LAS VEGAS SANDS, INC.
AND
VENETIAN CASINO RESORT, LLC
LIMITED WAIVER, CONSENT AND THIRD AMENDMENT
TO TERM LOAN AND SECURITY AGREEMENT
This LIMITED WAIVER, CONSENT AND THIRD AMENDMENT TO TERM LOAN AND SECURITY
AGREEMENT (this "Amendment") is dated as of June 29, 2001 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"), 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, and as further amended by a Limited Waiver and Second Amendment to
Term Loan and Security Agreement, dated as of June 13, 2000 (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.
RECITALS
WHEREAS, Borrowers have advised Lenders that (i) they may not be in
compliance with the minimum fixed charge coverage ratio covenant (subsection
6.9(a) of the Original Equipment Loan Agreement), the maximum leverage ratio
covenant (subsection 6.9(b) of the Original Equipment Loan Agreement) and the
minimum consolidated adjusted EBITDA covenant (subsection 6.9(c) of the Original
Equipment Loan Agreement), each as of the Fiscal Quarter ending June 30, 2001
and (ii) they may not be in compliance with the maximum consolidated capital
expenditures covenant (subsection 6.9(e) of the Original Equipment Loan
Agreement) for the four-Fiscal Quarter period ending June 30, 2001;
WHEREAS, Borrowers have further advised Lenders that they intend to enter
into a waiver and amendment to the Bank Credit Agreement;
WHEREAS, Borrowers have requested that Lenders (i) agree to waive
compliance with the Minimum fixed charge coverage ratio covenant, the maximum
leverage ratio covenant and the minimum consolidated adjusted EBITDA covenant
for the Fiscal Quarter ending June 30, 2001, (ii) consent to the amendment of
the Bank Credit Agreement, (iii) amend the maximum consolidated capital
expenditures covenant and make certain other amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. LIMITED WAIVER
1.1 Waiver of Compliance with Financial Covenants
-------------------------------------------------
A. Subject to the terms and conditions set forth herein and in reliance on
the representations and warranties of Borrowers herein contained, Lenders hereby
waive, for the Fiscal Quarter period ending June 30, 2001, compliance with the
provisions of subsections 6.9(a), (b) and (c) of the Original Equipment Loan
Agreement.
B. Without limiting the generality of the provisions of subsection 11.3 of
the Original Equipment Loan Agreement, the waivers set forth herein shall be
limited precisely as written and such waivers relate solely to the noncompliance
by Borrowers with the provisions of subsections 6.9(a), (b) and (c) of the
Original Equipment Loan Agreement in the manner and to the extent described
above, and nothing in this Amendment shall be deemed to (a) constitute a waiver
of compliance by Borrowers with respect to (i) subsections 6.9(a), (b) and (c)
of the Original Equipment Loan Agreement in any other instance or for any other
Fiscal Quarter (ii) any other term, provision or condition of the Original
Equipment Loan Agreement or any other instrument or agreement referred to
therein (whether in connection with this waiver of subsections 6.9(a), (b) and
(c) of the Original Equipment Loan Agreement or otherwise) or (b) prejudice any
right or remedy that Administrative Agent or any Lender may now have (except to
the extent such right or remedy was based upon existing defaults that will not
exist after giving effect to this Amendment) or may have in the future under or
in connection with the Original Equipment Loan Agreement or any other instrument
or agreement referred to therein. Except as expressly set forth herein, the
terms, provisions and conditions of the Original 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.
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Section 2. CONSENT AND AUTHORIZATION
Subject to the terms and conditions set forth herein and in reliance on the
representations and warranties of Borrowers herein contained, Lenders hereby
consent to the waiver and amendment of the Bank Credit Agreement, which waiver
and amendment shall be substantially in the form of Exhibit A hereto. The
consent shall in no event constitute a consent to any other amendment of the
Bank Credit Agreement. The consent set forth above shall in no event prejudice
any right or remedy that Lenders may now have (except to the extent such right
or remedy was based upon existing defaults that will not exist after giving
effect to this Amendment) or may have in the future under or in connection with
the Original Equipment Loan Agreement or any other instrument or agreement
referred to therein.
Section 3. AMENDMENTS TO THE ORIGINAL EQUIPMENT LOAN AGREEMENT
3.1 Amendments to Section 6.9(e): Consolidated Capital Expenditures
-------------------------------------------------------------------
A. Subsection 6.9(e) of the Original Equipment Loan Agreement is hereby
amended by deleting it in its entirety and substituting therefor the following:
"The Borrowers shall not, and shall not permit their Subsidiaries to, make
or incur Consolidated Capital Expenditures, in any combined 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 combined four-Fiscal Quarter period; provided that the Maximum
Consolidated Capital Expenditures Amount for any combined 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 combined four-Fiscal
Quarter period over the actual amount of Consolidated Capital Expenditures for
such previous combined 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 $60,000,000
March 31, 2001 $60,000,000
June 30, 2001 $60,000,000
September 30, 2001 $60,000,000
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
Section 4. CONDITIONS TO EFFECTIVENESS
Sections 1, 2 and 3 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (or waiver of any or
all of the conditions precedent by the Administrative Agent in its sole
discretion) (the date of satisfaction or wavier of such conditions being
referred to herein as the "Third Amendment Effective Date"):
A. On or before the Third Amendment Effective Date, Borrowers shall deliver
to Lenders (or to Administrative Agent for Lenders with sufficient originally
executed copies, where appropriate, for each Lender and its counsel) the
following, each, unless otherwise noted, dated the Third Amendment Effective
Date:
1. Copies of the organizational documents of each Borrower, certified
by the Secretary of State of its jurisdiction of organization if such
certification is generally available dated a recent date prior to the Third
Amendment Effective Date and in each other case, by LVSI's secretary or
assistant secretary, by LVSI in its own right and as managing member of
Venetian;
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2. In the case of each Borrower and 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 Third Amendment Effective Date;
3. Resolutions of the Board of Directors of LVSI approving and
authorizing the execution, delivery and performance by LVSI, in its own
right and as managing member of Venetian, of this Amendment, certified as
of the Third Amendment Effective Date by the corporate secretary or an
assistant secretary of LVSI as being in full force and effect without
modification or amendment; and
4. Signature and incumbency certificates of officers of LVSI, on
behalf of LVSI and as managing member of Venetian.
B. Since December 31, 2000, no Material Adverse Effect shall have occurred.
C. 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 Third Amendment Effective Date, with respect to the
enforceability of the Amended Agreement (as hereinafter defined) 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.
D. Administrative Agent shall have received from Borrowers a duly executed
waiver and amendment to the Bank Credit Agreement, in form and substance
reasonably satisfactory to Administrative Agent.
E. No Event of Default under (and as defined in) the Original Equipment
Loan Agreement shall have occurred and be continuing or would result from the
effectiveness of this Amendment
F. On or before the Third Amendment Effective Date, 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
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.
Section 5. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the
Original Equipment Loan Agreement in the manner provided herein, Borrowers
represent and warrant to each Lender that the following statements are true,
correct and complete:
A. Corporate Power and Authority. Borrowers have all requisite corporate
power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Original
Equipment Loan Agreement, as amended by this Amendment (the "Amended Agreement")
and the other Loan Documents.
B. Authorization of Agreements. The execution and delivery of this
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of Borrowers.
C. No Conflict. The execution and delivery by Borrowers of this Amendment
and the performance by Borrowers of the Amended Agreement do not and will not
(i) violate any provision of any law or any governmental rule or regulation
applicable to Borrowers or any of their Subsidiaries, the organizational
documents of Borrowers or any of their Subsidiaries or 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 Material Contract
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, or (iv) require any approval of
stockholders or any approval or consent of any Person under any Material
Contract of Borrowers or any of their Subsidiaries except for such violations,
conflicts, approvals and consents the failure of which to obtain could not
reasonably be expected to have a Material Adverse Effect.
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D. Governmental Consents. The execution and delivery by Borrowers of this
Amendment and the performance by Borrowers of the Amended 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. Binding Obligation. This Amendment and the Amended Agreement have been
duly executed and delivered by Borrowers and are the 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.
F. Incorporation of Representations and Warranties From Original Equipment
Loan Agreement. The representations and warranties contained in Section 3 of the
Original Equipment Loan Agreement are and will be true, correct and complete in
all material respects on and as of the Third Amendment Effective 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 they were true, correct and complete in all material respects on and as of
such earlier date.
Section 6. MISCELLANEOUS
A. Reference to and Effect on the Original Equipment Loan Agreement and the
Other Loan Documents.
(i) On and after the Third Amendment Effective Date, each reference in
the Original Equipment Loan Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Original
Equipment Loan Agreement, and each reference in the other Loan Documents to
the "Original Equipment Loan Agreement", "thereunder", "thereof" or words
of like import referring to the Original Equipment Loan Agreement shall
mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Original
Equipment Loan Agreement and the other Loan Documents shall remain in full
force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of
Administrative Agent or any Lender under, the Original Equipment Loan
Agreement or any of the other Loan Documents.
B. Fees and Expenses. Borrowers acknowledge that all costs, fees and
expenses as described in subsection 11.4 of the Original Equipment Loan
Agreement incurred by Administrative Agent and its counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall be for
the account of Borrowers.
C. Headings. Section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
D. Applicable Law. THIS AMENDMENT 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 WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
E. Counterparts; Effectiveness. This Amendment 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 Amendment (other than the provisions of Sections 1, 2
and 3 hereof, the effectiveness of which is governed by Section 4 hereof) shall
become effective upon the execution of a counterpart hereof by Borrowers, and
Requisite Lenders and each of the Borrowers and receipt by Borrowers and
Administrative Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment 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/ David Friedman
---------------------------------
Name: David Friedman
Title: Assistant to Chairman of the Board and Secretary
VENETIAN CASINO RESORT, LLC
By: Las Vegas Sands, Inc. its managing member
By: /s/ David Friedman
---------------------------------
Name: David Friedman
Title: Assistant to Chairman of the Board and Secretary
LENDERS:
GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent
By: /s/ Timothy Shanahan
---------------------------------
Name: Timothy Shanahan
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender
By: /s/ Timothy Shanahan
---------------------------------
Name: Timothy Shanahan
Title: Vice President
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GMAC COMMERCIAL MORTGAGE CORPORATION, as a Lender
By: /s/ John Hopkins
---------------------------------
Name: John Hopkins
Title: Vice President Manager Operations
S-2