LIDO 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 LIDO
CASINO RESORT, LLC, a Nevada limited liability company ("Borrower"), the
financial institutions listed on the signature pages hereof ("Lenders") and THE
BANK OF NOVA SCOTIA ("Scotiabank"), as administrative agent for Lenders (in such
capacity, the "Administrative Agent"), and is made with reference to that
certain Credit Agreement, dated as of October 19, 2001, by and among Borrower,
Lenders and Administrative Agent (the "Credit Agreement"). Capitalized terms
used herein without definition shall have the same meanings herein as set forth
in the Credit Agreement.
RECITALS
WHEREAS, Borrower has advised Lenders that LVSI and Venetian
may not be in compliance with the Minimum Consolidated Adjusted EBITDA covenant
in the LVSI/Venetian Credit Agreement (the "EBITDA Covenant") as of the Fiscal
Quarter ending December 31, 2001;
WHEREAS, Borrower has further advised Lenders that LVSI and
Venetian expect to obtain a waiver from the lenders under the LVSI/Venetian
Credit Agreement of compliance with the Minimum Consolidated Adjusted EBITDA
covenant in such agreement for the Fiscal Quarter ending December 31, 2001;
WHEREAS, Borrower has requested that Lenders agree to waive
any Event of Default under the Credit Agreement insofar as it arises from the
failure of LVSI and Venetian to comply with the EBITDA Covenant;
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 Event of Default Regarding the 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 Borrower herein contained,
Lenders hereby waive any Event of Default under Subsection 8.2(iii) of the
Credit Agreement which arises solely from a breach by LVSI and Venetian of the
EBITDA Covenant for the Fiscal Quarter ending December 31, 2001.
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 to the extent such waiver relates solely to the
noncompliance by LVSI and Venetian with the provisions of the EBITDA Covenant
for the Fiscal Quarter ending December 31, 2001, 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 LVSI or Venetian under subsection 7.6C of the
LVSI/Venetian 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, Borrower 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;
2. Signature and incumbency certificates of the officers of
LVSI executing this Waiver;
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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 Borrower a
duly executed waiver regarding the LVSI/Venetian Credit 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. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Waiver,
Borrower represents and warrants to each Lender that the following statements
are true, correct and complete:
A. Corporate Power and Authority. Borrower has 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 Borrower.
C. No Conflict. The execution and delivery by Borrower of
this Waiver does not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Borrower or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of Borrower
or any of its Subsidiaries or any order, judgment or decree of any court or
other agency of government binding on Borrower or any of its 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 Borrower or any of
its Subsidiaries, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Borrower or any of its
Subsidiaries, or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of Borrower or any of its
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
Borrower 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 Borrower and when executed and delivered, will be the legally
valid and binding obligation of Borrower, enforceable against Borrower in
accordance with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
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
Borrower.
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 Borrower, 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.
BORROWER:
LIDO CASINO RESORT, LLC,
By: Lido Casino Resort Holding Company, LLC,
as managing member
By: Lido Intermediate Holding Company, LLC
as managing member
By: Venetian Casino Resort, LLC, as sole
member
By: Las Vegas Sands, Inc., its managing member
By: /s/David Friedman
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Name: David Friedman
Title: Assistant to the Chairman of the
Board and Secretary
Notice Address:
3355 Las Vegas Boulevard, South, Room 1A
Las Vegas, Nevada 89109
Attention: General Counsel
Telefax: (702) 733-5499
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LENDERS:
THE BANK OF NOVA SCOTIA,
individually and as a Lender and as Administrative
Agent
By: /s/Jim York
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Name: Jim York
Title: Managing Director & Office Hean
Notice Address:
The Bank of Nova Scotia
580 California Street, Suite 2100
San Francisco, California 94104
Attention: Alan Pendergast
Telefax: (415) 397-0791
With a copy to:
The Bank of Nova Scotia
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attention: Craig Subryan
Telefax: (404) 888-8998
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