LAS VEGAS SANDS, INC.
AND
VENETIAN CASINO RESORT, LLC
LIMITED WAIVER REGARDING CREDIT AGREEMENT
This LIMITED WAIVER REGARDING CREDIT AGREEMENT (this
"Waiver") is dated as of December 31, 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"), the financial institutions listed on the signature pages hereof
("Lenders"), THE BANK OF NOVA SCOTIA ("Scotiabank"), as Lead Arranger (in such
capacity the "Arranger"), and Scotiabank as administrative agent for Lenders (in
such capacity, the "Administrative Agent"), and is made with reference to that
certain Amended and Restated Credit Agreement dated as of September 17, 2001, by
and among Borrowers, Lenders, Administrative Agent, and the Arranger (the
"Credit Agreement"). Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Borrowers have advised Lenders that they may not be
in compliance with the Minimum Consolidated Adjusted EBITDA covenant as of the
Fiscal Quarter ending December 31, 2001;
WHEREAS, Borrowers have further advised Lenders that they
expect to obtain a waiver from the FF&E Lenders under the FF&E Facilities
Agreement of compliance with the Minimum Consolidated Adjusted EBITDA covenant
in such agreement for the Fiscal Quarter ending December 31, 2001;
WHEREAS, Borrowers have requested that Lenders agree to
waive compliance with the Minimum Consolidated Adjusted EBITDA covenant for the
Quarter ending December 31, 2001;
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 Minimum Consolidated Adjusted
EBITDA Covenant
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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 ending December 31, 2001,
compliance with the provisions of subsection 7.6C of the Credit Agreement.
B. Without limiting the generality of the provisions of
subsection 10.6 of the Credit Agreement, the waiver set forth herein shall be
limited precisely as written and such waiver relates solely to the noncompliance
by Borrowers with the provisions of subsection 7.6C of the Credit Agreement in
the manner and to the extent described above, and nothing in this Waiver shall
be deemed to (a) constitute a waiver of compliance by Borrowers with respect to
(i) subsection 7.6C of the Credit Agreement in any other instance or (ii) any
other term, provision or condition of the Credit Agreement or any other
instrument or agreement referred to therein (whether in connection with this
waiver of subsection 7.6C of the Credit 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 Waiver) or may have in the future under or
in connection with the Credit Agreement or any other instrument or agreement
referred to therein. Except as expressly set forth herein, the terms, provisions
and conditions of the Credit Agreement and the other Loan Documents shall remain
in full force and effect and in all other respects are hereby ratified and
confirmed.
Section 2. CONDITIONS TO EFFECTIVENESS
This Waiver 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 waiver of such conditions being
referred to herein as the "Waiver Effective Date"):
A. On or before the Waiver 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 Waiver Effective Date:
1. Resolutions of the Board of Directors of LVSI approving
and authorizing the execution, delivery and performance of this
Waiver, certified as of the Waiver Effective Date by the
corporate secretary or an assistant secretary of LVSI as being in
full force and effect without modification or amendment;
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2. Signature and incumbency certificates of the officers of
LVSI executing this Waiver;
3. Executed copies of this Waiver by all parties hereto; and
4. Payment of a waiver fee of one-eighth of one percent
(0.125%) of the Commitments and all others costs and expenses due
under the Credit Agreement.
B. Administrative Agent shall have received from Borrowers a
duly executed waiver regarding the FF&E Facility Agreement in form and substance
reasonably satisfactory to Administrative Agent.
C. No Event of Default or Potential Event of Default under
(and as defined in) the Credit Agreement shall have occurred and be continuing
or would result from the effectiveness of this Waiver.
D. On or before the Waiver 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 3. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Waiver,
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 Waiver.
B. Authorization of Agreements. The execution and delivery
of this Waiver has been duly authorized by all necessary corporate action on the
part of Borrowers.
C. No Conflict. The execution and delivery by Borrowers of
this Waiver does 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 Certificate or Articles of Incorporation or Bylaws 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 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, 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 violations, conflicts, approvals
and consents the failure of which to obtain could not reasonably be expected to
have a Material Adverse Effect.
D. Governmental Consents. The execution and delivery by
Borrowers of this Waiver does 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 Waiver has been duly executed
and delivered by Borrowers and when executed and delivered, will be 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
Credit Agreement. The representations and warranties contained in Section 5 of
the Credit Agreement are and will be true, correct and complete in all material
respects on and as of the Waiver 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 4. MISCELLANEOUS
A. Effect on the Credit Agreement and the Other Loan
Documents.
(i) Except as specifically amended by this Waiver, the
Credit Agreement and the other Loan Documents shall remain in
full force and effect and are hereby ratified and confirmed.
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(ii) The execution, delivery and performance of this Waiver
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
Credit Agreement or any of the other Loan Documents.
B. Fees and Expenses. Borrowers acknowledge that all costs,
fees and expenses as described in subsection 10.2 of the Credit Agreement
incurred by Administrative Agent and its counsel with respect to this Waiver and
the documents and transactions contemplated hereby shall be for the account of
Borrowers.
C. Headings. Section and subsection headings in this Waiver
are included herein for convenience of reference only and shall not constitute a
part of this Waiver for any other purpose or be given any substantive effect.
D. Applicable Law. THIS WAIVER 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 Waiver 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 Waiver shall become effective
upon the execution of a counterpart hereof by Borrowers, Requisite Lenders and
each of the Loan Parties and receipt by the Company and Administrative Agent of
written or telephonic notification of such execution and authorization of
delivery thereof, and satisfaction of the conditions in Section 2 hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Waiver 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 the 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 the Chairman of the
Board and Secretary
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LENDERS:
THE BANK OF NOVA SCOTIA,
individually and as a Lender,
Lead Arranger and Administrative Agent
By: /s/Jim York
-----------------------------------------
Name: Jim York
Title: Managing Director & Office Head
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AIMCO CDO SERIES 2000-A
By: /s/Roberta S. Asher
-----------------------------------------
Name: Roberta S. Asher
Title: Authorized Signature
Notice Address:
Attention:
Telefax:
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ALLSTATE LIFE INSURANCE COMPANY
By: /s/Roberta S. Asher
----------------------------------------
Name: Roberta S. Asher
Title: Authorized Signature
Notice Address:
Attention:
Telefax:
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AMMC CDO I, LIMITED
By: -----------------------------------------
Name:
Title:
Notice Address:
Attention:
Telefax:
AMMC CDO II, LIMITED
By: -----------------------------------------
Name:
Title:
Notice Address:
Attention:
Telefax:
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BEAR STEARNS INVESTMENT PRODUCTS INC.
By: /s/Marc Simon
-----------------------------------------
Name: Marc Simon
Title: Managing Director
Notice Address:
Bear Stearns Investment Products Inc.
245 Park Avenue
New York, New York 10167
Attention: Gloria Dombrowski
Telefax: 212-272-4844
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BLACK DIAMOND CLO 1998-1 LTD.
By: /s/David Dyer
-----------------------------------------
Name: David Dyer
Title: Director
Notice Address:
Black Diamond Capital Management, L.L.C.
100 Field Drive, Ste. 140
Lake Forest, IL 60045
Attention: Loan Administrator
Telefax: (847)615-9064
BLACK DIAMOND CLO 2000-1 LTD.
By: /s/Susan Anderson
-----------------------------------------
Name: Susan Anderson
Title: Assistant Vice President
Notice Address:
c/o Bankers Trust Company
1761 East Saint Andrew Place
Santa Ana, CA 92705
Attention: Stephen Hessler
Telefax: 714-247-6475
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BLUE SQUARE FUNDING LIMITED SERIES 3
By: /s/Susan Anderson
-----------------------------------------
Name: Susan Anderson
Title: Assistant Vice President
Notice Address:
c/o Bankers Trust Company
1761 East Saint Andrew Place
Santa Ana, CA 92705
Attention: Stephen Hessler
Telefax: 714-247-6475
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CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/John Burke
-----------------------------------------
Name: John Burke
Title: Authorized Signatory
Notice Address:
Canadian Imperial Bank of Commerce
425 Lexington Avenue
New York, NY 10017
Attention: Stephanie Devane
Telefax: (212) 856-3799
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CSAM FUNDING I
By: /s/Andrew H. Marshak
-----------------------------------------
Name: Andrew H. Marshak
Title: Authorized Signatory
Notice Address:
CSAM Funding I
466 Lexington Avenue, 14th Floor
New York, NY 10017
Attention: Judith Drummond
Telefax: (713) 216-3572
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FOOTHILL INCOME TRUST, L.P.
by FIT GP, LLC, HS General Partner
By: /s/Jeff Kikora
-----------------------------------------
Name: Jeff Kikora
Title: Managing Member
Notice Address:
Foothill Income Trust, L.P.
2450 Colorado Avenue, Suite 3000 West
Santa Monica, California 90404
Attention: Mike Bohannon
Telefax: 310-453-7470
FOOTHILL INCOME TRUST II, L.P.
by FIT GP, LLC, HS General Partner
By: /s/Jeff Nikora
-----------------------------------------
Name: Jeff Nikora
Title: Managing Member
Notice Address:
Foothill Income Trust, L.P.
2450 Colorado Avenue, Suite 3000 West
Santa Monica, California 90404
Attention: Mike Bohannon
Telefax: 310-453-7470
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GLENEAGLES TRADING LLC
By: /s/Ann E. Morris
-----------------------------------------
Name: Ann E. Morris
Title: Assit. Vice President
Notice Address:
Attention:
Telefax:
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HIGHLAND LEGACY LIMITED
By: /s/Louis Koven
-----------------------------------------
Name: Louis Koven
Title: Executive Vice President-CFO
Notice Address:
Attention:
Telefax:
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THE INTERNATIONAL COMMERCIAL
BANK OF CHINA, NEW YORK AGENCY
By: /s/Wen-Hui Wang
-----------------------------------------
Name: Wen-Hui Wang
Title: Assistant Vice President &
Deputy General Manager
Notice Address:
International Commercial Bank of China
360 Lexington Avenue, 6th Floor
New York, New York 10017
Attention: M. S. Wu
Telefax: 646-865-1373
Address changes to:
65 Liberty Street
New York, NY 10005
Tele 212-608-4222 (ext 113)
Fax: 212-766-5006
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KZH HIGHLAND-2 LLC
By: -----------------------------------------
Name:
Title:
Notice Address:
Attention:
Telefax:
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LONG LANE MASTER TRUST IV
By: -----------------------------------------
Name:
Title:
Notice Address:
Attention:
Telefax:
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NATIONAL WESTMINSTER BANK PLC
By: -----------------------------------------
Name:
Title:
Notice Address:
Attention:
Telefax:
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PAM CAPITAL FUNDING LP
By: /s/Louis Koven
-----------------------------------------
Name: Louis Koven
Title: Executive Vice President-CFO
Notice Address:
Attention:
Telefax:
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PINEHURST TRADING, INC.
By: /s/Ann E. Morris
-----------------------------------------
Name: Ann E. Morris
Title: Asst. Vice President
Notice Address:
Attention:
Telefax:
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TRANSAMERICA LIFE INSURANCE COMPANY
By: /s/Mark E. Dunn
-----------------------------------------
Name: Mark E. Dunn
Title: Vice President
Notice Address:
4333 Edgewood Road NE
Cedar Rapids, Iowa 52499-5335
Attention: Director of Private Placement
Telefax: 319-369-2666
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TRS1 LLC
By: /s/Rosemary F. Dunne
-----------------------------------------
Name: Rosemary F. Dunne
Title: Vice President
Notice Address:
TRSI LLC
c/o Dueteche Bank AG
as Trustee for TRSI LLC
1761 East St. Andrew Place
Santa Ana, CA 92705-4934
Copy To:
TRSI LLC
c/o Black Diamond Capital Management, LLC
100 Field Drive, Suite 140
Lake Forest, IL 60045
Attention: Loan Administrator
Telephone: 847 615-9000
Telecopier: 847 615-9064
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