EXHIBIT 10.2
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LIMITED WAIVER AND SECOND AMENDMENT
TO TERM LOAN AND SECURITY AGREEMENT
THIS LIMITED WAIVER AND SECOND AMENDMENT TO TERM LOAN AND SECURITY
AGREEMENT (this "Agreement") is dated as of June 14, 2000 and entered into by
and among LAS VEGAS SANDS, INC., a Nevada corporation ("LVSI" ), and VENETIAN
CASINO RESORT, LLC, a Nevada limited liability company ("VCR"), as joint and
several obligors (each of LVSI and VCR, a "Borrower" and, collectively, the
"Borrowers"), GENERAL ELECTRIC CAPITAL CORPORATION, as administrative agent (in
such capacity, "Administrative Agent") for the financial institutions party to
the Original Equipment Loan Agreement referred to below ("Lenders"), and the
Lenders listed on the signature pages hereto and executing a counterpart hereof
and is made with reference to that certain Term Loan and Security Agreement,
dated as of December 22, 1997, by and among Borrowers, Lenders, Administrative
Agent and BancBoston Leasing Inc., as co-agent, as amended by a Limited Waiver
and First Amendment to Term Loan and Security Agreement, dated as of November
12, 1999, among the same parties (as so amended, the "Original Equipment Loan
Agreement"). Capitalized terms used herein without definition shall have the
same meanings herein as set forth in the Original Equipment Loan Agreement.
WHEREAS, Borrowers, Administrative Agent and Lenders desire to enter into
this Agreement to make certain amendments to the terms and provisions of the
Original Equipment Loan Agreement and to document certain waivers granted
thereunder.
NOW, THEREFORE, in consideration of the premises and the covenants herein
contained, the parties hereto agree as follows:
Section 1. AMENDMENTS
Subject to the terms and conditions set forth herein, the Administrative
Agent, the Requisite Lenders, and the Borrowers hereby agree to the following
amendments to the Original Equipment Loan Agreement:
(A) Section 1.11 of the Original Equipment Loan Agreement is hereby amended
by adding thereto at the end thereof a new subsection (c) thereof which shall
read as follows:
"(c) In the event that any Conforming Adelson L/C Draw Event shall
have occurred, the Administrative Agent may direct the Conforming Adelson
L/C Drawing Agent to draw down on each outstanding Conforming Adelson L/C
in its entirety. In such event, the Administrative Agent shall apply all
proceeds of each such drawing which are received by the Administrative
Agent from the Conforming Adelson L/C Drawing Agent to the immediate
prepayment of the Obligations, such prepayment to be applied in each case
in the manner specified in sections 1.13(b) and (c). For the avoidance of
doubt, (i) a Conforming Adelson L/C Draw Event shall be in addition to an
Event of Default described in section 8.1, (ii) the Administrative Agent
shall not be required to exercise any rights or remedies under section 8 in
order to draw on the Conforming Adelson L/Cs and (iii) any drawing on a
Conforming Adelson L/C shall not be deemed to be a waiver of any Event of
Default."
The caption to section 1.11 of the Original Equipment Loan Agreement is hereby
amended to read as follows: "Mandatory Prepayments and Commitment Reductions
from Loss Net Proceeds; Mandatory Prepayments Following Conforming Adelson L/C
Draw Events."
(B) Sections 1.22(a)(v) and 1.22(a)(vi) of the Original Equipment Loan
Agreement are hereby amended and restated to read in their entirety as follows:
"(v) all cash collateral, if any, from time to time held by the
Administrative Agent under any provision hereof; and
(vi) to the extent not otherwise included, all Proceeds (including
insurance and condemnation proceeds and proceeds of other proceeds) of any
of the foregoing and all accessories (including tools specific to the
included equipment) and accessions (excluding cash in slot machines and the
contents of minibars) to and substitutions and replacements for each of the
foregoing.".
(C) Section 3 of the Original Equipment Loan Agreement is hereby amended by
adding thereto new sections 3.31, 3.32 and 3.33 thereof which shall read as
follows:
"3.31 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 VCR, 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 3.31 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.
3.32 No Events of Default. No Event of Default or Default exists
or is continuing (other than those Events of Default and Defaults set
forth on Schedule 3.32 attached hereto).
3.33 Adelson Subordination Agreement. Sheldon G. 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 Bank Agent, the Borrowers, Mall Construction
Subsidiary and Sheldon G. Adelson (the "Adelson Subordination
Agreement")."
(D) Section 6.2(e) of the Original Equipment Loan Agreement is hereby
amended and restated to read in its entirety as follows:
"(e) the Borrowers and their Subsidiaries may invest in the New Mall
Subsidiary or the Phase II Subsidiary, or both, any cash or other property
contributed to the Borrowers by Sheldon G. Adelson or any of his Affiliates
for either of such express purposes;"
(E) Each of sections 6.3(d), 6.3(g), 6.3(j), 6.3(n) and 6.3(o) of the
Original Equipment Loan Agreement is hereby amended and restated to read in its
entirety as follows:
"[Intentionally omitted.]".
(F) Section 6.3(f) of the Original Equipment Loan Agreement is hereby
amended and restated to read in its entirety as follows:
"(f) the Borrowers may become and remain liable for Indebtedness under
the Bank Credit Agreement, or any replacement, refinancing or refunding
thereof permitted pursuant to section 6.8(l), in an aggregate principal
amount not to exceed (I) at any time prior to June 14, 2000 the sum of
$190,000,000 and (II) from and after June 14, 2000 the sum of $210,000,000,
in each case reduced by any principal payments required to be made
thereon;".
(G) Section 6.3(q) of the Original Equipment Loan Agreement is hereby
amended to read in full as follows:
"(q) From and after the Completion Date, the Borrowers may incur
Indebtedness in an aggregate principal amount not to exceed $15,000,000
(plus any accrued and unpaid interest thereon added to principal) at any
time outstanding ("Additional Indebtedness"), provided that (a) such
Additional Indebtedness shall not be secured by, directly or indirectly,
any Liens on any property or assets owned directly or indirectly by VCR or
LVSI or any Subsidiary of VCR or LVSI or by any stock, securities,
membership interest, partnership interest or other direct or indirect
equity interests in VCR or LVSI or any Subsidiary of VCR or LVSI; (b) such
Additional Indebtedness shall be subordinated to all Obligations under this
Agreement and all Indebtedness under the Mortgage Notes Indenture, the
Subordinated Notes Indenture and the Bank Credit Agreement (this Agreement,
the Bank Credit Agreement and such Indentures, collectively, the "Superior
Facilities") on terms reasonably acceptable to the Administrative Agent and
no payments in respect thereof may be made or demanded prior to the payment
in full of all Obligations (and provided, further, that the principal of
such Additional Indebtedness may not be repaid until all Obligations and
all Indebtedness with respect to the Superior Facilities have been paid in
full and this covenant of Borrowers shall survive the earlier termination
of this Agreement), other than payment of interest in kind, provided that
any instruments or documents evidencing such payments in kind 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 copies of
all documents and instruments evidencing such Indebtedness shall be
delivered to Administrative Agent 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, (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 the
Administrative Agent (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 Lender Parties to that effect (with
respect to the Superior Facilities only) in form and substance reasonably
satisfactory (including reasonably satisfactory assumptions) to the
Administrative Agent on behalf of the Lenders."
(H) Section 6.4(t) of the Original Equipment Loan Agreement is hereby
amended and restated in its entirety to read as follows:
"(t) transactions contemplated by the Restaurant Leases; and".
(I) Each of sections 6.5(a)(iv), 6.5(a)(ix) and 6.5(a)(xi) of the Original
Equipment Loan Agreement is hereby amended and restated in its entirety to read
as follows:
"[Intentionally omitted.]".
(J) Section 6.5(a)(vii) of the Original Equipment Loan Agreement is hereby
amended and restated in its entirety to read as follows:
"(vii) Liens in favor of (I) the Mortgage Note Holders or (II) another
Person securing Indebtedness advanced by any such Person and permitted
under subsection (m) of section 6.3 to the extent that such Liens are
permitted under the terms of the Credit Parties Intercreditor Agreement,
the Bank Credit Agreement, and the Mortgage Notes Indenture;".
(K) Section 6.8 of the Original Equipment Loan Agreement is hereby amended
and restated in its entirety to read as follows:
"6.8 Restricted Junior Payments. The Borrowers shall not, and shall
not permit any of their Subsidiaries to, directly or indirectly, declare,
order, pay, make or set apart any sinking fund, defeasance fund or other
sum for any Restricted Junior Payment, except:
(a) the Borrowers may make regularly scheduled payments and
mandatory prepayments (not including any payments upon an
acceleration) of principal and interest in respect of any Other
Indebtedness of the 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 (i) any
such payments shall be subject to the terms of the Credit Parties
Intercreditor Agreement, the Adelson Intercreditor Agreement, the
Adelson Subordination Agreement, and the Adelson Completion
Guaranty, as applicable, (ii) any such payments in respect of any
Completion Guaranty Note or any Employee Repurchase Note may be
made only to the extent that no Event of Default or Default shall
then exist and be continuing or would result therefrom and (iii)
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 the inclusion of 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 section 6.9(a)
(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 section 6.9(a)) would have been
in compliance with the requirements of section 6.9(a) as
certified to the Administrative Agent by the chief financial
officer of each of the Borrowers, on behalf of each of the
Borrowers, at the time of such payment;
(b) [Intentionally omitted];
(c) [Intentionally omitted];
(d) [Intentionally omitted];
(e) [Intentionally omitted];
(f) the Borrowers and their Subsidiaries may redeem or
purchase any equity interests in the 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, the 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 shall have been willing to purchase such
equity interests or Indebtedness within a time period acceptable
to the Nevada Gaming Authority;
(g) for so long as a Borrower is a corporation under
Subchapter S of the IRC (in the case of LVSI) or a limited
liability company (in the case of VCR) or, in either case, a
substantially similarly treated pass-through entity for Federal
income tax purposes (as evidenced by an opinion of counsel
delivered at least annually), such Borrower may make cash
distributions to its 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, provided that neither Borrower may make any
such distribution to pay taxes attributable to the income of the
New Mall Subsidiary or the Phase II Subsidiary, or any of their
Subsidiaries, unless the Borrowers shall have received from the
applicable holding companies of the 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;
(h) the 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 the Borrowers or to a Borrower;
(i) the Borrowers may make any repurchases of capital stock
of LVSI which are deemed to occur upon the exercise of stock
options to the extent such capital stock represents a portion of
the exercise price of such options;
(j) the Borrowers may make Permitted Employee Repurchases so
long as (i) no Event of Default or Default shall exist and be
continuing or would result therefrom and (ii) the ratio of
Consolidated Adjusted EBITDA (without giving effect to the
inclusion of 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 section 6.9(a) (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 section 6.9(a)) would have been in compliance with the
requirements of section 6.9(a) as certified to Administrative
Agent by the chief financial officer of each of the Borrowers, on
behalf of each of the Borrowers, at the time of such payment;
(k) the Borrowers may make payments on any Completion
Guaranty Loan (i) prior to the Final Completion Date, from
amounts permitted to be deposited in the Guaranty Deposit Account
subject to the terms of the Adelson Completion Guaranty and the
Disbursement Agreement, (ii) after the Final Completion Date from
Liquidated Damages, and (iii) on the Final Completion Date, from
amounts which are returned to the Mall Construction Subsidiary
from funds in the "Mall Retainage/Punchlist Account" maintained
in accordance with the Mall Escrow Agreement, up to the aggregate
amount previously deposited into such 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 Default shall then exist and be continuing or
would result therefrom; and
(l) the Borrowers may repay Indebtedness outstanding under
the Bank Credit Agreement out of the proceeds of any refinancing,
replacement or refunding of the facility under the Bank Credit
Agreement with the same or other institutional lenders, provided
that any variance between the terms and conditions of the
refinanced facility and the terms and conditions of the Bank
Credit Agreement immediately before such refinancing would have
been permissible under the terms of section 6.18 as an amendment
to the Bank Credit Agreement.".
(L) Section 6.9 of the Original Equipment Loan Agreement is hereby amended
and restated in its entirety to read as follows:
"6.9 Financial Covenants. The Borrowers shall not breach or fail to
comply with any of the following covenants, each of which shall be
calculated in accordance with GAAP consistently applied (and based upon the
financial statements delivered hereunder):
(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 ratio set forth opposite that
Fiscal Quarter in the following table:
============================================= =========================
Minimum
Fixed Charge
Period 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 any Quarterly Date set forth
below (or for any Quarterly Date prior to September 30, 2000, the
period from October 1, 1999 to such date ) to exceed the ratio
set forth opposite that Fiscal Quarter in the following table;
provided that for purposes of calculating Consolidated Adjusted
EBITDA pursuant to this subsection 6.9(b) 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 6.9(c)
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 $165,000,000
30, 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 $175,000,000
30, 2002 and December 31, 2002
- ------------------------------------------------ ----------------------
Each of the Quarters ending on March 31, 2003, $180,000,000
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).
(e) 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:
====================================== ================================
Maximum
Four Fiscal Quarter Consolidated Capital
Period Ending Expenditures Amount
====================================== ================================
December 31, 1999 $15,000,000
March 31, 2000 $15,000,000
June 30, 2000 $15,000,000
September 30, 2000 $15,000,000
December 31, 2000 $25,000,000
March 31, 2001 $25,000,000
June 30, 2001 $25,000,000
September 30, 2001 $25,000,000
December 31, 2001 $25,000,000
March 31, 2002 $25,000,000
June 30, 2002 $25,000,000
September 30, 2002 $25,000,000
December 31, 2002 $25,000,000
March 31, 2003 $25,000,000
June 30, 2003 $25,000,000
September 30, 2003 $25,000,000
December 31, 2003 $30,000,000
March 31, 2004 $30,000,000
June 30, 2004 $30,000,000
September 30, 2004 $30,000,000
====================================== ================================
(M) Section 6.17 of the Original Equipment Loan Agreement is hereby amended
and restated in its entirety to read as follows:
"6.17 Conduct of Business . The Borrowers shall not, and
shall not permit any of their Subsidiaries to, engage in any
business other than (a) 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 the Borrowers and their
Subsidiaries, including without limitation participating in the
Joint Venture Suppliers and the ownership of the Mall Manager,
the Phase II Manager and VCR, (b) in the case of VCR and its
Subsidiaries (other than those listed in clause (c) below), (i)
the development, construction and operation of the Project, (ii)
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
Joint Venture Suppliers, and (iii) the ownership of equity
interests in Subsidiaries, including the Intermediate Holding
Companies, and (c) in the case of the Intermediate Holding
Companies, the ownership of equity interests in Mall Direct
Holdings and Phase II Direct Holdings and the delivery of
guarantees in favor of the lenders under the Bank Credit
Agreement and the Mortgage Note Holders and the holders of the
Subordinate Notes. Borrowers shall not permit the Excluded
Subsidiaries specified below to engage in any business other than
(A) in the case of the Mall Manager and the Phase II Manager,
ownership of 1% managing membership interests in the Mall
Subsidiary and Mall Direct Holdings, and Phase II Direct Holdings
and Phase II Subsidiary, respectively, (B) in the case of the New
Mall Subsidiary, ownership of the Mall and other matters
reasonably incidental thereto, (C) in the case of Mall Direct
Holdings and Phase II Direct Holdings, ownership of equity
interests in the Mall Subsidiary and the Phase II Subsidiary,
respectively, (D) in the case of the Mall Subsidiary, ownership
of equity interests in the New Mall Subsidiary, (E) in the case
of the Mall Manager, ownership of equity interests in the New
Mall Manager and (F) in the case of the New Mall Manager,
ownership of a 1% managing membership interest in the New Mall
Subsidiary."
(N) Section 6.20 of the Original Equipment Loan Agreement is hereby amended
and restated in its entirety to read as follows:
"6.20 Certain Covenants Applicable to the New Mall Subsidiary and Other
Mall Related Companies.
(a) Line of Business. The Borrowers shall not permit the New
Mall Subsidiary to engage in any business other than (i) the
acquisition, development, construction, ownership, holding,
management, marketing and operation 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 is
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). The Borrowers shall not
permit Mall Direct Holdings, Mall Subsidiary or Mall Manager to
engage in any business or any transaction except (1) Mall Direct
Holdings may hold equity interests in Mall Subsidiary, (2) Mall
Subsidiary may hold equity interests in New Mall Subsidiary, (3)
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 (4) New Mall Manager may hold a
1% managing membership interest in New Mall Subsidiary.
(b) Restrictions on Investments. The Borrowers shall not
permit the 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 (as defined in section 1.1
of the Bank Credit Agreement) 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)
stocks, obligations or other Securities received in settlement of
debts created in the ordinary course of business and owing to the
New Mall Subsidiary or in satisfaction of judgments.
(c) Affiliate Transactions. The Borrowers shall not permit
the 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 the New Mall Subsidiary or of either Borrower or
with any Affiliate of a Borrower or of the New Mall Subsidiary or
any such holder, provided that the New Mall Subsidiary may enter
into or permit to exist (i) transactions that are not less
favorable to the New Mall Subsidiary than those that might be
obtained at the time from Persons who are not such a holder or
Affiliate if the Borrowers shall have delivered to the
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), and (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 LVSI
approving such transaction together with the Officers'
Certificate referred to in clause (A), and (C) with respect to
any such transaction involving aggregate payments in excess of
$10,000,000 or that is a loan transaction involving a principal
amount in excess of $10,000,000, in addition to the deliveries
contemplated by clauses (A) and (B), an opinion as to the
fairness to the 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 (as in effect on
June 14, 2000), the Second Sale and Contribution Agreement dated
December 20, 1999 between the Mall Subsidiary and the New Mall
Subsidiary (as in effect on June 14, 2000), the Permanent Mall
Loan Agreement (as in effect on June 14, 2000), the HVAC Services
Agreement, the Services Agreement, the Restaurant Leases, the
Billboard Master Lease, the Cooperation Agreement and the Master
Lease with respect to Canyon Ranch and the Master Lease with
respect to Lutece, dated as of June 1, 1998 and May 20, 1999,
respectively, both between Mall Construction Subsidiary and VCR,
copies of all of which have been delivered to the Administrative
Agent, (iii) any guarantees by Sheldon G. Adelson of Indebtedness
of the New Mall Subsidiary, (iv) 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, (v) any
employment, indemnification, noncompetition or confidentiality
agreement entered into by the New Mall Subsidiary with its
employees or directors in the ordinary course of business, (vi)
loans or advances to employees of the New Mall Subsidiary, but in
any event not to exceed $500,000 in the aggregate outstanding at
any one time, and (vii) the payment of reasonable fees to
directors of the New Mall Subsidiary or its managing member who
are not employees of the New Mall Subsidiary.
(d) Restricted Junior Payments. The Borrowers shall not
permit the New Mall Subsidiary, Mall Subsidiary, Mall Direct
Holdings, Mall Manager or New Mall Manager (the "Excluded Mall
Subsidiaries") to make any payments or distributions, or
otherwise enter into any transactions, which would constitute
Restricted Junior Payments described in clauses (i) through (iii)
inclusive of the definition of Restricted Junior Payments
(considered as if the reference to Borrower in each such clause
were a reference to the applicable Excluded Mall Subsidiary)
unless such payments or distributions and the benefits of all
such other transactions are made or extended (A) exclusively to
the Borrowers or their Subsidiaries or another Excluded Mall
Subsidiary (for further distribution to Borrowers or their
Subsidiaries) or (B) pro rata on all equity interests of the
applicable Excluded Mall Subsidiary (so that the Borrowers
receive a portion of such Restricted Junior Payment equal to the
direct and indirect ownership interest of the Borrowers in such
Excluded Mall Subsidiary)."
(O) Section 6.26 of the Original Equipment Loan Agreement is hereby amended
and restated in its entirety to read as follows:
"6.26 Payments to Sheldon G. Adelson. The Borrowers shall not directly
or indirectly make any payment to or for the benefit of Sheldon G. 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 Sheldon
G. Adelson's taxes, salary and as reimbursement for reasonable expenses, in
each case, if and to the extent permitted under the Financing 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 Sheldon G. Adelson if such
payment shall be otherwise prohibited or restricted under any other
provision of this Agreement (including, without limitation, subsections 6.4
or 6.8) or any other agreement or document."
(P) Section 8.1(k) of the Original Equipment Loan Agreement is hereby
amended and restated in its entirety to read as follows:
"(k) As a result of any sale, pledge or other transfer, either (a)
Sheldon G. 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; or (b) Sheldon G. Adelson or any Related Party
(as applicable, but excluding directors of LVSI or VCR and employees of
LVSI or VCR who are senior managers or officers of LVSI, VCR or Interface
or any of their Affiliates) shall not have invested the proceeds of any
sale or transfer of shares of LVSI by Sheldon G. Adelson or any Related
Party (as applicable) in the business of the Borrowers (including any
Excluded Subsidiary); or (c) LVSI shall cease to own 100% of the equity
securities of VCR other than any preferred equity of VCR owned by Interface
Holding or another Affiliate of Sheldon G. Adelson; or (d) the Borrowers,
taken together, shall cease to own 100% of the equity securities of each of
their Subsidiaries, the Mall Manager and the Phase II Manager; or (e) the
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; or (f) Mall Direct Holdings
shall cease to own not less than 99% of the equity securities of the Mall
Subsidiary; or (g) the Mall Subsidiary shall cease to own not less than 80%
of the equity securities of New Mall Subsidiary; or (h) Mall Manager shall
cease to own not less than 100% of the equity securities of New Mall
Manager; or (i) Phase II Direct Holdings shall cease to own at least 51% of
the equity securities of Phase II Subsidiary; or (j) the sole managing
member of each of Mall Direct Holdings, Phase II Direct Holdings,
Intermediate Holding Companies, Mall Subsidiary and Phase II Subsidiary
shall cease to be LVSI, VCR or (directly or indirectly) a wholly-owned
Subsidiary of LVSI or VCR; or (k) the sole managing member of New Mall
Subsidiary shall cease to be LVSI, VCR or, directly or indirectly, a
wholly-owned subsidiary of LVSI or VCR; or (l) any "Change of Control" (as
defined in either the Mortgage Notes Indenture or the Subordinated Notes
Indenture) shall occur."
(Q) Sections 8.1(o), (p) and (q) of the Original Equipment Loan Agreement
are hereby amended and restated in its entirety to read as follows:
"(o) Any event or circumstance described under section 8.1(f), (g) or
(h) hereof shall occur with respect to the New Mall Subsidiary, the Mall
Subsidiary, the New Mall Manager, the 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.
"(p) The New Mall Subsidiary shall be in breach of or default with
respect to any term of one or more items of Indebtedness or Contingent
Obligation in an individual principal amount of $2,500,000 or more or an
aggregate principal amount of $5,000,000 or more, if as a result thereof
the holders of such Indebtedness or Contingent Obligation or Obligations
(or an agent or trustee acting on their behalf) shall have caused that
Indebtedness or Contingent Obligation or Obligations to become due and
payable prior to its stated maturity or the stated maturity of any
underlying obligation, as the case may be.
"(q) Sheldon G. Adelson or any of his Affiliates (other than the
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 in which it holds an Investment other than (1) in
the case of the New Mall Subsidiary or the Phase II Subsidiary, through
transactions expressly permitted under section 6.20 or purchases of public
debt securities in the secondary market and (2) in the case of the 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 (1) of this section 8.1(q)."
(R) Section 8.1 of the Original Equipment Loan Agreement is hereby amended
by adding thereto a new subsection (y) which shall read as follows:
"(y) 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 the Administrative Agent other than following a drawing
in full by the Administrative 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.".
(S) The second sentence of section 9.2(a) of the Original Equipment Loan
Agreement is hereby amended and restated in its entirety to read as follows:
"Without limiting the generality of the foregoing, each Lender authorizes
the Administrative Agent to execute and deliver (x) an Agreement among
Creditors, among the Bank Agent, the Mortgage Notes Indenture Trustee, the
Interim Mall Lender and the Administrative Agent, a copy of which agreement
has been furnished to and approved by such Lender, and (y) a Conforming
Adelson L/C Drawing Agreement among the Administrative Agent and the Bank
Agent, a copy of which agreement has been furnished to and approved by such
Lender."
(T) The definition of "Billboard" set forth in Annex A to the Original
Equipment Loan Agreement is hereby amended and restated in its entirety to read
as follows:
"`Billboard' means H & H of Nevada, LLC."
(U) The definition of "Billboard Master Lease" set forth in Annex A to the
Original Equipment Loan Agreement is hereby amended and restated in its entirety
to read as follows:
"`Billboard Master Lease' means that certain Lease Agreement dated
November 14, 1997 by and between VCR and New Mall Subsidiary, as successor
to Mall Subsidiary (the latter as successor to Mall Construction
Subsidiary) pursuant to which the New Mall Subsidiary, as successor to Mall
Subsidiary (the latter as successor to Mall Construction Subsidiary), is
leasing from VCR the Additional Billboard Space (as defined in the
Cooperation Agreement)."
(V) The definition of "Consolidated Adjusted EBITDA" set forth in Annex A
to the Original Equipment Loan Agreement is hereby amended and restated in its
entirety to read as follows:
"`Consolidated Adjusted EBITDA' means, for any period, the sum of the
amounts 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
equity interests in VCR) 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 Sheldon G. Adelson or any of his Affiliates (other
than one of the Borrowers) to the Borrowers and/or the face amount of any
Conforming Adelson L/C delivered to the Conforming Adelson L/C Drawing
Agent for the benefit of the Lenders and the Bank 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 Default has occurred and is continuing at the time such cash
contribution is made or such Conforming Adelson L/C is provided to
Conforming Adelson L/C 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 6.9(c) 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)."
(W) The definition of "Cooperation Agreement" set forth in Annex A to the
Original Equipment Loan Agreement is hereby amended and restated in its entirety
to read as follows:
"`Cooperation Agreement' shall mean the Amended and Restated
Reciprocal Easement, Use and Operating Agreement, dated as of November 14,
1997 and as amended December 20, 1999, by and among LVSI, VCR, the Mall
Subsidiary (as replacement for the Mall Construction Subsidiary pursuant to
such amendment), Phase II Subsidiary and Interface."
(X) The definition of "Excluded Subsidiary" set forth in Annex A to the
Original Equipment Loan Agreement is hereby amended and restated in its entirety
to read as follows:
"`Excluded Subsidiary' means any Person excluded from the definition
of Subsidiary by virtue of the last sentence of such definition set forth
in Annex A to this Agreement (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)."
(Y) The definition of "HVAC Completion" set forth in Annex A to the
Original Equipment Loan Agreement is hereby amended by replacing the reference
to the term "Construction Consultants" with the term "Construction Consultant".
(Z) The definition of "Mall Release Date" set forth in Annex A to the
Original Equipment Loan Agreement is hereby amended and restated in its entirety
to read as follows:
"`Mall Release Date' shall mean November 12, 1999."
(AA) The definition of "Other Indebtedness" set forth in Annex A to the
Original Equipment Loan Agreement is hereby amended and restated in its entirety
to read as follows:
"`Other Indebtedness' shall mean (i) Indebtedness evidenced by the
Mortgage Notes, (ii) Indebtedness evidenced by the Subordinated Notes,
(iii) [Intentionally omitted], (iv) Indebtedness evidenced by the Bank
Credit Agreement, (v) Indebtedness in respect of any Completion Guaranty
Loan and (vi) Indebtedness evidenced by an Employee Repurchase Note."
(BB) The definition of "Permanent Mall Lender" set forth in Annex A to the
Original Equipment Loan Agreement is hereby amended and restated in its entirety
to read as follows:
"`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, The Bank of Nova Scotia and any permitted successor
or replacement thereto."
(CC) The definition of "Permitted Quarterly Tax Distribution" set forth in
Annex A to the Original Equipment Loan Agreement is hereby amended by deleting
the reference therein to "or the Substitute Tranche B Loan".
(DD) The last sentence of the definition of "Proceeds" set forth in Annex A
to the Original Equipment Loan Agreement is hereby amended and restated in its
entirety to read as follows:
"Notwithstanding the foregoing, Proceeds shall not include Liquidated
Damages or proceeds of insurance for such Liquidated Damages subject to the
claim of any Project Lender other than a Lender."
(EE) The definition of "Project Construction Completion Date" set forth in
Annex A to the Original Equipment Loan Agreement is hereby amended and restated
in its entirety to read as follows:
"`Project Construction Completion Date' shall mean November 12, 1999."
(FF) Each of the definitions of "Puck JV Letter of Intent", "Subsection
6.3(n) Indebtedness" and "Subsection 6.3(o) Indebtedness" set forth in Annex A
to the Original Equipment Loan Agreement is hereby deleted in its entirety.
(GG) The definition of "Quarterly Date" set forth in Annex A to the
Original Equipment Loan Agreement is hereby amended and restated in its entirety
to read as follows:
"`Quarterly Date' means the last day of each Fiscal Quarter."
(HH) The definition of "Scheduled Equipment" set forth in Annex A to the
Original Equipment Loan Agreement is hereby amended and restated in its entirety
to read as follows:
"`Scheduled Equipment' shall mean all of the furniture, furnishings,
and equipment listed on Annex B, as amended and in effect from time to
time."
(II) The last sentence of the definition of "Subsidiary" set forth in Annex
A to the Original Equipment Loan Agreement is hereby amended and restated in its
entirety to read as follows:
"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 section 3 (representations and
warranties) (other than section 3.7) and section 4.1 (as specified therein)
and for purposes of any definitions as used in section 3 or section 4.1."
(JJ) Annex A to the Original Equipment Loan Agreement is hereby amended to
add each of the following definitions (in each case in the appropriate
alphabetical order):
"`Additional Contingent Claims' shall have the meaning ascribed to it
in section 3.31(a)."
"`Additional Indebtedness' shall have the meaning ascribed to it in
section 6.3(q)."
"`Adelson Subordination Agreement' shall have the meaning ascribed to
that term in section 3.33."
"`Billboard Operating Lease' shall mean that certain Amended and
Restated Restaurant Lease dated June 26, 1997 by and between New Mall
Subsidiary, as successor to Mall Subsidiary, and VCR and Billboard, as
successor to B.L. International of Nevada, Inc. (together with all
assignments, modifications, amendments, riders and addendas thereto)."
"`Conforming Adelson L/C' shall mean an unconditional, direct pay
letter of credit which (a) is obtained by Sheldon G. 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 the 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
the Drawing Agent of its intention to revoke such letter of credit, (d) is
issued by a financial institution acceptable to the Drawing Agent in its
reasonable judgment (which acceptance the Drawing Agent may withhold if it
is not also acceptable to the Bank Agent), and (e) is otherwise in form and
substance acceptable to the Drawing Agent in its 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 no Borrower or Subsidiary thereof 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(a) (failure to make
payments when due), (ii) set forth in section 8.1(d) (default under Other
Indebtedness or Contingent Obligations), (iii) set forth in section 8.1(g)
(involuntary bankruptcy; appointment of receiver, etc.) or section 8.1(h)
(voluntary bankruptcy, appointment of receiver, etc.), (iv) set forth in
section 8.1(l) (default under or termination of Operative Documents), and
(v) resulting from a breach of any of the covenants set forth in section
6.9 (financial covenants); (b) a draw on the Conforming Adelson L/C by or
on behalf of the Bank Agent; (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
Drawing Agent has not received evidence of the renewal thereof, provided
that the Drawing 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 Sheldon G. Adelson
or his Affiliates and Sheldon G. Adelson and/or his Affiliates have made
reasonable efforts to obtain the renewal thereof, and (2) Sheldon G.
Adelson or his Affiliates substitute cash equity in the 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) the 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 L/C Drawing Agreement, dated as of June 14, 2000, between the
Administrative Agent and the Bank Agent, in substantially the form of
Exhibit E 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 Bank Lenders."
"`Construction Consultant's Closing Certificate' shall mean a closing
certificate in the form of Exhibit B-2 to the Disbursement Agreement."
"`Construction Litigation' shall have the meaning assigned to that
term in section 3.31."
"`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."
"`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, The Bank of
Nova Scotia, as Collateral Agent and Administrative Agent, and the
Permanent Mall Lenders party thereto from time to time."
"`Restaurant Leases' means, collectively, (i) the lease between
Valentino Las Vegas, LLC, a Nevada limited liability company, and VCR,
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 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, copies of
which have been delivered to the Administrative Agent."
(KK) The Original Equipment Loan Agreement is hereby amended by adding
thereto as Exhibit E the Form of Conforming Adelson L/C Drawing Agreement
attached hereto as Annex A.
(LL) The Original Equipment Loan Agreement is hereby amended by adding
thereto as Schedule 3.31 the attached Annex B to this Agreement.
(MM) The Original Equipment Loan Agreement is hereby amended by adding
thereto as Schedule 3.32 the attached Annex C to this Agreement.
Section 2. REPRESENTATIONS AND WARRANTIES OF BORROWERS
In order to induce Lenders to enter into this Agreement, each of VCR and
LVSI represents and warrants to each Lender that the following statements are
true, correct and complete as of the date hereof and will be as of the date the
conditions set forth in section 3 are satisfied:
(A) Each of VCR and LVSI has all requisite power and authority to enter
into this Agreement and to carry out the transactions contemplated hereby and
perform its obligations hereunder.
(B) The execution and delivery of this Agreement by VCR and LVSI and the
performance of their obligations hereunder have been duly authorized by all
necessary action on the part of VCR and LVSI.
(C) The execution and delivery by VCR and LVSI of this Agreement and the
performance by VCR and LVSI of this Agreement do not and will not (i) violate
any provision of any law or any governmental rule or regulation applicable to
the Project or to VCR or LVSI or any of their Affiliates, the organizational
documents of VCR or LVSI or any of their Affiliates or any order, judgment or
decree of any court or other agency of government binding on VCR or LVSI or any
of their Affiliates, (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any Material Contract
of VCR or LVSI or any of their Affiliates, (iii) result in or require the
creation or imposition of any Lien upon any of the properties or assets of VCR
or LVSI or any of their Affiliates, or (iv) require any approval of stockholders
or any approval or consent of any Person under any Material Contract of VCR or
LVSI or any of their Affiliates.
(D) The execution and delivery by VCR and LVSI of this Agreement and the
performance by VCR and LVSI of this Agreement do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body.
(E) This Agreement has been duly executed and delivered by VCR and LVSI and
constitutes the legally valid and binding obligation of VCR and LVSI,
enforceable against VCR and LVSI in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles
relating to enforceability.
(F) The representations and warranties contained in section 3 of the
Equipment Loan Agreement are and will be true, correct and complete in all
material respects on and as of the date hereof and on the date the conditions in
section 3 hereof are satisfied 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 they were true, correct and complete in
all material respects on and as of such earlier date.
Section 3. CONDITIONS TO EFFECTIVENESS
Notwithstanding any of the provisions of this Agreement to the contrary
this Agreement shall become effective only upon satisfaction of each of the
following conditions precedent:
(A) Execution and delivery of the Amended and Restated Credit Agreement
among the Borrowers, the Bank Agent, the Bank Lenders and the other parties
named therein, in substantially the form of Annex D hereto (the "Credit
Agreement Amendment"), and delivery to Administrative Agent of an executed copy
of such agreement;
(B) Execution and delivery of the Conforming Adelson L/C Drawing Agreement
between the Administrative Agent and the Bank Agent;
(C) Borrowers shall have paid to the Lenders the fee described in section 4
below;
(D) Delivery to Administrative Agent of an opinion or opinions of counsel
to the Borrowers in form and substance reasonably acceptable to the
Administrative Agent; and
(E) The representations and warranties contained in section 2 of this
Agreement are and will be true, correct and complete in all material respects on
and as of the date hereof and on the date the conditions in this section 3 are
satisfied in full.
Section 4. FEE
Prior to the effectiveness of this Agreement, Borrowers agree to pay to
each Lender a non-refundable fee of .25% of the outstanding principal amount of
the Loans.
Section 5. CONSENT TO CREDIT AGREEMENT AMENDMENT
Each of the Lenders hereby consents to the execution, delivery and
performance of the Credit Agreement Amendment.
Section 6. LIMITED WAIVER
Subject to satisfaction of the conditions precedent set forth in section 3
and in reliance on the representations and warranties 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 Defaults set
forth in Annex C 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 section 6 and Annex C 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 the Equipment Loan
Agreement or any other instrument or agreement referred to herein,
except as expressly set forth in Annex C, or (ii) any Event of Default
or Default, except as expressly set forth on Annex C; 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 Annex C hereto) under or in connection
with the Equipment Loan 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 the Equipment Loan Agreement and the other Loan Documents shall remain in
full force and effect and in all other respects are hereby ratified and
confirmed.
Section 7. ACKNOWLEDGEMENT REGARDING FEES AND EXPENSES
Borrowers hereby acknowledge that all reasonable costs, fees and expenses
incurred by Administrative Agent and its counsel with respect to this Agreement
and the documents and transactions contemplated hereby shall be for the account
of the Borrowers and hereby agree that all such amounts, and any other amounts
due and owing to such parties at that time, shall be promptly paid.
Section 8. GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
Section 9. COUNTERPARTS; EFFECTIVENESS
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective (subject to section 3 hereof)
upon the execution of a counterpart hereof by Requisite Lenders and each of the
other parties hereto and receipt by Administrative Agent of written or
telephonic notification of such execution and authorization of delivery thereof.
Thenceforth, references herein to the "Equipment Loan Agreement" and references
in the Original Equipment Loan Agreement to "this Agreement," "hereof," "hereto"
and terms of similar import shall be deemed to refer to the Original Equipment
Loan Agreement as hereby amended.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
LAS VEGAS SANDS, INC.
By: /s/ William P. Weidner
---------------------------
Name: William P. Weidner
Title: President
VENETIAN CASINO RESORT, LLC
By: Las Vegas Sands, Inc.,
Managing Member
By: /s/ William P. Weidner
---------------------------
Name: William P. Weidner
Title: President
GENERAL ELECTRIC CAPITAL
CORPORATION, as Administrative
Agent
By: /s/ Timothy S. Shanahan
---------------------------
Name: Timothy S. Shanahan
Title: Vice President
GMAC COMMERCIAL MORTGAGE
CORPORATION, as a Lender
By: /s/ Jon S. Wright
---------------------------
Name: Jon S. Wright
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By: /s/ Timothy S. Shanahan
---------------------------
Name: Timothy S. Shanahan
Title: Vice President