenders make Revolving Loans or Tranche B
Term Loans they shall deliver to Administrative Agent a Notice of Borrowing no
later than 10:00 A.M. (New York City time) at least three Business Days in
advance of the proposed Funding Date (in the case of a Eurodollar Rate Loan) or
at least one Business Day in advance of the proposed Funding Date (in the case
of a Base Rate Loan). The Notice of Borrowing shall specify (i) the proposed
Funding Date (which shall be a Business Day), (ii) the amount of Revolving Loans
or Tranche B Term Loans requested, (iii) whether such Revolving Loans or Tranche
B Term Loans shall be Base Rate Loans or Eurodollar Rate Loans, and (iv) in the
case of any Loans requested to be made as Eurodollar Rate Loans, the initial
Interest Period requested therefor. Borrowers shall notify Administrative Agent
and Disbursement Agent prior to the funding of any Revolving Loans in the event
that any of the matters to which Borrowers are required to certify in the
applicable Notice of Borrowing is no longer true and correct as of the
applicable Funding Date, and the acceptance by Borrowers of the proceeds of any
Revolving Loans shall constitute a re-certification by Borrowers, as of the
applicable Funding Date, as to the matters to which Borrowers are required to
certify in the applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Borrowing for a Eurodollar Rate Loan shall be irrevocable on and after the
related Interest Rate Determination Date, and Borrowers shall be bound to make a
borrowing in accordance therewith.
C. Disbursement of Funds. All Loans under this Agreement shall be made by
Lenders simultaneously and proportionately to their respective Pro Rata Shares,
it being understood that no Lender shall be responsible for any default by any
other Lender in that other Lender's obligation to make a Loan requested
hereunder nor shall the Commitment of any Lender to make the particular type of
Loan requested be increased or decreased as a result of a default by any other
Lender in that other Lender's obligation to make a Loan requested hereunder.
Promptly after receipt by Administrative Agent of a Notice of Borrowing pursuant
to subsection 2.1B, Administrative Agent shall notify each Lender of the
proposed borrowing. Each Lender shall make the amount of its Loan available to
Administrative Agent not later than 12:00 Noon (New York City time) on the
applicable Funding Date, in same day funds in Dollars, at the Funding and
Payment Office. Except as provided in subsection 3.3B with respect to Revolving
Loans used to reimburse any Issuing Lender for the amount of a drawing under a
Letter of Credit issued by it, upon satisfaction or waiver of the conditions
precedent specified in subsections 4.1 (in the case of Tranche B Term Loans made
on the Restatement Closing Date) and 4.2 (in the case of all Loans),
Administrative Agent shall make the aggregate amount of the Loans received by
Administrative Agent from Lenders available by crediting the account of
Borrowers at the Funding and Payment Office in the amount of such Loans.
Unless Administrative Agent shall have been notified by any Lender prior to
the Funding Date for any Loans that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Borrowers a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Borrowers and Borrowers shall immediately pay such corresponding amount
to Administrative Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate payable under this Agreement for Base Rate Loans. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Borrowers may
have against any Lender as a result of any default by such Lender hereunder.
D. The Register.
(i) Administrative Agent shall maintain, at its address referred to in
subsection 10.9, a register for the recordation of the names and
addresses of Lenders and the Commitments and Loans of each Lender from
time to time (the "Register"). The Register shall be available for
inspection by Borrowers or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(ii) Administrative Agent shall record in the Register the Commitment
and the Loans from time to time of each Lender, and each repayment or
prepayment in respect of the principal amount of the Loans of each
Lender. Any such recordation shall be conclusive and binding on
Borrowers and each Lender, absent manifest error; provided that
failure to make any such recordation, or any error in such
recordation, shall not affect any Lender's Commitments or Borrowers'
Obligations in respect of any applicable Loans.
(iii) Each Lender shall record on its internal records (including the
Notes held by such Lender) the amount of each Loan made by it and each
payment in respect thereof. Any such recordation shall be conclusive
and binding on Borrowers, absent manifest error; provided that failure
to make any such recordation, or any error in such recordation, shall
not affect any Lender's Commitments or Obligations in respect of any
applicable Loans; and provided, further that in the event of any
inconsistency between the Register and any Lender's records, the
recordations in the Register shall govern.
(iv) Administrative Agent and Lenders shall deem and treat the Persons
listed as Lenders in the Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes
hereof, and no assignment or transfer of any such Commitment or Loan
shall be effective, in each case unless and until an Assignment
Agreement effecting the assignment or transfer thereof shall have been
accepted by Administrative Agent and recorded in the Register as
provided in subsection 10.1B(ii). Prior to such recordation, all
amounts owed with respect to the applicable Commitment or Loan shall
be owed to the Lender listed in the Register as the owner thereof, and
any request, authority or consent of any Person who, at the time of
making such request or giving such authority or consent, is listed in
the Register as a Lender shall be conclusive and binding on any
subsequent holder, assignee or transferee of the corresponding
Commitments or Loans.
E. Notes. Borrowers have executed and delivered on the Closing Date (or
thereafter in the case of an assignment) to each Lender (or to Administrative
Agent for that Lender) (i) a Tranche A Term Note substantially in the form of
Exhibit III-A annexed hereto to evidence that Lender's Tranche A Term Loans, in
the principal amount of that Lender's Term Loan Commitment and with other
appropriate insertions and (ii) a Revolving Note substantially in the form of
Exhibit III-B annexed hereto to evidence that Lender's Revolving Loans, in the
principal amount of that Lender's Revolving Loan Commitment and with other
appropriate insertions. Borrowers shall execute and deliver on the Restatement
Closing Date to each Lender having a Tranche B Term Loan Commitment (or to
Administrative Agent for that Lender) a Tranche B Term Note substantially in the
form of Exhibit III-C annexed hereto to evidence that Lender's Tranche B Term
Loan, in the principal amount of that Lender's Tranche B Term Loan Commitment
and with other appropriate insertions.
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have been accepted by
Administrative Agent as provided in subsection 10.1B(ii). Any request, authority
or consent of any person or entity who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, assignee or transferee of that Note or of
any Note or Notes issued in exchange therefor.
2.2 Interest on the Loans.
----------------------
A. Rate of Interest. Subject to the provisions of subsections 2.6 and 2.7,
each Loan shall bear interest on the unpaid principal amount thereof from the
date made through maturity (whether by acceleration or otherwise) at a rate
determined by reference to the Base Rate or the Adjusted Eurodollar Rate. The
applicable basis for determining the rate of interest with respect to any Loan
shall be selected by Borrowers initially at the time a Notice of Borrowing is
given with respect to such Loan pursuant to subsection 2.1B, and the basis for
determining the interest rate with respect to any Loan may be changed from time
to time pursuant to subsection 2.2D. If on any day a Loan is outstanding with
respect to which notice has not been delivered to Administrative Agent in
accordance with the terms of this Agreement specifying the applicable basis for
determining the rate of interest, then for that day that Loan shall bear
interest determined by reference to the Base Rate.
(i) Revolving Loans. Subject to the provisions of subsections 2.2E and 2.7,
the Revolving Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then (x) from the date of funding of
such Loan until the Restatement Closing Date, at the sum of the Base
Rate plus the Applicable Margin (as defined in the Existing Credit
Agreement), and (y) from and after the Restatement Closing Date, at
the sum of the Base Rate plus 2.00%; or
(b) if a Eurodollar Rate Loan, then (x) from the date of funding
of such Loan until the Restatement Closing Date, at the sum of the
Adjusted Eurodollar Rate plus the Applicable Margin (as defined in the
Existing Credit Agreement), and (y) from and after the Restatement
Closing Date, at the sum of the Adjusted Eurodollar Rate plus 3.00%.
(ii) Tranche A Term Loans. Subject to the provisions of subsections 2.2E
and 2.7, the Tranche A Term Loans shall bear interest through maturity as
follows:
(a) if a Base Rate Loan, then (x) from the date of funding of
such Loan until the Restatement Closing Date, at the sum of the Base
Rate plus the Applicable Margin (as defined in the Existing Credit
Agreement), and (y) from and after the Restatement Closing Date, at
the sum of the Base Rate plus 2.00%; or
(b) if a Eurodollar Rate Loan, then (x) from the date of funding
of such Loan until the Restatement Closing Date, at the sum of the
Adjusted Eurodollar Rate plus the Applicable Margin (as defined in the
Existing Credit Agreement), and (y) from and after the Restatement
Closing Date, at the sum of the Adjusted Eurodollar Rate plus 3.00%.
(iii) Tranche B Term Loans. Subject to the provisions of subsection 2.2E
and 2.7, the Tranche B Term Loans shall bear interest through maturity as
follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate plus
2.50%; or
(b) if a Eurodollar Rate Loan, then at the sum of the Adjusted
Eurodollar Rate plus 3.50%.
B. Interest Periods. In connection with each Eurodollar Rate Loan,
Borrowers may, pursuant to the applicable Notice of Funding Request, Notice of
Borrowing or Notice of Conversion/Continuation, as the case may be, select an
interest period (each an "Interest Period") to be applicable to such Loan, which
Interest Period shall be, at Borrowers' option, either a one, two, three or six
month period; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan shall commence
on the Funding Date in respect of such Loan, in the case of a Loan
initially made as a Eurodollar Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable to a
Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is not a
Business Day, such Interest Period shall expire on the next succeeding
Business Day; provided that, if any Interest Period would otherwise expire
on a day that is not a Business Day but is a day of the month after which
no further Business Day occurs in such month, such Interest Period shall
expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall, subject to
clause (v) of this subsection 2.2B, end on the last Business Day of a
calendar month;
(v) no Interest Period with respect to any portion of the Loans shall
extend beyond the sixth anniversary of the Closing Date or, with respect to
the Tranche B Term Loans, June 30, 2004.
(vi) no Interest Period shall extend beyond a date on which Borrowers are
required to make a scheduled payment of principal of the Loans or a
permanent reduction of the Revolving Loan Commitments is scheduled to occur
unless the sum of (a) the aggregate principal amount of Loans that are Base
Rate Loans plus (b) the aggregate principal amount of Loans that are
Eurodollar Rate Loans with Interest Periods expiring on or before such date
plus (c) the excess of the Commitments then in effect over the aggregate
principal amount of the Loans then outstanding equals or exceeds the
principal amount required to be paid on the Loans or the permanent
reduction of the Commitments that is scheduled to occur, on such date;
(vii) there shall be no more than 8 Interest Periods outstanding at any
time; and
(viii) in the event Borrowers fail to specify an Interest Period for any
Eurodollar Rate Loan in the applicable Notice of Funding Request, Notice of
Borrowing or Notice of Conversion/Continuation, Borrowers shall be deemed
to have selected an Interest Period of one month.
For the avoidance of doubt, any Loan made prior to the Restatement Closing
Date shall continue with the Interest Period it had under the Existing Credit
Agreement subject to the provisions of subsection 2.2D below.
C. Interest Payments. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity).
D. Conversion or Continuation. Subject to the provisions of subsection 2.6,
Borrowers shall have the option (i) to convert at any time all or any part of
its outstanding Loans equal to $3,000,000 and integral multiples of $1,000,000
in excess of that amount from Loans bearing interest at a rate determined by
reference to one basis to Loans bearing interest at a rate determined by
reference to an alternative basis or (ii) upon the expiration of any Interest
Period applicable to a Eurodollar Rate Loan, to continue all or any portion of
such Loan equal to $3,000,000 and integral multiples of $1,000,000 in excess of
that amount as a Eurodollar Rate Loan; provided, however, that a Eurodollar Rate
Loan may only be converted into a Base Rate Loan on the expiration date of an
Interest Period applicable thereto.
Borrowers shall deliver a Notice of Conversion/Continuation to
Administrative Agent no later than 10:00 A.M. (New York City time) at least one
Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). A Notice of Conversion/Continuation
shall specify (i) the proposed conversion/continuation date (which shall be a
Business Day), (ii) the amount and type of the Loan to be converted/continued,
(iii) the nature of the proposed conversion/continuation, (iv) in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan, the requested
Interest Period, and (v) in the case of a conversion to, or a continuation of, a
Eurodollar Rate Loan, that no Potential Event of Default or Event of Default has
occurred and is continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Borrowers may give Administrative Agent telephonic
notice by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent on or before the proposed conversion/continuation date. Upon receipt of
written or telephonic notice of any proposed conversion/continuation under this
subsection 2.2D, Administrative Agent shall promptly transmit such notice by
telefacsimile or telephone to each Lender.
Neither Administrative Agent nor any Lender shall incur any liability to
Borrowers in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Borrowers or
for otherwise acting in good faith under this subsection 2.2D, and upon
conversion or continuation of the applicable basis for determining the interest
rate with respect to any Loans in accordance with this Agreement pursuant to any
such telephonic notice Borrowers shall have effected a conversion or
continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Conversion/Continuation for conversion to, or continuation of, a Eurodollar
Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and Borrowers shall be bound
to effect a conversion or continuation in accordance therewith.
E. Default Rate. Upon the occurrence and during the continuation of any
Event of Default, the outstanding principal amount of all Loans and, to the
extent permitted by applicable law, any interest payments thereon not paid when
due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable upon
demand at a rate that is 2% per annum in excess of the interest rate otherwise
payable under this Agreement with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this Agreement for Base Rate
Loans); provided that, in the case of Eurodollar Rate Loans, upon the expiration
of the Interest Period in effect at the time any such increase in interest rate
is effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans
and shall thereafter bear interest payable upon demand at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this Agreement for
Base Rate Loans. Payment or acceptance of the increased rates of interest
provided for in this subsection 2.2E is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event of Default or otherwise
prejudice or limit any rights or remedies of Administrative Agent or any Lender.
F. Computation of Interest. Interest on the Loans shall be computed on the
basis of (i) a 360-day year, in the case of Eurodollar Rate Loans and (ii) a
365-day year, in respect of Base Rate Loans, in each case for the actual number
of days elapsed in the period during which it accrues. In computing interest on
any Loan, the date of the making of such Loan or the first day of an Interest
Period applicable to such Loan or, with respect to a Base Rate Loan being
converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar
Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the
date of payment of such Loan or the expiration date of an Interest Period
applicable to such Loan or, with respect to a Base Rate Loan being converted to
a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such
Eurodollar Rate Loan, as the case may be, shall be excluded; provided that if a
Loan is repaid on the same day on which it is made, one day's interest shall be
paid on that Loan.
2.3 Fees.
----
A. Commitment Fees. Borrowers agree to pay to Administrative Agent, for
distribution to each Lender in proportion to that Lender's Pro Rata Share,
commitment fees for the period from and including the Restatement Closing Date
to and excluding the Revolving Loan Commitment Termination Date equal to the
average of the daily excess of the Revolving Loan Commitments over the sum of
(i) the aggregate principal amount of outstanding Revolving Loans but not the
Letter of Credit Usage plus (ii) the Letter of Credit Usage multiplied by half
of 1% per annum, such commitment fees to be calculated on the basis of a 360-day
year and the actual number of days elapsed and to be payable quarterly in
arrears on March 31, June 30, September 30 and December 31 of each year,
commencing on the first such date to occur after the Closing Date, and on the
Revolving Loan Commitment Termination Date.
B. Annual Administrative Fee. Borrowers agree to pay to Administrative
Agent an annual administrative fee in the amount and at the times separately
agreed to by the Administrative Agent and the Borrower.
C. Other Fees. Borrowers agree to pay to Syndication Agent, Arrangers and
Administrative Agent such other fees in the amounts and at the times separately
agreed upon between Borrowers and Syndication Agent, Arrangers and
Administrative Agent.
2.4 Repayments, Prepayments and Reductions in Commitments; General Provisions
Regarding Payments.
-------------------------------------------------------------------------
A. Scheduled Payments of Term Loans.
(i) Tranche A Term Loans.
After giving effect to the prepayment of the Tranche A Term Loans made on the
Restatement Closing Date in the aggregate principal amount of $30,000,000, made
with a portion of the proceeds of the Tranche B Term Loans, Borrowers shall make
principal payments on the Tranche A Term Loans in installments on each of the
following dates in the aggregate amount set forth opposite such date in the
table set forth below:
======================================================= ========================
Scheduled
Date Repayment
of Tranche A
Term Loans
======================================================= ========================
June 30, 2001 5,625,000
September 30, 2001 11,250,000
December 31, 2001 11,250,000
March 31, 2002 11,250,000
June 30, 2002 11,250,000
September 30, 2002 13,125,000
December 31. 2002 13,125,000
March 31, 2003 13,125,000
June 30, 2003 13,125,000
- ------------------------------------------------------- ------------------------
Total $103,125,000
======================================================= ========================
; provided that the scheduled installments of principal of the Tranche A Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche A Term Loans in accordance with subsection
2.4B(iv), and the final installment payable by Borrowers in respect of the
Tranche A Term Loans on such date shall be in an amount, if such amount is
different from that specified above, sufficient to repay all amounts owing by
Borrowers under this Agreement with respect to the Tranche A Term Loans.
(ii) Tranche B Term Loans.
Borrowers shall make principal payments on the Tranche B Term Loans in
installments on each of the following dates in the aggregate amount set forth
opposite such date in the table set forth below:
============================ ==================================
Scheduled
Date Repayment
of Tranche B
Term Loans
============================ ==================================
September 30, 2000 $125,000
December 31, 2000 125,000
March 31, 2001 125,000
June 30, 2001 125,000
September 30, 2001 125,000
December 31, 2001 125,000
March 31, 2002 125,000
June 30, 2002 125,000
September 30, 2002 125,000
December 31, 2002 125,000
March 31, 2003 125,000
June 30, 2003 125,000
September 30, 2003 125,000
December 31, 2003 125,000
March 31, 2004 24,125,000
June 30, 2004 24,125,000
- ---------------------------- ----------------------------------
Total $50,000,000
============================ ==================================
; provided that the scheduled installments of principal of the Tranche B Term
Loans set forth above shall be reduced in connection with any voluntary or
mandatory prepayments of the Tranche B Term Loans in accordance with subsection
2.4B(iv), and the final installment payable by Borrowers in respect of the
Tranche B Term Loans on such date shall be in an amount, if such amount is
different from that specified above, sufficient to repay all amounts owing by
Borrowers under this Agreement with respect to the Tranche B Term Loans.
B. Prepayments and Unscheduled Reductions in Commitments.
(i) Voluntary Prepayments. Borrowers may, upon not less than one Business
Day's prior written or telephonic notice, in the case of Base Rate Loans,
and three Business Days' prior written or telephonic notice, in the case of
Eurodollar Rate Loans, in each case given to Administrative Agent by 12:00
Noon (New York City time) on the date required and, if given by telephone,
promptly confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from time to
time prepay any Loans on any Business Day in whole or in part in an
aggregate minimum amount of $1,000,000 and integral multiples of $500,000
in excess of that amount provided, however, that with respect to any
Eurodollar Rate Loan not prepaid on the expiration of the Interest Period
applicable thereto Borrowers shall pay any amount payable pursuant to
subsection 2.6D. Notice of prepayment having been given as aforesaid, the
principal amount of the Loans specified in such notice shall become due and
payable on the prepayment date specified therein. Any such voluntary
prepayment shall be applied as specified in subsection 2.4B(iv).
(ii) Voluntary Reductions of Commitments. Borrowers may, upon not less than
three Business Days' prior written or telephonic notice confirmed in
writing to Administrative Agent (which original written or telephonic
notice Administrative Agent will promptly transmit by telefacsimile or
telephone to each Lender), at any time and from time to time terminate in
whole or permanently reduce in part, without premium or penalty, the
Revolving Loan Commitments in an amount up to the amount by which the
Revolving Loan Commitments exceed the Total Utilization of Revolving Loan
Commitments at the time of such proposed termination or reduction; provided
that any such partial reduction of the Revolving Loan Commitments shall be
in an aggregate minimum amount of $1,000,000 and integral multiples of
$500,000 in excess of that amount. Borrowers' notice to Administrative
Agent shall designate the date (which shall be a Business Day) of such
termination or reduction and the amount of any partial reduction, and such
termination or reduction of the Revolving Loan Commitments shall be
effective on the date specified in Borrowers' notice and shall reduce the
Revolving Loan Commitment of each Lender proportionately to its Pro Rata
Share. Any such voluntary reduction of the Revolving Loan Commitments shall
be applied as specified in subsection 2.4B(iv).
(iii) Mandatory Prepayments and Mandatory Reductions of Commitments. The
Loans shall be prepaid and/or the Commitments shall be permanently reduced
in the amounts and under the circumstances set forth below, all such
prepayments and/or reductions to be applied as set forth below or as more
specifically provided in subsection 2.4B(iv):
(a) Prepayments and Reductions From Net Asset Sale Proceeds. No
later than the first Business Day following the date of receipt by
Borrowers or any of their Subsidiaries of any Net Asset Sale Proceeds
in respect of any Asset Sale (other than Net Asset Sale Proceeds in
respect of the sale of any obsolete worn out or surplus assets or
assets no longer used or useful in the business of the Project or of
construction equipment having a fair market value not in excess of
$4,000,000 prior to Completion or during the first year following
Completion, but only in each case to the extent reinvested in the
business of Borrowers or such Subsidiary within 180 days of receipt),
Borrowers shall prepay the Loans and/or the Commitments shall be
permanently reduced in an aggregate amount equal to such Net Asset
Sale Proceeds.
(b) Prepayments and Reductions from Net Loss Proceeds and
Liquidated Damages. No later than the second Business Day on which
Loss Proceeds or Liquidated Damages are required to be applied to
prepayment of Loans under subsection 5.20 of the Disbursement
Agreement (if applicable) or Article X, Sections 5, 12(d) and 13,
Article XI, Section 1 or Article XII, sections 8-9 of the Cooperation
Agreement (as applicable), Borrowers shall prepay the Term Loans
and/or the Commitments shall be permanently reduced in an amount equal
to the Loss Proceeds or Liquidated Damages, as applicable, available
for such application under subsection 5.20 of the Disbursement
Agreement, Article X, Sections 5, 12(d) and 13, Article XI Section 1
and Article XII, Sections 8-9 of the Cooperation Agreement (as
applicable) but not exceeding that portion thereof determined to be
payable to Lenders in accordance with Section 4.5 of the Intercreditor
Agreement.
(c) Prepayments and Reductions Due to Reversion of Surplus Assets
of Pension Plans. On the first Business Day following the date of
return to Borrowers or any of their Subsidiaries of any surplus assets
of any pension plan of Borrowers or any for their Subsidiaries,
Borrowers shall prepay the Loans and/or the Commitments shall be
permanently reduced in an aggregate amount (such amount being the "Net
Pension Proceeds") equal to 100% of such returned surplus assets, net
of transaction costs and expenses incurred in obtaining such return,
including incremental taxes payable as a result thereof.
(d) Prepayments and Reductions Due to Issuance of Debt or Equity.
On the first Business Day following the date of receipt by Borrowers
or any of their Subsidiaries, of the proceeds (including Cash, real
property or other property) (any such proceeds, net of underwriting
discounts and commissions and other reasonable costs and expenses
associated therewith, including reasonable legal fees and expenses,
being "Net Proceeds") from the issuance of any debt or equity of
Borrowers or any of their Subsidiaries (other than any debt expressly
permitted under subsection 7.1 and any equity issuances to employees
of Borrowers upon exercise of options issued pursuant to employment
agreements and option plans as in effect on the Closing Date),
Borrowers shall prepay the Loans and/or the Commitments shall be
permanently reduced in an aggregate amount equal to (i) in the case of
any equity issuance, 75% of such Net Proceeds and (ii) in the case of
any debt, 100% of such Net Proceeds. Notwithstanding the foregoing,
(y) Borrowers shall not be required to prepay the Loans and/or reduce
Commitments from any proceeds (including Cash, real property or other
property), of equity contributions from, or equity issuances to,
Adelson or any of his Affiliates (other than the Subsidiaries) to LVSI
or Venetian that are used for the expansion or improvement of the
Project or to pay operating costs with respect thereto or to make
contributions to Excluded Subsidiaries and (z) any portion of the Net
Proceeds of equity issuances not required to be applied to prepay the
Loans and/or to reduce the Commitments shall, in any event, be used to
make contributions to Excluded Subsidiaries or used for the expansion
or improvement of the Project or to pay operating costs with respect
thereto.
(e) Prepayments and Reductions from Consolidated Excess Cash
Flow. In the event that there shall be Consolidated Excess Cash Flow
for any Fiscal Year, beginning with the Fiscal Year ended December 31,
2001 (or December 31, 2000 if any Excess Cash Flow for the Fiscal Year
ended December 31 2000 is distributed to any Person other than LVSI,
its Subsidiaries or its Excluded Subsidiaries), Borrowers shall, no
later than 90 days after the end of such Fiscal Year, prepay the Term
Loans and/or the Commitments shall be permanently reduced in an
aggregate amount equal to (1) if the Leverage Ratio as at the end of
such period or Fiscal Year is greater than 2.5:1.00, 75% of such
Consolidated Excess Cash Flow, and (2) if the Leverage Ratio as at the
end of such period or Fiscal Year is less than or equal to 2.5:1.00,
50% of such Consolidated Excess Cash Flow.
(f) [Intentionally omitted].
(g) Prepayments from Certain Distributions from Mall Subsidiary.
On the date of receipt by Borrowers or any of their Subsidiaries of
any dividends or distributions in Cash or Cash Equivalents from New
Mall Subsidiary, Mall Subsidiary, Mall Direct Holdings, New Mall
Manager or Mall Manager following the sale or other disposition of all
or any portion of the Mall or any interest therein (including any
equity interest in Mall Direct Holdings, Mall Subsidiary, New Mall
Subsidiary, Mall Manager or New Mall Manager), Borrowers shall prepay
the Loans and/or the Commitments shall be permanently reduced in an
amount equal to 100% of such dividends or distributions.
Notwithstanding the foregoing, any dividends or distributions from New
Mall Subsidiary, Mall Subsidiary, Mall Direct Holdings, New Mall
Manager or Mall Manager which are applied by Borrowers within 15 days
of receipt to fund Permitted Quarterly Tax Distributions need not be
applied to prepay the Loans or to reduce Commitments, but such
exclusion shall not reduce the amounts otherwise required to be
applied to prepay Loans and/or reduce Commitments as provided above.
(h) Prepayments From Funds Returned to Administrative Agent. To
the extent no other provision of this subsection 2.4B(iii) would
otherwise apply, no later than the Business Day following the date on
which funds representing the proceeds of Loans are returned or
distributed to Administrative Agent on behalf of Lenders under Section
2.11 or 2.12 of the Disbursement Agreement, Administrative Agent shall
apply such funds to prepay the Loans and/or the Commitment shall be
permanently reduced in an amount equal to the amount of funds so
returned or distributed.
(i) Other Prepayments. To the extent no other provision of this
subsection 2.4B(iii) would apply, if any funds would be required to be
used to redeem and/or prepay the Mortgage Notes and/or the
Subordinated Notes (other than funds from the Mortgage Notes Proceeds
Account) if not otherwise used to repay the Loans, then no later than
one Business Day prior to the date on which Borrowers would otherwise
be required to use such funds to effect such prepayment or redemption
of the Mortgage Notes and/or Subordinated Notes, Borrowers shall
prepay the Loans and/or the Commitments shall be permanently reduced
in an amount equal to the amount of funds which would otherwise be
used to redeem and/or prepay Mortgage Notes and/or Subordinated Notes.
(j) Calculations of Net Proceeds Amounts; Additional Prepayments
and Reductions Based on Subsequent Calculations. Concurrently with any
prepayment of the Loans and/or if applicable the reduction of
Commitments pursuant to subsections 2.4B(iii)(a)-(i), Borrowers shall
deliver to Administrative Agent an Officers' Certificate demonstrating
the calculation of the amount (the "Net Proceeds Amount") of the
applicable Net Asset Sale Proceeds or Loss Proceeds or Liquidated
Damages, the applicable Net Pension Proceeds, Net Proceeds (as such
terms are defined in subsections 2.4B(iii)(c) and (d)), the applicable
Consolidated Excess Cash Flow, or the amount of the subsidiary
distribution or other amounts, as the case may be, that gave rise to
such prepayment and/or reduction. In the event that Borrowers shall
subsequently determine that the actual Net Proceeds Amount was greater
than the amount set forth in such Officers' Certificate, Borrowers
shall promptly make an additional prepayment of the Term Loans
(and/or, if applicable, the Commitments shall be permanently reduced)
in an amount equal to the amount of such excess, and Borrowers shall
concurrently therewith deliver to Administrative Agent an Officers'
Certificate demonstrating the derivation of the additional Net
Proceeds Amount resulting in such excess.
(k) Prepayments Due to Reductions or Restrictions of Revolving
Loan Commitments. Borrowers shall from time to time prepay the
Revolving Loans to the extent necessary so that the Total Utilization
of Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect.
(l) [Intentionally omitted].
(m) Reduction of Revolving Loans from FF&E Facility Proceeds.
Borrowers shall from time to time repay Revolving Loans the proceeds
of which were used to fund deposits for, or to acquire, equipment to
the extent required under subsection 6.14.
(n) Drawings on Conforming Adelson L/Cs. In the event that any
Conforming Adelson L/C Draw Event shall have occurred, Administrative
Agent may direct the Conforming Adelson L/C Drawing Agent to draw down
on each outstanding Conforming Adelson L/C in its entirety and shall
apply the proceeds received from the Conforming Adelson L/C Drawing
Agent: first to prepay outstanding amounts under (i) the Term Loans
and (ii) Revolving Loans, each on a pro rata basis to the full extent
thereof and to permanently reduce the Revolving Loan Commitments by
the amount of such prepayment of Revolving Loans and second to the
extent of any remaining amount of proceeds drawn by Drawing Agent, to
further permanently reduce the Revolving Loan Commitments. For the
avoidance of doubt, a Conforming Adelson L/C Draw Event shall be in
addition to an Event of Default described in Section 8 hereof and (i)
the Administrative Agent shall not be required to exercise any rights
or remedy under Section 8 hereof in order to draw on the Conforming
Adelson L/Cs and (ii) any drawing on a Conforming Adelson L/C shall
not be deemed to be a waiver of any Event of Default.
(iv) Application of Prepayments and Unscheduled Reductions of Revolving
Loan Commitments.
---------------------------------------------------------------------
(a) Application of Voluntary Prepayments by Type of Loan and
Order of Maturity. Any voluntary prepayments pursuant to subsection
2.4B(i) shall be applied as specified by Borrowers in the applicable
notice of prepayment, provided that in the event Borrowers fail to
specify the Loans to which any such prepayment shall be applied, such
prepayment shall be applied first to repay outstanding Revolving Loans
to the full extent thereof on a pro rata basis, second to repay
outstanding Term Loans on a pro rata basis and third to permanently
reduce the Revolving Loan Commitments to the full extent thereof.
(b) Application of Mandatory Prepayments by Type of Loans. Any
amount (the "Applied Amount") required to be applied as a mandatory
prepayment of the Term Loans and/or a reduction of the Revolving Loan
Commitments pursuant to subsections 2.4B(iii)(a)-(j) shall be applied
to first prepay the Term Loans on a pro rata basis (subject to
subsection 2.4B (iv)(e)), to the full extent thereof, second, to the
extent of any remaining portion of the Applied Amount, to prepay the
Revolving Loans to the full extent thereof and to further permanently
reduce the Revolving Loan Commitments by the amount of such
prepayment, and third, to the extent of any remaining portion of the
Applied Amount, to further permanently reduce the Revolving Loan
Commitments to the full extent thereof. Any amount required to be
applied as a mandatory repayment of Revolving Loans pursuant to
subsection 2.4B(iii)(m) shall be applied to prepay Revolving Loans.
Any amount required to be applied as a mandatory prepayment pursuant
to subsection 2.4B(iii)(n) shall be applied in accordance with terms
of such subsection.
(c) Application of Mandatory Prepayments of Term Loans to the
Scheduled Installments of Principal Thereof. Any mandatory prepayments
of the Term Loans pursuant to subsection 2.4B(iii)(a)-(d), (f), (g),
(h), (i) or (j) shall be applied to reduce the scheduled installments
of principal of the Term Loans set forth in subsection 2.4A, on a pro
rata basis (except as provided in subsection 2.5A(ii) and subject to
2.4B(iv)(e)), and any mandatory prepayments of the Term Loans pursuant
to subsection 2.4B(iii)(e) or (n) shall be applied to reduce the
scheduled installments of principal of the Term Loans set forth in
subsection 2.4A subject to subsection 2.4B(iv)(e), in inverse order of
maturity.
(d) Application of Prepayments to Base Rate Loans and Eurodollar
Rate Loans. Considering Loans being prepaid separately, any prepayment
thereof shall be applied first to Base Rate Loans to the full extent
thereof before application to Eurodollar Rate Loans, in each case in a
manner which minimizes the amount of any payments required to be made
by Borrowers pursuant to subsection 2.6D.
(e) Any Lender holding Tranche B Term Loans may elect, by notice
to Administrative Agent in writing (or by telephone or telecopy
promptly confirmed writing) at least two Business Days prior to any
prepayment of Tranche B Term Loans required to be made by Borrowers
for the account of such Lender pursuant to subsection 2.4B(iii), to
have all or a portion of such prepayment to be allocated instead to
the Tranche A Term Loans to the extent of the outstanding unpaid
principal amount thereof.
C. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Borrowers of
principal, interest, fees and other Obligations hereunder and under
the Notes shall be made in Dollars in same day funds, without defense,
setoff or counterclaim, free of any restriction or condition, and
delivered to Administrative Agent not later than 12:00 Noon (New York
City time) on the date due at the Funding and Payment Office for the
account of Lenders; funds received by Administrative Agent after that
time on such due date shall be deemed to have been paid by Borrowers
on the next succeeding Business Day. Borrowers hereby authorize
Administrative Agent to charge their accounts with Administrative
Agent in order to cause timely payment to be made to Administrative
Agent of all principal, interest, fees and expenses due hereunder
(subject to sufficient funds being available in its accounts for that
purpose).
(ii) Application of Payments to Principal and Interest. All payments
in respect of the principal amount of any Loan shall include payment
of accrued interest on the principal amount being repaid or prepaid,
and all such payments shall be applied to the payment of interest
before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest
payments in respect of Loans shall be apportioned among all
outstanding Loans proportionately to Lenders' respective Pro Rata
Shares. Administrative Agent shall promptly distribute to each Lender,
at its primary address set forth below its name on the appropriate
signature page hereof or at such other address as such Lender may
request, its Pro Rata Share of all such payments received by
Administrative Agent and the commitment fees of such Lender when
received by Administrative Agent pursuant to subsection 2.3.
Notwithstanding the foregoing provisions of this subsection 2.4C(iii),
if, pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if
any Affected Lender makes Base Rate Loans in lieu of its Pro Rata
Share of any Eurodollar Rate Loans, Administrative Agent shall give
effect thereto in apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be
made hereunder shall be stated to be due on a day that is not
a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall be
included in the computation of the payment of interest
hereunder or of the commitment fees hereunder, as the case may
be.
(v) Notation of Payment. Each Lender agrees that before
disposing of any Note held by it, or any part thereof (other
than by granting participations therein), that Lender will
make a notation thereon of all Loans evidenced by that Note
and all principal payments previously made thereon and of the
date to which interest thereon has been paid; provided that
the failure to make (or any error in the making of) a notation
of any Loan made under such Note shall not limit or otherwise
affect the obligations of Borrowers hereunder or under such
Note with respect to any Loan or any payments of principal or
interest on such Note.
2.5 Use of Proceeds.
---------------
A. Term Loans. (i) The proceeds of the Tranche A Term Loans shall be
applied by Borrowers to pay Project Costs in accordance with the Disbursement
Agreement (including costs and expenses incurred by Borrowers in connection with
the transactions contemplated hereby), all in accordance with the Disbursement
Agreement and (ii) the proceeds of the Tranche B Term Loans shall be used to
prepay the principal amount of the Tranche A Term Loans in forward order of
maturity to the extent of $30,000,000, and to prepay the Revolving Loans to the
extent of the remaining proceeds (net of fees and expenses), it being understood
that such prepayments shall not reduce the Revolving Loan Commitments.
B. Revolving Loans. The proceeds of the Revolving Loans shall be applied by
Borrowers for working capital and general corporate purposes.
C. Margin Regulations. No portion of the proceeds of any borrowing under
this Agreement shall be used by Borrowers or any of their Subsidiaries in any
manner that might cause the borrowing or the application of such proceeds to
violate Regulation U, Regulation T or Regulation X of the Board of Governors of
the Federal Reserve System or any other regulation of such Board or to violate
the Exchange Act, in each case as in effect on the date or dates of such
borrowing and such use of proceeds.
2.6 Special Provisions Governing Eurodollar Rate Loans.
---------------------------------------------------
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to Eurodollar Rate Loans as to
the matters covered:
A. Determination of Applicable Interest Rate. As soon as practicable after
10:00 A.M. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Borrowers
and each Lender.
B. Inability to Determine Applicable Interest Rate. In the event that
Administrative Agent shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the interbank Eurodollar market adequate and fair means
do not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate, Administrative
Agent shall on such date give notice (by telefacsimile or by telephone confirmed
in writing) to Borrowers and each Lender of such determination, whereupon (i) no
Loans may be made as, or converted to, Eurodollar Rate Loans until such time as
Administrative Agent notifies Borrowers and Lenders that the circumstances
giving rise to such notice no longer exist and (ii) any Notice of Borrowing or
Notice of Conversion/Continuation given by Borrowers with respect to the Loans
in respect of which such determination was made shall be deemed to be made with
respect to Base Rate Loans.
C. Illegality or Impracticability of Eurodollar Rate Loans. In the event
that on any date any Lender shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto but shall be made only
after consultation with Borrowers and Administrative Agent) that the making,
maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful
as a result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order not in effect on the date such
Person became a Lender (or would conflict with any such treaty, governmental
rule, regulation, guideline or order not having the force of law even though the
failure to comply therewith would not be unlawful), or (ii) would cause such
Lender material financial hardship as a result of contingencies occurring after
the date of this Agreement which materially and adversely affect the interbank
Eurodollar market or the position of such Lender in that market, then, and in
any such event, such Lender shall be an "Affected Lender" and it shall on that
day give notice (by telefacsimile or by telephone confirmed in writing) to
Borrowers and Administrative Agent of such determination (which notice
Administrative Agent shall promptly transmit to each other Lender). Thereafter
(a) the obligation of the Affected Lender to make Loans as, or to convert Loans
to, Eurodollar Rate Loans shall be suspended until such notice shall be
withdrawn by the Affected Lender (which such Affected Lender shall do at the
earliest practicable date), (b) to the extent such determination by the Affected
Lender relates to a Eurodollar Rate Loan then being requested by Borrowers
pursuant to a Notice of Borrowing or a Notice of Conversion/Continuation, the
Affected Lender shall make such Loan as (or convert such Loan to, as the case
may be) a Base Rate Loan, (c) the Affected Lender's obligation to maintain its
outstanding Eurodollar Rate Loans (the "Affected Loans") shall be terminated at
the earlier to occur of the expiration of the Interest Period then in effect
with respect to the Affected Loans or when required by law, and (d) the Affected
Loans shall automatically convert into Base Rate Loans on the date of such
termination. Except as provided in the immediately preceding sentence, nothing
in this subsection 2.6C shall affect the obligation of any Lender other than an
Affected Lender to make or maintain Loans as, or to convert Loans to, Eurodollar
Rate Loans in accordance with the terms of this Agreement.
D. Compensation For Breakage or Non-Commencement of Interest Periods.
Borrowers shall compensate each Lender, upon written request by that Lender
(which request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including any interest paid by that
Lender to lenders of funds borrowed by it to make or carry its Eurodollar Rate
Loans and any loss, expense or liability sustained by that Lender in connection
with the liquidation or re-employment of such funds) which that Lender may
sustain: (i) if for any reason (other than a default by that Lender) a borrowing
of any Eurodollar Rate Loan does not occur on a date specified therefor in an
Advance Confirmation Notice, Notice of Borrowing or a telephonic request for
borrowing, as applicable, or a conversion to or continuation of any Eurodollar
Rate Loan does not occur on a date specified therefor in a Notice of
Conversion/Continuation or a telephonic request for conversion or continuation,
(ii) if any prepayment (including any prepayment pursuant to subsection 2.4B(i))
or other principal payment or any conversion of any of its Eurodollar Rate Loans
occurs on a date prior to the last day of an Interest Period applicable to that
Loan, (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on
any date specified in a notice of prepayment given by Borrowers, or (iv) as a
consequence of any other default by Borrowers in the repayment of its Eurodollar
Rate Loans when required by the terms of this Agreement.
E. Booking of Eurodollar Rate Loans. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or
the office of an Affiliate of that Lender.
F. Assumptions Concerning Funding of Eurodollar Rate Loans. Calculation of
all amounts payable to a Lender under this subsection 2.6 and under subsection
2.7A shall be made as though that Lender had actually funded each of its
relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar deposit from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
provided, however, that each Lender may fund each of its Eurodollar Rate Loans
in any manner it sees fit and the foregoing assumptions shall be utilized only
for the purposes of calculating amounts payable under this subsection 2.6 and
under subsection 2.7A.
G. Eurodollar Rate Loans After Default. After the occurrence of and during
the continuation of a Potential Event of Default or an Event of Default, (i)
Borrowers may not elect to have a Loan be made or maintained as, or converted
to, a Eurodollar Rate Loan after the expiration of any Interest Period then in
effect for that Loan and (ii) subject to the provisions of subsection 2.6D, any
Advance Confirmation Notice, Notice of Borrowing or Notice of
Conversion/Continuation given by Borrowers with respect to a requested borrowing
or conversion/continuation that has not yet occurred shall be deemed made with
respect to Base Rate Loans.
2.7 Increased Costs; Taxes; Capital Adequacy.
-----------------------------------------
A. Compensation for Increased Costs and Taxes. Subject to the provisions of
subsection 2.7B (which shall be controlling with respect to the matters covered
thereby), in the event that any Lender shall determine (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties hereto) that any law, treaty or governmental rule, regulation or order,
or any change therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by such
Lender with any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Tax on the overall net income of such
Lender) with respect to this Agreement or any of its obligations hereunder
or any payments to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (other than any such
reserve or other requirements with respect to Eurodollar Rate Loans that
are reflected in the definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to a Tax matter)
on or affecting such Lender (or its applicable lending office) or its
obligations hereunder or the interbank Eurodollar market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, Borrowers shall promptly pay to such
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Borrowers (with a copy to Administrative
Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to such Lender under this subsection
2.7A, which statement shall be conclusive and binding upon all parties hereto
absent manifest error.
B. Withholding of Taxes.
(i) Payments to Be Free and Clear. All sums payable by Borrowers under this
Agreement and the other Loan Documents shall (except to the extent required
by law) be paid free and clear of, and without any deduction or withholding
on account of, any Tax (other than a Tax on the overall net income of any
Lender) imposed, levied, collected, withheld or assessed by or within the
United States of America or any political subdivision in or of the United
States of America or any other jurisdiction from or to which a payment is
made by or on behalf of Borrowers or by any federation or organization of
which the United States of America or any such jurisdiction is a member at
the time of payment, all such non-excluded Taxes being hereinafter
collectively referred to as "Included Taxes".
(ii) Grossing-up of Payments. If Borrowers or any other Person is required
by law to make any deduction or withholding on account of any such Included
Tax from any sum paid or payable by Borrowers to Administrative Agent or
any Lender under any of the Loan Documents:
(a) Borrowers shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as Borrowers
become aware of it;
(b) Borrowers shall pay any such Included Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to pay
is imposed on Borrowers) for its own account or (if that liability is
imposed on Administrative Agent or such Lender, as the case may be) on
behalf of and in the name of Administrative Agent or such Lender;
(c) the sum payable by Borrowers in respect of which the relevant
deduction, withholding or payment is required shall be increased to the
extent necessary to ensure that, after the making of that deduction,
withholding or payment, Administrative Agent or such Lender, as the case
may be, receives on the due date a net sum equal to what it would have
received had no such deduction, withholding or payment been required or
made; and
(d) within 30 days after paying any sum from which it is required by
law to make any deduction or withholding, and within 30 days after the due
date of payment of any Included Tax which it is required by clause (b)
above to pay, Borrowers shall deliver to Administrative Agent evidence
satisfactory to the other affected parties of such deduction, withholding
or payment and of the remittance thereof to the relevant taxing or other
authority;
provided that no such additional amount shall be required to be paid to any
Lender under clause (c) above except to the extent that any change after the
date hereof (in the case of each Lender listed on the signature pages hereof) or
after the date of the Assignment Agreement pursuant to which such Lender became
a Lender (in the case of each other Lender) in any such requirement for a
deduction, withholding or payment as is mentioned therein shall result in an
increase in the rate of such deduction, withholding or payment from that in
effect at the date of this Agreement or at the date of such Assignment
Agreement, as the case may be, in respect of payments to such Lender.
(iii) Evidence of Exemption from U.S.Withholding Tax.
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(a) Each Lender that is organized under the laws of any jurisdiction
other than the United States or any state or other political subdivision
thereof (for purposes of this subsection 2.7B(iii), a "Non-US Lender")
shall deliver to Administrative Agent for transmission to Borrowers, on or
prior to the Closing Date (in the case of each Lender listed on the
signature pages hereof) or on or prior to the date of the Assignment
Agreement pursuant to which it becomes a Lender (in the case of each other
Lender), and at such other times as may be necessary in the determination
of Borrowers or Administrative Agent (each in the reasonable exercise of
its discretion), (1) two original copies of Internal Revenue Service Form
1001 or 4224 (or any successor forms), properly completed and duly executed
by such Lender, together with any other certificate or statement of
exemption required under the Code or the regulations issued thereunder to
establish that such Lender is not subject to deduction or withholding of
United States federal income tax with respect to any payments to such
Lender of principal, interest, fees or other amounts payable under any of
the Loan Documents or (2) if such Lender is not a "bank" or other Person
described in Section 881(c)(3) of the Code and cannot deliver either
Internal Revenue Service Form 1001 or 4224 pursuant to clause (1) above, a
Certificate re Non-Bank Status together with two original copies of
Internal Revenue Service Form W-8 (or any successor form), properly
completed and duly executed by such Lender, together with any other
certificate or statement of exemption required under the Code or the
regulations issued thereunder to establish that such Lender is not subject
to deduction or withholding of United States federal income tax with
respect to any payments to such Lender of interest payable under any of the
Loan Documents.
(b) Each Lender required to deliver any forms, certificates or other
evidence with respect to United States federal income tax withholding
matters pursuant to subsection 2.7B(iii)(a) hereby agrees, from time to
time after the initial delivery by such Lender of such forms, certificates
or other evidence, whenever a lapse in time or change in circumstances
renders such forms, certificates or other evidence obsolete or inaccurate
in any material respect, that such Lender shall promptly (1) deliver to
Administrative Agent for transmission to Borrowers two new original copies
of Internal Revenue Service Form 1001 or 4224, or a Certificate re Non-Bank
Status and two original copies of Internal Revenue Service Form W-8, as the
case may be, properly completed and duly executed by such Lender, together
with any other certificate or statement of exemption required in order to
confirm or establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to payments to
such Lender under the Loan Documents or (2) notify Administrative Agent and
Borrowers of its inability to deliver any such forms, certificates or other
evidence.
(c) Borrowers shall not be required to pay any additional amount to
any Non-US Lender under clause (c) of subsection 2.7B(ii) if such Lender
shall have failed to satisfy the requirements of clause (a) or (b)(1) of
this subsection 2.7B(iii); provided that if such Lender shall have
satisfied the requirements of subsection 2.7B(iii)(a) on the Closing Date
(in the case of each Lender listed on the signature pages hereof) or on the
date of the Assignment Agreement pursuant to which it became a Lender (in
the case of each other Lender), nothing in this subsection 2.7B(iii)(c)
shall relieve Borrowers of their obligation to pay any additional amounts
pursuant to clause (c) of subsection 2.7B(ii) in the event that, as a
result of any change in any applicable law, treaty or governmental rule,
regulation or order, or any change in the interpretation, administration or
application thereof, such Lender is no longer properly entitled to deliver
forms, certificates or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as described in
subsection 2.7B(iii)(a).
C. Capital Adequacy Adjustment. If any Lender shall have determined that
the adoption, effectiveness, phase-in or applicability after the date hereof of
any law, rule or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof after the date hereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any Lender (or its applicable lending office) with any guideline,
request or directive regarding capital adequacy (whether or not having the force
of law) of any such governmental authority, central bank or comparable agency,
has or would have the effect of reducing the rate of return on the capital of
such Lender or any corporation controlling such Lender as a consequence of, or
with reference to, such Lender's Loans or Commitments or Letters of Credit or
participations therein or other obligations hereunder with respect to the Loans
or the Letters of Credit to a level below that which such Lender or such
controlling corporation could have achieved but for such adoption,
effectiveness, phase-in, applicability, change or compliance (taking into
consideration the policies of such Lender or such controlling corporation with
regard to capital adequacy), then from time to time, within five Business Days
after receipt by Borrowers from such Lender of the statement referred to in the
next sentence, Borrowers shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such controlling corporation on an
after-tax basis for such reduction. Such Lender shall deliver to Borrowers (with
a copy to Administrative Agent) a written statement, setting forth in reasonable
detail the basis of the calculation of such additional amounts, which statement
shall be conclusive and binding upon all parties hereto absent manifest error.
2.8 Obligation of Lenders to Mitigate.
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Each Lender and Issuing Lender agrees that, as promptly as practicable
after the officer of such Lender or Issuing Lender responsible for administering
the Loans or Letters of Credit of such Lender or Issuing Lender, as the case may
be, becomes aware of the occurrence of an event or the existence of a condition
that would cause such Lender or Issuing Lender to become an Affected Lender or
that would entitle such Lender or Issuing Lender to receive payments under
subsection 2.7 or subsection 3.6 it will, to the extent not inconsistent with
the internal policies of such Lender or Issuing Lender and any applicable legal
or regulatory restrictions, use reasonable efforts (i) to make, issue, fund or
maintain the Commitments of such Lender or Issuing Lender or the affected Loans
or Letters of Credit of such Lender or Issuing Lender through another lending or
Letters of Credit office of such Lender or Issuing Lender or (ii) take such
other measures as such Lender or Issuing Lender may deem reasonable, if as a
result thereof the circumstances which would cause such Lender or Issuing Lender
to be an Affected Lender would cease to exist or the additional amounts which
would otherwise be required to be paid to such Lender or Issuing Lender pursuant
to subsection 2.7 would be materially reduced and if, as determined by such
Lender or Issuing Lender in its sole discretion, the making, issuing, funding or
maintaining of such Commitments or Loans or Letters of Credit through such other
lending or Letters of Credit office or in accordance with such other measures,
as the case may be, would not otherwise materially adversely affect such
Commitments or Loans or Letters of Credit or the interests of such Lender or
Issuing Lender; provided that such Lender or Issuing Lender will not be
obligated to utilize such other lending or lending or Letters of Credit office
pursuant to this subsection 2.8 if such Lender or Issuing Lender would incur
incremental expenses as a result of utilizing such other lending office as
described in clause (i) above. A certificate as to the amount of any such
expenses payable by Borrowers pursuant to this subsection 2.8 (setting forth in
reasonable detail the basis for requesting such amount) submitted by such Lender
or Issuing Lender to Borrowers (with a copy to Administrative Agent) shall be
conclusive absent manifest error. Each Lender and Issuing Lender agrees that it
will not request compensation under subsection 2.7 unless such Lender or Issuing
Lender requests compensation from borrowers under other lending arrangements
with such Lender or Issuing Lender who are similarly situated.
2.9 Obligations Joint and Several.
------------------------------
Anything herein to the contrary notwithstanding, each Borrower hereby
agrees and acknowledges that the obligation of each Borrower for payment of the
Obligations shall be joint and several with the obligations of the other
Borrower hereunder regardless of which Borrower actually receives the proceeds
or benefits of any borrowing hereunder. Each Borrower hereby agrees and
acknowledges that it will receive substantial benefits from the Loans and credit
facilities made available under this Agreement.
Each Borrower agrees that its joint and several obligation to pay all
Obligations hereunder is irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than the indefeasible payment
in full of the Obligations, and the liability of each Borrower with respect to
the Obligations shall not be affected, reduced or impaired by (i) consideration
of the amount of proceeds of the Loans received by any Borrower relative to the
aggregate amount of the Loans, (ii) the dissolution or termination of or any
increase, decrease or change in personnel of, Borrower, (iii) the insolvency or
business failure of, or any assignment for the benefit of creditors by, or the
commencement of any bankruptcy, reorganization, arrangement, moratorium or other
debtor relief proceedings by or against the other Borrower or (iv) the
appointment of a receiver for, or the attachment, restraint of or making or
levying of any order of court or legal process affecting, the property of the
other Borrower. Each Borrower agrees that a separate action or actions may be
brought and prosecuted against such Borrower whether or not action is brought
against the other Borrower and whether or not the other Borrower is joined in
any such action or actions. Either Borrower's payment of a portion, but not all,
of the Obligations shall in no way limit, affect, modify or abridge such
Borrower's liability for that portion of the Obligations which is not paid.
Each Borrower hereby waives any right to require the Administrative Agent
or any Lender, as a condition of payment or performance of the Obligations by
such Borrower, to proceed against the other Borrower or any other Person, to
exhaust any security held from any Borrower, or pursue any other remedy in the
power of the Administrative Agent or any Lender. Each Borrower hereby waives any
defense arising by reason of incapacity, lack of authority or any disability or
other defense that may be available to the other Borrower and any defenses or
benefits that may be derived or afforded by law which would limit the liability
of or exonerate any guarantor or surety with respect to the obligations, or
which may conflict with the terms and provisions of this Agreement, other than
the indefeasible payment in full of the Obligations.
Any indebtedness of a Borrower now or hereafter held by the other Borrower
is hereby subordinated in right of payment to the Obligations, and any such
indebtedness of a Borrower to the other Borrower collected or received by such
other Borrower after an Event of Default has occurred and is continuing shall be
held in trust for the Administrative Agent on behalf of the Lenders and shall
forthwith be paid over to the Administrative Agent for the benefit of the
Lenders to be credited and applied against the Obligations but without
affecting, impairing or limiting in any manner the liability of such other
Borrower under any other provision of this Agreement.
Section 3. LETTERS OF CREDIT
3.1 Issuance of Letters of Credit and Lenders' Purchase of Participations
Therein.
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A. Letters of Credit. In addition to Borrowers requesting that Lenders make
Revolving Loans pursuant to subsection 2.1A(ii), Borrowers may request, in
accordance with the provisions of this subsection 3.1, from time to time during
the period from the Closing Date to but excluding the Revolving Loan Commitment
Termination Date, that one or more Lenders issue Letters of Credit for the
account of Borrowers for the purposes specified in the definitions of Commercial
Letters of Credit and Standby Letters of Credit. Subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of Borrowers herein set forth, any one or more Lenders may, but
(except as provided in subsection 3.1B(ii)) shall not be obligated to, issue
such Letters of Credit in accordance with the provisions of this subsection 3.1;
provided that Borrowers shall not request that any Lender issue (and no Lender
shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the
Total Utilization of Revolving Loan Commitments would exceed the Revolving
Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the
Letter of Credit Usage would exceed $15,000,000;
(iii) any Standby Letter of Credit having an expiration date later than the
earlier of (a) the Revolving Loan Commitment Termination Date and (b) the
date which is one year from the date of issuance of such Standby Letter of
Credit; provided that the immediately preceding clause (b) shall not
prevent any Issuing Lender from agreeing that a Standby Letter of Credit
will automatically be extended for one or more successive periods not to
exceed one year each unless such Issuing Lender elects not to extend for
any such additional period; and provided, further that such Issuing Lender
shall elect not to extend such Standby Letter of Credit if it has knowledge
that an Event of Default has occurred and is continuing (and has not been
waived in accordance with subsection 10.6) at the time such Issuing Lender
must elect whether or not to allow such extension;
(iv) any Commercial Letter of Credit having an expiration date (a) later
than the earlier of (X) the date which is 30 days prior to the Revolving
Loan Commitment Termination Date and (Y) the date which is 180 days from
the date of issuance of such Commercial Letter of Credit or (b) that is
otherwise unacceptable to the applicable Issuing Lender in its reasonable
discretion; or
(v) any Letter of Credit denominated in a currency other than Dollars.
B. Mechanics of Issuance.
(i) Notice of Issuance. Whenever Borrowers desire the issuance of a
Letter of Credit, they shall deliver to Administrative Agent a Notice
of Issuance of Letter of Credit substantially in the form of Exhibit
XV annexed hereto no later than 12:00 Noon (New York City time) at
least three Business Days (in the case of Standby Letters of Credit)
or five Business Days (in the case of Commercial Letters of Credit),
or in each case such shorter period as may be agreed to by the Issuing
Lender in any particular instance, in advance of the proposed date of
issuance. The Notice of Issuance of Letter of Credit shall specify (a)
the proposed date of issuance (which shall be a Business Day), (b)
whether the Letter of Credit is to be a Standby Letter of Credit or a
Commercial Letter of Credit, (c) the face amount of the Letter of
Credit, (d) the expiration date of the Letter of Credit, (e) the name
and address of the beneficiary, and (f) either the verbatim text of
the proposed Letter of Credit or the proposed terms and conditions
thereof, including a precise description of any documents to be
presented by the beneficiary which, if presented by the beneficiary
prior to the expiration date of the Letter of Credit, would require
the Issuing Lender to make payment under the Letter of Credit;
provided that the Issuing Lender, in its reasonable discretion, may
require changes in the text of the proposed Letter of Credit or any
such documents; and provided, further that no Letter of Credit shall
require payment against a conforming draft to be made thereunder on
the same business day (under the laws of the jurisdiction in which the
office of the Issuing Lender to which such draft is required to be
presented is located) that such draft is presented if such
presentation is made after 10:00 A.M. (in the time zone of such office
of the Issuing Lender) on such business day.
Borrowers shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing
Lender) prior to the issuance of any Letter of Credit in the event
that any of the matters to which Borrowers are required to certify in
the applicable Notice of Issuance of Letter of Credit is no longer
true and correct as of the proposed date of issuance of such Letter of
Credit, and upon the issuance of any Letter of Credit Borrowers shall
be deemed to have re-certified, as of the date of such issuance, as to
the matters to which Borrowers are required to certify in the
applicable Notice of Issuance of Letter of Credit.
(ii) Determination of Issuing Lender. Upon receipt by Administrative
Agent of a Notice of Issuance of Letter of Credit pursuant to
subsection 3.1B(i) requesting the issuance of a Letter of Credit, in
the event Administrative Agent elects to issue such Letter of Credit,
Administrative Agent shall promptly so notify Borrowers, and
Administrative Agent shall be the Issuing Lender with respect thereto.
In the event that Administrative Agent, in its sole discretion, elects
not to issue such Letter of Credit, Administrative Agent shall
promptly so notify Borrowers, whereupon Borrowers may request any
other Lender to issue such Letter of Credit by delivering to such
Lender a copy of the applicable Notice of Issuance of Letter of
Credit. Any Lender so requested to issue such Letter of Credit shall
promptly notify Borrowers and Administrative Agent whether or not, in
its sole discretion, it has elected to issue such Letter of Credit,
and any such Lender which so elects to issue such Letter of Credit
shall be the Issuing Lender with respect thereto. In the event that
all other Lenders shall have declined to issue such Letter of Credit,
notwithstanding the prior election of Administrative Agent not to
issue such Letter of Credit, Administrative Agent shall be obligated
to issue such Letter of Credit and shall be the Issuing Lender with
respect thereto, notwithstanding the fact that the Letter of Credit
Usage with respect to such Letter of Credit and with respect to all
other Letters of Credit issued by Administrative Agent, when
aggregated with Administrative Agent's outstanding Revolving Loans,
may exceed Administrative Agent's Revolving Loan Commitment then in
effect.
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in
subsection 4.3, the Issuing Lender shall issue the requested Letter of
Credit in accordance with the Issuing Lender's standard operating
procedures.
(iv) Notification to Lenders. Upon the issuance of any Letter of
Credit the applicable Issuing Lender shall promptly notify
Administrative Agent and each other Lender of such issuance, which
notice shall be accompanied by a copy of such Letter of Credit.
Promptly after receipt of such notice (or, if Administrative Agent is
the Issuing Lender, together with such notice), Administrative Agent
shall notify each Lender of the amount of such Lender's respective
participation in such Letter of Credit, determined in accordance with
subsection 3.1C.
(v) Reports to Lenders. Within 15 days after the end of each calendar
quarter ending after the Closing Date, so long as any Letter of Credit
shall have been outstanding during such calendar quarter, each Issuing
Lender shall deliver to each other Lender a report setting forth for
such calendar quarter the daily aggregate amount available to be drawn
under the Letters of Credit issued by such Issuing Lender that were
outstanding during such calendar quarter.
C. Lenders' Purchase of Participations in Letters of Credit. Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby agrees to, have irrevocably purchased from the Issuing Lender a
participation in such Letter of Credit and any drawings honored thereunder in an
amount equal to such Lender's Pro Rata Share of the maximum amount which is or
at any time may become available to be drawn thereunder.
3.2 Letter of Credit Fees.
----------------------
Borrowers agree to pay the following amounts with respect to Letters of
Credit issued hereunder:
(i) with respect to each Standby Letter of Credit, (a) a fronting fee,
payable directly to the applicable Issuing Lender for its own account,
equal to the greater of (X) $5,000 and (Y) 0.25% per annum of the daily
amount available to be drawn under such Standby Letter of Credit and (b) a
letter of credit fee, payable to Administrative Agent for the account of
Lenders, equal to the product of (y) (A) until the Restatement Closing
Date, a percentage equal to the Applicable Margin (as defined in the
Existing Credit Agreement) for Eurodollar Rate Loans, and (B) from and
after the Restatement Closing Date, 3.00% times (z) the daily maximum
amount available to be drawn under such Standby Letter of Credit, each such
fronting fee or letter of credit fee to be payable in arrears on and to
(but excluding) each March 31, June 30, September 30 and December 31 of
each year and computed on the basis of a 360-day year for the actual number
of days elapsed;
(ii) with respect to each Commercial Letter of Credit, (a) a fronting fee,
payable directly to the applicable Issuing Lender for its own account,
equal to 0.25% per annum of the daily amount available to be drawn under
such Commercial Letter of Credit and (b) a letter of credit fee, payable to
Administrative Agent for the account of Lenders, equal to the product of
(y) (A) until the Restatement Closing Date, a percentage equal to the
Applicable Margin (as defined in the Existing Credit Agreement) for
Eurodollar Rate Loans, and (B) from and after the Restatement Closing Date,
3.00% times (z) the daily maximum amount available to be drawn under such
Commercial Letter of Credit, each such fronting fee or letter of credit fee
to be payable in arrears on and to (but excluding) each March 31, June 30,
September 30 and December 31 of each year and computed on the basis of a
360-day year for the actual number of days elapsed; and
(iii) with respect to the issuance, amendment or transfer of each Letter of
Credit and each payment of a drawing made thereunder (without duplication
of the fees payable under clauses (i) and (ii) above), documentary and
processing charges payable directly to the applicable Issuing Lender for
its own account in accordance with such Issuing Lender's standard schedule
for such charges in effect at the time of such issuance, amendment,
transfer or payment, as the case may be.
For purposes of calculating any fees payable under clauses (i) and (ii) of this
subsection 3.2, the daily amount available to be drawn under any Letter of
Credit shall be determined as of the close of business on any date of
determination. Promptly upon receipt by Administrative Agent of any amount
described in clause (i)(b) or (ii)(b) of this subsection 3.2, Administrative
Agent shall distribute to each Lender its Pro Rata Share of such amount.
3.3 Drawings and Reimbursement of Amounts Paid Under Letters of Credit.
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A. Responsibility of Issuing Lender With Respect to Drawings. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
B. Reimbursement by Borrowers of Amounts Paid Under Letters of Credit. In
the event an Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, such Issuing Lender shall immediately notify Borrowers and
Administrative Agent, and Borrowers shall reimburse such Issuing Lender on or
before the Business Day immediately following the date on which such drawing is
honored (the "Reimbursement Date") in an amount in Dollars and in same day funds
equal to the amount of such honored drawing; provided that, anything contained
in this Agreement to the contrary notwithstanding, unless Borrowers shall have
notified Administrative Agent and such Issuing Lender prior to 10:00 A.M. (New
York City time) on the date such drawing is honored that Borrowers intend to
reimburse such Issuing Lender for the amount of such honored drawing with funds
other than the proceeds of Revolving Loans, Borrowers shall be deemed to have
given a timely Notice of Borrowing to Administrative Agent requesting Lenders to
make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an
amount in Dollars equal to the amount of such honored drawing and Lenders shall,
on the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the
amount of such honored drawing, the proceeds of which shall be applied directly
by Agent to reimburse such Issuing Lender for the amount of such honored
drawing; and provided, further that if for any reason proceeds of Revolving
Loans are not received by such Issuing Lender on the Reimbursement Date in an
amount equal to the amount of such honored drawing, Borrowers shall reimburse
such Issuing Lender, on demand, in an amount in same day funds equal to the
excess of the amount of such honored drawing over the aggregate amount of such
Revolving Loans, if any, which are so received. Nothing in this subsection 3.3B
shall be deemed to relieve any Lender from its obligation to make Revolving
Loans on the terms and conditions set forth in this Agreement, and Borrowers
shall retain any and all rights it may have against any Lender resulting from
the failure of such Lender to make such Revolving Loans under this subsection
3.3B.
C. Payment by Lenders of Unreimbursed Amounts Paid Under Letters of Credit.
(i) Payment by Lenders. In the event that Borrowers shall fail for any
reason to reimburse any Issuing Lender as provided in subsection 3.3B
in an amount equal to the amount of any drawing honored by such
Issuing Lender under a Letter of Credit issued by it, such Issuing
Lender shall promptly notify each other Lender of the unreimbursed
amount of such honored drawing and of such other Lender's respective
participation therein based on such Lender's Pro Rata Share. Each
Lender shall make available to such Issuing Lender an amount equal to
its respective participation, in Dollars and in same day funds, at the
office of such Issuing Lender specified in such notice, not later than
12:00 Noon (New York City time) on the first business day (under the
laws of the jurisdiction in which such office of such Issuing Lender
is located) after the date notified by such Issuing Lender. In the
event that any Lender fails to make available to such Issuing Lender
on such business day the amount of such Lender's participation in such
Letter of Credit as provided in this subsection 3.3C, such Issuing
Lender shall be entitled to recover such amount on demand from such
Lender together with interest thereon at the rate customarily used by
such Issuing Lender for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. Nothing in this
subsection 3.3C shall be deemed to prejudice the right of any Lender
to recover from any Issuing Lender any amounts made available by such
Lender to such Issuing Lender pursuant to this subsection 3.3C in the
event that it is determined by the final judgment of a court of
competent jurisdiction that the payment with respect to a Letter of
Credit by such Issuing Lender in respect of which payment was made by
such Lender constituted gross negligence or willful misconduct on the
part of such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From
Borrowers. In the event any Issuing Lender shall have been reimbursed
by other Lenders pursuant to subsection 3.3C(i) for all or any portion
of any drawing honored by such Issuing Lender under a Letter of Credit
issued by it, such Issuing Lender shall distribute to each other
Lender which has paid all amounts payable by it under subsection
3.3C(i) with respect to such honored drawing such other Lender's Pro
Rata Share of all payments subsequently received by such Issuing
Lender from Borrowers in reimbursement of such honored drawing when
such payments are received. Any such distribution shall be made to a
Lender at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such
Lender may request.
D. Interest on Amounts Paid Under Letters of Credit.
(i) Payment of Interest by Borrowers. Borrowers agree to pay to each
Issuing Lender, with respect to drawings honored under any Letters of
Credit issued by it, interest on the amount paid by such Issuing
Lender in respect of each such honored drawing from the date such
drawing is honored to but excluding the date such amount is reimbursed
by Borrowers (including any such reimbursement out of the proceeds of
Revolving Loans pursuant to subsection 3.3B) at a rate equal to (a)
for the period from the date such drawing is honored to but excluding
the Reimbursement Date, the rate then in effect under this Agreement
with respect to Revolving Loans that are Base Rate Loans and (b)
thereafter, a rate which is 2% per annum in excess of the rate of
interest otherwise payable under this Agreement with respect to
Revolving Loans that are Base Rate Loans. Interest payable pursuant to
this subsection 3.3D(i) shall be computed on the basis of a 365-day
year for the actual number of days elapsed in the period during which
it accrues and shall be payable on demand or, if no demand is made, on
the date on which the related drawing under a Letter of Credit is
reimbursed in full.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly
upon receipt by any Issuing Lender of any payment of interest pursuant
to subsection 3.3D(i) with respect to a drawing honored under a Letter
of Credit issued by it, (a) such Issuing Lender shall distribute to
each other Lender, out of the interest received by such Issuing Lender
in respect of the period from the date such drawing is honored to but
excluding the date on which such Issuing Lender is reimbursed for the
amount of such drawing (including any such reimbursement out of the
proceeds of Revolving Loans pursuant to subsection 3.3B), the amount
that such other Lender would have been entitled to receive in respect
of the letter of credit fee that would have been payable in respect of
such Letter of Credit for such period pursuant to subsection 3.2 if no
drawing had been honored under such Letter of Credit, and (b) in the
event such Issuing Lender shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of such honored
drawing, such Issuing Lender shall distribute to each other Lender
which has paid all amounts payable by it under subsection 3.3C(i) with
respect to such honored drawing such other Lender's Pro Rata Share of
any interest received by such Issuing Lender in respect of that
portion of such honored drawing so reimbursed by other Lenders for the
period from the date on which such Issuing Lender was so reimbursed by
other Lenders to but excluding the date on which such portion of such
honored drawing is reimbursed by Borrowers. Any such distribution
shall be made to a Lender at its primary address set forth below its
name on the appropriate signature page hereof or at such other address
as such Lender may request.
3.4 Obligations Absolute.
---------------------
The obligation of Borrowers to reimburse each Issuing Lender for drawings
honored under the Letters of Credit issued by it and to repay any Revolving
Loans made by Lenders pursuant to subsection 3.3B and the obligations of Lenders
under subsection 3.3C(i) shall be unconditional and irrevocable and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances including, without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
Borrower or any Lender may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Borrowers, whether in
connection with this Agreement, the transactions contemplated herein or any
unrelated transaction (including any underlying transaction between
Borrowers or one of its Subsidiaries and the beneficiary for which any
Letter of Credit was procured);
(iii) any draft or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter of Credit
against presentation of a draft or other document which does not
substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Borrowers;
(vi) any breach of this Agreement or any other Loan Document by any party
thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of Default
shall have occurred and be continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 Indemnification; Nature of Issuing Lenders' Duties.
---------------------------------------------------
A. Indemnification. In addition to amounts payable as provided in
subsection 3.6, Borrowers hereby agree to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful misconduct
of such Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing under any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions herein called
"Governmental Acts").
B. Nature of Issuing Lenders' Duties. As between Borrowers and any Issuing
Lender, Borrowers assume all risks of the acts and omissions of, or misuse of
the Letters of Credit issued by such Issuing Lender by, the respective
beneficiaries of such Letters of Credit. In furtherance and not in limitation of
the foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including without limitation any Governmental
Acts, and none of the above shall affect or impair, or prevent the vesting of,
any of such Issuing Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Borrowers.
Notwithstanding anything to the contrary contained in this subsection 3.5,
Borrowers shall retain any and all rights it may have against any Issuing Lender
for any liability arising solely out of the gross negligence or willful
misconduct of such Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 Increased Costs and Taxes Relating to Letters of Credit.
-------------------------------------------------------
Subject to the provisions of subsection 2.7B (which shall be controlling
with respect to the matters covered thereby), in the event that any Issuing
Lender or Lender shall determine (which determination shall, absent manifest
error, be final and conclusive and binding upon all parties hereto) that any
law, treaty or governmental rule, regulation or order, or any change therein or
in the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof, or compliance by any Issuing Lender or
Lender with any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law):
(i) subjects such Issuing Lender or Lender (or its applicable lending or
letter of credit office) to any additional Tax (other than any Tax on the
overall net income of such Issuing Lender or Lender) with respect to the
issuing or maintaining of any Letters of Credit or the purchasing or
maintaining of any participations therein or any other obligations under
this Section 3, whether directly or by such being imposed on or suffered by
any particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including without
limitation any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement in respect of any Letters of Credit issued by any Issuing
Lender or participations therein purchased by any Lender; or
(iii) imposes any other condition (other than with respect to a Tax matter)
on or affecting such Issuing Lender or Lender (or its applicable lending or
letter of credit office) regarding this Section 3 or any Letter of Credit
or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Borrowers shall promptly pay to such Issuing Lender
or Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts as may be necessary to compensate such Issuing
Lender or Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Issuing Lender or Lender shall deliver to Borrowers a
written statement, setting forth in reasonable detail the basis for calculating
the additional amounts owed to such Issuing Lender or Lender under this
subsection 3.6, which statement shall be conclusive and binding upon all parties
hereto absent manifest error.
Section 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans hereunder are subject to the
satisfaction of the following conditions. The conditions applicable to the
funding of Tranche A Term Loans and any Revolving Loans made and the issuance of
any Letters of Credit issued, prior to the Restatement Closing Date are as set
forth in the Existing Credit Agreement and have been satisfied or waived.
4.1 Conditions to Tranche B Term Loans on Restatement Closing Date.
--------------------------------------------------------------
The conditions to the obligations of Lenders to make the Tranche B Term
Loans, in addition to the conditions precedent specified in subsection 4.2 are:
A. Borrowers' Documents. On or before the Restatement Closing Date,
Borrowers shall, have delivered to Lenders (or to Administrative Agent for
Lenders with sufficient originally executed copies, where appropriate, for each
Lender and its counsel) the following with respect to Borrowers, each, unless
otherwise noted, dated the Restatement Closing Date:
(i) Copies of the Organizational Documents of such Person, certified by the
Secretary of State of its jurisdiction of organization if such
certification is generally available dated a recent date prior to the
Restatement Closing Date and in each other case, by such Person's secretary
or assistant secretary;
(ii) To the extent generally available, a good standing certificate from
the Secretary of State of its jurisdiction of organization and a
certificate or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing authority
of such jurisdiction, each dated a recent date prior to the Restatement
Closing Date;
(iii) Resolutions of the Board of Directors of such Person approving and
authorizing the execution, delivery and performance of the Loan Documents
being executed on the Restatement Closing Date to which it is a party,
certified as of the Restatement Closing Date by the corporate secretary or
an assistant secretary of such Person as being in full force and effect
without modification or amendment;
(iv) Signature and incumbency certificates of the officers of such Person
executing the Loan Documents being executed on the Restatement Closing Date
to which it is a party;
(v) Such other documents as Administrative Agent may reasonably request.
B. Notes. Delivery to Administrative Agent of all promissory notes or other
instruments duly endorsed, where appropriate, in a manner satisfactory to
Administrative Agent) evidencing Borrowers' obligation to repay the Tranche B
Term Loans
C. No Material Adverse Effect. Since December 31, 1999, no Material Adverse
Effect shall have occurred.
D. Use of Proceeds. On or before the Restatement Closing Date, Borrowers
shall have disbursement instructions reasonably satisfactory to the
Administrative Agent directing that $30,000,000 of the proceeds of the Tranche B
Term Loans will be applied to the existing Term Loans (as defined in the
Existing Credit Agreement) in forward order of maturity, and the balance of such
proceeds (net of fees and expenses) will be applied to the principal amount of
the Revolving Loans.
E. Fourth Amendment to Deed of Trust. Administrative Agent shall have
received from Borrowers (i) a fully executed and notarized fourth amendment to
the Deed of Trust, in form and substance reasonably satisfactory to
Administrative Agent duly recorded in the appropriate filing or recording office
in the jurisdiction in which the Mortgaged Property is located, or evidence that
such fourth amendment to the Deed of Trust has been irrevocably delivered to the
Title Company for such recordation, and (ii) such title insurance endorsements
to the Mortgage Policy (as such term is defined in the Existing Credit
Agreement) insuring the interest of the Lenders in the real property securing
the Facilities has been obtained, as of the Restatement Closing Date, subject
only to Permitted Liens, and increasing the amount of the Mortgage Policy by $20
million (minus any permanent reductions in the Tranche A Loan Facility prior to
the Restatement Closing Date) in form and substance satisfactory to the
Arrangers and the Administrative Agent.
F. Security Interests in Personal and Mixed Property. Administrative Agent
shall have received evidence reasonably satisfactory to it that Borrowers shall
have taken or caused to be taken all actions, executed and delivered or caused
to be executed and delivered all such agreements, documents and instruments, and
made or caused to be made all such filings and recordings that may be necessary
or in the reasonable opinion of Administrative Agent, desirable in order to
maintain in favor of Administrative Agent, for the benefit of Lenders, a valid
and perfected First Priority security interest in the First Priority Collateral
securing all of the Obligations (including, without limitation, Obligations in
respect of the Tranche B Term Loans).
G. Opinions of Counsel to Borrowers. Lenders and their respective counsel
shall have received (i) originally executed copies of one or more favorable
written opinions of Paul, Weiss, Rifkind, Wharton & Garrison, counsel for
Borrowers and their Subsidiaries, and (ii) originally executed copies of one or
more favorable written opinions of Lionel Sawyer & Collins, Nevada counsel for
Borrowers and their Subsidiaries, each in form and substance reasonably
satisfactory to Administrative Agent and its counsel, dated as of the
Restatement Closing Date and setting forth substantially the matters in the
opinions designated in Exhibits V-A and V-B annexed hereto, respectively, and as
to such other matters as Administrative Agent acting on behalf of Lenders may
reasonably request. Borrowers hereby acknowledge and confirm that they have
requested such counsel to deliver such opinions to Lenders.
H. Fees. Borrowers shall have paid to Syndication Agent, Arrangers and
Administrative Agent, for distribution (as appropriate) to Agents and Lenders,
the fees payable on the Restatement Closing Date referred to in subsection 2.3.
I. Amendment to FF&E Facility Agreement. Administrative Agent shall have
received from Borrowers a duly executed amendment to the FF&E Facility Agreement
permitting, among other things, Borrowers to incur the Tranch B Term Loans, in
form and substance reasonably satisfactory to Administrative Agent.
J. Conforming Adelson L/C Drawing Agreement. Administrative Agent shall
have received from Borrowers the Conforming Adelson L/C Drawing Agreement duly
executed by all parties thereto and in form and substance satisfactory to
Administrative Agent.
K. Completion of Proceedings. All corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found reasonably acceptable by
Administrative Agent, acting on behalf of Lenders, and its counsel shall be
reasonably satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as Administrative
Agent may reasonably request.
Each Lender by execution and delivery of a signature page hereto on the
Restatement Closing Date confirms that it is satisfied that each of the
conditions set forth above in this subsection 4.1 has been satisfied provided
that neither such confirmation nor any extension of credit hereunder shall
preclude any Agent or Lender from later asserting that (and enforcing any rights
or remedies it may have if), any representation, warranty or certification made
or deemed made by Borrowers or any of their Affiliates in connection therewith
was not true and accurate when made.
4.2 Conditions to all Loans on or after the Restatement Closing Date.
----------------------------------------------------------------
The obligations of Lenders to make Loans on or after the Restatement
Closing Date on any Funding Date are subject to the following further conditions
precedent:
A. Administrative Agent shall have received before that Funding Date, in
accordance with the provisions of subsection 2.1B, an originally executed
Notice of Borrowing, in each case signed by the chief executive officer,
the chief financial officer or the treasurer of each Borrower or of the
managing member of such Borrower or by any executive officer of such
Borrower or managing member designated by any of the above-described
officers on behalf of Borrowers in a writing delivered to Administrative
Agent.
B. As of that Funding Date:
(i) [Intentionally omitted];
(ii) The representations and warranties contained herein and in the
other Loan Documents shall be true, correct and complete in all material
respects on and as of that Funding Date to the same extent as though made
on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete
in all material respects on and as of such earlier date;
(iii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event of
Default (except as set forth in Schedule 5.18 annexed hereto);
(iv) Each Loan Party shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement provides shall
be performed or satisfied by it on or before that Funding Date;
(v) No order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain any Lender from
making the Loans to be made by it on that Funding Date;
(vi) The making of the Loans requested on such Funding Date shall not
violate any law including, Regulation T, Regulation U or Regulation X of
the Board of Governors of the Federal Reserve System; and
(vii) There shall not be pending or, to the knowledge of Borrowers,
threatened, any action, suit, proceeding, governmental investigation or
arbitration against or affecting Borrowers or any of their Subsidiaries or
any property of Borrowers or any of their Subsidiaries that is required to
be disclosed under, and has not been disclosed by Borrowers in writing
pursuant to, subsection 5.6 or 6.1(x) prior to the making of the last
preceding Loans (or, in the case of the initial Revolving Loans, prior to
the execution of this Agreement), and there shall have occurred no
development not so disclosed in any such action, suit, proceeding,
governmental investigation or arbitration so disclosed, that, in either
event, in the reasonable opinion of Administrative Agent or of Requisite
Lenders, would have a Material Adverse Effect.
4.3 Conditions to Letters of Credit.
--------------------------------
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) on or
after the Restatement Closing Date is subject to the following conditions
precedent:
A. On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, the Tranche B Term Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions
of subsection 3.1B(i), an originally executed Notice of Issuance of Letter
of Credit, in each case signed by the chief executive officer, the chief
financial officer or the treasurer of each of the Borrowers or the managing
member of such Borrower or by any executive officer of each of the
Borrowers or managing member designated by any of the above-described
officers on behalf of each of the Borrowers in a writing delivered to
Administrative Agent, together with all other information specified in
subsection 3.1B(i) and such other documents or information as the
applicable Issuing Lender may reasonably require in connection with the
issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same
extent as if the issuance of such Letter of Credit were the making of a
Loan and the date of issuance of such Letter of Credit were a Funding Date.
Section 5. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make or
continue the Loans, as applicable, and to induce Issuing Lenders to issue or
continue Letters of Credit, as applicable, Borrowers represent and warrant to
each Lender that, on the Restatement Closing Date, on each Funding Date for
Revolving Loans on or after the Revolving Loan Availability Date and on the date
of issuance of each Letter of Credit on or after the Revolving Loan Availability
Date, the following statements are true, correct and complete
5.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries.
-------------------------------------------------------------------------
A. Organization and Powers. Each Loan Party is a corporation or limited
liability company duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization as specified in Schedule 5.1A
annexed hereto. Each Loan Party has all requisite corporate or limited liability
company power and authority to own and operate its properties, to carry on its
business as now conducted and as proposed to be conducted, to enter into the
Loan Documents and Project Documents to which it is a party and to carry out the
transactions contemplated thereby.
B. Qualification and Good Standing. Each Loan Party is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had and will not have a Material Adverse Effect.
C. Ownership of Borrowers. The equity interests in each of the Borrowers is
duly authorized, validly issued and (if applicable) fully paid and nonassessable
and, as of the Closing Date, none of such equity interests constitute Margin
Stock. Schedule 5.1C, as it may be supplemented from time to time, correctly
sets forth the ownership of each Borrower.
D. Subsidiaries. All of the Subsidiaries of Borrowers are identified in
Schedule 5.1D annexed hereto, as said Schedule 5.1D may be supplemented from
time to time pursuant to the provisions of subsection 6.1(xvii). The equity
interests of each of the Subsidiaries of Borrowers identified in Schedule 5.1D
annexed hereto (as so supplemented) is duly authorized, validly issued and (if
applicable), fully paid and nonassessable and none of such equity interests
constitutes Margin Stock. Each of the Subsidiaries of Borrowers identified in
Schedule 5.1D annexed hereto (as so supplemented) is a corporation or limited
liability company duly organized, validly existing and in good standing under
the laws of its respective jurisdiction of organization set forth therein, has
all requisite corporate or limited liability company power and authority to own
and operate its properties and to carry on its business as now conducted and as
proposed to be conducted, and is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to
carry out its business and operations, in each case except where failure to be
so qualified or in good standing or a lack of such corporate power and authority
has not had and will not have a Material Adverse Effect. Schedule 5.1D annexed
hereto (as so supplemented) correctly sets forth the ownership interest of
Borrowers and each of its Subsidiaries in each of the Subsidiaries of Borrowers
identified therein.
E. Rights to Acquire Equity. There are no options, warrants, convertible
securities or other rights to acquire any equity interests in any Borrower or
any of their Subsidiaries (other than the New Mall Subsidiary and Phase II
Subsidiary) except as set forth as Schedule 5.1E.
F. Conduct of Business. Borrowers and their Subsidiaries (other than the
New Mall Subsidiary and the Phase II Subsidiary) are engaged only in the
businesses permitted to be engaged in pursuant to subsections 7.12.
5.2 Authorization of Borrowing, etc.
-------------------------------
A. Authorization of Borrowing. The execution, delivery and performance of
the Loan Documents and the Project Documents have been duly authorized by all
necessary corporate action on the part of each Loan Party that is a party
thereto.
B. No Conflict. The execution, delivery and performance by Loan Parties of
the Loan Documents and the Project Documents to which they are parties and the
consummation of the transactions contemplated by the Loan Documents and such
Project Documents do not and will not (i) violate any provision of (a) any law
or any governmental rule or regulation applicable to any of their Subsidiaries,
Borrowers or any of their Subsidiaries, (b) the Certificate or Articles of
Incorporation, Bylaws or operating agreements of Borrowers or any of their
Subsidiaries or (c) any order, judgment or decree of any court or other agency
of government binding on Borrowers or any of their Subsidiaries, (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 Borrowers or any of their
Subsidiaries, (iii) result in or require the creation or imposition of any Lien
upon any of the properties or assets of Borrowers or any of their Subsidiaries
(other than any Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of Borrowers or any of their Subsidiaries except for such approvals
or consents which will be obtained on or before the Closing Date and disclosed
in writing to Lenders and except for such violations, conflicts, approvals and
consents the failure of which to obtain could reasonably be expected to have a
Material Adverse Effect.
C. Governmental Consents. The execution, delivery and performance by Loan
Parties of the Loan Documents to which they are parties and the consummation of
the transactions contemplated by the Loan Documents 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.
D. Binding Obligation. Each of the Loan Documents and Project Documents has
been duly executed and delivered by Loan Parties that are parties hereto or
thereto, as applicable, and is the legally valid and binding obligation of Loan
Parties, enforceable against such Loan Party in accordance with its respective
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, whether brought in a
proceeding in equity or at law.
E. Valid Issuance of Mortgage Notes and Subordinated Notes. Borrowers have
the corporate or limited liability company power and authority to issue the
Mortgage Notes and the Subordinated Notes. The Mortgage Notes and the
Subordinated Notes are legally valid and binding obligations of Borrowers,
enforceable against Borrowers in accordance with their respective 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. The issuance and sale of Mortgage Notes
and the Subordinated Notes, either (a) have been registered or qualified under
applicable federal and state securities laws or (b) are exempt therefrom. The
Loans and all other monetary Obligations hereunder are and will be within the
definition of "Senior Debt" and "Permitted Indebtedness" included in such
provisions.
5.3 Financial Condition.
--------------------
Borrowers have heretofore delivered to Lenders, at Lenders' request, the
following financial statements and information: (i) the audited consolidated and
consolidating balance sheets of LVSI and its Subsidiaries as at December 31,
1999 and the related consolidated and consolidating statements of income,
stockholders' equity and cash flows of Borrowers and their Subsidiaries for the
Fiscal Year then ended and (ii) the unaudited consolidated and consolidating
balance sheets of LVSI and its Subsidiaries as at March 31, 2000 and the related
unaudited consolidated and consolidating statements of income, stockholders'
equity and cash flows of LVSI and its Subsidiaries for the three months then
ended. All such statements were prepared in conformity with GAAP and fairly
present, in all material respects, the financial position (on a consolidated
and, where applicable, consolidating basis) of the entities described in such
financial statements as at the respective dates thereof and the results of
operations and cash flows (on a consolidated and, where applicable,
consolidating basis) of the entities described therein for each of the periods
then ended, subject, in the case of any such unaudited financial statements, to
changes resulting from audit and normal year-end adjustments. Except for
obligations under the Operative Documents, Borrowers do not (and will not
following the funding of the initial Loans) have any Contingent Obligation,
contingent liability or liability for taxes, long-term lease or forward or
long-term commitment that is not reflected in the foregoing financial statements
or the notes thereto and which in any such case is material in relation to the
business, operations, properties, assets, financial condition or prospects of
Borrowers and their Subsidiaries taken as a whole.
5.4 No Material Adverse Change; No Restricted Junior Payments.
---------------------------------------------------------
Since December 31, 1999, no event or change has occurred that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect.
Except as set forth on Schedule 5.4, neither of Borrowers nor any of their
Subsidiaries have directly or indirectly declared, ordered, paid or made, or set
apart any sum or property for, any Restricted Junior Payment or agreed to do so
except as permitted by subsection 7.5.
5.5 Title to Properties; Liens; Real Property.
------------------------------------------
A. Title to Properties; Liens. Borrowers and their Subsidiaries have (i)
good marketable and insurable fee simple title to (in the case of fee interests
in real property), (ii) valid leasehold interests in (in the case of leasehold
interests in real or personal property), or (iii) good title to (in the case of
all other personal property), all of their respective material properties and
assets reflected in the financial statements referred to in subsection 5.3 or in
the most recent financial statements delivered pursuant to subsection 6.1, in
each case except for assets disposed of since the date of such financial
statements in the ordinary course of business or as otherwise permitted under
subsection 7.7. Except as permitted by this Agreement, all such properties and
assets are held free and clear of Liens.
B. Real Property. As of the Restatement Closing Date, Schedule 5.5 annexed
hereto contains a true, accurate and complete list of (i) all material
properties owned by Borrowers or any of their Subsidiaries and (ii) all material
leases, subleases or assignments of leases (together with all amendments,
modifications, supplements, renewals or extensions of any thereof) affecting
real estate of properties owned by Borrowers or any of their Subsidiaries
(exclusive of any retail and restaurant leases in the Mall) regardless of
whether a Borrower or such Subsidiary is the landlord or tenant (whether
directly or as an assignee or successor in interest) under such lease, sublease
or assignment. Except as specified in Schedule 5.5 annexed hereto, each
agreement listed in clause (ii) of the immediately preceding sentence is in full
force and effect and Borrowers do not have knowledge of any default that has
occurred and is continuing thereunder, and each such agreement constitutes the
legally valid and binding obligation of each applicable Borrower, enforceable
against such Borrower in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
except to the extent that the failure of such agreement to be in full force and
effect could not reasonably be expected to have a Material Adverse Effect.
5.6 Litigation; Adverse Facts.
--------------------------
Except as set forth in Schedule 5.6 and Schedule 5.17 annexed hereto, there
are no actions, suits, proceedings, arbitrations or governmental investigations
(whether or not purportedly on behalf of Borrowers or any of their Subsidiaries)
at law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign (including any Environmental Claims) that are pending or, to
the knowledge of Borrowers, threatened against or affecting Borrowers or any of
their Subsidiaries or any property of Borrowers or any of their Subsidiaries and
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. Neither Borrowers nor any of their Subsidiaries
(i) is in violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect, or (ii) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court
or any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
5.7 Payment of Taxes.
----------------
Except to the extent permitted by subsection 6.3, all tax returns and
reports of Borrowers required to be filed by them have been timely filed, and
all taxes shown on such tax returns to be due and payable and all material
assessments, fees and other governmental charges upon Borrowers and upon their
respective properties, assets, income, businesses and franchises which are due
and payable have been paid when due and payable. Borrowers know of no proposed
tax assessment against Borrowers or any of their Subsidiaries which is not being
actively contested by Borrowers or such Subsidiary in good faith and by
appropriate proceedings; provided that such reserves or other appropriate
provisions, if any, as shall be required in conformity with GAAP shall have been
made or provided therefor.
5.8 Performance of Agreements; Materially Adverse Agreements; Material
Contracts.
-------------------------------------------------------------------------
A. Neither Borrowers nor any of their Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences of such default or
defaults, if any, would not have a Material Adverse Effect.
B. Schedule 5.8 contains a true, correct and complete list of all the
Material Contracts in effect on the Restatement Closing Date. Except as
described on Schedule 5.8, all such Material Contracts are, to the knowledge of
Borrowers, in full force and effect and no material defaults currently exist
thereunder.
5.9 Governmental Regulation.
------------------------
Neither Borrowers nor any of their Subsidiaries is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, or
the Interstate Commerce Act or registration under the Investment Company Act of
1940 or under any other federal or state statute or regulation which may limit
its ability to incur Indebtedness other than the Nevada Gaming Laws or which may
otherwise render all or any portion of the Obligations unenforceable. Incurrence
of the Obligations under the Loan Documents complies with all applicable
provisions of the Nevada Gaming Laws.
5.10 Securities Activities.
----------------------
A. Neither Borrowers nor any of their Subsidiaries is engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not more than 25% of
the value of the assets (either of Borrowers only or of Borrowers and their
Subsidiaries on a consolidated basis) subject to the provisions of subsection
7.2 or 7.7 or subject to any restriction contained in any agreement or
instrument, between Borrowers and any Lender or any Affiliate of any Lender,
relating to Indebtedness and within the scope of subsection 8.2, will be Margin
Stock.
5.11 Employee Benefit Plans.
-----------------------
A. Borrowers, each of their Subsidiaries and each of their respective ERISA
Affiliates are in material compliance with all applicable provisions and
requirements of ERISA and the regulations thereunder with respect to each
Employee Benefit Plan, and have performed all their obligations under each
Employee Benefit Plan. Each Employee Benefit Plan which is intended to qualify
under Section 401(a) of the Code is so qualified.
B. No ERISA Event has occurred or is reasonably expected to occur which has
resulted or would be reasonably likely to result in a liability in the aggregate
amount of $1,000,000 or more.
C. Except to the extent required under Section 4980B of the Code or except
as set forth in Schedule 5.11 annexed hereto, no Employee Benefit Plan provides
health or welfare benefits (through the purchase of insurance or otherwise) for
any retired or former employee of Borrowers, any of their Subsidiaries or any of
their respective ERISA Affiliates.
D. As of the most recent valuation date for any Pension Plan, the amount of
unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
benefit liabilities), does not exceed $1,000,000.
E. As of the most recent valuation date for each Multiemployer Plan for
which the actuarial report is available, the potential liability of Borrowers,
their Subsidiaries and their respective ERISA Affiliates for a complete
withdrawal from such Multiemployer Plan (within the meaning of Section 4203 of
ERISA), when aggregated with such potential liability for a complete withdrawal
from all Multiemployer Plans, based on information available pursuant to Section
4221(e) of ERISA, does not exceed $1,000,000.
5.12 Certain Fees.
-------------
No broker's or finder's fee or commission will be payable with respect to
this Agreement or any of the transactions contemplated hereby except as set
forth on Schedule 5.12 (other than fees payable to Agents and Lenders under
subsection 2.3), and each Borrower hereby indemnifies Lenders against, and
agrees that it will hold Lenders harmless from, any claim, demand or liability
for any such broker's or finder's fees alleged to have been incurred in
connection herewith or therewith and any expenses (including reasonable fees,
expenses and disbursements of counsel) arising in connection with any such
claim, demand or liability.
5.13 Environmental Protection.
-------------------------
Except as set forth in Schedule 5.13 annexed hereto:
(i) neither Borrowers nor any of their Subsidiaries nor any of their
respective Facilities or operations relating to the Site or the
Project are subject to any outstanding written order, consent decree
or settlement agreement with any Person relating to (a) any
Environmental Law, (b) any Environmental Claim, or (c) any Hazardous
Materials Activity;
(ii) neither Borrowers nor any of their Subsidiaries has received any
letter or request for information under Section 104 of the
Comprehensive Environmental Response, Compensation, and Liability Act
(42 U.S.C.ss. 9604) or any comparable state law;
(iii) there are and, to Borrowers' knowledge, have been no conditions,
occurrences, or Hazardous Materials Activities on the Site or any
other Facility relating to the Project which could reasonably be
expected to form the basis of an Environmental Claim against Borrowers
or any of their Subsidiaries;
(iv) neither Borrowers nor any of their Subsidiaries nor, to
Borrowers' knowledge, any predecessor of Borrowers or any of their
Subsidiaries has filed any notice under any Environmental Law
indicating past or present treatment of Hazardous Materials at any
Facility, and none of Borrowers' or any of their Subsidiaries'
operations involves the generation, transportation, treatment, storage
or disposal of hazardous waste, as defined under 40 C.F.R. Parts
260-270 or any state equivalent;
(v) compliance with all current or reasonably foreseeable future
requirements pursuant to or under Environmental Laws will not,
individually or in the aggregate, have a reasonable possibility of
giving rise to a Material Adverse Effect.
Notwithstanding anything in this subsection 5.13 to the contrary, no event
or condition has occurred or is occurring with respect to Borrowers or any of
their Subsidiaries relating to any Environmental Law, any Release of Hazardous
Materials, or any Hazardous Materials Activity, including any matter disclosed
on Schedule 5.13 annexed hereto, which individually or in the aggregate has had
or could reasonably be expected to have a Material Adverse Effect.
5.14 Employee Matters.
-----------------
There is no strike or work stoppage in existence or threatened involving
Borrowers that could reasonably be expected to have a Material Adverse Effect.
5.15 Solvency.
---------
Each Borrower is and, upon the incurrence of any Obligations by such
Borrower on any date on which this representation is made, will be, Solvent.
5.16 Matters Relating to Collateral.
-------------------------------
A. Creation, Perfection and Priority of Liens. The execution and delivery
of the Collateral Documents by Borrowers and their Subsidiaries, together with
the actions taken on or prior to the Restatement Closing Date pursuant to
subsection 4.1 are effective to create in favor of Administrative Agent for the
benefit of Lenders, as security for the respective Secured Obligations (as
defined in the applicable Collateral Document in respect of any Collateral), a
valid and perfected First Priority Lien on all of the First Priority Collateral,
and all filings and other actions necessary to perfect and maintain the
perfection and priority status of such Liens have been duly made or taken and
remain in full force and effect, other than the filing of any UCC financing
statements delivered to Administrative Agent for filing (but not yet filed) and
the periodic filing of UCC continuation statements in respect of UCC financing
statements filed by or on behalf of Administrative Agent.
B. Permits. No authorization, approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required for
either (i) the pledge or grant by Borrowers and their Subsidiaries of the Liens
purported to be created in favor of Administrative Agent pursuant to any of the
Collateral Documents or (ii) the exercise by Administrative Agent of any rights
or remedies in respect of any Collateral (whether specifically granted or
created pursuant to any of the Collateral Documents or created or provided for
by applicable law), except for filings or recordings contemplated by subsection
5.16A or as set forth in Schedule 5.16B.
C. Absence of Third-Party Filings. Except such as may have been filed in
favor of Administrative Agent as contemplated by subsection 5.16A or filed to
perfect a Lien permitted under subsection 7.2, no effective UCC financing
statement, fixture filing or other instrument similar in effect covering all or
any part of the Collateral is on file in any filing or recording office.
D. Information Regarding Collateral. All information supplied to
Administrative Agent by or on behalf of Borrowers with respect to any of the
Collateral (in each case taken as a whole with respect to any particular
Collateral) is accurate and complete in all material respects.
5.17 Construction Litigation.
------------------------
A. 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 Venetian, LVSI, Mall Construction
Subsidiary 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;
B. The status summary of the Construction Litigation attached hereto as
Schedule 5.17 annexed hereto is true and correct in all material respects as of
the date hereof.
C. 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 (as such capitalized terms are defined in the
Disbursement Agreement).
5.18 No Event of Default.
--------------------
No Event of Default or Potential Event of Default exists or is continuing
(other than those Events of Default and Potential Events of Default set forth on
Schedule 5.18 annexed hereto).
5.19 Adelson Subordination Agreement.
--------------------------------
Adelson has complied with the terms and conditions of that certain
Subordination and Intercreditor Agreement (Trade Claims) dated as of November
12, 1999 by and among Scotiabank, as bank agent, the Company and Mall
Construction Subsidiary and Adelson (the "Adelson Subordination Agreement").
Section 6. BORROWERS' AFFIRMATIVE COVENANTS
Borrowers covenant and agree that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless the Requisite Lenders shall otherwise give prior written consent,
Borrowers shall perform, and shall cause each of their Subsidiaries to perform,
all covenants set forth in Article 5 of the Disbursement Agreement (while in
effect), and all covenants set forth in this Section 6.
6.1 Financial Statements and Other Reports.
---------------------------------------
Borrowers will maintain a system of accounting established and administered
in accordance with sound business practices to permit preparation of financial
statements in conformity with GAAP. Borrowers will deliver to Administrative
Agent and Lenders:
(i) Monthly Financials: as soon as available and in any event within 30
days after the end of each month, the consolidated and consolidating
balance sheets of LVSI and its Subsidiaries as at the end of such month and
the related consolidated and consolidating statements of income,
stockholders' equity and cash flows of LVSI and its Subsidiaries for such
month and for the period from the beginning of the then current Fiscal Year
to the end of such month, setting forth in each case in comparative form
the corresponding figures for the corresponding periods of the previous
Fiscal Year and the corresponding figures from the Financial Plan for the
current Fiscal Year, to the extent prepared on a monthly basis, all in
reasonable detail and certified by the chief financial officer of LVSI, on
behalf of LVSI, that they fairly present, in all material respects, the
financial condition of LVSI and its Subsidiaries as at the dates indicated
and the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end
adjustments;
(ii) Quarterly Financials: as soon as available and in any event within 45
days after the end of each Fiscal Quarter,
(a) the consolidated and consolidating balance sheets of LVSI and its
subsidiaries (including the Excluded Subsidiaries) as at the end of such
Fiscal Quarter and the related consolidated and consolidating statements of
income, stockholders' equity and cash flows of LVSI and its subsidiaries
(including the Excluded Subsidiaries) for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to the end of
such Fiscal Quarter), setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal
Year, all in reasonable detail and certified by the chief financial officer
of LVSI, on behalf of LVSI, that they fairly present, in all material
respects, the financial condition of LVSI and its subsidiaries (including
the Excluded Subsidiaries) as at the dates indicated and the results of
their operations and their cash flows for the periods indicated, subject to
changes resulting from audit and normal year-end adjustments;
(b) the consolidated balance sheets of LVSI and its Subsidiaries as at
the end of such Fiscal Quarter and the related consolidated statements of
income, stockholders' equity and cash flows of LVSI and its Subsidiaries
for such Fiscal Quarter and for the period from the beginning of the then
current Fiscal Year to the end of such Fiscal Quarter, setting forth in
each case in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year and the corresponding
figures from the Financial Plan for the current Fiscal Year, all in
reasonable detail and certified by the chief financial officer of LVSI, on
behalf of LVSI, that they fairly present, in all material respects, the
financial condition of LVSI and its Subsidiaries as at the dates indicated
and the results of their operations and their cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end
adjustments;
(c) the consolidated balance sheets of New Mall Subsidiary and its
subsidiaries as at the end of such Fiscal Quarter and the related
consolidated statements of income, stockholders' equity and cash flows of
New Mall Subsidiary and its subsidiaries for such Fiscal Quarter and for
the period from the beginning of the then current Fiscal Year to the end of
such Fiscal Quarter, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal
Year, all in reasonable detail and certified by the chief financial officer
of LVSI, on behalf of LVSI, that they fairly present, in all material
respects, the financial condition of New Mall Subsidiary and its
subsidiaries as at the dates indicated and the results of their operations
and their cash flows for the periods indicated, subject to changes
resulting from audit and normal year-end adjustments; and
(d) a narrative report describing the operations of LVSI and its
subsidiaries (including the Excluded Subsidiaries) in the form prepared for
presentation to senior management for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to the end of
such Fiscal Quarter;
(iii) Year-End Financials: as soon as available and in any event within 90
days after the end of each Fiscal Year,
(a) the consolidated and consolidating balance sheets of LVSI and its
subsidiaries (including the Excluded Subsidiaries) as at the end of such
Fiscal Year and the related consolidated and consolidating statements of
income, stockholders' equity and cash flows of LVSI and its subsidiaries
(including the Excluded Subsidiaries) for such Fiscal Year, setting forth
in each case in comparative form the corresponding figures for the previous
Fiscal Year, all in reasonable detail and certified by the chief financial
officer of LVSI, on behalf of LVSI, that they fairly present, in all
material respects, the financial condition of LVSI and its subsidiaries
(including the Excluded Subsidiaries) as at the dates indicated and the
results of their operations and their cash flows for the periods indicated;
(b) the consolidated balance sheets of LVSI and its Subsidiaries as at
the end of such Fiscal Year and the related consolidated and consolidating
statements of income, stockholders' equity and cash flows of LVSI and its
Subsidiaries for such Fiscal Year, setting forth in each case in
comparative form the corresponding figures for the previous Fiscal Year and
the corresponding figures from the Financial Plan for the Fiscal Year
covered by such financial statements, all in reasonable detail and
certified by the chief financial officer of LVSI, on behalf of LVSI, that
they fairly present, in all material respects, the financial condition of
LVSI and its Subsidiaries as at the dates indicated and the results of
their operations and their cash flows for the periods indicated;
(c) the consolidated balance sheets of New Mall Subsidiary and its
subsidiaries as at the end of such Fiscal Year and the related consolidated
statements of income, stockholders' equity and cash flows of New Mall
Subsidiary and its subsidiaries for such Fiscal Year, setting forth in each
case in comparative form the corresponding figures for the previous Fiscal
Year, all in reasonable detail and certified by the chief financial officer
of LVSI, on behalf of LVSI, that they fairly present, in all material
respects, the financial condition of Mall Subsidiary and its subsidiaries
as at the dates indicated and the results of their operations and their
cash flows for the periods indicated;
(d) a narrative report describing the operations of LVSI and its
subsidiaries (including the Excluded Subsidiaries) in the form prepared for
presentation to senior management for such Fiscal Year; and
(e) in the case of such consolidated financial statements specified in
subdivisions (a) to (c) above, a report thereon of Price Waterhouse LLP or
other independent certified public accountants of recognized national
standing selected by Borrowers and reasonably satisfactory to
Administrative Agent, which report shall be unqualified as to scope of
audit, shall express no doubts about the ability of the Persons covered
thereby to continue as a going concern, and shall state that such
consolidated financial statements fairly present, in all material respects,
the consolidated financial position of LVSI and its subsidiaries (including
the Excluded Subsidiaries), LVSI and its Subsidiaries and Mall Subsidiary
and its subsidiaries, respectively as at the dates indicated and the
results of their operations and their cash flows for the periods indicated
in conformity with GAAP applied on a basis consistent with prior years
(except as otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards;
(iv) Officers' and Compliance Certificates: together with each delivery of
financial statements of LVSI and its Subsidiaries pursuant to subdivisions
(ii) and (iii) above, (a) an Officers' Certificate of LVSI stating that the
signers, on behalf of LVSI, have reviewed the terms of this Agreement and
have made, or caused to be made under their supervision, a review in
reasonable detail of the transactions and condition of LVSI and its
Subsidiaries (and, to the extent applicable, New Mall Subsidiary, Mall
Subsidiary, New Mall Manager, Mall Manager, Mall Direct Holdings, Phase II
Subsidiary, Phase II Manager, Phase II Direct Holdings and their respective
subsidiaries) during the accounting period covered by such financial
statements and that such review has not disclosed the existence during or
at the end of such accounting period, and that the signers do not have
knowledge of the existence as at the date of such Officers' Certificate, of
any condition or event that constitutes an Event of Default or Potential
Event of Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action
Borrowers have taken, is taking and proposes to take with respect thereto;
and (b) a Compliance Certificate demonstrating in reasonable detail
compliance during and at the end of the applicable accounting periods with
the restrictions contained in Section 7;
(v) Reconciliation Statements: if, as a result of any change in accounting
principles and policies from those used in the preparation of the audited
financial statements referred to in subsection 5.3, the consolidated
financial statements of LVSI and its subsidiaries delivered pursuant to
subdivisions (i), (ii), (iii) or (xiii) of this subsection 6.1 will differ
in any material respect from the consolidated financial statements that
would have been delivered pursuant to such subdivisions had no such change
in accounting principles and policies been made, then (a) together with the
first delivery of financial statements pursuant to subdivision (i), (ii),
(iii) or (xiii) of this subsection 6.1 following such change, consolidated
financial statements of LVSI and its subsidiaries for (y) the current
Fiscal Year to the effective date of such change and (z) the two full
Fiscal Years immediately preceding the Fiscal Year in which such change is
made, in each case prepared on a pro forma basis as if such change had been
in effect during such periods, and (b) together with each delivery of
financial statements for LVSI and its subsidiaries pursuant to subdivision
(i), (ii), (iii) or (xiii) of this subsection 6.1 following such change, a
written statement of the chief accounting officer or chief financial
officer of LVSI setting forth the differences (including any differences
that would affect any calculations relating to the financial covenants set
forth in subsection 7.6) which would have resulted if such financial
statements had been prepared without giving effect to such change;
(vi) Accountants' Certification: together with each delivery of
consolidated financial statements pursuant to subdivision (iii) above, a
written statement by the independent certified public accountants giving
the report thereon (a) stating that their audit examination has included a
review of the terms of this Agreement and the other Loan Documents as they
relate to accounting matters, (b) stating whether, in connection with their
audit examination, any condition or event that constitutes an Event of
Default or Potential Event of Default has come to their attention and, if
such a condition or event has come to their attention, specifying the
nature and period of existence thereof; provided that such accountants
shall not be liable by reason of any failure to obtain knowledge of any
such Event of Default or Potential Event of Default that would not be
disclosed in the course of their audit examination, and (c) stating that
based on their audit examination nothing has come to their attention that
causes them to believe either or both that the information contained in the
certificates delivered therewith pursuant to subdivision (iv) above is not
correct or that the matters set forth in the Compliance Certificates
delivered therewith pursuant to clause (b) of subdivision (iv) above for
the applicable Fiscal Year are not stated in accordance with the terms of
this Agreement;
(vii) Accountants' Reports: promptly upon receipt thereof (unless
restricted by applicable professional standards), copies of all reports
submitted to Borrowers by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of LVSI and its subsidiaries made by such accountants, including
any comment letter submitted by such accountants to management in
connection with their annual audit;
(viii) SEC Filings, Press Releases and Other Financial Reports: promptly
upon their becoming available, copies of (a) all financial statements,
reports, notices and proxy statements sent or made available generally by
Borrowers or any of their subsidiaries to their security holders, (b) all
regular and periodic reports and all registration statements (other than on
Form S-8 or a similar form) and prospectuses, if any, filed by Borrowers or
any of their subsidiaries with any securities exchange or with the
Securities and Exchange Commission or any governmental or private
regulatory authority, (c) all press releases and other statements made
available generally by Borrowers and any of their subsidiaries to the
public concerning material developments in the business of Borrowers and
their subsidiaries and (d) to the extent prepared, any financial statements
and reports concerning any subsidiaries of Borrowers (including Excluded
Subsidiaries not delivered pursuant to clauses (i), (ii) or (iii) above);
(ix) Events of Default, etc.: promptly upon any officer of Borrowers
obtaining knowledge (a) of any condition or event that constitutes an Event
of Default or Potential Event of Default, or becoming aware that any Lender
has given any notice (other than to Administrative Agent) or taken any
other action with respect to a claimed Event of Default or Potential Event
of Default, (b) that any Person has given any notice to Borrowers and their
Subsidiaries or taken any other action with respect to a claimed default or
event or condition of the type referred to in subsection 8.2, (c) of any
condition or event that would be required to be disclosed in a current
report filed by Borrowers with the Securities and Exchange Commission on
Form 8-K (Items 1, 2, 4, 5 and 6 of such Form as in effect on the Closing
Date) if Borrowers were required to file such reports under the Exchange
Act, or (d) of the occurrence of any event or change that has caused or
evidences, either in any case or in the aggregate, a Material Adverse
Effect, an Officers' Certificate specifying the nature and period of
existence of such condition, event or change, or specifying the notice
given or action taken by any such Person and the nature of such claimed
Event of Default, Potential Event of Default, default, event or condition,
and what action Borrowers have taken, are taking and propose to take with
respect thereto;
(x) Litigation or Other Proceedings: (a) promptly upon any officer of
Borrowers obtaining knowledge of (X) the non-frivolous institution of, or
threat of, any action, suit, proceeding (whether administrative, judicial
or otherwise), governmental investigation or arbitration against or
affecting Borrowers and their Subsidiaries, or any property of Borrowers
and their Subsidiaries (collectively, "Proceedings") not previously
disclosed in writing by Borrowers to Lenders or (Y) any material
development in any Proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility of giving
rise to a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions
contemplated hereby;
written notice thereof together with such other information as may be reasonably
available to Borrowers to enable Lenders and their counsel to evaluate such
matters; and (b) within twenty days after the end of each Fiscal Quarter, a
schedule of all Proceedings involving an alleged liability of, or claims against
or affecting, Borrowers or any of their Subsidiaries equal to or greater than
$1,000,000, and promptly after request by Administrative Agent such other
information as may be reasonably requested by Administrative Agent to enable
Administrative Agent and its counsel to evaluate any of such Proceedings;
(xi) ERISA Events: promptly upon becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event, a written notice specifying the
nature thereof, what action Borrowers or any of their respective ERISA
Affiliates has taken, is taking or proposes to take with respect thereto
and, when known, any action taken or threatened by the Internal Revenue
Service, the Department of Labor or the PBGC with respect thereto;
(xii) ERISA Notices: with reasonable promptness, copies of (a) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by Borrowers, any of their Subsidiaries or any of their respective
ERISA Affiliates with the Internal Revenue Service with respect to each
Pension Plan; (b) all notices received by Borrowers or any of their
respective ERISA Affiliates from a Multiemployer Plan sponsor concerning an
ERISA Event; and (c) copies of such other documents or governmental reports
or filings relating to any Employee Benefit Plan as Administrative Agent
shall reasonably request;
(xiii) Financial Plans: as soon as practicable and in any event no later
than the Completion Date and 30 days prior to the beginning of each Fiscal
Year thereafter, a consolidated and consolidating plan and financial
forecast for such Fiscal Year (or portion thereof from the Completion Date
through the end of such Fiscal Year) and each subsequent Fiscal Year
through the final maturity date of the Term Loans (the "Financial Plan" for
such Fiscal Years), including (a) forecasted consolidated and consolidating
balance sheets and forecasted consolidated and consolidating statements of
income and cash flows of LVSI and its Subsidiaries for such Fiscal Years,
together with a pro forma Compliance Certificate for such Fiscal Years and
an explanation of the assumptions on which such forecasts are based, (b)
forecasted consolidated and consolidating statements of income and cash
flows of LVSI and its Subsidiaries for each month of such Fiscal Years,
together with an explanation of the assumptions on which such forecasts are
based, and (c) such other information and projections for such Fiscal Years
as any Lender may reasonably request;
(xiv) Insurance: as soon as practicable and in any event by the last day of
each Fiscal Year, a report in form and substance reasonably satisfactory to
Administrative Agent outlining all material insurance coverage maintained
as of the date of such report by Borrowers and their Subsidiaries and all
material insurance coverage planned to be maintained by Borrowers and their
Subsidiaries in the immediately succeeding Fiscal Year;
(xv) Board of Directors: with reasonable promptness, written notice of any
change in the members of the Board of Directors of LVSI or any of its
corporate Subsidiaries.
(xvi) New Subsidiaries: promptly upon any Person becoming a Subsidiary of
either of Borrowers, a written notice setting forth with respect to such
Person (a) the date on which such Person became a Subsidiary of either of
Borrowers and (b) all of the data required to be set forth in Schedule 5.1
annexed hereto with respect to all Subsidiaries of either of Borrowers (it
being understood that such written notice shall be deemed to supplement
Schedule 5.1 annexed hereto for all purposes of this Agreement);
(xvii) Material Contracts: promptly, and in any event within ten Business
Days after any Material Contract of Borrowers or any of their Subsidiaries
is terminated or amended in a manner that is materially adverse to
Borrowers or any of their Subsidiaries or any new Material Contract is
entered into, or upon becoming aware of any material default by any Party
under a Material Contract, a written statement describing such event with
copies of such material amendments or new contracts, and an explanation of
any actions being taken with respect thereto;
(xviii) UCC Search Report: As promptly as practicable after the date of
delivery to Administrative Agent of any UCC financing statement executed by
any Loan Party pursuant to subsection 6.12, copies of completed UCC
searches evidencing the proper filing, recording and indexing of all such
UCC financing statement and listing all other effective financing
statements that name such Loan Party as debtor, together with copies of all
such other financing statements not previously delivered to Administrative
Agent by or on behalf of such Loan Party;
(xix) Notices under Operative Documents: promptly upon receipt, copies of
all notices provided to the Borrowers or their Affiliates pursuant to any
Operative Documents relating to material defaults or material delays and
promptly upon execution and delivery thereof, copies of all amendments to
any of the Operative Documents; and
(xx) Other Information: with reasonable promptness, such other information
and data with respect to Borrowers or any of their Subsidiaries as from
time to time may be reasonably requested by any Lender.
6.2 Corporate Existence, etc.
-------------------------
Borrowers will, and will cause each of their Subsidiaries to, at all times
preserve and keep in full force and effect their corporate or limited liability
company existence and all rights and franchises material to its business;
provided, however that Borrowers and their Subsidiaries may merge or consolidate
as permitted pursuant to subsection 7.7 of this Agreement and provided, further,
that no Borrower nor any such Subsidiary shall be required to preserve any such
right or franchise if the Board of Directors of the applicable Borrower or
Subsidiary (or the managing member thereof, if applicable) shall determine (and
shall so notify the Administrative Agent), that the preservation thereof is no
longer desirable in the conduct of the business of such Borrower or Subsidiary,
as the case may be, and that the loss thereof is not disadvantageous in any
material respect to Borrowers and their Subsidiaries or Lenders.
6.3 Payment of Taxes and Claims; Tax Consolidation.
----------------------------------------------
A. Borrowers will, and will cause each of their Subsidiaries to, pay all
material taxes, assessments and other governmental charges imposed upon it or
any of its properties or assets or in respect of any of its income, businesses
or franchises before any penalty accrues thereon, and all material claims
(including claims for labor, services, materials and supplies) for sums that
have become due and payable and that by law have or may become a Lien upon any
of its properties or assets, prior to the time when any penalty or fine shall be
incurred with respect thereto; provided that no such charge or claim need be
paid if it is being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted, so long as (1) such reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor and (2) in the case of a charge or claim which has
or may become a Lien against any of the Collateral, such contest proceedings
conclusively operate to stay the sale of any portion of the Collateral to
satisfy such charge or claim.
B. Borrowers will not, nor will they permit any of their Subsidiaries to,
file or consent to the filing of any consolidated income tax return with any
Person (other than Borrowers or any of their Subsidiaries) unless Borrower and
its Subsidiaries shall have entered into, a tax sharing agreement with such
Person, in form and substance satisfactory to Administrative Agent.
6.4 Maintenance of Properties; Insurance; Application of Net Loss Proceeds.
----------------------------------------------------------------------
A. Maintenance of Properties. Borrowers will, and will cause each of their
Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Borrowers and their Subsidiaries and from time
to time will make or cause to be made all appropriate repairs, renewals and
replacements thereof except to the extent that the Borrowers determine in good
faith not to maintain, repair, renew or replace such property if such property
is no longer desirable in the conduct of their business and the failure to do so
is not disadvantageous in any material respect to the Borrowers and their
Subsidiaries or the Lenders.
B. Insurance. Borrowers will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Borrowers, and their Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry. Without limiting the generality
of the foregoing, Borrowers will maintain or cause to be maintained the
insurance coverage required to be maintained under the Disbursement Agreement,
while applicable, and the Cooperation Agreement, such insurance coverage to be
provided by such insurance provider, in such amounts with such deductibles and
covering such risks as are at all times required under the Disbursement
Agreement, while applicable, and the Cooperation Agreement and to include, if
the Mortgaged Property is located in an area designated by the Federal Emergency
Management Agency as having special flood or mud slide hazards, flood insurance
in compliance with any applicable regulations of the Board of Governors of the
Federal Reserve System.
C. Application of Net Loss Proceeds. Borrowers shall (i) apply Loss
Proceeds and Liquidated Damages to restore, replace or rebuild the Project in
accordance with the Cooperation Agreement, (ii) apply Liquidated Damages, to
repay any Completion Guaranty Loan in accordance with Section 7.5 hereof and the
Adelson Intercreditor Agreement, and (iii) apply any Loss Proceeds and
Liquidated Damages not applied as provided in clauses (i) and (ii) to prepay the
Loans in accordance with the Cooperation Agreement and subsection 2.4B(iii)(b)
hereof. Administrative Agent shall, and Borrowers hereby authorize
Administrative Agent to, apply such Loss Proceeds and Liquidated Damages to
prepay the Loans as provided in subsection 2.4B(iii)(b).
6.5 Inspection; Lender Meeting.
---------------------------
A. Inspection Rights. Borrowers shall, and shall cause each of their
Subsidiaries to, permit any authorized representatives designated by any Lender
to visit and inspect any of the properties of Borrowers and their Subsidiaries,
to inspect, copy and take extracts from its and their financial and accounting
records, and to discuss its and their affairs, finances and accounts with its
and their officers and independent public accountants, if requested by
Administrative Agent (provided that any Borrower may, if it so chooses, be
present at or participate in any such discussion), all upon reasonable notice
and at such reasonable times during normal business hours and as often as may
reasonably be requested.
B. Lender Meeting. Borrowers will, upon the request of Administrative Agent
or Requisite Lenders, participate in a meeting of Administrative Agent and
Lenders once during each Fiscal Year to be held at Borrowers' corporate offices
(or at such other location as may be agreed to by Borrowers and Administrative
Agent) at such time as may be agreed to by Borrowers and Administrative Agent.
6.6 Compliance with Laws, etc.; Permits.
------------------------------------
A. Borrowers shall and shall cause each of their Subsidiaries and all other
Persons on or occupying any Facilities to, comply with the requirements of all
applicable laws, rules, regulations and orders of any governmental authority
(including all Environmental Laws), noncompliance with which could reasonably be
expected to cause, individually or in the aggregate, a Material Adverse Effect.
B. Borrowers shall, and shall cause each of their Subsidiaries to, from
time to time obtain, maintain, retain, observe, keep in full force and effect
and comply in all material respects with the terms, conditions and provisions of
all Permits as shall now or hereafter be necessary under applicable laws except
any thereof the noncompliance with which could not reasonably be expected to
have a Material Adverse Effect.
6.7 Environmental Review and Investigation, Disclosure, Etc.; Borrowers'
Actions Regarding Hazardous Materials Activities,
Environmental Claims and Violations of Environmental Laws.
------------------------------------------------------------------------
A. Environmental Review and Investigation. Borrowers agree that
Administrative Agent may, from time to time and in its reasonable discretion,
(i) retain, at Borrowers' expense, an independent professional consultant to
review any environmental audits, investigations, analyses and reports relating
to Hazardous Materials in respect of the Site or the Project prepared by or for
Borrowers and (ii) conduct their own investigation of any Facility; provided
that, in the case of any Facility no longer owned, leased, operated or used by
Borrowers or any of their Subsidiaries, Borrowers shall only be obligated to use
their best efforts to obtain permission for Administrative Agent's professional
consultant to conduct an investigation of such Facility. For purposes of
conducting such a review and/or investigation, Borrowers hereby grant to
Administrative Agent and its agents, employees, consultants and contractors the
right to enter into or onto any Facilities currently owned, leased, operated or
used by Borrowers or any of their Subsidiaries and to perform such tests on such
property (including taking samples of soil, groundwater and suspected
asbestos-containing materials) as are reasonably necessary in connection
therewith. Any such investigation of any Facility shall be conducted, unless
otherwise agreed to by Borrowers and Administrative Agent, during normal
business hours and, to the extent reasonably practicable, shall be conducted so
as not to interfere with the ongoing operations at such Facility or to cause any
damage or loss to any property at such Facility. Borrowers and Administrative
Agent hereby acknowledge and agree that any report of any investigation
conducted at the request of Administrative Agent pursuant to this subsection
6.7A will be obtained and shall be used by Administrative Agent and Lenders for
the purposes of Lenders' internal credit decisions, to monitor and police the
Loans and to protect Lenders' security interests, if any, created by the Loan
Documents. Administrative Agent agrees to deliver a copy of any such report to
Borrowers with the understanding that Borrowers acknowledge and agree that (x)
they will indemnify and hold harmless Administrative Agent and each Lender from
any costs, losses or liabilities relating to Borrowers' use of or reliance on
such report, (y) neither Administrative Agent nor any Lender makes any
representation or warranty with respect to such report, and (z) by delivering
such report to Borrowers, neither Administrative Agent nor any Lender is
requiring or recommending the implementation of any suggestions or
recommendations contained in such report.
B. Environmental Disclosure. Borrowers will deliver to Administrative Agent
and Lenders:
(i) Environmental Audits and Reports. As soon as practicable following
receipt thereof, copies of all environmental audits, investigations,
analyses and reports of any kind or character, whether prepared by
personnel of Borrowers or any of their Subsidiaries or by independent
consultants, governmental authorities or any other Persons, with respect to
significant environmental matters at any Facility or with respect to any
Environmental Claims;
(ii) Notice of Certain Releases, Remedial Actions, Etc. Promptly upon the
occurrence thereof, written notice describing in reasonable detail (a) any
Release required to be reported to any federal, state or local governmental
or regulatory agency under any applicable Environmental Laws, (b) any
remedial action taken by Borrowers or any other Person in response to (1)
any Hazardous Materials Activities the existence of which has a reasonable
possibility of resulting in one or more Environmental Claims having,
individually or in the aggregate, a Material Adverse Effect, or (2) any
Environmental Claims that, individually or in the aggregate, have a
reasonable possibility of resulting in a Material Adverse Effect.
(iii) Written Communications Regarding Environmental Claims, Releases, Etc.
As soon as practicable following the sending or receipt thereof by
Borrowers or any of their Subsidiaries, a copy of any and all written
communications with respect to (a) any Environmental Claims that,
individually or in the aggregate, have a reasonable possibility of giving
rise to a Material Adverse Effect, (b) any Release required to be reported
to any federal, state or local governmental or regulatory agency, and (c)
any request for information from any governmental agency that suggests such
agency is investigating whether Borrowers or any of their Subsidiaries may
be potentially responsible for any Hazardous Materials Activity.
(iv) Notice of Certain Proposed Actions Having Environmental Impact. Prompt
written notice describing in reasonable detail (a) any proposed acquisition
of stock, assets, or property by Borrowers or any of their Subsidiaries
that could reasonably be expected to (1) expose Borrowers or any of their
Subsidiaries to, or result in, Environmental Claims that could reasonably
be expected to have, individually or in the aggregate, a Material Adverse
Effect or (2) affect the ability of Borrowers or any of their Subsidiaries
to maintain in full force and effect all material Permits required under
any Environmental Laws for their respective operations and (b) any proposed
action to be taken by Borrowers or any of their Subsidiaries to modify
current operations in a manner that could reasonably be expected to subject
Borrowers or any of their Subsidiaries to any material additional
obligations or requirements under any Environmental Laws that could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect.
(v) Other Information. With reasonable promptness, such other documents and
information as from time to time may be reasonably requested by
Administrative Agent in relation to any matters disclosed pursuant to this
subsection 6.7.
C. Borrowers' Actions Regarding Hazardous Materials Activities,
Environmental Claims and Violations of Environmental Laws.
(i) Remedial Actions Relating to Hazardous Materials Activities.
Borrowers shall promptly undertake, and shall cause each of their
Subsidiaries promptly to undertake, any and all investigations,
studies, sampling, testing, abatement, cleanup, removal, remediation
or other response actions necessary to remove, remediate, clean up or
abate any Hazardous Materials Activity on, under or about any Facility
that is in violation of any Environmental Laws or that presents a
material risk of giving rise to an Environmental Claim. In the event
Borrowers or any of their Subsidiaries undertake any such action with
respect to any Hazardous Materials, Borrowers or such Subsidiary shall
conduct and complete such action in compliance with all applicable
Environmental Laws and in accordance with the policies, orders and
directives of all federal, state and local governmental authorities
except when, and only to the extent that, Borrowers' or such
Subsidiary's liability with respect to such Hazardous Materials
Activity is being contested in good faith by Borrowers or such
Subsidiary.
(ii) Actions with Respect to Environmental Claims and Violations of
Environmental Laws. Borrowers shall promptly take, and shall cause
each of their Subsidiaries promptly to take, any and all actions
necessary to (i) cure any material violation of applicable
Environmental Laws by Borrowers or their Subsidiaries and (ii) make an
appropriate response to any Environmental Claim against Borrowers or
any of their Subsidiaries and discharge any obligations it may have to
any Person thereunder.
6.8 Interest Rate Protection.
-------------------------
At all times with respect to the Tranche A Term Loans and at all times
after the date which is 60 days after the Restatement Closing Date with respect
to the Tranche B Term Loans, Borrowers shall maintain in effect one or more
Interest Rate Agreements with respect to the Term Loans, each such Interest Rate
Agreement to be for a term and in form and substance reasonably satisfactory to
Administrative Agent, which Interest Rate Agreements shall effectively limit the
Unadjusted Eurodollar Rate Component (as hereinafter defined) of the interest
costs to Borrowers with respect to an aggregate notional principal amount of not
less than 50.0% of the aggregate principal amount of the Term Loans outstanding
from time to time (based on the assumption that such notional principal amount
was a Eurodollar Rate Loan with an Interest Period of three months) to a rate
equal to not more than 9.0% per annum. For purposes of this subsection 6.8, the
term "Unadjusted Eurodollar Rate Component" means that component of the interest
costs to Borrowers in respect of a Eurodollar Rate Loan that is based upon the
rate obtained pursuant to clause (i) of the definition of Adjusted Eurodollar
Rate.
6.9 Compliance with Material Contracts.
-----------------------------------
Borrowers shall, and shall cause each of their Subsidiaries to, comply,
duly and promptly, in all material respects with its respective obligations and
enforce all of its respective rights under all Material Contracts, including all
Operative Documents except where the failure to comply could not reasonably be
expected to have a Material Adverse Effect.
6.10 [Intentionally omitted].
------------------------
6.11 Payment of Liens.
-----------------
A. Removal by Borrowers. In the event that, notwithstanding the covenants
contained in subsection 7.2, a Lien not otherwise permitted under subsection 7.2
may encumber the Mortgaged Property or other item of Collateral or any portion
thereof, the Borrowers shall promptly discharge or cause to be discharged by
payment to the lienor or lien claimant or promptly secure removal by bonding or
deposit with the county clerk or otherwise or, at the Administrative Agent's
option, and if obtainable promptly obtain title insurance against, any such Lien
or mechanics' or materialmen's claims of lien filed or otherwise asserted
against the Mortgaged Property or any other item of Collateral or any portion
thereof within 60 days after the date of notice thereof; provided that,
compliance with the provisions of this subsection 6.11 shall not be deemed to
constitute a waiver of the provisions of subsection 7.2. The Borrowers shall
exhibit to the Administrative Agent upon request all receipts or other
satisfactory evidence of payment, bonding, deposit of taxes, assessments, Liens
or any other item which may cause any such Lien to be filed against the
Mortgaged Property or other item of Collateral of any Borrower or any of its
Subsidiaries. Each Borrower and each of its Subsidiaries shall fully preserve
the Lien and the priority of each of the Deed of Trust and the other Collateral
Documents without cost or expense to the Administrative Agent or the Lenders.
B. Removal by the Agent. If any Borrower or any of its Subsidiaries fails
to promptly discharge, remove or bond off any such Lien or mechanics' or
materialmen's claim of lien as described above, which is not being contested by
either Borrower or any of its Subsidiaries in good faith by appropriate
proceedings promptly instituted and diligently conducted, within 30 days after
the receipt of notice thereof, then the Administrative Agent may, but shall not
be required to, procure the release and discharge of such Lien, mechanics' or
materialmen's claim of lien and any judgment or decree thereon, and in
furtherance thereof may, in its sole discretion, effect any settlement or
compromise with the lienor or lien claimant or post any bond or furnish any
security or indemnity as the Administrative Agent, in its sole discretion, may
elect. In settling, compromising or arranging for the discharge of any Liens
under this subsection, the Administrative Agent shall not be required to
establish or confirm the validity or amount of the Lien. The Borrowers agree
that all costs and expenses expended or otherwise incurred pursuant to this
subsection 6.11 (including reasonable attorneys' fees and disbursements) by the
Administrative Agent shall be paid by the Borrowers in accordance with the terms
hereof.
6.12 Further Assurances.
A. Assurances. Without expense or cost to the Administrative Agent or the
Lenders, each Borrower shall, and shall cause each of its Subsidiaries to, from
time to time hereafter, execute, acknowledge, file, record, do and deliver all
and any further acts, deeds, conveyances, mortgages, deeds of trust, deeds to
secure debt, security agreements, hypothecations, pledges, charges, assignments,
financing statements and continuations thereof, notices of assignment,
transfers, certificates, assurances and other instruments as the Administrative
Agent may from time to time reasonably require in order to carry out more
effectively the purposes of this Agreement or the other Loan Documents,
including to subject any items of Collateral, intended to now or hereafter be
covered, to the Liens created by the Collateral Documents, to perfect and
maintain such Liens, and to assure, convey, assign, transfer and confirm unto
the Administrative Agent the property and rights hereby conveyed and assigned or
intended to now or hereafter be conveyed or assigned or which any Borrower or
any such Subsidiary may be or may hereafter become bound to convey or to assign
to the Administrative Agent or for carrying out the intention of or facilitating
the performance of the terms of this Agreement, or any other Loan Documents or
for filing, registering or recording this Agreement or any other Loan Documents.
Promptly upon a reasonable request each Borrower shall, and shall cause each of
its Subsidiaries to, execute and deliver, and hereby authorizes the Agent to
execute and file in the name of such Borrower or Subsidiary, to the extent the
Administrative Agent may lawfully do so, one or more financing statements,
chattel mortgages or comparable security instruments to evidence more
effectively the Liens of the Collateral Documents upon the Collateral.
B. Filing and Recording Obligations. Borrowers shall pay or cause to be
paid all filing, registration and recording fees and all expenses incident to
the execution and acknowledgment of the Deed of Trust or any other Loan
Document, including any instrument of further assurance described in subsection
6.12A, and shall pay or cause to be paid all mortgage recording taxes, transfer
taxes, general intangibles taxes and governmental stamp and other taxes, duties,
imposts, assessments and charges arising out of or in connection with the
execution, delivery, filing, recording or registration of any Collateral
Document or any other Loan Document, the Casino Lease and the Billboard Master
Lease or memoranda thereof, including any instrument of further assurance
described in subsection 6.12A, or by reason of its interest in, or measured by
amounts payable under, the Notes, any Collateral Document or any other Loan
Document, including any instrument of further assurance described in subsection
6.12A, and shall pay all stamp taxes and other taxes required to be paid on the
Notes or any other Loan Document, but excluding in the case of each Lender and
the Administrative Agent, Taxes imposed on its income by a jurisdiction under
the laws of which it is organized or in which its principal executive office is
located or in which its applicable lender office for funding or booking its
Loans hereunder is located. If any Borrower fails to make or cause to be made
any of the payments described in the preceding sentence within 15 days after
notice thereof from the Administrative Agent (or such shorter period as is
necessary to protect the loss of or diminution in value of any Collateral by
reason of tax foreclosure or otherwise, as determined by the Administrative
Agent, in its sole discretion) accompanied by documentation verifying the nature
and amount of such payments, the Administrative Agent may (but shall not be
obligated to) pay the amount due and such Borrower shall reimburse all amounts
in accordance with the terms hereof.
C. Costs of Defending and Upholding the Lien. The Administrative Agent may,
upon at least five days' prior notice to the Borrower, (i) appear in and defend
any action or proceeding, in the name and on behalf of the Administrative Agent
or the Lenders in which the Administrative Agent or any Lender is named or which
the Administrative Agent in its sole discretion determines is reasonably likely
to materially adversely affect the Mortgaged Property, any other Collateral, any
Collateral Document, the Lien thereof or any other Loan Document and (ii)
institute any action or proceeding which the Administrative Agent reasonably
determines should be instituted to protect the interest or rights of the
Administrative Agent and the Lenders in the Mortgaged Property or other
Collateral or under this Agreement or any other Loan Document. The Borrowers
agree that all reasonable costs and expenses expended or otherwise incurred
pursuant to this subsection (including reasonable attorneys' fees and
disbursements) by the Administrative Agent shall be paid by the Borrowers or
reimbursed to the Administrative Agent, as the case may be, promptly after
demand.
D. Costs of Enforcement. The Borrowers agree to bear and shall pay or
reimburse the Administrative Agent and the Lenders in accordance with the terms
of subsection 10.2 for all reasonable sums, costs and expenses incurred by the
Administrative Agent and the Lenders (including reasonable attorneys' fees and
the expenses and fees of any receiver or similar official) of or incidental to
the collection of any of the Obligations, any foreclosure (or transfer in lieu
of foreclosure) of this Agreement, any Collateral Document or any other Loan
Document or any sale of all or any portion of the Mortgaged Property or all or
any portion of the other Collateral.
6.13 Execution of Subsidiary Guaranty and Personal Property Collateral
Documents by Certain Subsidiaries and Future Subsidiaries.
-----------------------------------------------------------------
A. Execution of Subsidiary Guaranty and Personal Property Collateral
Documents. In the event that any Person becomes a Subsidiary on or after the
Closing Date, Borrowers will promptly notify Administrative Agent of that fact
and cause such Subsidiary to execute and deliver to Administrative Agent a
counterpart of the Subsidiary Guaranty and a Subsidiary Security Agreement and
to take all such further actions and execute all such further documents and
instruments as may be necessary or, in the reasonable opinion of Administrative
Agent, desirable to create in favor of Administrative Agent, for the benefit of
Lenders, a valid and perfected First Priority Lien on all of the personal and
mixed property assets of such Subsidiary which constitute First Priority
Collateral.
B. Subsidiary Charter Documents, Legal Opinions, Etc. Borrowers shall
deliver to Administrative Agent, together with such Loan Documents, (i)
certified copies of such Subsidiary's Certificate or Articles of Incorporation
or equivalent limited liability company documents, together with a good standing
certificate from the Secretary of State of the jurisdiction of its incorporation
and each other state in which such Person is qualified as a foreign corporation
to do business and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable franchise or similar
taxes from the appropriate taxing authority of each of such jurisdictions, each
to be dated a recent date prior to their delivery to Administrative Agent, (ii)
a copy of such Subsidiary's Bylaws, certified by its corporate secretary or an
assistant secretary as of a recent date prior to their delivery to
Administrative Agent, (iii) a certificate executed by the secretary or an
assistant secretary of such Subsidiary as to (a) the fact that the attached
resolutions of the Board of Directors or managing member of such Subsidiary
approving and authorizing the execution, delivery and performance of such Loan
Documents are in full force and effect and have not been modified or amended and
(b) the incumbency and signatures of the officers of such Subsidiary executing
such Loan Documents, and (iv) a favorable opinion of counsel to such Subsidiary,
in form and substance reasonably satisfactory to Administrative Agent and its
counsel, as to (a) the due organization and good standing of such Subsidiary,
(b) the due authorization, execution and delivery by such Subsidiary of such
Loan Documents, (c) the enforceability of such Loan Documents against such
Subsidiary, (d) such other matters (including matters relating to the creation
and perfection of Liens in any Collateral pursuant to such Loan Documents) as
Administrative Agent may reasonably request, all of the foregoing to be
reasonably satisfactory in form and substance to Administrative Agent and its
counsel.
C. Real Estate Collateral Documents. Borrowers shall deliver to
Administrative Agent together with such Loan Documents all such further
documents and instruments and take such further action necessary to create in
favor of Administrative Agent, for the benefit of Lenders, a valid and perfected
first priority security interest on any real property assets of such Subsidiary,
as Administrative Agent may reasonably request from time to time.
6.14 Contain Obligations in Connection with Specific FF&E.
----------------------------------------------------
Borrowers agree to make draws from time to time on the FF&E Facility as
soon as possible thereunder to purchase or finance any Specified FF&E where
proceeds of Revolving Loans have been used or Letters of Credit have been issued
to purchase or support deposit obligations incurred in connection with the
manufacture or acquisition of such Specified FF&E. Borrowers further agree that
in connection with any such draws they will repay the Revolving Loans or
terminate the Letters of Credit issued to purchase or provide deposits for the
Specified FF&E acquired or financed with the draw on the FF&E Facility.
Borrowers shall take all action within their control to maintain the eligibility
of any Specified FF&E financed by Lenders as collateral under the FF&E Facility.
Section 7. BORROWERS' NEGATIVE COVENANTS
Borrowers covenant and agree that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Borrowers shall perform, and shall cause each of their Subsidiaries to perform,
all of the covenants set forth in Article 6 of the Disbursement Agreement (while
in effect) and all of the covenants set forth in this Section 7.
7.1 Indebtedness.
-------------
Borrowers shall not, and shall not permit any of their Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:
(i) Borrowers and their Subsidiaries may become and remain liable with
respect to the Obligations;
(ii) Borrowers and their Subsidiaries may become and remain liable with
respect to Contingent Obligations permitted by subsection 7.4 and (other
than with respect to clauses (iv) and (v) of subsection 7.4) upon any
matured obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished;
(iii) Borrowers may become and remain liable for Indebtedness represented
by the Mortgage Notes in an aggregate principal amount not to exceed at any
time $425,000,000, reduced by any principal payments required to be made
thereon;
(iv) [Intentionally omitted];
(v) Borrowers may become and remain liable for Indebtedness represented by
the Subordinated Notes in an aggregate principal amount not to exceed at
any time $97,500,000 reduced by any principal payments required to be made
thereon;
(vi) Borrowers may become and remain liable for Indebtedness under the FF&E
Facility Agreement in an aggregate principal amount not to exceed at any
time $97,700,000 (plus any accrued and unpaid interest thereon added to
principal) reduced by any principal payments required to be made thereon;
(vii) [Intentionally omitted];
(viii) Borrowers may become and remain liable for Non-Recourse Financing
used to finance the purchase or lease of personal or real property for use
in the business of a Borrower or one of its Subsidiaries provided that (x)
such Non-Recourse Financing represents at least 75% of the purchase price
of such personal or real property (y) the Indebtedness incurred pursuant to
this clause (viii) shall not exceed $20,000,000 at any time; and (z) no
such Indebtedness may be incurred under this clause (viii) until the
Completion Date has occurred and Borrowers have generated Consolidated
EBITDA for one Fiscal Quarter of at least $25,000,000;
(ix) Borrowers may become and remain liable for Indebtedness in respect of
any Completion Guaranty Loan in an aggregate amount not to exceed
$25,000,000 (plus any accrued and unpaid interest thereon added to
principal);
(x) Borrowers and their Subsidiaries may become and remain liable for
additional Indebtedness to the extent permitted under and on the terms
described in the Intercreditor Agreement;
(xi) Borrowers may become and remain liable for Indebtedness to employees
of Borrowers ("Employee Repurchase Notes") incurred in connection with any
repurchase of employee options or stock upon death, disability or
termination of such employee in accordance with employment agreements or
option plans or agreements as in effect on the Closing Date ("Permitted
Employee Repurchases") provided that such Indebtedness shall be unsecured
and subordinated on terms not less favorable to Borrowers and the Lenders
than the terms of the Subordinated Notes and shall expressly provide that
payments thereon shall be required only to the extent not restricted by any
Financing Agreement;
(xii) Borrowers may become and remain liable for Indebtedness incurred for
the purpose of financing all or any part of the purchase or lease of gaming
equipment to be used in connection with the casino located at the casino
resort to be owned by Phase II Subsidiary or any casino to be operated
within Phase II in the aggregate amount at any time outstanding not to
exceed $10,000,000; provided, that upon default under such Indebtedness,
the lender under such Indebtedness may seek recourse or payment against the
Borrowers and their Subsidiaries only through the return or sale of the
property or equipment so purchased or leased and may not otherwise assert a
valid claim for payment on such Indebtedness against the Borrowers and
their Subsidiaries or any other property of the Borrowers and their
Subsidiaries.
(xiii) Borrowers may become and remain liable with respect to other
Indebtedness in an aggregate principal amount not to exceed $10,000,000 at
any time outstanding;
(xiv) [Intentionally omitted]; and
(xv) 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 Venetian or LVSI or any Subsidiary of Venetian or LVSI or by
any stock, securities, membership interest, partnership interest or other
direct or indirect equity interests in Venetian or LVSI or any Subsidiary
of Venetian 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
Facility (collectively, the "Superior Facilities") on terms reasonably
acceptable to the Administrative Agent and the Arrangers 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
Arrangers 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
Arrangers (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
Arrangers (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 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 Arrangers on behalf of the Lenders.
7.2 Liens and Related Matters.
--------------------------
A. Prohibition on Liens. Borrowers shall not, and shall not permit any of
their Subsidiaries to, directly or indirectly, create, incur, assume or permit
to exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of such Borrower or Subsidiary, whether now owned or hereafter
acquired, or any income or profits therefrom, or file or permit the filing of,
or permit to remain in effect, any financing statement or other similar notice
of any Lien with respect to any such property, asset, income or profits under
the Uniform Commercial Code of any State or under any similar recording or
notice statute, except:
(i) Permitted Liens;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens securing Indebtedness permitted under clause (iii) of
subsection 7.1, provided that such Liens are junior in priority (other than
in respect of the Mortgage Notes Proceeds Account) to the Liens securing
the Obligations;
(iv) [Intentionally omitted];
(v) Liens securing Indebtedness permitted under clause (vi) of subsection
7.1, provided that such Liens attach only to the Specified FF&E and to any
proceeds of such accounts or Indebtedness and related collateral accounts
in which such proceeds are held;
(vi) Liens securing Indebtedness permitted under clause (viii) of
subsection 7.1, provided that such Liens extend only to the real property
or personal property purchased or leased with the proceeds of such
Non-Recourse Financing and such assets are acquired or leased within 180
days of the incurrence of such Indebtedness;
(vii) Liens in favor of the Mortgage Note Holders or other Persons securing
Indebtedness advanced by any such Person and permitted under (x) of
subsection 7.1 to the extent that such Liens are permitted under the
Intercreditor Agreement, provided that such Liens in favor of the Mortgage
Note Holders or such other Persons are junior (other than in respect of the
Mortgage Notes Proceeds Account) to the Liens securing the Obligations;
(viii) Liens securing Indebtedness permitted under clause (xii) of
subsection 7.1 provided that such Liens attach only to the casino equipment
purchased or leased with the proceeds of such Indebtedness and such assets
are acquired or leased within 180 days of the incurrence of such
Indebtedness;
(ix) [Intentionally omitted];
(x) Liens described in Schedule 7.2 annexed hereto; and
(xi) Other Liens securing Indebtedness in an aggregate amount not to exceed
$5,000,000 at any time outstanding.
Notwithstanding the foregoing, the Borrowers shall not permit the Intermediate
Holding Companies to create, incur, assume or permit to exist any Lien on or
with respect to any property or asset of any kind of the Intermediate Holding
Companies, Mall Direct Holdings and Mall Subsidiary other than Permitted Liens
which do not secure Indebtedness.
B. Equitable Lien in Favor of Lenders. If Borrowers or any of their
Subsidiaries, shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 7.2A, they shall make or cause to be made effective
provision whereby the Obligations will be secured by such Lien equally and
ratably with any and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; provided that, notwithstanding the foregoing,
this covenant shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the provisions of
subsection 7.2A.
C. No Further Negative Pledges. Except with respect to specific property
encumbered to secure payment of particular Indebtedness or leases or to be sold
pursuant to an executed agreement with respect to an Asset Sale, none of the
Borrowers nor any of their Subsidiaries, shall enter into any agreement
prohibiting the creation or assumption of any Lien upon any of its properties or
assets, whether now owned or hereafter acquired other than (x) as provided
herein or in the other Loan Documents, (y) as set forth in the documents
evidencing Other Indebtedness as in effect on the Closing Date including any
refinancing thereof permitted hereunder provided that the provisions regarding
the creation or assumption of Liens is not less favorable to Borrowers, such
Subsidiary or Lenders than those set forth in the documents evidencing the
Indebtedness being refinanced or (z) as required by applicable law or any
applicable rule or order of any Gaming Authority.
D. No Restrictions on Subsidiary Distributions to Borrowers or Other
Subsidiaries. Except as provided herein, Borrowers will not, and will not permit
any of their Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any of their Subsidiaries to (i) pay dividends or make any other
distributions on any of such Subsidiary's capital stock owned by Borrowers or
any other Subsidiary of Borrowers, (ii) repay or prepay any Indebtedness owed by
any such Subsidiaries to Borrowers, (iii) make loans or advances to Borrowers,
or (iv) transfer any of its property or assets to Borrowers other than (x) as
provided herein or in the other Loan Documents, (y) as set forth in the
documents evidencing Other Indebtedness as in effect on the Closing Date
including any refinancing thereof permitted hereunder provided that the
provisions regarding dividends, distributions, repayments of Indebtedness, loans
and advances and transfers of assets are not less favorable to Borrowers, such
Subsidiary or Lenders than those set forth in the documents evidencing the
Indebtedness being refinanced or (z) as required by applicable law or any
applicable rule or order of any Gaming Authority.
7.3 Investments; Joint Ventures; Formation of Subsidiaries.
Borrowers shall not, and shall not permit any of their Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including any
Joint Venture or otherwise form or create any Subsidiary, except:
(i) Borrowers and their Subsidiaries may make and own Investments in Cash
Equivalents;
(ii) Borrowers may continue to own their existing Investments in the
Intermediate Holding Companies, the Excluded Subsidiaries and Mall
Construction Subsidiary described in Schedule 7.3 annexed hereto, provided
that Borrowers and their Subsidiaries may not make any additional
Investments in such Persons except as permitted by clauses (iii), (iv), (v)
and (x) below;
(iii) [Intentionally omitted];
(iv) Borrowers may transfer a 1% managing membership interest in each of
Phase II Subsidiary and Phase II Direct Holdings to Phase II Manager;
(v) Borrower and their Subsidiaries may invest in New Mall Subsidiary or
Phase II Subsidiary any cash or other property contributed to Borrowers by
Adelson or any of his Affiliates for such purpose;
(vi) So long as no Event of Default or Potential Event of Default shall
have occurred and be continuing or would result therefrom, Borrowers may
form and make Investments in new Subsidiaries and in Supplier Joint
Ventures; provided that (a) the aggregate amount of all such Investments
shall not at any time exceed $10,000,000, (b) no such Subsidiary or
Supplier Joint Venture shall own or operate or possess any material
license, franchise or right used in connection with the ownership or
operation of the Project or any material Project assets, (c) in the case of
any Investment in a Supplier Joint Venture, LVSI shall have delivered an
Officers' Certificate which certifies that in the reasonable judgment of
such officer the Investment in such Supplier Joint Venture will result in
an economic benefit to Borrowers (taking into account such Investment) as a
result of a reduction in the cost of the goods or services being acquired
from the Supplier Joint Venture over the life of the Investment and (d)
none of the Borrowers, nor any other Subsidiary of the Borrower shall incur
any liabilities or contingent obligations in respect of the obligations of
such Subsidiary or Joint Venture;
(vii) Borrowers may make Consolidated Capital Expenditures permitted by
subsection 7.14;
(viii) Borrowers may make loans or advances to their employees (a) to fund
the exercise price of options granted under Borrowers' stock option plans
or agreements or employment agreements as in effect on the Closing Date and
(b) for other purposes in an amount not to exceed $1,000,000 in the
aggregate outstanding at any time;
(ix) Borrowers and their Subsidiaries may hold investments consisting of
securities received in settlement of debt created in the ordinary course of
business and owing to the Borrowers or any Subsidiary or in satisfaction of
judgments;
(x) [Intentionally omitted]; and
(xi) Borrowers may make and own other Investments in an aggregate amount
not to exceed at any time $5,000,000.
7.4 Contingent Obligations.
-----------------------
Borrowers shall not, and shall not permit any of their Subsidiaries to,
directly or indirectly, create or become or remain liable with respect to any
Contingent Obligation, except:
(i) Borrowers may become and remain liable with respect to Contingent
Obligations under Interest Rate Agreements which are (a) required under
subsection 6.8 or under the terms of any other Financing Agreements or (b)
entered into to hedge against interest rate fluctuations in respect of up
to 50% of the principal amount of the Indebtedness outstanding under clause
(vi) of subsection 7.1 so long as such Interest Rate Agreements are on
substantially the same terms as those entered into to satisfy subsection
6.8 hereof and all obligations thereunder are secured solely by Liens
included in Permitted Liens under clause (xx) of the definition thereof;
(ii) Borrowers and their Subsidiaries may become and remain liable with
respect to Contingent Obligations under the Loan Documents;
(iii) Borrowers and their Subsidiaries may become and remain liable with
respect to the Contingent Obligations for the Indebtedness permitted under
clauses (iii), (v), (viii), (x) and (xiii) of subsection 7.1, provided that
any such Contingent Obligations of the Intermediate Holding Companies are
subordinate to the Obligations on terms at least as favorable to the Lender
as those relating to the subordination of the Intermediate Holding Company
guaranties set forth in Section 11.07 of the Mortgage Notes Indenture (as
in effect on the Closing Date);
(iv) to the extent such incurrence does not result in the incurrence by
Borrowers or any of their Subsidiaries of any obligation for the payment of
borrowed money, Borrowers may become and remain liable with respect to
Contingent Obligations incurred solely in respect of performance bonds,
completion guaranties and standby letters of credit or bankers'
acceptances, provided that such Contingent Obligations are incurred in the
ordinary course of business and do not at any time exceed $10,000,000 in
the aggregate;
(v) Borrowers and their Subsidiaries may become and remain liable for
customary indemnities under Project Documents as in effect on the Closing
Date; and
(vi) Borrowers may become and remain liable with respect to other
Contingent Obligations, provided that the maximum aggregate liability,
contingent or otherwise, of Borrowers in respect of all such Contingent
Obligations shall at no time exceed $5,000,000.
7.5 Restricted Junior Payments.
---------------------------
Borrowers shall not, and shall not permit any of their Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Junior Payment, except:
(i) Borrowers may make regularly scheduled or required payments of
principal and interest in respect of any Other Indebtedness of Borrowers in
accordance with the terms of, and only to the extent required by the
agreement pursuant to which such Other Indebtedness was issued provided
that (a) any such payments shall be subject to the terms of the
Intercreditor Agreement, the Adelson Intercreditor Agreement, the Adelson
Subordination Agreement, the Adelson Completion Guaranty and any FF&E
Intercreditor Agreements, as applicable, (b) any such payments in respect
of any Completion Guaranty Note and any Employee Repurchase Note may be
made only to the extent no Event of Default or Potential Event of Default
shall then exist and be continuing or would result therefrom and (c) any
such payments in respect of any Employee Repurchase Note may be made only
to the extent that the ratio of Consolidated Adjusted EBITDA without giving
effect to any Conforming Adelson L/C pursuant to the last sentence of the
definition of Consolidated Adjusted EBITDA to Consolidated Fixed Charges
for the four Fiscal Quarter period ended on the most recent Quarterly Date
preceding such payment or such shorter period tested on such Quarterly Date
under subsection 7.6A (determined on a pro forma basis (as though such
payment on the Employee Repurchase Note had been made during the period
tested as of such Quarterly Date under subsection 7.6A) would have been in
compliance with the requirements of Section 7.6A as certified to
Administrative Agent by the chief financial officer of Borrowers, on behalf
of Borrowers, at the time of such payment;
(ii) Borrowers and Mall Construction Subsidiary may prepay the FF&E
Facility from the portion of any Loss Proceeds required to be so applied in
accordance with the FF&E Facility and in accordance with the FF&E
Intercreditor Agreement;
(iii) [Intentionally omitted];
(iv) [Intentionally omitted];
(v) [Intentionally omitted];
(vi) Borrowers and their Subsidiaries may redeem or purchase any equity
interests in Borrowers or their Subsidiaries or any Indebtedness to the
extent required by any Nevada Gaming Authority in order to preserve a
material Gaming License, provided that so long as such efforts do not
jeopardize any material Gaming License, Borrowers shall have diligently
tried to find a third-party purchaser for such equity interests or
Indebtedness and no third-party purchasers acceptable to the Nevada Gaming
Authority is willing to purchase such equity interests or Indebtedness
within a time period acceptable to the Nevada Gaming Authority;
(vii) for so long as LVSI is a corporation under Subchapter S of the Code
or a substantially similarly treated pass-through entity or Venetian is a
limited liability company that is treated as a partnership or a
substantially similarly treated pass-through entity for Federal income tax
purposes (as evidenced by an opinion of counsel at least annually),
Borrowers may each make cash distributions to shareholders or members,
during each Quarterly Period, in an aggregate amount not to exceed the
Permitted Quarterly Tax Distribution in respect of the related Estimation
Period, and if any portion of the Permitted Quarterly Tax Distribution is
not distributed during such Quarterly Payment Period, the Permitted
Quarterly Tax Distribution payable during the immediately following four
quarter period shall be increased by such undistributed portion; provided
that Borrowers may not make any such distribution to pay taxes attributable
to income of New Mall Subsidiary or Phase II Subsidiary or any of their
subsidiaries unless Borrowers have received from the applicable holding
companies of New Mall Subsidiary or Phase II Subsidiary, as applicable, a
cash distribution for such purpose in respect of the applicable Estimation
Period in an equal amount;
(viii) Borrowers and their wholly-owned Subsidiaries may make intercompany
payments between such entities and intercompany payments from any
Subsidiary of a Borrower to any wholly-owned Subsidiary of Borrowers or any
Borrower;
(ix) Borrowers may make Permitted Employee Repurchases so long as (a) no
Event of Default or Potential Event of Default shall exist and be
continuing or would result therefrom and (b) the ratio of Consolidated
Adjusted EBITDA without giving effect to any Conforming Adelson L/C
pursuant to the last sentence of the definition of Consolidated Adjusted
EBITDA to Consolidated Fixed Changes for the four Fiscal Quarter period
ended as of the most recent Quarterly Date prior to such repurchase or such
shorter period tested on such immediately preceding Quarterly Date under
subsection 7.6A (determined on a pro forma basis as though such Permitted
Employee Repurchase had been made during the period tested as of such
Quarterly Date under subsection 7.6A) would have been in compliance with
the requirements of subsection 7.6A as certified to Administrative Agent by
the chief financial officer of Borrowers, on behalf of Borrowers, at the
time of such payment;
(x) Borrowers may make repurchases of capital stock of LVSI deemed to occur
upon exercise of stock options to the extent such capital stock represents
a portion of the exercise price of such options; and
(xi) Borrowers may make payments on any Completion Guaranty Loan (a) prior
to Final Completion, from amounts permitted to be deposited in the Guaranty
Deposit Account subject to the terms of the Adelson Completion Guaranty and
the Disbursement Agreement, (b) on Final Completion Date from amounts which
are advanced to Borrowers pursuant to subsection 2.12 of the Disbursement
Agreement for the purpose of making such payments, (c) after Final
Completion Date from Liquidated Damages and (d) on Final Completion Date,
from amounts which are returned to Mall Construction Subsidiary from funds
in the Mall Retainage/Punchlist Account in accordance with the Mall Escrow
Agreement, up to the aggregate amount previously deposited into the Mall
Retainage/Punchlist Account from the Guaranty Deposit Account, provided in
each case that such payments shall be permitted only to the extent allowed
under the Adelson Intercreditor Agreement and only so long as no Event of
Default or Potential Event of Default shall then exist and be continuing or
would result therefrom.
7.6 Financial Covenants.
--------------------
A. Minimum Fixed Charge Coverage Ratio. Borrowers shall not permit the
ratio of (i) Consolidated Adjusted EBITDA to (ii) Consolidated Fixed Charges for
any four-Fiscal Quarter period (or for any Quarterly Date prior to September 30,
2000, the period from October 1, 1999 to such date ) ending on any Quarterly
Date set forth below to be less than the correlative ratio indicated:
============================================= =========================
Minimum
Period Fixed Charge
Coverage Ratio
============================================= =========================
Each of the Quarters ending on December 31, 1.05:1
1999, March 31, 2000, June 30, 2000 and
September 30, 2000
- --------------------------------------------- -------------------------
Each of the Quarters ending on December 31, 1.05:1
2000, March 31, 2001, June 30, 2001 and
September 30, 2001
- --------------------------------------------- -------------------------
Each of the Quarters ending on December 31, 1.05:1
2001, March 31, 2002, June 30, 2002 and
September 30, 2002
- --------------------------------------------- -------------------------
Each of the Quarters ending on December 31, 1.05:1
2002 and March 31, 2003
- --------------------------------------------- -------------------------
Each of the Quarters ending on June 30, 1.10:1
2003 and September 30, 2003
- --------------------------------------------- -------------------------
Each of the Quarters ending on December 31, 1.15:1
2003 and thereafter
============================================= =========================
B. Maximum Leverage Ratio. Borrowers shall not permit the ratio (the
"Leverage Ratio") of (i) Consolidated Total Debt as of such Quarterly Date to
(ii) Consolidated Adjusted EBITDA for the four Fiscal Quarter period ending on
such Quarterly Date (or for any Quarterly Date prior to September 30, 2000, the
period from October 1, 1999 to such date ) ending on any Quarterly Date set
forth below to exceed the correlative ratio indicated; provided that for
purposes of calculating Consolidated Adjusted EBITDA pursuant to this subsection
7.6B for any period ending prior to the first anniversary of the Completion Date
which is less than four Fiscal Quarters, Consolidated Adjusted EBITDA shall be
calculated on an annualized basis:
=========================================== ============================
Maximum
Period Leverage Ratio
=========================================== ============================
Each of the Quarters ending on December 4.75:1
31, 1999, March 31, 2000, June 30, 2000,
September 30, 2000, December 31, 2000 and
March 31, 2001
- ------------------------------------------- ----------------------------
Each of the Quarters ending on June 30, 4.50:1
2001 and September 30, 2001
- ------------------------------------------- ----------------------------
The Quarter ending on December 31, 2001 4.25:1
- ------------------------------------------- ----------------------------
Each of the Quarters ending on March 31, 4.00:1
2002 and June 30, 2002
- ------------------------------------------- ----------------------------
Each of the Quarters ending on September 3.75:1
30, 2002 and December 31, 2002
- ------------------------------------------- ----------------------------
Each of the Quarters ending on March 31, 3.50:1
2003 and June 30, 2003
- ------------------------------------------- ----------------------------
Each of the Quarters ending on September 3.25:1
30, 2003, December 31, 2003 and March 31,
2004
- ------------------------------------------- ----------------------------
Each of the Quarters ending on June 30, 3.00:1
2004 and thereafter
=========================================== ============================
C. Minimum Consolidated Adjusted EBITDA. Borrowers shall not permit
Consolidated Adjusted EBITDA for any four Fiscal Quarter period (or for any
Quarterly Date prior to September 30, 2000, the period from October 1, 1999 to
such date) ending on any Quarterly Date set forth below to be less than the
correlative amount indicated, provided that for purposes of Calculating
Consolidated Adjusted EBITDA pursuant to this subsection 7.6C for the first,
second, third and fourth Quarterly Dates, if the period tested is less than one,
two, three or four full Fiscal Quarters respectively, Consolidated Adjusted
EBITDA shall be multiplied by a fraction of the numerator of which is 90, 182,
273 and 365, respectively and the denominator of which is the number of days
elapsed in the relevant test period:
============================================== =======================
Minimum Consolidated
Period Adjusted EBITDA
============================================== =======================
The Quarter ending on December 31, 1999 $30,000,000
- ---------------------------------------------- -----------------------
The Quarter ending on March 31, 2000 $75,000,000
- ---------------------------------------------- -----------------------
The Quarter ending on June 30, 2000 $100,000,000
- ---------------------------------------------- -----------------------
The Quarter ending on September 30, 2000 $150,000,000
- ---------------------------------------------- -----------------------
The Quarter ending on December 31, 2000 $155,000,000
- ---------------------------------------------- -----------------------
Each of the Quarters ending on March 31, $160,000,000
2001 and June 30, 2001
- ---------------------------------------------- -----------------------
Each of the Quarters ending on September 30, $165,000,000
2001 and December 31, 2001
- ---------------------------------------------- -----------------------
Each of the Quarters ending on March 31, $170,000,000
2002 and June 30, 2002
- ---------------------------------------------- -----------------------
Each of the Quarters ending on September 30, $175,000,000
2002 and December 31, 2002
- ---------------------------------------------- ------------------------
Each of the Quarters ending on March 31, $180,000,000
2003, June 30, 2003 and September 30, 2003
- ---------------------------------------------- ------------------------
Each of the Quarters ending on December 31, $185,000,000
2003, and thereafter
============================================== ========================
D. Minimum Consolidated Net Worth. Borrowers shall not permit Consolidated
Net Worth at any Quarterly Date to be less than $120,000,000 plus an amount
equal to the sum of 85% of Consolidated Net Income for all periods from the
Closing Date through such Quarterly Date (net of all net losses for Borrowers
and their Subsidiaries on a consolidated basis for the same period).
7.7 Restriction on Fundamental Changes; Asset Sales and Acquisitions.
----------------------------------------------------------------
Borrowers shall not, and shall not permit any of their Subsidiaries to,
alter the corporate, capital or legal structure (except with respect to changes
in capital structure to the extent a Change of Control does not occur as a
result thereof) of any Borrower, or any of its Subsidiaries, or enter into any
transaction of merger or consolidation, or liquidate, wind-up or dissolve itself
(or suffer any liquidation or dissolution), or convey, sell, lease or sub-lease
(as lessor or sublessor), transfer or otherwise dispose of, in one transaction
or a series of transactions, all or any part of its business, property or
assets, whether now owned or hereafter acquired, or acquire by purchase or
otherwise all or substantially all the business, property or fixed assets of, or
stock or other evidence of beneficial ownership of, any Person or any division
or line of business of any Person, except:
(i) Borrowers may make Consolidated Capital Expenditures permitted under
subsection 7.14;
(ii) Borrowers and their Subsidiaries may dispose of obsolete, worn out or
surplus assets or assets no longer used or useful in the business of
Borrowers and the Subsidiaries in each case to the extent made in the
ordinary course of business, provided that either (i) such disposal does
not materially adversely affect the Mortgaged Property or (ii) prior to or
promptly following such disposal any such property shall be replaced with
other property of substantially equal utility and a value at least
substantially equal to that of the replaced property when first acquired
and free from any security of any other Person subject only to Permitted
Liens and by such removal and replacement Borrowers and their Subsidiaries
shall be deemed to have subjected such replacement property to the lien of
the Collateral Documents in favor of Lenders, as applicable;
(iii) Borrowers and their Subsidiaries may sell or otherwise dispose of
assets in transactions that do not constitute Asset Sales, provided that
the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof except under subsections
7.7(vii)-(ix) and (xi) below;
(iv) subject to subsection 7.11, Borrowers and their Subsidiaries may make
Asset Sales of assets having a fair market value not in excess of (x)
$4,000,000 in respect of the sale or other disposition of construction
equipment prior to or during the first year following the Completion Date
and (y) $2,000,000 with respect to any other Asset Sales; provided in each
case that (1) the consideration received for such assets shall be in an
amount at least equal to the fair market value thereof; (2) the sole
consideration received shall be cash; and (3) the proceeds of such Asset
Sales shall be applied as required by subsection 2.4B(iii)(a);
(v) [Intentionally omitted];
(vi) [Intentionally omitted];
(vii) Borrowers and their Subsidiaries may enter into any leases with
respect to any space on or within the Project;
(viii) Borrowers may enter into the HVAC Ground Lease.
(ix) LVSI may lease the casino from Venetian pursuant to the Casino Lease;
(x) [Intentionally omitted];
(xi) Either Borrower may be merged with the other Borrower;
(xii) Either Borrower may sell, lease or otherwise transfer assets to
another Borrower or to a wholly-owned Subsidiary of such Borrower to the
extent permitted by subsection 7.3 and any wholly-owned Subsidiary of a
Borrower may sell, lease or otherwise transfer assets to any other
wholly-owned Subsidiary of such Borrower (other than the Intermediate
Holding Companies) or to the other Borrower;
(xiii) Mall Construction Subsidiary may be merged with or liquidated into
Venetian;
(xiv) Borrower may dedicate space for the purpose of constructing (i) a
mass transit system, (ii) a pedestrian bridge over or a pedestrian tunnel
under Las Vegas Boulevard and Sands Avenue or similar structures to
facilitate pedestrians or traffic and (iii) a right turn lane or other
roadway dedication at or near the Project; provided in each case that such
dedication does not materially impair the use or operations of the Project;
(xv) Borrowers may license trademarks and tradenames in the ordinary course
of business;
(xvi) Mall Construction Subsidiary may enter into or take by assignment the
Mall Management Agreement and assign its interest therein to Mall
Subsidiary and Mall Subsidiary may assign its interest therein to New Mall
Subsidiary;
(xvii) Borrowers may make the transfers permitted under subsections
7.3(iii), (iv), (v) and (x).
(xviii) Venetian and Mall Construction Subsidiary (or Mall Subsidiary or
New Mall Subsidiary, as applicable) may enter into the Billboard Master
Lease and the other Master Leases (as defined in that certain FADAA Limited
Waiver dated as of November 12, 1999 among inter alia Borrowers, Mall
Construction Subsidiary and Scotiabank as bank agent);
(xix) Borrowers and their Subsidiaries may transfer any assets leased or
acquired with proceeds of a Non-Recourse Financing permitted under Section
7.1 or other financing permitted under Section 7.1(xii) to the lender
providing such financing upon default, expiration or termination of such
Non-Recourse Financing or other financing;
(xx) Borrowers may sell receivables for fair market value in the ordinary
course of business; and
(xxi) incurrence of Liens permitted under Section 7.2, provided that any
leases (whether or not constituting Permitted Liens) shall be permitted
only to the extent provided in clause (vii) above and the last paragraph of
this Subsection 7.7.
Notwithstanding the foregoing provisions of this subsection 7.7, clause
(vii) shall be subject to the additional provisos that: (a) no Event of Default
or Potential Event of Default shall exist and be continuing at the time of such
transaction or lease or would occur after as a result of entering into such
transaction or lease (or immediately after any renewal or extension thereof at
the option of Borrowers or one of their Subsidiaries), (b) such transaction or
lease will not materially interfere with, impair or detract from the operation
of the business of Borrowers and their Subsidiaries, (c) such transaction or
lease is at a fair market rent or value (in light of other similar or comparable
prevailing commercial transactions) and contains such other terms such that the
lease, taken as a whole, is commercially reasonable and fair to Borrowers and
their Subsidiaries in light of prevailing or comparable transactions in other
casinos, hotels, hotel attractions or shopping venues, (d) no gaming or casino
operations (other than the operation of arcades and games for children) may be
conducted on any space that is subject to such transaction or lease other than
by Borrowers and (e) no lease may provide that the Borrowers or any of their
Subsidiaries may subordinate its fee, condominium or leasehold interest to any
lessee or any party financing any lessee, provided that Administrative Agent on
behalf of Lenders shall agree to provide the tenant under any such lease with a
Subordination, Non-Disturbance and Attornment Agreement with the tenant under
any such lease substantially in the form of Exhibit VIII hereto with such
changes as Administrative Agent may approve, which approval shall not be
unreasonably withheld or delayed.
7.8 Sales and Lease-Backs.
----------------------
Borrowers shall not, and shall not permit any of their Subsidiaries to,
directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (i) which Borrowers or any of their Subsidiaries has sold or
transferred or is to sell or transfer to any other Person or (ii) which
Borrowers or any of their Subsidiaries intends to use for substantially the same
purpose as any other property which has been or is to be sold or transferred by
Borrowers or any of their Subsidiaries to any Person in connection with such
lease, except that Borrowers and their Subsidiaries may enter into
sale-leaseback transactions in connection with any Non-Recourse Financing
permitted hereunder or such other financings permitted under clause (xii) of
subsection 7.1 to the extent that the assets subject to such sale-leaseback are
acquired contemporaneously with, or within 180 days prior to, such Non-Recourse
Financing or such other financings and with the proceeds thereof and neither
Borrower nor any of its Subsidiaries theretofore held any interest in such
assets.
7.9 Sale or Discount of Receivables.
--------------------------------
Borrowers shall not, and shall not permit any of their Subsidiaries to,
directly or indirectly, sell with recourse, or discount or otherwise sell for
less than the face value thereof, any of its notes or accounts receivable other
than an assignment for purposes of collection in the ordinary course of
business.
7.10 Transactions with Shareholders and Affiliates.
----------------------------------------------
Borrowers shall not, and shall not permit any of their Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder of 5% or more of any class of equity Securities of any
Borrower or with any Affiliate of a Borrower or of any such holder, except, that
Borrowers may enter into and permit to exist:
(i) transactions that are on terms that are not less favorable to that
Borrower or Subsidiary, as the case may be, than those that might be
obtained at the time from Persons who are not such a holder or Affiliate if
(a) Borrowers have delivered to Administrative Agent (1) with respect to
any transaction involving an amount in excess of $500,000, an Officers
Certificate certifying that such transaction complies with this subsection
7.10, (2) with respect to any transaction involving an amount in excess of
$1,000,000, a resolution adopted by a majority of the disinterested
non-employee directors of the applicable Borrower or Subsidiary approving
such transaction and an Officers Certificate certifying that such
transaction complies with this subsection 7.10, at the time such
transaction is entered into and (c) with respect to any such transaction
that involves aggregate payments in excess of $10,000,000 or that is a loan
transaction involving a principal amount in excess of $10,000,000, an
opinion as to the fairness to the applicable Borrower or Subsidiary from a
financial point of view issued by an Independent Financial Advisor at the
time such transaction is entered into,
(ii) the Services Agreement;
(iii) purchases of materials or services from a Joint Venture Supplier by
the Borrowers or any of their Subsidiaries in the ordinary course of
business on arm's length terms;
(iv) any employment, indemnification, noncompetition or confidentiality
agreement entered into by Borrowers or any of their Subsidiaries with their
employees or directors in the ordinary course of business;
(v) loans or advances to employees of Borrowers or their Subsidiaries
permitted under subsection 7.3(viii);
(vi) the payment of reasonable fees to directors of Borrowers and their
Subsidiaries who are not employees of Borrowers or their Subsidiaries;
(vii) the grant of stock options or similar rights to employees and
directors of Borrowers pursuant to plans approved by the Board of Directors
of LVSI and any repurchases of stock or options of Borrowers from such
employees to the extent permitted by subsection 7.5;
(viii) transactions between or among Borrowers and any of their
wholly-owned Subsidiaries;
(ix) the transactions contemplated by the Adelson Completion Guaranty;
(x) the transactions contemplated by the Cooperation Agreement;
(xi) the transactions contemplated by the HVAC Services Agreement;
(xii) the use of the Congress Center by the owner of the Sands Expo and
Convention Center; provided that Venetian receives fair market value for
the use of such property;
(xiii) [Intentionally omitted];
(xiv) [Intentionally omitted];
(xv) [Intentionally omitted];
(xvi) Borrowers may enter into and perform their obligations under a gaming
operations lease agreement with Phase II Subsidiary relating to the casino
to be in the casino resort owned by the Phase II Subsidiary on terms
substantially similar to those of the Casino Lease except that (a) the rent
payable under such lease shall be equal to all revenues derived from such
casino minus the sum of (1) the operating costs related to such casino
(including an allocated portion (based on gaming revenue) of the Borrower's
administrative costs related to its gaming operations) and (2) the lesser
of $250,000 or 1.0% of such casino's operating income (or zero if there is
an operating loss) (determined in accordance with GAAP), (b) the Borrowers
may agree that they shall operate the casino in the casino resort owned by
the Phase II Subsidiary and the casino in the Project in substantially
similar manners and (c) the Borrowers may agree to have common gaming and
surveillance operations in such casinos (based on equal allocations of
revenues and operating costs).
(xvii) employees of Interface may participate in the Las Vegas Sands Inc.
401(k) Retirement Plan if Interface reimburses the Borrowers for a pro rata
portion of the administrative expenses of such plan based on the number of
employees of each of Interface and LVSI participating in such plan;
(xviii) transactions contemplated by the Interface Lease;
(xix) the Borrowers may reimburse Yona Aviation Services, Inc., or its
successors for its operating and lease costs related to the use of its
aircraft by the Borrower's employees (based on the actual allocated costs
and time of usage);
(xx) transactions contemplated by the Restaurant Leases; and
(xxi) transactions contemplated by the Billboard Master Lease and the other
Master Leases.
7.11 Disposal of Subsidiary Stock.
-----------------------------
Borrowers shall not, and shall not permit any of their Subsidiaries to,
directly or indirectly sell, assign, pledge or otherwise encumber or dispose of
any shares of capital stock or other equity Securities of Borrowers or any of
their Subsidiaries, except (i) to qualify directors if required by applicable
law and (ii) to the extent required by any Nevada Gaming Authority in order to
preserve a material Gaming License.
7.12 Conduct of Business.
--------------------
Borrowers shall not, and shall not permit any of their Subsidiaries to,
engage in any business other than (i) in the case of LVSI, the casino gaming,
hotel, retail and entertainment mall and resort business and any activity or
business incidental, directly related or similar thereto (including operating
the conference center and meeting facilities), or any business or activity that
is a reasonable extension, development or expansion thereof or ancillary
thereto, including any hotel, entertainment, recreation, convention, trade show,
meeting, retail sales or other activity or business designated to promote,
market, support, develop, construct or enhance the casino gaming, hotel, retail
and entertainment mall and resort business operated by Borrowers and their
Subsidiaries, including, without limitation, participating in the Supplier Joint
Ventures and ownership of Mall Manager, Phase II Manager and Venetian, (ii) in
the case of Venetian and its Subsidiaries (other than those listed in clause
(iii) below), (a) development, construction and the operation of the Project,
(b) the casino gaming, hotel, retail and entertainment mall and resort business
(including operating a conference center and meeting facilities) at the Project
and any activity or business incidental, directly related or similar thereto, or
any business or activity that is a reasonable extension, development or
expansion thereof or ancillary thereto, including any hotel, entertainment,
recreation, convention, trade show, meeting, retail sales, or other activity or
business designated to promote, market, support, develop, construct or enhance
the casino gaming, hotel, retail and entertainment mall and resort business
operated at the Project by Borrowers and their Subsidiaries, including, without
limitation, participating in the Supplier Joint Venturers, and (c) ownership of
equity interests in Subsidiaries, including the Intermediate Holding Companies
and (iii) in the case of Intermediate Holding Companies, the ownership of equity
interests in Mall Direct Holdings, Phase II Direct Holdings and the delivery of
guarantees in favor of the Lenders, the Mortgage Noteholders and the holders of
the Subordinated Notes. Borrower shall not permit the Excluded Subsidiaries set
forth below to engage in any business other than (i) in the case of Mall Manager
and Phase II Manager, ownership of 1% managing membership interests in Mall
Subsidiary and Mall Direct Holdings and Phase II Direct Holdings and Phase II
Subsidiary, respectively, (ii) in the case of New Mall Subsidiary, ownership of
the Mall and other matters reasonably incidental thereto; (iii) in the case of
Mall Direct Holdings and Phase II Direct Holdings, ownership of equity interests
in Mall Subsidiary and Phase II Subsidiary, respectively; (iv) in the case of
Mall Subsidiary, ownership of equity interests in New Mall Subsidiary (v) Mall
Manager may hold the equity interests in New Mall Manager and (vi) in the case
of New Mall Manager, ownership of a 1% managing membership interest in New Mall
Subsidiary.
7.13 Certain Restrictions on Changes to Operative Documents, Permits, Project
Budget or Project Schedule.
-------------------------------------------------------------------------
A. Modifications of Certain Operative Documents and Permits; New Material
Contracts or Permits. Borrowers shall not, and shall not permit any of their
Subsidiaries to, agree to any material amendment to, or waive any of its
material rights under, any Permit or Material Contract or enter into new
Material Contract or Permits (it being understood that any Material Contracts
which are covered by clause B or C below shall also be subject to the
restrictions set forth therein) without in each case obtaining the prior written
consent of Requisite Lenders if in any such case, such amendment or waiver or
new Material Contract or Permit could reasonably be expected to have a Material
Adverse Effect or otherwise adversely affect Lenders in any material respect.
B. Amendments of Documents Relating to Other Indebtedness. Borrowers shall
not, and shall not permit any of their Subsidiaries to, amend or otherwise
change the terms of any Financing Agreements (other than the Loan Documents) or
permit the termination thereof (other than in accordance with the terms
thereof), or enter into any new Financing Agreements or make any payment
consistent with an amendment thereof or change thereto, if the effect of such
amendment or change is to increase the interest rate or fees on such Other
Indebtedness, change (to earlier dates) any dates upon which payments of
principal or interest are due thereon, change any event of default or condition
to an event of default with respect thereto (other than to eliminate any such
event of default or increase any grace period related thereto or otherwise
change such event of default in a manner more favorable to the Borrower or such
Subsidiary than the existing event of default), change the commitment
thereunder, change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions thereof (or of any guaranty thereof), or
change any collateral therefor (other than to release such collateral), or if
the effect of such amendment or change, together with all other amendments or
changes made, is to increase materially the obligations of the obligor
thereunder or to confer any additional rights on the holders of the Indebtedness
or obligations evidenced thereby (or a trustee or other representative on their
behalf) which would be materially adverse to Borrowers, such Subsidiary or
Lenders, provided, that (i) Borrowers may modify the terms of the Interim Mall
Credit Facility or any agreement relating thereto to the extent expressly
permitted by the Intercreditor Agreement, (ii) Borrowers may amend the terms of
any other Financing Agreement solely to increase the principal amount thereof to
the extent expressly permitted by the Intercreditor Agreement and (iii)
Borrowers may enter into an Approved Equipment Funding Commitment to the extent
permitted by the definition of such term and may amend, supplement or terminate
an existing Approved Equipment Funding Commitment for the purpose of replacing
all or a portion of it with such new Approved Equipment Funding Commitment.
C. Certain Other Restrictions on Amendments. Borrowers shall not, and shall
not permit any of their Subsidiaries to, agree to any material amendment to, or
waive any of its material rights under the Cooperation Agreement which would
require the consent of the Administrative Agent pursuant to Article XIV, Section
26 thereof, including, but not limited to, any material amendment to, or any
waiver of material rights under Article III, Sections 1 and 3, Article IV,
Section 1, Article IX(b)-(e), Articles X-XII and Article XIV, Sections 1, 3, 4,
6, 7, 8, 14 and 26, without obtaining the prior written consent of the
Administrative Agent, which consent shall not be unreasonably withheld or
delayed.
7.14 Consolidated Capital Expenditures.
----------------------------------
Borrowers shall not, and shall not permit their Subsidiaries to, make or
incur Consolidated Capital Expenditures, in any four Fiscal Quarter period
indicated below, in an aggregate amount in excess of the corresponding amount
(the "Maximum Consolidated Capital Expenditures Amount") set forth below
opposite such four Fiscal Quarter period; provided that the Maximum Consolidated
Capital Expenditures Amount for any four Fiscal Quarters shall be increased by
an amount equal to the excess, if any, of the Maximum Consolidated Capital
Expenditures Amount for the previous four Fiscal Quarter period over the actual
amount of Consolidated Capital Expenditures for such previous four Fiscal
Quarter period:
====================================== ================================
Four Fiscal Quarter Maximum
Period Consolidated Capital
Expenditures Amount
====================================== ================================
Fiscal Quarter ending December 31, $15,000,000
1999, Fiscal Quarter ending March
31, 2000, Fiscal Quarter ending June
30, 2000 and Fiscal Quarter ending
September 30, 2000
- -------------------------------------- --------------------------------
Fiscal Quarter ending December 31, $25,000,000
2000, Fiscal Quarter ending March
31, 2001, Fiscal Quarter ending June
30, 2001 and Fiscal Quarter ending
September 30, 2001
- -------------------------------------- --------------------------------
Fiscal Quarter ending December 31, $25,000,000
2001, Fiscal Quarter ending March
31, 2002, Fiscal Quarter ending June
30, 2002 and Fiscal Quarter ending
September 30, 2002
- -------------------------------------- --------------------------------
Fiscal Quarter ending December 31, $25,000,000
2002, Fiscal Quarter ending March
31, 2003, Fiscal Quarter ending June
30, 2003 and Fiscal Quarter ending
September 30, 2003
- -------------------------------------- --------------------------------
Fiscal Quarter ending December 31, $30,000,000
2003, Fiscal Quarter ending March
31, 2004, Fiscal Quarter ending June
30, 2004 and Fiscal Quarter ending
September 30, 2004
====================================== ================================
7.15 Fiscal Year.
------------
Neither Borrower shall change its Fiscal Year-end from December 31.
7.16 Zoning and Contract Changes and Compliance.
-------------------------------------------
Without the prior written approval of the Administrative Agent, the
Borrowers shall not, and shall not permit any of their Subsidiaries to, initiate
or consent to any zoning downgrade of the Mortgaged Property or seek any
material variance under any existing zoning ordinance or use or permit the use
of the Mortgaged Property in any manner that could result in such use becoming a
non-conforming use (other than a non-conforming use permissible under automatic
grandfathering provisions) under any zoning ordinance or any other applicable
land use law, rule or regulation. The Borrowers shall not, and shall not permit
any of their Subsidiaries to, initiate or consent to any change in any laws,
requirements of Governmental Authorities or obligations created by private
contracts which now or hereafter could reasonably be likely to materially and
adversely affect the ownership, occupancy, use or operation of the Mortgaged
Property without the prior written consent of the Administrative Agent.
7.17 No Joint Assessment; Separate Lots.
-----------------------------------
Without the prior written approval of the Administrative Agent, which
approval may be granted, withheld, conditioned or delayed in its sole
discretion, the Borrowers shall not suffer, permit or initiate, and shall not
permit any of their Subsidiaries to, suffer, permit or initiate, the joint
assessment of the Mortgaged Property (i) with any other real property
constituting a separate tax lot and (ii) with any portion of the Mortgaged
Property which may be deemed to constitute personal property, or any other
procedure whereby the lien of any Taxes which may be levied against any such
personal property shall be assessed or levied or charged to the Mortgaged
Property as a single lien. The Mortgaged Property is comprised of one or more
parcels, each of which, to the knowledge of the Borrowers, constitutes a
separate tax lot and none of which constitutes a portion of any other tax lot.
7.18 Certain Covenants Applicable to New Mall Subsidiary and Other Mall
Related Companies.
-------------------------------------------------------------------------
A. Line of Business. Borrowers shall not permit New Mall Subsidiary to
engage in any business other than (i) acquiring, developing, constructing,
owning, holding, managing, marketing and operating of the Mall, (ii) any
activity and business incidental, directly related or similar thereto, and (iii)
engaging in any business or activity that is a reasonable extension, development
or expansion thereof or ancillary thereto including any retail, restaurant,
entertainment or other activity or business designed to promote, market,
support, develop, construct or enhance the retail, restaurant and entertainment
business of the Mall (including, owning and operating joint ventures to supply
materials or services for the construction or operation of the Mall). Borrowers
shall not permit Mall Direct Holdings, Mall Subsidiary or Mall Manager to engage
in any business or any transaction except (i) Mall Direct Holdings may hold
equity interests in Mall Subsidiary, (ii) Mall Subsidiary may hold equity
interests in New Mall Subsidiary, (iii) Mall Manager may hold a 1% managing
membership interest in Mall Direct Holdings and Mall Subsidiary and may own the
equity interests in New Mall Manager and (iv) New Mall Manager may hold a 1%
managing membership interest in New Mall Subsidiary.
B. Restrictions on Investment. Borrowers shall not permit New Mall
Subsidiary to purchase or acquire any Securities, loan, advance, capital
contribution or other investment of any kind except (i) advances to employees
for moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business, (ii) any such investments in
Cash Equivalents and similar liquid Investments permitted under the Financing
Agreements to which it is a party; (iii) any investments in Joint Ventures with
third parties to develop and operate restaurants in the Mall in an aggregate
amount not to exceed $5,000,000 at any time; (iv) other such investments
reasonably necessary for the operation, maintenance and improvement of the Mall
in an aggregate amount not to exceed $2,500,000 at any time; (v) loans or
advances to employees made in the ordinary course of business of the New Mall
Subsidiary in an aggregate amount not to exceed $500,000 at any time; and (vi)
stock, obligations or securities received in settlement of debts created in the
ordinary course of business and owing to New Mall Subsidiary or in satisfaction
of judgments.
C. Affiliate Transactions. Borrowers shall not permit New Mall Subsidiary
to, directly or indirectly, enter into or permit to exist any transaction
(including the purchase, sale, lease or exchange of any property or the
rendering of any service), with any holder of 5% or more of any class of equity
Securities of any Borrower or New Mall Subsidiary or with any Affiliate of a
Borrower or New Mall Subsidiary or any such holder, provided that New Mall
Subsidiary may enter into or permit to exist (i) transactions that are not less
favorable to New Mall Subsidiary than those that might be obtained at the time
from Persons who are not such a holder or Affiliate if Borrowers have delivered
to Administrative Agent (a) with respect to any transaction involving an amount
in excess of $500,000, an Officers Certificate certifying that such transaction
complies with this clause (i), (b) with respect to any transaction involving an
amount in excess of $1,000,000, a resolution adopted by a majority of the
disinterested non-employee directors of the Borrowers approving such transaction
and an Officers Certificate certifying that such transaction complies with this
clause (i) and (c) with respect to any such transaction that involves aggregate
payments in excess of $10,000,000 or that is a loan transaction involving a
principal amount in excess of $10,000,000, an opinion as to the fairness to New
Mall Subsidiary from a financial point of view issued by an Independent
Financial Advisor at the time such transaction is entered into, (ii)
transactions contemplated or permitted by the Sale and Contribution Agreement,
the Second Sale and Contribution Agreement dated December 20, 1999 between Mall
Subsidiary and New Mall Subsidiary, the Permanent Mall Loan Agreement as in
effect on the date hereof, the HVAC Services Agreements, the Services Agreement,
the Restaurant Leases, the Billboard Master Lease and the other Master Leases
(as defined in that certain FADAA Limited Waiver dated as of November 12, 1999
among inter alia Borrowers, Mall Construction Subsidiary and Scotiabank as bank
agent) and the Cooperation Agreement, (v) any guarantees by Adelson of
Indebtedness of New Mall Subsidiary, (vi) purchases of materials or services
from a Joint Venture Supplier by the New Mall Subsidiary in the ordinary course
of business on arm's length terms; (vii) any employment, indemnification,
noncompetition or confidentiality agreement entered into by New Mall Subsidiary
with its employees or directors in the ordinary course of business, (viii) loans
or advances to employees of New Mall Subsidiary, but in any event not to exceed
$500,000 in the aggregate outstanding at any one time and (ix) the payment of
reasonable fees to directors of New Mall Subsidiary or its managing member who
are not employees of New Mall Subsidiary.
D. Restricted Junior Payments. Borrowers shall not permit New Mall
Subsidiary, Mall Subsidiary, Mall Direct Holdings, Mall Manager or New Mall
Manager (the "Excluded Mall Subsidiaries") to make any payments or distributions
which would constitute Restricted Junior Payments described in clauses (i)
through (iii) inclusive of the definition of Restricted Junior Payments if the
reference to Borrower in each such clause were a reference to the applicable
Excluded Mall Subsidiary unless such payments or distributions are made (i) to
the Borrowers or their Subsidiaries or another Excluded Mall Subsidiary (for
further distribution to Borrowers or their Subsidiaries) or (ii) pro rata on all
equity interests of the applicable Excluded Mall Subsidiary (so that Borrowers
receive a portion of such payment or distribution equal to the direct or
indirect ownership interest of Borrowers in such Excluded Mall Subsidiary).
7.19 Limitation on Declaration of Restricted Subsidiaries.
-----------------------------------------------------
Borrowers shall not declare or permit to be designated as a "Restricted
Subsidiary" under either of the Mortgage Note Indenture or Subordinated Notes
Indenture any Affiliate which is an Excluded Subsidiary.
7.20 Payments to Adelson.
--------------------
Borrowers 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 any other provision of this Agreement (including, without
limitation, subsections 7.5 or 7.10) or any other agreement or document.
7.21 Limitation on Phase II Construction.
------------------------------------
Borrowers shall not, and shall not permit any of their Subsidiaries
(including any Excluded Subsidiary), at any time prior to receipt by Borrowers
or any such Subsidiary of a temporary certificate of occupancy from Clark
County, Nevada with respect to the Project in its entirety (a) to construct,
develop or improve the Phase II Land or any building on the Phase II Land
(including any excavation or site work and excluding the Phase II parking
garage), (b) enter into any contract or agreement for such construction,
development or improvement, or for any materials, supplies or labor necessary in
connection with such construction development or improvement (other than a
contract that is conditioned upon satisfaction of the above condition), or (c)
incur any Indebtedness the proceeds of which are expected to be used for the
construction, development or improvement of the Phase II Land or any building on
the Phase II Land, except (i) any construction, development or improvement on
the Phase II Land or any temporary building on the Phase II Land in connection
with the Project in accordance with the Plans and Specifications and included in
the Project Budget; and (ii) any design, architectural, engineering or
development work not involving actual construction on the Phase II Land.
Section 8. EVENTS OF DEFAULT
If any of the following conditions or events set forth in subsections 8.1
through 8.19 inclusive below shall occur or if prior to the Final Completion
Date any Disbursement Agreement Event of Default shall occur (any such
conditions or events collectively "Events of Default"):
8.1 Failure to Make Payments When Due.
----------------------------------
Failure by Borrowers to pay any installment of principal on any Loan when
due, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; failure by Borrowers to pay
when due any amount payable to an Issuing Lender in reimbursement of any
drawings; or failure by Borrowers to pay any interest on any Loan or any fee or
any other amount due under this Agreement within five days after the date due;
or
8.2 Default under Other Indebtedness or Contingent Obligations.
----------------------------------------------------------
(i) Failure of any Borrower or any of its Subsidiaries, to pay when due any
principal of or interest on or any other amount payable in respect of one
or more items of Indebtedness (other than Indebtedness referred to in
subsection 8.1) or Contingent Obligations in an individual principal amount
of $2,500,000 or more or with an aggregate principal amount of $5,000,000
or more, in each case beyond the end of any grace period provided therefor;
or (ii) breach or default by any Borrower or any of its Subsidiaries with
respect to any other material term of (a) one or more items of Indebtedness
or Contingent Obligations in the individual or aggregate principal amounts
referred to in clause (i) above or (b) any loan agreement, mortgage,
indenture or other agreement relating to such item(s) of Indebtedness or
Contingent Obligation(s), if the effect of such breach or default is to
cause, or to permit the holder or holders of that Indebtedness or
Contingent Obligation(s) (or a trustee on behalf of such holder or holders)
to cause, that Indebtedness or Contingent Obligation(s) to become or be
declared due and payable prior to its stated maturity or the stated
maturity of any underlying obligation, as the case may be (upon the giving
or receiving of notice, lapse of time, both, or otherwise); or
8.3 Breach of Certain Covenants.
----------------------------
Failure of Loan Parties to perform or comply with any term or condition
contained in subsection 2.5 or 6.2 or Section 7 of this Agreement provided that
the failure to perform or comply with any such provision incorporated by
reference from the Disbursement Agreement shall constitute an Event of Default
hereunder only to the extent such failure to perform or comply constitutes a
Disbursement Agreement Event of Default; or
8.4 Breach of Warranty.
-------------------
Any representation, warranty, certification or other statement made by
Borrowers or any of their Subsidiaries in any Loan Document or in any statement
or certificate at any time given by Borrowers or any of their Subsidiaries in
writing pursuant hereto or thereto or in connection herewith or therewith shall
be false in any material respect on the date as of which made provided that the
failure to perform or comply with any such provision incorporated by reference
from the Disbursement Agreement shall constitute an Event of Default hereunder
only to the extent such failure to perform or to comply constitutes a
Disbursement Agreement Event of Default; or
8.5 Other Defaults Under Loan Documents.
------------------------------------
Any Loan Party shall default in the performance of or compliance with any
term contained in this Agreement or any of the other Loan Documents, other than
any such term referred to in any other subsection of this Section 8, and such
default shall not have been remedied or waived within 30 days after the earlier
of (i) an officer of Borrowers or such Loan Party becoming aware of such default
or (ii) receipt by Borrowers and such Loan Party of notice from Administrative
Agent or any Lender of such default provided that the failure to perform or
comply with any such provision incorporated by reference from the Disbursement
Agreement shall constitute an Event of Default hereunder only to the extent such
failure to perform or comply constitutes a Disbursement Agreement Event of
Default; or
8.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
-----------------------------------------------------
(i) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of a Borrower or any of its Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced
against a Borrower or any of its Subsidiaries, under the Bankruptcy Code or
under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee,
custodian or other officer having similar powers over a Borrower or any of its
Subsidiaries, or over all or a substantial part of its property, shall have been
entered; or there shall have occurred the involuntary appointment of an interim
receiver, trustee or other custodian of a Borrower or any of its Subsidiaries,
for all or a substantial part of its property; or a warrant of attachment,
execution or similar process shall have been issued against any substantial part
of the property of a Borrower or any of its Subsidiaries, and any such event
described in this clause (ii) shall continue for 60 days unless dismissed,
bonded or discharged; or
8.7 Voluntary Bankruptcy; Appointment of Receiver, etc.
---------------------------------------------------
(i) A Borrower or any of its Subsidiaries shall have an order for relief
entered with respect to it or commence a voluntary case under the Bankruptcy
Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or a Borrower or any of its Subsidiaries shall make any
assignment for the benefit of creditors; or (ii) a Borrower or any of its
Subsidiaries shall be unable, or shall fail generally, or shall admit in writing
its inability, to pay its debts as such debts become due and in each case a
period of 30 days shall have elapsed; or the Board of Directors of a Borrower or
any of its Subsidiaries (or any committee thereof) or of its managing member
shall adopt any resolution or otherwise authorize any action to approve any of
the actions referred to in clause (i) above or this clause (ii); or
8.8 Judgments and Attachments.
--------------------------
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $2,500,000 or (ii)
in the aggregate at any time an amount in excess of $5,000,000 (in either case
not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against a
Borrower or any of its Subsidiaries or any of their respective assets and shall
remain unpaid and undischarged, unvacated, unbonded or unstayed for a period of
60 days (or in any event later than five days prior to the date of any proposed
sale thereunder); or
8.9 Dissolution.
------------
Any order, judgment or decree shall be entered against a Borrower or any of
its Subsidiaries decreeing the dissolution or split up of such Person and such
order shall remain undischarged or unstayed for a period in excess of 30 days;
or
8.10 Employee Benefit Plans.
-----------------------
There shall occur one or more ERISA Events which individually or in the
aggregate results in or might reasonably be expected to result in liability of a
Borrower, or any of its Subsidiaries or any of their respective ERISA Affiliates
in excess of $2,500,000 during the term of this Agreement; or there shall exist
an amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), which exceeds $5,000,000; or
8.11 Change in Control.
------------------
As a result of any sale, pledge or other transfer, either (a) Adelson and
the Related Parties shall cease to beneficially own and control directly or
indirectly at least 70% of the issued and outstanding shares of capital stock of
LVSI, entitled (without regard to the occurrence of any contingency) to vote for
the election of members of the Board of Directors of LVSI; (b) Adelson or any
Related Party (as applicable but excluding any of the persons specified in
clause (ii) of the definition of Related Parties) shall not have invested the
proceeds of any sale, or transfer of shares of LVSI by Adelson or any Related
Party (as applicable) in the business of Borrowers (including any Excluded
Subsidiary) or (c) LVSI shall cease to own 100% of the equity Securities of
Venetian other than any preferred equity of Venetian owned by Interface or
another Affiliate of Adelson or (d) Borrowers shall cease to own 100% of the
equity securities of each of their Subsidiaries, Mall Manager and Phase II
Manager, (e) Mall Manager and Mall Holdings together shall cease to own 100% of
Mall Direct Holdings and Phase II Holdings and Phase II Manager together shall
cease to own 100% of Phase II Direct Holdings, (f) Mall Direct Holdings shall
cease to own not less than 99% of the equity securities in Mall Subsidiary or
(g) Mall Subsidiary shall cease to own not less than 80% of the equity
securities in New Mall Subsidiary or (h) Mall Manager shall cease to own not
less than 100% of the equity securities in New Mall Manager or (i) Phase II
Direct Holdings shall cease to own at least 51% of the equity securities in
Phase II Subsidiary or (j) the sole managing member of Mall Direct Holdings,
Phase II Direct Holdings, Intermediate Holding Companies, Mall Subsidiary and
Phase II Subsidiary shall cease to be LVSI, Venetian or (directly or indirectly)
a wholly-owned Subsidiary of LVSI or Venetian or (k) the sole managing member of
New Mall Subsidiary shall cease to be LVSI, Venetian, or (directly or
indirectly) a wholly-owned Subsidiary of LVSI or Venetian or (l) any "Change of
Control" (as defined in either of the Indentures) shall occur; or
8.12 Failure of Guaranty; Repudiation of Obligations.
------------------------------------------------
At any time after the execution and delivery thereof, (i) the Subsidiary
Guaranty for any reason, other than the satisfaction in full of all Obligations,
shall cease to be in full force or effect (other than in accordance with its
terms), or shall be declared null and void by a Governmental Instrumentality of
competent jurisdiction, (ii) any Collateral Document shall cease to be in full
force and effect (other than by reason of a release of Collateral thereunder in
accordance with the terms hereof or thereof, the satisfaction in full of the
Obligations or any other termination of such Collateral Document in accordance
with the terms hereof or thereof) or shall be declared null and void by a
Governmental Instrumentality of competent jurisdiction, or Administrative Agent
shall not have or shall cease to have a valid and perfected First Priority Lien
in the First Priority Collateral for any reason other than the failure of
Administrative Agent or any Lender to take any action within its control, or
(iii) any Loan Party shall contest the validity or enforceability of any Loan
Document in writing or deny in writing that it has any further liability prior
to the indefeasible payment in full of all Obligations, the cancellation of all
outstanding Letters of Credit and the termination of all Commitments, including
with respect to future advances by Lenders, under any Loan Document to which it
is a party or (vi) the subordination provisions in the Subordinated Notes, the
Employee Repurchase Notes, any Completion Guaranty Note or in any other
instrument required under any provision of this Agreement to be subordinated to
the Obligations shall cease to be enforceable against the holder thereof; or
8.13 Default Under or Termination of Operative Documents.
---------------------------------------------------
Any of the Operative Documents shall terminate or be terminated or
canceled, prior to its stated expiration date or either Borrower shall be in
default (after the giving of any applicable notice and the expiration of any
applicable grace period) or any Affiliate of the Borrowers shall be in default
(after the giving of any applicable notice and the expiration of any applicable
grace period) under any of the Operative Documents; provided that a default or
termination under any Project Document shall constitute an Event of Default
hereunder only if such default or termination may reasonably be expected to
cause a Material Adverse Effect; or
8.14 Default Under or Termination of Permits.
----------------------------------------
A Borrower or any of its Subsidiaries shall fail to observe, satisfy or
perform, or there shall be a violation or breach of, any of the material terms,
provisions, agreements, covenants or conditions attaching to or under the
issuance to such Person of any material Permit, including the gaming license
held by LVSI or any such Permit or any material provision thereof shall be
terminated or fail to be in full force and effect or any Governmental
Instrumentality shall challenge or seek to revoke any such Permit if such
failure to perform, breach or termination could reasonably be expected to have a
Material Adverse Effect; or
8.15 Default Under or Termination of Cooperation Agreement.
-----------------------------------------------------
Any default by Interface shall occur under Article III, Section 3 of the
Cooperation Agreement beyond any applicable notice or cure periods; or
8.16 Bankruptcy or Dissolution of New Mall Subsidiary.
------------------------------------------------
Any event or circumstance described under subsections 8.6 or 8.7 hereof
shall occur with respect to New Mall Subsidiary, Mall Subsidiary, New Mall
Manager, Mall Manager or Mall Direct Holdings which would constitute an Event of
Default if such Excluded Subsidiary were a Subsidiary of Borrowers for purposes
of those subsections; or
8.17 Acceleration of Obligations of New Mall Subsidiary.
--------------------------------------------------
New Mall Subsidiary shall be in breach or default with respect to any term
of one or more items or Indebtedness or Contingent Obligation(s) in an
individual principal amount of $2,500,000 or more or an aggregate principal
amount of $5,000,000 or more, if as result thereof the holders of such
Indebtedness or Contingent Obligations) (or an agent or trustee acting on their
behalf) have caused that Indebtedness or Contingent Obligation(s) to become due
and payable prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be; or
8.18 Certain Investments in any Excluded Subsidiary.
-----------------------------------------------
Adelson or any of his Affiliates (other than Borrowers and their
wholly-owned Subsidiaries) shall acquire or hold any Investment in any Excluded
Subsidiary or any Person which any Excluded Subsidiary controls or holds an
Investment other than (a) in the case of New Mall Subsidiary or Phase II
Subsidiary, through transactions expressly permitted under subsection 7.18 or
purchases of public debt securities in the secondary market and (b) in the case
of Phase II Subsidiary or any of its subsidiaries, investments arising through
loans, completion guaranties or other guaranties substantially similar to those
provided in connection with the development of the Project and permitted under
clause (a) of this subsection 8.18; or
8.19 Conforming Adelson L/C.
-----------------------
Any Conforming Adelson L/C shall cease to be in full force and effect at
any time prior to twenty-four (24) months from and after the date of its
delivery to Drawing Agent other than following a drawing in full by Drawing
Agent or, if permitted under the definition of Adelson Conforming L/C Draw
Event, the replacement of such Adelson Conforming L/C with a cash equity
contribution in Borrowers in the amount of the Adelson Conforming L/C;
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Borrowers, and the obligation of each Lender to make any Loan, the
obligation of Administrative Agent to issue any Letter of Credit and the right
of any Lender to issue any Letter of Credit hereunder shall thereupon terminate,
and (ii) upon the occurrence and during the continuation of any other Event of
Default, Administrative Agent shall, upon the written request or with the
written consent of Requisite Lenders, by written notice to Borrowers, declare
all or any portion of the amounts described in clauses (a) and (b) above to be,
and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan, the obligation of Administrative
Agent to issue any Letter of Credit and the right of any Lender to issue any
Letter of Credit hereunder shall thereupon terminate; provided that the
foregoing shall not affect in any way the obligations of Lenders under
subsection 3.3C(i).
Any amounts described in clause (b) above, when received by Administrative
Agent, shall be held by Administrative Agent pursuant to a cash collateral
arrangement reasonably satisfactory to Administrative Agent. Notwithstanding
anything contained in the second preceding paragraph, if at any time within 60
days after an acceleration of the Loans pursuant to clause (ii) of such
paragraph Borrowers shall pay all arrears of interest and all payments on
account of principal which shall have become due otherwise than as a result of
such acceleration (with interest on principal and, to the extent permitted by
law, on overdue interest, at the rates specified in this Agreement) and all
Events of Default and Potential Events of Default (other than non-payment of the
principal of and accrued interest on the Loans, in each case which is due and
payable solely by virtue of acceleration) shall be remedied or waived pursuant
to subsection 10.6, then Requisite Lenders, by written notice to Borrowers, may
at their option rescind and annul such acceleration and its consequences; but
such action shall not affect any subsequent Event of Default or Potential Event
of Default or impair any right consequent thereon. The provisions of this
paragraph are intended merely to bind Lenders to a decision which may be made at
the election of Requisite Lenders and are not intended, directly or indirectly,
to benefit Borrowers, and such provisions shall not at any time be construed so
as to grant Borrowers the right to require Lenders to rescind or annul any
acceleration hereunder or to preclude Administrative Agent or Lenders from
exercising any of the rights or remedies available to them under any of the Loan
Documents, even if the conditions set forth in this paragraph are met.
Section 9. AGENTS
9.1 Appointment.
------------
A. Appointment of Administrative Agent. Scotiabank is hereby appointed
Administrative Agent hereunder and under the other Loan Documents and each
Lender hereby authorizes Administrative Agent to act as its agent in accordance
with the terms of this Agreement and the other Loan Documents. GSCP is hereby
appointed Arranger and Syndication Agent hereunder and under the other Loan
Documents and each Lender hereby authorizes Arranger and Syndication Agent to
act as its agent in accordance with the terms of this Agreement and the other
Loan Documents. Each Agent agrees to act upon the express conditions contained
in this Agreement and the other Loan Documents, as applicable. The provisions of
this Section 9 are solely for the benefit of each Agent and Lenders; Borrowers
shall have no rights as a third party beneficiary of any of the provisions
thereof. In performing its functions and duties under this Agreement, each Agent
shall act solely as an agent of Lenders and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust
with or for Borrowers or any of their Subsidiaries. Upon the Closing Date all
obligations of Arranger and Syndication Agent hereunder shall terminate.
B. Appointment of Supplemental Agents. It is the purpose of this Agreement
and the other Loan Documents that there shall be no violation of any law of any
jurisdiction denying or restricting the right of banking corporations or
associations to transact business as agent or trustee in such jurisdiction. It
is recognized that in case of litigation under this Agreement or any of the
other Loan Documents, and in particular in case of the enforcement of any of the
Loan Documents, or in case any Agent deems that by reason of any present or
future law of any jurisdiction it may not exercise any of the rights, powers or
remedies granted herein or in any of the other Loan Documents or take any other
action which may be desirable or necessary in connection therewith, it may be
necessary that such Agent appoint an additional individual or institution as a
separate trustee, co-trustee, collateral agent or collateral co-agent (any such
additional individual or institution being referred to herein individually as a
"Supplemental Agent" and collectively as "Supplemental Agents").
In the event that an Agent appoints a Supplemental Agent with respect to
any Collateral, (i) each and every right, power, privilege or duty expressed or
intended by this Agreement or any of the other Loan Documents to be exercised by
or vested in or conveyed to an Agent with respect to such Collateral shall be
exercisable by and vest in such Supplemental Agent to the extent, and only to
the extent, necessary to enable such Supplemental Agent to exercise such rights,
powers and privileges with respect to such Collateral and to perform such duties
with respect to such Collateral, and every covenant and obligation contained in
the Loan Documents and necessary to the exercise or performance thereof by such
Supplemental Agent shall run to and be enforceable by either such Agent or such
Supplemental Agent, and (ii) the provisions of this Section 9 and of subsections
10.2 and 10.3 that refer to Agent shall inure to the benefit of such
Supplemental Agent and all references therein to Agent shall be deemed to be
references to Administrative Agent and/or such Supplemental Agent, as the
context may require.
Should any instrument in writing from Borrowers or any other Loan Party be
required by any Supplemental Agent so appointed for more fully and certainly
vesting in and confirming to him or it such rights, powers, privileges and
duties, Borrowers shall, or shall cause such Loan Party to, execute, acknowledge
and deliver any and all such instruments promptly upon request by the
appropriate Agent. In case any Supplemental Collateral Agent, or a successor
thereto, shall die, become incapable of acting, resign or be removed, all the
rights, powers, privileges and duties of such Supplemental Agent, to the extent
permitted by law, shall vest in and be exercised by Administrative Agent until
the appointment of a new Supplemental Agent.
9.2 Powers and Duties; General Immunity.
------------------------------------
A. Powers; Duties Specified. Each Lender irrevocably authorizes
Administrative Agent to take such action on such Lender's behalf and to exercise
such powers, rights and remedies hereunder and under the other Loan Documents as
are specifically delegated or granted to Administrative Agent by the terms
hereof and thereof, together with such powers, rights and remedies as are
reasonably incidental thereto. Administrative Agent shall have only those duties
and responsibilities that are expressly specified in this Agreement and the
other Loan Documents. Administrative Agent may exercise such powers, rights and
remedies and perform such duties by or through its agents or employees.
Administrative Agent shall not have, by reason of this Agreement or any of the
other Loan Documents, a fiduciary relationship in respect of any Lender; and
nothing in this Agreement or any of the other Loan Documents, expressed or
implied, is intended to or shall be so construed as to impose upon
Administrative Agent any obligations in respect of this Agreement or any of the
other Loan Documents except as expressly set forth herein or therein.
B. No Responsibility for Certain Matters. Administrative Agent shall not be
responsible to any Lender for the execution, effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this Agreement or any
other Loan Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by Administrative Agent to Lenders or by
or on behalf of Borrowers to Administrative Agent or any Lender in connection
with the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Borrowers or any other Person liable
for the payment of any Obligations, nor shall Administrative Agent be required
to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan
Documents or as to the use of the proceeds of the Loans or the use of the
Letters of Credit or as to the existence or possible existence of any Event of
Default or Potential Event of Default. Anything contained in this Agreement to
the contrary notwithstanding, Administrative Agent shall not have any liability
arising from confirmations of the amount of outstanding Loans or the Letter of
Credit Usage or the component amounts thereof.
C. Exculpatory Provisions. Neither Administrative Agent nor any of its
officers, directors, employees or agents shall be liable to Lenders for any
action taken or omitted by Administrative Agent under or in connection with any
of the Loan Documents except to the extent caused by Administrative Agent's
gross negligence or willful misconduct. Administrative Agent shall be entitled
to refrain from any act or the taking of any action (including the failure to
take an action) in connection with this Agreement or any of the other Loan
Documents or from the exercise of any power, discretion or authority vested in
it hereunder or thereunder unless and until Administrative Agent shall have
received instructions in respect thereof from Requisite Lenders (or such other
Lenders as may be required to give such instructions under subsection 10.6) and,
upon receipt of such instructions from Requisite Lenders (or such other Lenders,
as the case may be), Administrative Agent shall be entitled to act or (where so
instructed) refrain from acting, or to exercise such power, discretion or
authority, in accordance with such instructions. Without prejudice to the
generality of the foregoing, (i) Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any communication, instrument or
document believed by it to be genuine and correct and to have been signed or
sent by the proper person or persons, and shall be entitled to rely and shall be
protected in relying on opinions and judgments of attorneys (who may be
attorneys for Borrowers and their Subsidiaries), accountants, experts and other
professional advisors selected by it; and (ii) no Lender shall have any right of
action whatsoever against Administrative Agent as a result of Administrative
Agent acting or (where so instructed) refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions
of Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6).
D. Administrative Agent Entitled to Act as Lender. The agency hereby
created shall in no way impair or affect any of the rights and powers of, or
impose any duties or obligations upon, Administrative Agent in its individual
capacity as a Lender hereunder. With respect to its participation in the Loans
and the Letters of Credit, Administrative Agent shall have the same rights and
powers hereunder as any other Lender and may exercise the same as though it were
not performing the duties and functions delegated to it hereunder, and the term
"Lender" or "Lenders" or any similar term shall, unless the context clearly
otherwise indicates, include Administrative Agent in its individual capacity.
Administrative Agent and its Affiliates may accept deposits from, lend money to
and generally engage in any kind of banking, trust, financial advisory or other
business with Borrowers or any of its Affiliates as if it were not performing
the duties specified herein, and may accept fees and other consideration from
Borrowers for services in connection with this Agreement and otherwise without
having to account for the same to Lenders.
E. Administrative Agent Determinations. To the extent the Administrative
Agent is entitled or required to make any determinations under the Intercreditor
Agreement, the Adelson Intercreditor Agreement, the Adelson Subordination
Agreement or any FF&E Intercreditor Agreement, the Administrative Agent shall
make such determinations upon the advice of Requisite Lenders.
9.3 Representations and Warranties; No Responsibility For Appraisal of Credit
Worthiness.
-------------------------------------------------------------------------
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Borrowers and their
Subsidiaries in connection with the making of the Loans and the issuance of the
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Borrowers and their Subsidiaries.
Administrative Agent shall not have any duty or responsibility, either initially
or on a continuing basis, to make any such investigation or any such appraisal
on behalf of Lenders or to provide any Lender with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter, and Administrative Agent
shall not have any responsibility with respect to the accuracy of or the
completeness of any information provided to Lenders.
9.4 Right to Indemnity.
-------------------
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify Administrative Agent, to the extent that Administrative Agent shall
not have been reimbursed by Borrowers, for and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including counsel fees and disbursements) or disbursements of any kind
or nature whatsoever which may be imposed on, incurred by or asserted against
Administrative Agent in exercising its powers, rights and remedies or performing
its duties hereunder or under the other Loan Documents or otherwise in its
capacity as Administrative Agent in any way relating to or arising out of this
Agreement or the other Loan Documents; provided that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from
Administrative Agent's gross negligence or willful misconduct. If any indemnity
furnished to Administrative Agent for any purpose shall, in the opinion of
Administrative Agent, be insufficient or become impaired, Administrative Agent
may call for additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished.
9.5 Successor Administrative Agent.
-------------------------------
Administrative Agent may resign at any time by giving 30 days' prior
written notice thereof to Lenders and Borrowers, and Administrative Agent may be
removed at any time with or without cause by an instrument or concurrent
instruments in writing delivered to Borrowers and Administrative Agent and
signed by Requisite Lenders. Upon any such notice of resignation or any such
removal, Requisite Lenders shall have the right, upon five Business Days' notice
to Borrowers, to appoint a successor Administrative Agent (provided that such
successor is or simultaneously therewith becomes a Lender). Upon the acceptance
of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, that successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed Administrative Agent and the retiring or removed
Administrative Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring or removed Administrative Agent's resignation
or removal hereunder as Administrative Agent, the provisions of this Section 9
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement.
9.6 Collateral Documents and Subsidiary Guaranties.
-----------------------------------------------
Each Lender hereby further authorizes Administrative Agent, on behalf of
and for the benefit of Lenders, to enter into each Collateral Document and
Subsidiary Guaranty as secured party or beneficiary (as applicable), and each
Lender agrees to be bound by the terms of each Collateral Document and
Subsidiary Guaranty; provided that Administrative Agent shall not (i) enter into
or consent to any material amendment, modification, termination or waiver of any
provision contained in any Collateral Document or Subsidiary Guaranty, or (ii)
release any Collateral (except as otherwise expressly permitted or required
pursuant to the terms of this Agreement or the applicable Collateral Document),
in each case without the prior consent of Requisite Lenders (or, if required
pursuant to subsection 10.6, all Lenders); provided further, however, that,
without further written consent or authorization from Lenders, Administrative
Agent may execute any documents or instruments necessary to (i) release any
Subsidiary from the Subsidiary Guaranty to the extent the stock of such
Subsidiary is sold in a transaction permitted under this Agreement or otherwise
consented to by Requisite Lenders in accordance with subsection 10.6 and (ii)
release any Lien encumbering any item of Collateral that is the subject of a
sale or other disposition of assets permitted by this Agreement or to which
Requisite Lenders have otherwise consented in accordance with Subsection 10.6.
Anything contained in any of the Loan Documents to the contrary notwithstanding,
Borrowers, Administrative Agent and each Lender hereby agree that (X) no Lender
shall have any right individually to realize upon any of the Collateral under
any Collateral Document, it being understood and agreed that all powers, rights
and remedies under the Collateral Documents and each Guaranty may be exercised
solely by Administrative Agent for the benefit of Lenders in accordance with the
terms thereof, and (Y) in the event of a foreclosure by Administrative Agent on
any of the Collateral pursuant to a public or private sale, Administrative Agent
or any Lender may be the purchaser of any or all of such Collateral at any such
sale and Administrative Agent, as agent for and representative of Lenders (but
not any Lender or Lenders in its or their respective individual capacities
unless Requisite Lenders shall otherwise agree in writing) shall be entitled,
for the purpose of bidding and making settlement or payment of the purchase
price for all or any portion of the Collateral sold at any such public sale, to
use and apply any of the Obligations as a credit on account of the purchase
price for any collateral payable by Administrative Agent at such sale.
9.7 Disbursement Agreement and Intercreditor Agreement.
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Each Lender hereby further authorizes Administrative Agent, on behalf of
and for the benefit of Lenders, to enter into the Disbursement Agreement, the
Intercreditor Agreement, the Adelson Intercreditor Agreement, the Adelson
Subordination Agreement and any FF&E Intercreditor Agreements and any other
intercreditor agreements in the form of the Adelson Intercreditor Agreement
entered into by Administrative Agent with any subsequent holders of a Substitute
Tranche B Note (as such term is defined in the Existing Credit Agreement) or a
Completion Guaranty Note, and each Lender agrees to be bound by the terms of the
Disbursement Agreement, the Intercreditor Agreement and each other such
intercreditor agreement; provided that Administrative Agent shall not enter into
or consent to any amendment, modification, termination or waiver of any
provision contained in the Disbursement Agreement, the Intercreditor Agreement
or any other such intercreditor agreement without the prior consent of Requisite
Lenders (or, if such amendment, modification, termination or waiver would result
in a change that under Section 10.6 would require the consent of all Lenders,
then the prior consent of all Lenders).
9.8 Appointment of Joint-Lead Arrangers and Syndication Agent after Closing
Date.
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GSCP is hereby appointed Syndication Agent and GSCP and Scotiabank are
hereby appointed Joint-Lead Arrangers hereunder and under the other Loan
Documents and each Lender hereby authorizes such Joint-Lead Arrangers and
Syndication Agent to act as its agent in accordance with the terms of this
Agreement and the other Loan Documents. Each of the Syndication Agent and
Joint-Lead Arrangers agree to act upon the express conditions contained in this
Agreement and the other Loan Documents, as applicable. The provisions of this
Section 9 are solely for the benefit of each of the Syndication Agent,
Joint-Lead Arrangers and Lenders; Borrowers shall have no rights as a third
party beneficiary of any of the provisions thereof. In performing its functions
and duties under this Agreement, each of the Syndication Agent and Joint-Lead
Arrangers shall act solely as an agent of Lenders and do not assume and shall
not be deemed to have assumed any obligation towards or relationship of agency
or trust with or for Borrowers or any of their Subsidiaries. Upon the
Restatement Closing Date all obligations of the Syndication Agent and Joint-Lead
Arrangers hereunder shall terminate.
Section 10. MISCELLANEOUS
10.1 Assignments and Participations in Loans.
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A. General. Subject to subsection 10.1B, each Lender shall have the right
at any time to (i) sell, assign or transfer to any Eligible Assignee, or (ii)
sell participations to any Eligible Assignee or any other Person with the
approval of Borrowers in, all or any part of its Commitments or any Loan or
Loans made by it or its Letters of Credit or participations therein or any other
interest herein or in any other Obligations owed to it; provided that no such
sale, assignment, transfer or participation shall, without the consent of
Borrowers, require Borrowers to file a registration statement with the
Securities and Exchange Commission or apply to qualify such sale, assignment,
transfer or participation under the securities laws of any state; provided,
further that no such sale, assignment or transfer described in clause (i) above
shall be effective unless and until an Assignment Agreement effecting such sale,
assignment or transfer shall have been accepted by Administrative Agent and
recorded in the Register as provided in subsection 10.1B(ii) and provided,
further that no such sale, assignment, transfer or participation of any Letter
of Credit or any participation therein may be made separately from a sale,
assignment, transfer or participation of a corresponding interest in the
Commitment and the Loans of the Lender effecting such sale, assignment, transfer
or participation. Except as otherwise provided in this subsection 10.1, no
Lender shall, as between Borrowers and such Lender, be relieved of any of its
obligations hereunder as a result of any sale, assignment or transfer of, or any
granting of participations in, all or any part of its Commitments or the Loans,
the Letters of Credit or participations therein, or the other Obligations owed
to such Lender.
B. Assignments.
(i) Amounts and Terms of Assignments. Each Commitment, Loan, Letter of
Credit or participation therein, or other Obligation may (a) be assigned in
any amount to another Lender, or to an Affiliate of the assigning Lender or
another Lender, with the giving of notice to Borrowers and Administrative
Agent; provided that if such assignment relates to Revolving Loans or
Revolving Loan Commitments, the assignee shall represent that it has the
financial resources to fulfill its commitments hereunder and such
assignment is consented to by Administrative Agent and Issuing Lender (such
consent not to be unreasonably withheld or delayed) or (b) be assigned in
an aggregate amount of not less than $5,000,000 (or such lesser amount as
shall constitute the aggregate amount of the Commitments, Loans, Letters of
Credit and participations therein, and other Obligations of the assigning
Lender) to any other Eligible Assignee with the consent of Borrowers and
Administrative Agent (which consent shall not be unreasonably withheld or
delayed); provided that any such assignment in accordance with either
clause (a) or (b) above shall effect a pro rata assignment (based on the
respective principal amounts thereof then outstanding or in effect) of both
the Term Loan Commitment and the Term Loans of the assigning Lender, on the
one hand, and the Revolving Loan Commitment and the Revolving Loans of the
assigning Lender, on the other hand, except where such Lender does not hold
both Revolving Loan Commitments or Revolving Loans and Term Loan
Commitments or Term Loans. To the extent of any such assignment in
accordance with either clause (a) or (b) above, the assigning Lender shall
be relieved of its obligations with respect to its Commitments, Loans,
Letters of Credit or participations therein, or other Obligations or the
portion thereof so assigned. The assignor or assignee to each such
assignment shall execute and deliver to Administrative Agent, for its
acceptance and recording in the Register, an Assignment Agreement, together
with a processing and recordation fee of (a) $2,000 in respect of
assignments made between parties which are not Lenders as at the Closing
Date and (b) $500 in respect of assignments made between parties one of
which is a Lender as at the Closing Date, and such forms, certificates or
other evidence, if any, with respect to United States federal income tax
withholding matters as the assignee under such Assignment Agreement may be
required to deliver to Administrative Agent pursuant to subsection
2.7B(iii)(a). Upon such execution, delivery, acceptance and recordation,
from and after the effective date specified in such Assignment Agreement,
(y) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment Agreement, shall have the rights and obligations of a Lender
hereunder and (z) the assigning Lender thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment Agreement, relinquish its rights (other than any rights which
survive the termination of this Agreement under subsection 10.9B) and be
released from its obligations under this Agreement (and, in the case of an
Assignment Agreement covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall
cease to be a party hereto; provided that, anything contained in any of the
Loan Documents to the contrary notwithstanding, if such Lender is the
Issuing Lender with respect to any outstanding Letters of Credit such
Lender shall continue to have all rights and obligations of an Issuing
Lender with respect to such Letters of Credit until the cancellation or
expiration of such Letters of Credit and the reimbursement of any amounts
drawn thereunder). The Commitments hereunder shall be modified to reflect
the Commitment of such assignee and any remaining Commitment of such
assigning Lender and, if any such assignment occurs after the issuance of
Notes hereunder, the assigning Lender shall, upon the effectiveness of such
assignment or as promptly thereafter as practicable, surrender its
applicable Notes to Administrative Agent for cancellation, and thereupon
new Notes shall be issued to the assignee and to the assigning Lender,
substantially in the form of Exhibits III-A, III-B, or III-C annexed
hereto, as applicable, with appropriate insertions, to reflect the new
Commitments and/or outstanding Loans, as the case may be, of the assignee
and the assigning Lender.
(ii) Acceptance by Administrative Agent; Recordation in Register. Upon its
receipt of an Assignment Agreement executed by an assigning Lender and an
assignee representing that it is an Eligible Assignee, together with the
processing and recordation fee referred to in subsection 10.1B(i) and any
forms, certificates or other evidence with respect to United States federal
income tax withholding matters that such assignee may be required to
deliver to Administrative Agent pursuant to subsection 2.7B(iii)(a),
Administrative Agent shall, if Administrative Agent has consented to the
assignment evidenced thereby (to the extent such consent is required
pursuant to subsection 10.1B(i)), (a) accept such Assignment Agreement by
executing a counterpart thereof as provided therein (which acceptance shall
evidence any required consent of Administrative Agent to such assignment),
(b) record the information contained therein in the Register, and (c) give
prompt notice thereof to Borrowers. Administrative Agent shall maintain a
copy of each Assignment Agreement delivered to and accepted by it as
provided in this subsection 10.1B(ii).
C. Participations. The holder of any participation, other than an Affiliate
of the Lender granting such participation, shall not be entitled to require such
Lender to take or omit to take any action hereunder except action directly
affecting (i) the extension of the scheduled final maturity date of any Loan
allocated to such participation, (ii) a reduction of the principal amount of or
the rate of interest payable on any Loan allocated to such participation, or
(iii) releasing all or substantially all of the Collateral, and all amounts
payable by Borrowers hereunder (including amounts payable to such Lender
pursuant to subsections 2.6D and 2.7) shall be determined as if such Lender had
not sold such participation. Borrowers and each Lender hereby acknowledge and
agree that, solely for purposes of subsections 10.4 and 10.5, (a) any
participation will give rise to a direct obligation of Borrowers to the
participant and (b) the participant shall be considered to be a "Lender".
D. Assignments to Federal Reserve Banks. In addition to the assignments and
participations permitted under the foregoing provisions of this subsection 10.1,
any Lender may assign and pledge all or any portion of its Loans, the other
Obligations owed to such Lender, and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued by such Federal Reserve
Bank; provided that (i) no Lender shall, as between Borrowers and such Lender,
be relieved of any of its obligations hereunder as a result of any such
assignment and pledge and (ii) in no event shall such Federal Reserve Bank be
considered to be a "Lender" or be entitled to require the assigning Lender to
take or omit to take any action hereunder.
E. Information. Each Lender may furnish any information concerning
Borrowers and their Subsidiaries in the possession of that Lender from time to
time to assignees and participants (including prospective assignees and
participants), subject to subsection 10.20.
F. Representations of Lenders. Each Lender listed on the signature pages
hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (A) of the definition thereof; (ii) that it has experience
and expertise in the making of loans such as the Loans; and (iii) that it will
make its Loans for its own account in the ordinary course of its business and
without a view to distribution of such Loans within the meaning of the
Securities Act or the Exchange Act or other federal or state securities laws (it
being understood that, subject to the provisions of this subsection 10.1, the
disposition of such Loans or any interests therein shall at all times remain
within its exclusive control). Each Lender that becomes a party hereto pursuant
to an Assignment Agreement shall be deemed to agree that the representations and
warranties of such Lender contained in Section 2(c) of such Assignment Agreement
are incorporated herein by this reference.
10.2 Expenses.
---------
Whether or not the transactions contemplated hereby shall be consummated,
Borrowers agree to pay promptly (i) all the actual and reasonable costs and
expenses of preparation of the Loan Documents and any consents, amendments,
waivers or other modifications thereto; (ii) all the costs of furnishing all
opinions by counsel for Borrowers (including any opinions requested by Lenders
as to any legal matters arising hereunder) and of Borrowers' performance of and
compliance with all agreements and conditions on its part to be performed or
complied with under this Agreement and the other Loan Documents including with
respect to confirming compliance with environmental, insurance and solvency
requirements; (iii) the reasonable fees, expenses and disbursements of counsel
to Administrative Agent in connection with the negotiation, preparation,
execution and administration of the Loan Documents and any consents, amendments,
waivers or other modifications thereto and any other documents or matters
requested by Borrowers; provided that the fees and costs of such counsel for the
preparation and negotiation of the Loan Documents may not exceed $350,000; (iv)
all the actual costs and reasonable expenses of creating and perfecting Liens in
favor of Administrative Agent on behalf of Lenders pursuant to any Collateral
Document, including filing and recording fees, expenses and taxes, stamp or
documentary taxes, search fees, title insurance premiums, and reasonable fees,
expenses and disbursements of counsel to Administrative Agent and of counsel
providing any opinions that Administrative Agent or Requisite Lenders may
request in respect of the Collateral Documents or the Liens created pursuant
thereto; (v) all the actual costs and reasonable expenses (including the
reasonable fees, expenses and disbursements of any auditors, accountants or
appraisers and any environmental or other consultants, advisors and agents
employed or retained by Administrative Agent or its counsel) of obtaining and
reviewing any appraisals provided for under any Loan Documents or the
Disbursement Agreement, any environmental audits or reports provided for under
subsection 6.8B or under the Disbursement Agreement; and (vi) the custody or
preservation of any of the Collateral; (vii) all other actual and reasonable
costs and expenses incurred by Administrative Agent in connection with the
syndication of the Commitments and the negotiation, preparation and execution of
the Loan Documents and any consents, amendments, waivers or other modifications
thereto and the transactions contemplated thereby; and (viii) after the
occurrence of an Event of Default, all costs and expenses, including reasonable
attorneys' fees (including allocated costs of internal counsel) and costs of
settlement, incurred by Administrative Agent and Lenders in enforcing any
Obligations of or in collecting any payments due from any Loan Party hereunder
or under the other Loan Documents by reason of such Event of Default (including
in connection with the sale of, collection from, or other realization upon any
of the Collateral or the enforcement of any Guaranty) or in connection with any
refinancing or restructuring of the credit arrangements provided under this
Agreement in the nature of a "work-out" or pursuant to any insolvency or
bankruptcy proceedings.
10.3 Indemnity.
----------
In addition to the payment of expenses pursuant to subsection 10.2, whether
or not the transactions contemplated hereby shall be consummated, Borrowers
agree to defend (subject to Borrowers' selection of counsel with the consent of
the Indemnitee, which shall not be unreasonably withheld), indemnify, pay and
hold harmless Administrative Agent, Arrangers and Lenders, and the officers,
directors, employees, agents and affiliates of Administrative Agent, Arrangers
and Lenders (collectively called the "Indemnitees"), from and against any and
all Indemnified Liabilities (as hereinafter defined); provided that Borrowers
shall not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise solely
from the gross negligence or willful misconduct of that Indemnitee as determined
by a final judgment of a court of competent jurisdiction.
As used herein, "Indemnified Liabilities" means, collectively, any and all
liabilities, obligations, losses, damages (including natural resource damages),
penalties, actions, judgments, suits, claims (including Environmental Claims),
costs (including the costs of any investigation, study, sampling, testing,
abatement, cleanup, removal, remediation or other response action necessary to
remove, remediate, clean up or abate any Hazardous Materials Activity), expenses
and disbursements of any kind or nature whatsoever (including the reasonable
fees and disbursements of counsel for Indemnitees in connection with any
investigative, administrative or judicial proceeding commenced or threatened by
any Person, whether or not any such Indemnitee shall be designated as a party or
a potential party thereto, and any fees or expenses incurred by Indemnitees in
enforcing this indemnity), whether direct, indirect or consequential and whether
based on any federal, state or foreign laws, statutes, rules or regulations
(including securities and commercial laws, statutes, rules or regulations and
Environmental Laws), on common law or equitable cause or on contract or
otherwise, that may be imposed on, incurred by, or asserted against any such
Indemnitee, in any manner relating to or arising out of (i) this Agreement or
the other Loan Documents or the Project Documents or the transactions
contemplated hereby or thereby (including Lenders' agreement to make the Loans
hereunder or the use or intended use of the proceeds thereof or the use or
intended use of any thereof, or any enforcement of any of the Loan Documents
(including any sale of, collection from, or other realization upon any of the
Collateral or the enforcement of any Guaranty), (ii) the statements contained in
the commitment letter delivered by any Lender to Borrowers with respect thereto,
or (iii) any Environmental Claim or any Hazardous Materials Activity relating to
or arising from, directly or indirectly, any past or present activity,
operation, land ownership, or practice of Borrowers or any of their
Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this subsection 10.3 may be unenforceable in whole or in
part because they are violative of any law or public policy, Borrowers shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
10.4 Set-Off; Security Interest in Deposit Accounts.
----------------------------------------------
In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence of any Event of
Default each Lender is hereby authorized by Borrowers at any time or from time
to time, without notice to Borrowers or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, including Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not including trust
accounts) and any other Indebtedness at any time held or owing by that Lender to
or for the credit or the account of Borrowers against and on account of the
obligations and liabilities of Borrowers to that Lender under this Agreement,
the Letters of Credit and participations therein and the other Loan Documents,
including all claims of any nature or description arising out of or connected
with this Agreement, the Letters of Credit and participations therein or any
other Loan Document, irrespective of whether or not (i) that Lender shall have
made any demand hereunder or (ii) the principal of or the interest on the Loans
or any amounts in respect of the Letters of Credit or any other amounts due
hereunder shall have become due and payable pursuant to Section 9 and although
said obligations and liabilities, or any of them, may be contingent or
unmatured. Borrowers hereby further grants to Administrative Agent and each
Lender a security interest in all deposits and accounts maintained with
Administrative Agent or such Lender as security for the Obligations.
10.5 Ratable Sharing.
----------------
Lenders hereby agree among themselves that if any of them shall, whether by
voluntary payment (other than a voluntary prepayment of Loans made and applied
in accordance with the terms of this Agreement), by realization upon security,
through the exercise of any right of set-off or banker's lien, by counterclaim
or cross action or by the enforcement of any right under the Loan Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of Letters
of Credit, fees and other amounts then due and owing to that Lender hereunder or
under the other Loan Documents (collectively, the "Aggregate Amounts Due" to
such Lender) which is greater than the proportion received by any other Lender
in respect of the Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall (i) notify Administrative
Agent and each other Lender of the receipt of such payment and (ii) apply a
portion of such payment to purchase participations (which it shall be deemed to
have purchased from each seller of a participation simultaneously upon the
receipt by such seller of its portion of such payment) in the Aggregate Amounts
Due to the other Lenders so that all such recoveries of Aggregate Amounts Due
shall be shared by all Lenders in proportion to the Aggregate Amounts Due to
them; provided that if all or part of such proportionately greater payment
received by such purchasing Lender is thereafter recovered from such Lender upon
the bankruptcy or reorganization of Borrowers or otherwise, those purchases
shall be rescinded and the purchase prices paid for such participations shall be
returned to such purchasing Lender ratably to the extent of such recovery, but
without interest. Borrowers expressly consents to the foregoing arrangement and
agrees that any holder of a participation so purchased may exercise any and all
rights of banker's lien, set-off or counterclaim with respect to any and all
monies owing by Borrowers to that holder with respect thereto as fully as if
that holder were owed the amount of the participation held by that holder.
10.6 Amendments and Waivers.
-----------------------
No amendment, modification, termination or waiver of any provision of this
Agreement or of the Notes, and no consent to any departure by Borrowers
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; provided that any such amendment, modification, termination,
waiver or consent which: increases the amount of any of the Commitments or
reduces the principal amount of any of the Loans; changes in any manner the
definition of "Pro Rata Share" or the definition of "Requisite Lenders" (it
being understood that, with the consent of Requisite Lenders, additional
extensions of credit pursuant to this Agreement may be included in "Pro Rata
Share" and "Requisite Lenders" on substantially the same terms as the Term Loan
Commitments and the Term Loans and the Revolving Loan Commitments and the
Revolving Loans); changes in any manner any provision of this Agreement which,
by its terms, expressly requires the approval or concurrence of all Lenders;
postpones the scheduled final maturity date of any of the Loans; postpones the
date or reduces the amount of any scheduled payment (but not prepayment) of
principal of any of the Loans or any scheduled reduction in commitments;
postpones the date on which any interest or any fees or other amounts are
payable; decreases the interest rate borne by any of the Loans (other than any
waiver of any increase in the interest rate applicable to any of the Loans
pursuant to subsection 2.2E) or the amount of any fees or other amounts payable
hereunder; reduces the amount or postpones the due date of any amount payable in
respect of, or extends the required expiration date of, any Letter of Credit;
changes in any manner the obligations of Lenders relating to the purchase of
participations in Letters of Credit; increases the maximum duration of Interest
Periods permitted hereunder; releases any Lien granted in favor of
Administrative Agent with respect to 25% or more in aggregate fair market value
of the Collateral; releases any Subsidiary Guarantor from its obligations under
its Guaranty, other than in accordance with the terms of the Loan Documents; or
changes in any manner the provisions contained in subsection 9.1 or this
subsection 10.6 shall be effective only if evidenced by a writing signed by or
on behalf of all Lenders. In addition, (i) any amendment, modification,
termination or waiver of any of the provisions contained in Section 4 shall be
effective only if evidenced by a writing signed by or on behalf of
Administrative Agent and Requisite Lenders, (ii) no amendment, modification,
termination or waiver of any provision of any Note shall be effective without
the written concurrence of the Lender which is the holder of that Note, (iii) no
amendment, modification, termination or waiver of any provision of Section 9 or
of any other provision of this Agreement which, by its terms, expressly requires
the approval or concurrence of Administrative Agent shall be effective without
the written concurrence of Administrative Agent and (iv) no amendment,
modification, termination or waiver of any provision of subsection 2.4 which has
the effect of changing any interim scheduled payments, voluntary or mandatory
prepayments, or Commitment reductions applicable to either Class (the "Affected
Class") in a manner that disproportionately disadvantages such Class relative to
the other Class shall be effective without the written concurrence of Requisite
Class Lenders of the Affected Class (it being understood and agreed that any
amendment, modification, termination or waiver of any such provision which only
postpones or reduces any interim scheduled payment, voluntary or mandatory
prepayment, or Commitment reduction from those set forth in subsection 2.4 with
respect to one Class but not the other Class shall be deemed to
disproportionately disadvantage such one Class but not to disproportionately
disadvantage such other Class for purposes of this clause (iv). Administrative
Agent may, but shall have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf of that Lender.
Any waiver or consent shall be effective only in the specific instance and for
the specific purpose for which it was given. No notice to or demand on Borrowers
in any case shall entitle Borrowers to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver
or consent effected in accordance with this subsection 10.6 shall be binding
upon each Lender at the time outstanding, each future Lender and, if signed by
Borrowers, on Borrowers. To the extent the Bank Agent is entitled or required to
make any determinations under the Intercreditor Agreement, the Adelson
Intercreditor Agreement or any FF&E Intercreditor Agreement, Bank Agent shall
make such determinations upon the advice of Requisite Lenders.
10.7 Certain Matters Affecting Lenders.
----------------------------------
(a) If (i) the Nevada Gaming Commission shall determine that any Lender
does not meet suitability standards prescribed under the Nevada Gaming
Regulations or (ii) any other gaming authority with jurisdiction over the gaming
business of Borrowers shall determine that any Lender does not meet its
suitability standards (in any such case, a "Former Lender"), the Administrative
Agent or the Borrowers shall have the right (but not the duty) to designate
bank(s) or other financial institution(s) (in each case, a "Substitute Lender,"
which may be any Lender or Lenders that agree to become a Substitute Lender and
to assume the rights and obligations of the Former Lender, subject to receipt by
the Administrative Agent of evidence that such Substitute Lender is an Eligible
Assignee. The Substitute Lender shall assume the rights and obligations of the
Former Lender under this Agreement. Borrowers shall bear the costs and expenses
of any Lender required by the Nevada Gaming Commission, or any other gaming
authority with jurisdiction over the gaming business of Borrowers, to file an
application for a finding of suitability in connection with the investigation of
an application by Borrowers for a license to operate a gaming establishment, in
connection with such application for a finding of suitability.
(b) Notwithstanding the provisions of subsection (a) of this subsection
9.7, if any Lender becomes a Former Lender, and if the Administrative Agent or
the Borrowers fail to find a Substitute Lender pursuant to subsection (a) of
this subsection 9.7 within any time period specified by the appropriate gaming
authority for the withdrawal of a Former Lender (the "Withdrawal Period"), the
Borrowers shall immediately prepay in full the outstanding principal amount of
Loans made by such Former Lender, together with accrued interest thereon to the
earlier of (x) the date of payment or (y) the last day of any Withdrawal Period.
10.8 Independence of Covenants.
--------------------------
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.9 Notices.
--------
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; provided that notices to Administrative Agent shall not
be effective until received. For the purposes hereof, the address of each party
hereto shall be as set forth under such party's name on the signature pages
hereof or (i) as to Borrowers and Administrative Agent, such other address as
shall be designated by such Person in a written notice delivered to the other
parties hereto and (ii) as to each other party, such other address as shall be
designated by such party in a written notice delivered to Administrative Agent.
10.10 Survival of Representations, Warranties and Agreements.
-------------------------------------------------------
A. All representations, warranties and agreements made herein shall survive
the execution and delivery of this Agreement and the making of the Loans and the
issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Borrowers set forth in subsections 2.6D, 2.7, 10.2,
10.3 and 10.4 and the agreements of Lenders set forth in subsections 9.2C, 9.4,
10.5 and 10.20 shall survive the payment of the Loans and the reimbursement of
any amounts drawn thereunder, and the termination of this Agreement.
10.11 Failure or Indulgence Not Waiver; Remedies Cumulative.
-----------------------------------------------------
No failure or delay on the part of Administrative Agent or any Lender in
the exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.12 Marshalling; Payments Set Aside.
--------------------------------
Neither Administrative Agent nor any Lender shall be under any obligation
to marshal any assets in favor of Borrowers or any other party or against or in
payment of any or all of the Obligations. To the extent that Borrowers make a
payment or payments to Administrative Agent or Lenders (or to Administrative
Agent for the benefit of Lenders), or Administrative Agent or Lenders enforce
any security interests or exercise their rights of setoff, and such payment or
payments or the proceeds of such enforcement or setoff or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, any other state or federal law, common law or any equitable
cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor
or related thereto, shall be revived and continued in full force and effect as
if such payment or payments had not been made or such enforcement or setoff had
not occurred.
10.13 Severability.
-------------
In case any provision in or obligation under this Agreement or the Notes
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
10.14 Obligations Several; Independent Nature of Lenders' Rights.
----------------------------------------------------------
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
10.15 Headings.
---------
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
10.16 Applicable Law.
---------------
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
10.17 Successors and Assigns.
-----------------------
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). Neither
Borrowers' rights or obligations hereunder nor any interest therein may be
assigned or delegated by Borrowers without the prior written consent of all
Lenders.
10.18 Consent to Jurisdiction and Service of Process.
----------------------------------------------
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST BORROWERS ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, BORROWERS, FOR THEMSELVES AND IN CONNECTION WITH
THEIR PROPERTIES, IRREVOCABLY
(I) ACCEPT GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS;
(II) WAIVE ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREE THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO BORROWERS AT THEIR ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 10.9;
(IV) AGREE THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER BORROWERS IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT;
(V) AGREE THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST BORROWERS IN THE
COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREE THAT THE PROVISIONS OF THIS SUBSECTION 10.18 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR
OTHERWISE.
10.19 Waiver of Jury Trial.
---------------------
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.19 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.20 Confidentiality.
----------------
Each Lender shall hold all non-public information obtained pursuant to the
requirements of this Agreement in accordance with such Lender's customary
procedures for handling confidential information of this nature and in
accordance with safe and sound banking or investment practices, it being
understood and agreed by Borrowers that in any event a Lender may make
disclosures to Affiliates of such Lender or disclosures reasonably required by
any bona fide assignee, transferee or participant in connection with the
contemplated assignment or transfer by such Lender of any Loans or any
participations therein (provided that such assignee, transferee or participant
agrees to also be bound by this subsection 10.20), or disclosures required or
requested by any governmental agency or representative thereof or pursuant to
legal process; provided that, unless specifically prohibited by applicable law
or court order, each Lender shall notify Borrowers of any request by any
governmental agency or representative thereof (other than any such request in
connection with any examination of the financial condition of such Lender by
such governmental agency) for disclosure of any such non-public information; and
provided, further that in no event shall any Lender be obligated or required to
return any materials furnished by Borrowers or any of their Subsidiaries.
10.21 Counterparts; Effectiveness.
----------------------------
This Agreement and any amendments, waivers, consents or supplements hereto
or in connection herewith 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 shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Borrowers and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
10.22 Gaming Authorities.
-------------------
The Arrangers, the Administrative Agent and each Lender agree to cooperate
with the Nevada Gaming Authorities in connection with the administration of
their regulatory jurisdiction over the Borrowers and their Subsidiaries,
including, without limitation, to the extent not inconsistent with the internal
policies of such Lender or Issuing Lender and any applicable legal or regulatory
restrictions the provision of such documents or other information as may be
requested by any such Nevada Gaming Authority relating to the Arrangers, the
Administrative Agent or any of the Lenders, or Borrowers or any of their
Subsidiaries, or to the Loan Documents. Notwithstanding any other provision of
the Agreement, Borrowers expressly authorize each Agent and Lender to cooperate
with the Nevada Gaming Authorities as described above.
10.23 Limited Waiver.
---------------
Subject to satisfaction of the conditions precedent set forth in
subsections 4.1 and 4.2 and in reliance on the representations, warranties and
covenants of the Borrowers set forth in this Agreement, the 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 in Schedule 5.18
annexed hereto (to the extent, if any, they exist) to the extent and for the
period expressly set forth therein. The waivers and consents set forth in this
subsection 10.23 and in Schedule 5.18 annexed hereto shall be limited in all
respects precisely as set forth herein and therein and nothing contained herein
or therein shall be deemed to:
(a) constitute a waiver of (i) compliance by the Borrowers with
respect to any term, provision or condition of this Agreement or any
other instrument or agreement referred to herein, except as expressly
set forth in Schedule 5.18, or (ii) any Event of Default or Potential
Event of Default, except as expressly set forth on Schedule 5.18; or
(b) 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 the
limited waivers specified in Schedule 5.18 annexed hereto) under or in
connection with this Agreement or any other instrument or agreement
referred to therein or delivered hereunder.
Except as expressly set forth herein, the terms, provisions and conditions
of this Agreement and the other Loan Documents shall remain in full force and
effect and in all other respects are hereby ratified and confirmed.
[Remainder of page 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.
BORROWERS:
LAS VEGAS SANDS, INC.
By: /s/ William P. Weidner
---------------------------
Name: William P. Weidner
Title: President
Notice Address:
3355 Las Vegas Boulevard South
Room 1A
Las Vegas, Nevada 89109
Attention: General Counsel
Telefax: (702) 733-5499
VENETIAN CASINO RESORT, LLC
By: Las Vegas Sands, Inc.
its managing member
By: /s/ William P. Weidner
---------------------------
Name: William P. Weidner
Title: President
Notice Address:
3355 Las Vegas Boulevard South
Room 1A
Las Vegas, Nevada 89109
Attention: General Counsel
Telefax: (702) 733-5499
LENDERS: GOLDMAN SACHS CREDIT PARTNERS L.P.
individually and as a Lender,
Joint-Lead Arranger and
Syndication Agent
By: /s/ R.T. Wagner
---------------------------
Authorized Signatory
Notice Address:
Goldman Sachs Credit Partners L.P.
85 Broad Street
New York, New York 10004
Attention: Gary Moross/David Lischer/
Elizabeth Fischer
Telefax: (212) 357 0932
THE BANK OF NOVA SCOTIA,
individually and as a Lender,
Joint-Lead Arranger and
Administrative Agent
By: /s/ Alan Pendergast
---------------------------
Name: Alan Pendergast
Title: Managing Director
Notice Address:
The Bank of Nova Scotia
580 California Street, Suite 2100
San Francisco, California 94104
Attention: Alan Pendergast
Telefax: (415) 397-0791
With copy to:
The Bank of Nova Scotia
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attention: Marianne Velker
Telefax: (404) 888-8998
THE INTERNATIONAL COMMERCIAL
BANK OF CHINA, NEW YORK AGENCY
By: /s/ Wen-Hui Wang
---------------------------
Name: Wen-Hui Wang
Title: Assistant Vice President
/General Manager
Notice Address:
The International Commercial Bank of China
65 Liberty Street
New York, NY 10005
Attention: Mong-Shyr Wu
Telefax: (212) 766 5006
TORONTO DOMINION (TEXAS), INC.
By: /s/ Alva J. Jones
-------------------------------
Name: Alva J. Jones
Title: President
Notice Address:
The Toronto-Dominion Bank
909 Fannin, Suite 1700
Houston, Texas 77010
Manager-Credit Administration
Attention: David G. Parker
Telefax: (713) 951-9921
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Koren Volk
-----------------------------------
Name: Koren Volk
Title: Authorized Signatory
Notice Address:
Canadian Imperial Bank of Commerce
425 Lexington Avenue
New York, NY 10017
Attention: Koren Volk
Telefax: (212) 856-3799
NATIONAL WESTMINSTER BANK
BY: NATWEST CAPITAL MARKETS, its Agent
BY: GREENWICH CAPITAL MARKETS, its Agent
By: /s/ Kelly A. Myers
-----------------------------------
Name: Kelly A. Myers
Title: Assistant Vice President
Notice Address:
National Westminster Bank
600 Steamboat Rd.
Greenwich, CT 06830
Attention: Rick Jacoby
Telefax: (203) 618-2520
PINEHURST TRADING, INC.
By: /s/ Ashley R. Hamilton
------------------------------
Name: Ashley R. Hamilton
Title: Assistant Vice President
Notice Address:
Bank of America
100 North Tryon Street
NC-1-007-06-07
Charlotte, NC 28255
Attention: Ashley Hamilton
Telefax: (704) 388 0648
FOOTHILL INCOME TRUST, L.P.
By: /s/ Mike Bohannon
---------------------------------
Name: Mike Bohannon
Title: Managing General Partner
Notice Address:
Foothill Income Trust, L.P.
11111 Santa Monica Blvd.
Suite 1500
Los Angeles, CA 90025
Attention: Jammy Gurican/ Mike Bohannon
Telefax: (310) 479-0461
SRV-HIGHLAND, INC.
By: /s/ Ashley R. Hamilton
-----------------------------------
Name: Ashley R. Hamilton
Title: Assistant Vice President
Notice Address:
Bank of America
100 North Tryon Street
NC-1-007-06-07
Charlotte, NC 28255
Attention: Ashley Hamilton
Telefax: 704 388 0648
FOOTHILL INCOME TRUST II, L.P.
By: /s/ Mike Bohannon
------------------------------
Name: Mike Bohannon
Title: Managing General Parnter
Notice Address:
Foothill Income Trust II, L.P.
11111 Santa Monica Blvd.
Suite 1500
Los Angeles, CA 90025
Attention: Jammy Gurican/ Mike Bohannon
Telefax: (310) 479-0461