VENETIAN CASINO RESORT, LLC
LAS VEGAS SANDS, INC.
FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is dated as of
January __, 1998 and entered into by and among LAS VEGAS SANDS, INC., ("LVSI" )
a Nevada corporation and VENETIAN CASINO RESORT, LLC ("VCR") a Nevada limited
liability company, as joint and several borrowers (each of LVSI and Venetian, a
"Borrower" and, collective, the "Borrowers"), the financial institutions listed
on the signature pages hereof ("Lenders"), GOLDMAN SACHS CREDIT PARTNERS L.P.
("GSCP"), as syndication agent (in such capacity, "Syndication Agent") and
arranger (in such capacity, "Arranger") and THE BANK OF NOVA SCOTIA, as
administrative agent for Lenders (in such capacity, "Administrative Agent") and
is made with reference to that certain Credit Agreement dated as of November 14,
1997 (the "Credit Agreement"), by and among Borrowers, Lenders, Syndication
Agent and Arranger and Administrative Agent. Capitalized terms used herein
without definition shall have the same meanings herein as set forth in the
Credit Agreement.
RECITALS
WHEREAS, Borrowers and Lenders desire to amend the Credit Agreement to (i)
modify certain provisions therein with respect to the use of proceeds of
Revolving Loans and the permitted uses of Letters of Credit, and (ii) 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.
AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Section 1: Provisions Relating to Defined Terms
A. Subsection 1.1 of the Credit Agreement is hereby amended by adding
thereto the following definition, which shall be inserted in proper alphabetical
order:
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""Construction-related Obligations" shall have the meaning assigned to
that term in subsection 3.1A hereof."
B. Subsection 1.1 of the Credit Agreement is hereby amended by deleting
the definition of "Standby Letter of Credit" therefrom in its entirety and
substituting the following therefor:
"Standby Letter of Credit" means any standby letter of credit or similar
instrument issued for the purpose of supporting (i) Indebtedness of Borrowers in
respect of industrial revenue or development bonds or financings, (ii) workers'
compensation liabilities of
Borrowers, (iii) the obligations of third party insurers of Borrowers arising by
virtue of the laws of any jurisdiction requiring third party insurers, (iv)
obligations with respect to Capital Leases or Operating Leases of Borrowers or
with respect to the Harrah's Shared Roadway Agreement, and (v) performance,
payment, deposit or surety obligations of Borrowers, in any case if required by
law or governmental rule or regulation (including, without limitation, if
required by any Governmental Instrumentality or otherwise necessary in order to
obtain any Permit related to the Project) or in accordance with custom and
practice in the industry and (vi) Construction-related Obligations; provided
that Standby Letters of Credit may not be issued for the purpose of supporting
(a) trade payables or (b) any Indebtedness constituting "antecedent debt" (as
that term is used in Section 547 of the Bankruptcy Code).
1.2 Amendments to Section 2: Amounts and Terms of Commitments and Loans
Use of Proceeds. Subsection 2.5B of the Credit Agreement is hereby amended
by deleting it in its entirety and substituting the same therefor:
"B. Revolving Loans. The proceeds of the Revolving Loans shall be
applied by Borrowers for working capital and general corporate purposes
(including budgeted costs under the heading "Working Capital"), provided that
the proceeds of Revolving Loans may not be used for any purpose other than to
purchase Specified FF&E or to make deposits thereon or to reimburse any Issuing
Lender for any drawings under a Standby Letter of Credit issued and honored by
it in accordance with the terms of this Agreement prior to the Revolving Loan
Availability Date."
1.3 Amendments to Section 3: Letters of Credit
Letters of Credit. Subsection 3.1A of the Credit Agreement is hereby
amended by deleting the proviso at the end of the first sentence of such
subsection and substituting the following therefor:
"provided that prior to the Revolving Loan Availability Date
Borrowers may not request any Letters of Credit for any purpose other than
to (i) support deposits for Specified FF&E or (ii) satisfy contractual
obligations described in the definition of Standby Letter of Credit or
Legal
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Requirements in connection with the development of the Project (including,
without limitation, obligations under the Harrah's Shared Roadway
Agreement and the obligations referred to in clause (v) of the definition
of "Standby Letter of Credit") (such requirements described in this clause
(ii), "Construction-related Obligations")."
1.4 Amendments to Section 4: Conditions to Loans and Letters of Credit
A. Subsection 4.3B of the Credit Agreement is hereby amended by
deleting clause (i) thereof in its entirety and replacing it with the following:
"(i) if the proceed of the Revolving Loans are to be used (or the
Letter of Credit is being issued), for any purpose other than the purchase
of Specified FF&E (or, in the case of a Letter of Credit, to support
deposits on Specified FF&E or Construction-related Obligations), the
Revolving Loan Availability Date shall have occurred;"
B. Subsection 4.3B of the Credit Agreement is further amended by
deleting clause (ix) thereof in its entirety and replacing it with the
following:
"(ix) If such Funding Date is prior to the Revolving Loan
Availability Date, Borrowers shall have provided to Administrative Agent a
detailed list showing the Specified FF&E to be funded with the proceeds of
the Revolving Loans to be made (or Letters of Credit to be issued) on such
Funding Date (or with respect to Letters of Credit only, details of the
Construction-related Obligations to be supported on such Funding Date and
copies of all documents related thereto)."
SECTION 2.
WAIVER
Subject to the terms and conditions set forth herein and in reliance on the
representations and warranties of Borrowers herein contained, Lenders hereby
waive compliance with the provisions of subsection 4.3B(viii) of the Credit
Agreement to the extent, and only to the extent, necessary to permit the
issuance of the Letter of Credit to be issued to support Construction-related
Obligations with respect to the Harrah's Shared Roadway Agreement; provided that
such Letter of Credit is issued on or before January 30, 1998.
SECTION 3.
CONDITIONS TO EFFECTIVENESS
Sections 1 and 2 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "First Amendment
Effective Date"):
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A. On or before the First 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 First Amendment Effective
Date:
(i) Resolutions of its Board of Directors of LVSI and resolutions
of the managing member of VCR, each approving and authorizing the
execution, delivery, and performance of this Amendment, certified as of
the First Amendment Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without modification
or amendment;
(ii) Signature and incumbency certificates of each of LVSI's and
VCR's officers executing this Amendment; and
(iii) Executed copies of this Amendment.
B. On or before the First 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 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 4.
BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend the Credit
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. Each Borrower has 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 Credit
Agreement as amended by this Amendment (the "Amended Agreement").
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 each Borrower.
C. No Conflict. The execution and delivery by each Borrower of this
Amendment and the performance by each Borrower of the Amended Agreement do not
and will not (i) violate any provision of any law or any governmental rule or
regulation applicable to either Borrower or any of its Subsidiaries, the
Certificate or Articles of
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Incorporation, or Certificate of Formation, Bylaws or Operating Agreement of
either Borrower or any of its Subsidiaries or any order, judgment or decree of
any court or other agency of government binding on either 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
either Borrower or any of its Subsidiaries including any Financing Agreement or
Project Document, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of either Borrower or any of its
Subsidiaries (other than Liens created under any of the Loan Documents in favor
of Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of either Borrower or any of its Subsidiaries.
D. Governmental Consents. The execution and delivery by either Borrower
of this Amendment and the performance by either Borrower 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 each Borrower 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 and Disbursement Agreement. The representations and warranties
contained in Section 5 of the Credit Agreement and Section 4 of the Disbursement
Agreement are and will be true, correct and complete in all material respects on
and as of the First 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.
G. Absence of Default. No event has occurred and is continuing or will
result from the consummation of the transactions contemplated by this Amendment
that would constitute an Event of Default or a Potential Event of Default.
SECTION 5.
ACKNOWLEDGEMENT AND CONSENT
Intermediate Holding Companies are party to certain Loan Documents pursuant to
which Intermediate Holding Companies have (i) guarantied the Obligations and
(ii) created Liens in favor of Administrative Agent on certain Collateral to
secure the obligations of the Intermediate Holding Companies under the
Subsidiary Guaranties.
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Each of the Intermediate Holding Companies hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and this Amendment and
consents to the amendment of the Credit Agreement effected pursuant to this
Amendment. Each of the Intermediate Holding Companies hereby confirms that the
obligations of each Intermediate Holding Company under the Loan Documents to
which it is a party or otherwise bound shall not be impaired or affected and all
Collateral encumbered thereby will continue to guaranty or secure, as the case
may be, to the fullest extent possible the payment and performance of all such
obligations and shall continue to be in full force and effect and are hereby
confirmed and ratified in all respects.
Each of the Intermediate Holding Companies represents and warrants that
all representations and warranties contained in the Loan Documents to which it
is a party or otherwise bound are true, correct and complete in all material
respects on and as of the First 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.
Each of the Intermediate Holding Companies acknowledges and agrees that
(i) notwithstanding the conditions to effectiveness set forth in this Amendment,
such Intermediate Holding Company is not required by the terms of the Credit
Agreement or any other Loan Document to consent to the amendments to the Credit
Agreement effected pursuant to this Amendment and (ii) nothing in the Credit
Agreement, this Amendment or any other Loan Document shall be deemed to require
the consent of such Intermediate Holding Company to any future amendments to the
Credit Agreement.
SECTION 6.
MISCELLANEOUS
A. Reference to and Effect on the Credit Agreement and the Other Loan
Documents.
(i) On and after the First Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof",
"herein" or words of like import referring to the Credit Agreement, and
each reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, 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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(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 any
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 incurred by Administrative Agent and its counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall,
notwithstanding anything to the contrary contained in subsection 10.2 of the
Credit Agreement, be for the account of Borrowers, as joint and several obligors
and Borrowers hereby agree to pay all such fees and expenses.
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 and 2
hereof, the effectiveness of which is governed by Section 3 hereof) shall become
effective upon the execution of a counterpart hereof by Borrower, and Requisite
Lenders and receipt by Borrower and Administrative Agent of written or
telephonic notification of such execution and authorization of delivery thereof.
[Remainder of page intentionally left blank]
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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: Secretary
VENETIAN CASINO RESORT, LLC
By: Las Vegas Sands, Inc. its managing member
By: /s/ David Friedman
---------------------------------------------------------
Name: David Friedman
Title: Secretary
INTERMEDIATE MALL INTERMEDIATE HOLDINGS COMPANY LLC,
HOLDING (for purposes of Section 5 only)
COMPANIES
By: /s/ David Friedman
---------------------------------------------------------
Name: David Friedman
Title: Secretary
LIDO INTERMEDIATE HOLDING COMPANY, LLC,
(for purposes of Section 5 only)
By: /s/ David Friedman
---------------------------------------------------------
Name: David Friedman
Title: Secretary
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LENDERS:
GOLDMAN SACHS CREDIT PARTNERS L.P.
individually and as Arranger and Syndication Agent
By: /s/ Steven King
---------------------------------------------------------
Authorized signatory
THE BANK OF NOVA SCOTIA,
individually and as Administrative Agent
By: /s/ Alan Pendergast
---------------------------------------------------------
Name: Alan Pendergast
Title: Relationship Manager
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By:
---------------------------------------------------------
Name: Jeffrey W. Maillet
Title: Senior Vice President and Director
THE INTERNATIONAL COMMERCIAL
BANK OF CHINA, NEW YORK AGENCY
By: /s/ Robin C.C. Lin
---------------------------------------------------------
Name: Robin C.C. Lin
Title: Vice President and Deputy General Manager
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MERRILL LYNCH, PIERCE, FENNER & SMITH INC.
By:
---------------------------------------------------------
Name:
Title:
ARCHIMEDES FUNDING, L.L.C.
By: ING CAPITAL ADVISORS, INC., as Collateral Manager
By: /s/ Michael D. Hatley
---------------------------------------------------------
Name: Michael D. Hatley
Title: Vice President & Portfolio Manager
TORONTO DOMINION (TEXAS), INC.
By:
---------------------------------------------------------
Name:
Title:
TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY
By: /s/ John M. Casparian
---------------------------------------------------------
Name: John M. Casparian
Title: Investment Officer
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