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LAS VEGAS SANDS INC | PHASE II MALL HOLDING, LLC | PHASE II MALL SUBSIDIARY, LLC, | THE BANK OF NOVA SCOTIA, | SUMITOMO MITSUI BANKING CORPORATION,. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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Exhibit 4.1
Execution Copy
CONSTRUCTION LOAN AGREEMENT
DATED AS OF SEPTEMBER 30, 2004
AMONG
PHASE II MALL HOLDING, LLC and PHASE II MALL SUBSIDIARY, LLC, as the Borrowers,
THE LENDERS LISTED HEREIN, as the Lenders,
THE BANK OF NOVA SCOTIA,
SUMITOMO MITSUI BANKING
CORPORATION,
TABLE OF CONTENTS
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SCHEDULES
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EXHIBITS
PHASE II MALL HOLDING, LLC
CONSTRUCTION LOAN AGREEMENT
This CONSTRUCTION LOAN AGREEMENT is dated as of September 30, 2004 and entered into by and among PHASE II MALL HOLDING, LLC (“ Phase II Mall Subsidiary Holding ”), a Nevada limited liability company, and PHASE II MALL SUBSIDIARY, LLC (“ Phase II Mall Subsidiary ”), a Delaware limited liability company, as joint and several obligors (each of Phase II Mall Subsidiary Holding and Phase II Mall Subsidiary, a “ Borrower ” and, collectively, the “ Borrowers ”), THE FINANCIAL INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred to herein as a “ Lender ” and collectively as the “ Lenders ”), THE BANK OF NOVA SCOTIA (“ Scotia Capital ”), as Sole Lead Arranger and Sole Bookrunner (in such capacities, the “ Arranger ”) and as the administrative agent for the Lenders (in such capacity, the “ Administrative Agent ”) and SUMITOMO MITSUI BANKING CORPORATION , as syndication agent for the Lenders (in such capacity, the “ Syndication Agent ”).
R E C I T A L S
WHEREAS , LCR (such capitalized term and other capitalized terms used in these recitals have the meanings given in subsection 1.1 of this Agreement), an indirect, wholly-owned subsidiary of LVSI and Venetian, owns (or will own immediately after the execution of this Agreement) the Site and intends to design, develop, and construct the Phase II Project and, after the Substantial Completion Date, operate the Phase II Hotel/Casino;
WHEREAS , Phase II Mall Subsidiary Holding is an indirect wholly-owned Subsidiary of LVSI and Venetian and owns 100% of the Securities of Phase II Mall Subsidiary;
WHEREAS , Phase II Mall Subsidiary owns or will own the Phase II Mall Air Parcel and leases or will lease the portion of the Phase II Mall Space covered by the Phase II Mall Lease, the Walgreens Lease and the Master Lease;
WHEREAS , on the Phase II Mall Release Date, Phase II Mall Subsidiary Holding will sell the equity interests of Phase II Mall Subsidiary to GGP;
WHEREAS , the Borrowers desire to enter into this Agreement to finance certain Phase II Mall Project Costs and to pay fees and expenses incurred in connection with the establishment of this Agreement, the consummation of the Phase II Mall Construction Loan and the other transactions related hereto and thereto;
WHEREAS , the Borrowers desire that the Lenders extend the Phase II Mall Construction Loan on the terms and conditions set forth herein for the purposes set forth herein; and
WHEREAS , the Lenders are willing, on the terms and subject to the conditions hereinafter set forth, to extend the Commitments and make Loans to the Borrowers.
NOW, THEREFORE, the parties hereto agree as follows:
1. Definitions .
1.1 Certain Defined Terms .
The following terms used in this Agreement shall have the following meanings:
“ Additional Contingent Claims ” is defined in Section 4.16 .
“ Adelson ” means Sheldon G. Adelson, an individual.
“ Adjusted Eurodollar Rate ” means, for any Interest Rate Determination Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per annum obtained by dividing (a) the arithmetic average (rounded upward to the nearest 1/100 of one percent) of the offered quotations, if any, to first class banks in the interbank Eurodollar market for Dollar deposits of amounts in same day funds comparable to the respective principal amounts of the Eurodollar Rate Loans of the Administrative Agent for which the Adjusted Eurodollar Rate is then being determined with maturities comparable to such Interest Period as of approximately 10:00 A.M. (New York time) on such Interest Rate Determination Date by (b) a percentage equal to 100% minus the stated maximum rate of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves) applicable on such Interest Rate Determination Date to any member bank of the Federal Reserve System in respect of “Eurocurrency liabilities” as defined in Regulation D (or any successor category of liabilities under Regulation D).
“ Administrative Agent ” is defined in the preamble and also means and includes any successor Administrative Agent appointed pursuant to subsection 8.5 .
“ Advance ” has the meaning given in the Disbursement Agreement.
“ Advance Request ” has the meaning given in the Disbursement Agreement.
“ Affected Lender ” is defined in subsection 2.6C .
“ Affected Loans ” is defined in subsection 2.6C .
“ Affiliate ” as applied to any Person means any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, that Person (excluding, however, any trustee under, or any committee with responsibility for administering any Pension Plan). With respect to any Lender or Approved Fund, a Person shall be deemed to be “controlled by” another Person if such other Person possesses, directly or indirectly, power to vote 51% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors, managing general partners or managers, as the case may be. With respect to all other Persons, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any such other Person, means
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the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting Securities or by contract or otherwise; provided , however , the beneficial owner of 10% or more of the voting securities of a Person shall be deemed to have control.
“ Agent ” means, individually, each of the Administrative Agent, the Syndication Agent, the Disbursement Agent and the Arranger, and “ Agents ” means the Administrative Agent, the Syndication Agent, the Disbursement Agent and the Arranger, collectively.
“ Aggregate Amounts Due ” is defined in subsection 9.5 .
“ Agreement ” means, on any date, this Construction Loan Agreement, dated as of the Closing Date and as thereafter from time to time amended, supplemented, amended and restated or otherwise modified from time to time and in effect on such date.
“ Applicable Margin ” means (a) in the case of Loans accruing interest as Base Rate Loans, 0.75% per annum , and (b) in the case of Loans accruing interest as Eurodollar Rate Loans, 1.75% per annum .
“ Approved Fund ” means, (i) a fund that invests in bank loans, or (ii) relative to any Lender, any other fund that invests in bank loans and is advised or managed by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
“ Arranger ” is defined in the preamble.
“ Arranger’s Fee Letter ” means the fee letter, dated as of July 15, 2004, among the Arranger and the Borrowers.
“ Asset Sale ” means the sale by a Borrower to any Person of (a) any of the stock of any of such Person’s Subsidiaries (including the equity interests of the Phase II Mall Subsidiary under the Phase II Mall Sale Agreement), (b) substantially all of the assets of any division or line of business of a Borrower or any of its Subsidiaries, or (c) any other assets (whether tangible or intangible) of a Borrower or any of its Subsidiaries (other than (i) inventory or goods sold in the ordinary course of business, (ii) any other assets to the extent that the aggregate fair market value of such assets sold during any Fiscal Year is less than or equal to $2,000,000 and the sale of such assets does not constitute a breach under the Phase II Mall Sale Agreement or (iii) any sales, transfers or dispositions permitted by subsection 6.6 ).
“ Assignment Agreement ” means an Assignment Agreement in substantially the form of Exhibit C-1 annexed hereto.
“ Assignment Effective Date ” is defined in subsection 9.1B(ii) .
“ Assignment of Phase II Mall Sale Agreement ” means that certain Collateral Assignment of Phase II Mall Sale Agreement, dated as of the date hereof, between Phase II Mall Subsidiary Holding and the Administrative Agent, in substantially the form of Exhibit D-5 hereto.
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“ Assignment of Rate Protection Agreement ” means that certain Assignment of Rate Protection Agreement, dated as of the date of the Rate Protection Agreements being assigned in accordance with Section 5.12 , between Borrowers, the Administrative Agent and the counterparty to such Rate Protection Agreements, in substantially the form of Exhibit D-6 hereto.
“ Authorized Officer ” means, relative to either of the Borrowers, those of its officers, general partners or managing members (as applicable) or those of the officers of the general partners or managing members (as applicable) whose signatures and incumbency shall have been certified to the Administrative Agent and the Lenders pursuant to subsection 3.1A .
“ Bank Administrative Agent ” means the “Administrative Agent” under the Bank Facilities Agreement.
“ Bank Facilities ” means the loans and other credit facilities to be made by the Bank Lenders to the Bank Loan Parties pursuant to the Bank Facilities Agreement.
“ Bank Facilities Agreement ” means that certain Credit Agreement, dated as of August 20, 2004 by and between LVSI and Venetian, as the borrowers, the Bank Lenders, as the lenders, Goldman Sachs Credit Partners, L.P., as the syndication agent, the sole lead arranger and the sole bookrunner, Scotia Capital, as the administrative agent, and Wells Fargo Foothill, Inc., CIT Group/Equipment Financing, Inc. and Commerzbank AG, as the documentation agents pursuant to which the Bank Lenders have agreed to provide certain loans to LVSI and Venetian, in an aggregate amount of $1,010,000,000 as the same may be amended, supplemented, amended and restated, or otherwise modified in accordance with its terms.
“ Bank Facilities Loan Documents ” means the Bank Facilities Agreement together with all related agreements, instruments and documents executed or delivered pursuant thereto at any time (including all mortgages, guarantees, security agreements and all other collateral and security documents), in each case as such agreements, instruments and documents may be amended, supplemented, amended and restated, or otherwise modified in accordance with the terms thereof.
“ Bank Lenders ” means the Persons which are defined as “Lenders” in the Bank Facilities Agreement.
“ Bank Loan Parties ” means the Persons which are defined as “Loan Parties” in the Bank Facilities Agreement
“ Bankruptcy Code ” means Title 11 of the United States Code entitled “Bankruptcy”, as now and hereafter in effect, or any successor statute.
“ Base Rate ” means, at any time, the higher of (a) the Prime Rate or (b) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
“ Base Rate Loans ” means Loans bearing interest at rates determined by reference to the Base Rate as provided in subsection 2.2A .
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“ Borrowers ” is defined in the preamble and shall mean, as the context requires, either or both of the Borrowers.
“ Borrowing ” means Loans of the same type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by the Lenders on the same Business Day and pursuant to the same Borrowing Notice in accordance with subsection 2.1B .
“ Borrowing Notice ” means a notice substantially in the form of Exhibit B-1 annexed hereto delivered by the Borrowers to the Administrative Agent pursuant to subsection 2.1B with respect to a proposed Borrowing.
“ Bovis ” means Lehrer McGovern Bovis Inc., a New York corporation.
“ Business Day ” means (a) for all purposes other than as covered by clause (b) below, any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or Nevada or the Province of British Columbia or is a day on which banking institutions located in either such state or such province are authorized or required by law or other governmental action to close, and (b) with respect to all notices, determinations, fundings and payments in connection with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, any day that is a Business Day described in clause (a) above and that is also a day for trading by and between banks in Dollar deposits in the London interbank market.
“ Capital Expenditures ” means the sum of (a) expenditures (whether paid in cash or other consideration or accrued as a liability and including that portion of Capital Leases which is capitalized on the consolidated balance sheet of the Borrowers) by the Borrowers and their Subsidiaries that, in conformity with GAAP, are included in “additions to property, plant or equipment” or comparable items reflected in the financial statements of the Borrowers and their Subsidiaries plus (b) to the extent not covered by clause (a) of this definition, any expenditures by the Borrowers or their Subsidiaries to acquire (by purchase or otherwise) the business, property or fixed assets of any Person, or the stock or other evidence of beneficial ownership of any Person that, as a result of such acquisition, becomes a Subsidiary of the Borrowers.
“ Capital Lease ”, as applied to any Person, means any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of that Person. For purposes of this Agreement and each other Loan Document, the amount of a Person’s obligation under a Capital Lease shall be the capitalized amount thereof, determined in accordance with GAAP, and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a premium or a penalty.
“ Cash ” means money, currency or a credit balance (in each case denominated in Dollars) in a Deposit Account.
“ Cash Equivalents ” means (a) Dollars, (b) (i) direct obligations of the United States (including obligations issued or held in book-entry form on the books of the Department of the Treasury of the United States) or obligations fully guaranteed by the United States, (ii) obligations, debentures, notes or other evidence of indebtedness issued or guaranteed by any
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other agency or instrumentality of the United States, (iii) interest-bearing demand or time deposits (which may be represented by certificates of deposit) issued by banks having general obligations rated (on the date of acquisition thereof) at least “A” or the equivalent by Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., or Moody’s Investors Service, Inc. (together with their respective successors and with any other nationally recognized credit rating agency if neither of such corporations is then currently rating the pertinent obligations, a “ Rating Agency ”) or, if not so rated, secured at all times, in the manner and to the extent provided by law, by collateral security in clause (i) or (ii) of this definition, of a market value of no less than the amount of monies so invested, (iv) commercial paper rated (on the date of acquisition thereof) at least “A-1” or “P-1” or the equivalent by any Rating Agency issued by any Person, (v) repurchase obligations for underlying securities of the types described in clause (i) or (ii) above, entered into with any commercial bank or any other financial institution having long-term unsecured debt securities rated (on the date of acquisition thereof) at least “A” or “A2” or the equivalent by any Rating Agency in connection with which such underlying securities are held in trust or by a third-party custodian, (vi) guaranteed investment contracts of any financial institution which has a long-term debt rated (on the date of acquisition thereof) at least “A” or “A2” or the equivalent by any Rating Agency, (vii) obligations (including both taxable and non-taxable municipal securities) issued or guaranteed by, and any other obligations the interest on which is excluded from income for Federal income tax purposes issued by, any state of the United States or District of Columbia or the Commonwealth of Puerto Rico or any political subdivision, agency, authority or instrumentality thereof, which issuer or guarantor has (A) a short-term debt rated (on the date of acquisition thereof) at least “A-1” or “P-1” or the equivalent by any Rating Agency and (B) a long-term debt rated (on the date of acquisition thereof) at least “A” or “A2” or the equivalent by any Rating Agency, (viii) investment contracts of any financial institution either (A) fully secured by (1) direct obligations of the United States, (2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States or (3) securities or receipts evidencing ownership interest in obligations or special portions thereof described in clause (1) or (2) , in each case guaranteed as full faith and credit obligations of the United States, having a market value at least equal to 102% of the amount deposited thereunder, or (B) with long-term debt rated (on the date of acquisition thereof) at least “A” or “A2” or the equivalent by any Rating Agency and short-term debt rated (on the date of acquisition thereof) at least “A-1” or “P-1” or the equivalent by any Rating Agency, (ix) a contract or investment agreement with a provider or guarantor (A) which provider or guarantor is rated (on the date of acquisition thereof) at least “A” or “A2” or the equivalent by any Rating Agency (provided that if a guarantor is a party to the rating, the guaranty must be unconditional and must be confirmed in writing prior to any assignment by the provider to any subsidiary of such guarantor), (B) providing that monies invested shall be payable to the Administrative Agent without condition (other than notice) and without brokerage fee or other penalty, upon not more than two Business Days’ notice for application when and as required or permitted under the Collateral Documents, and (C) stating that such contract or agreement is unconditional, expressly disclaiming any right of setoff and providing for immediate termination in the event of insolvency of the provider and termination upon demand of the Administrative Agent (which demand shall only be made at the direction of the Borrowers) after any payment or other covenant default by the provider, or (x) any debt instruments of any Person which instruments are rated (on the date of acquisition thereof) at least “A,” “A2”, “A-1” or “P-1” or the equivalent by any Rating Agency, provided that in each case of clauses (i) through (x) , such investments are
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denominated in Dollars and maturing not more than 13 months from the date of acquisition thereof; (c) investments in any money market fund which is rated (on the date of acquisition thereof) at least “A” or “A2” or the equivalent by any Rating Agency; (d) investments in mutual funds sponsored by any securities broker-dealer of recognized national standing having an investment policy that requires substantially all the invested assets of such fund to be invested in investments described in any one or more of the foregoing clauses and having a rating of at least “A” or “A2” or the equivalent by any Rating Agency; or (e) investments in both taxable and nontaxable (i) periodic auction reset securities which have final maturities between one and 30 years from the date of issuance and are repriced through a Dutch auction or other similar method every 35 days or (ii) auction preferred shares which are senior securities of leveraged closed end municipal bond funds and are repriced pursuant to a variety of rate reset periods, in each case having a rating (on the date of acquisition thereof) of at least “A” or “A2” or the equivalent of any Rating Agency.
“ Central Park West Site ” means the approximately 15 acres of real property owned by LVSI located near the intersection of Sands Avenue and Koval Lane upon which an apartment complex commonly known as Central Park West Apartments is currently located.
“ Central Plant ” means the “Electric Substation” and the “HVAC Space”, as each such term is defined in the Cooperation Agreement.
“ Certificate of Non-Bank Status ” means a certificate substantially in the form of Exhibit C-2 annexed hereto delivered by a Lender to the Administrative Agent pursuant to subsection 2.7B(iii) .
“ Change of Control ” means any sale, pledge or other transfer (excluding any transfer of Securities by Adelson for the purposes of providing estate planning and gifts reasonably acceptable to the Administrative Agent) of Securities whereby (a) prior to the occurrence of a public equity offering by LVSI, Adelson and/or his Affiliates or Related Parties cease to own, directly or indirectly, at least 70% of the voting Securities of LVSI, (b) after giving effect to the sale of the Securities of LVSI or Holdco in one or more public equity offerings, (i) Adelson and/or his Affiliates or Related Parties cease to own, directly or indirectly, at least 35% of the voting Securities of LVSI, or (ii) any Person or group of Persons (other than Adelson and/or his Affiliates or Related Parties) owns, directly or indirectly, a greater percentage of the voting Securities of LVSI than Adelson and/or his Affiliates or Related Parties, (c) subject to exceptions approved by the Administrative Agent (in advance of any relevant sales or transfers by LVSI) for tax planning purposes in connection with an initial public offering, LVSI ceases to own (either directly or indirectly through one or more Subsidiary Guarantors) 100% of the common equity interests of Venetian or while such preferred stock is outstanding, LVSI or a Subsidiary of LVSI ceases to own 100% of the preferred equity interests of Venetian, (d) Venetian and LVSI cease to own directly or indirectly 100% of the equity Securities of each of the Borrowers prior to the Phase II Mall Sale, or (e) a “Change of Control” (or similar term) as defined in the Mortgage Notes Indenture, the Bank Facilities Agreement or other instrument evidencing Indebtedness of Venetian and/or LVSI permitted under the Bank Facilities Agreement issued after the Closing Date (as defined in the Bank Facilities Agreement) in excess of $50,000,000 shall occur. The IPO Restructuring and the sale by Phase II Mall Subsidiary Holding of equity interests of Phase
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II Mall Subsidiary pursuant to the Phase II Mall Sale shall not be a “change of control” under this Agreement.
“ Closing Date ” means the date on which all conditions set forth in subsection 3.1 have been satisfied and this Agreement becomes effective in accordance with subsection 9.21 .
“ Code ” means the Internal Revenue Code of 1986, as amended to the date hereof and from time to time hereafter, and any successor statute.
“ Collateral ” means, collectively, all of the real, personal and mixed property in which Liens are granted pursuant to the Collateral Documents as security for the Obligations.
“ Collateral Account Agreement ” means that certain Disbursement Collateral Account Agreement, dated as of the date hereof, among the Borrowers, the Disbursement Agent and the Administrative Agent, in substantially the form of Exhibit D-4 hereto.
“ Collateral Documents ” means the Security Agreement, the Deed of Trust, the Collateral Account Agreement, the Assignment of Phase II Mall Sale Agreement, the Assignment of Rate Protection Agreement and all other instruments or documents delivered by one or both of the Borrowers or any Subsidiary of a Borrower which is a party to any of the Loan Documents in order to grant to the Administrative Agent on behalf of the Secured Parties, a Lien (or to perfect such Lien) on any Collateral as security for the Obligations.
“ Commitment ” means the commitment of a Lender to make Loans as set forth in subsection 2.1A , and “ Commitments ” means such commitments of all Lenders in the aggregate.
“ Commitment Amount ” means, on any date, relative to any Lender, the Commitment of such Lender reduced by the principal amount of any Loans made by such Lender as of such date.
“ Commitment Termination Date ” means the earliest of:
(i) the Business Day immediately prior to the Maturity Date;
(ii) the Phase II Mall Release Date; and
(iii) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clauses (i) , (ii) or (iii) , the Commitments shall terminate automatically and without further action.
“ Commitment Termination Event ” means (a) the occurrence of any Event of Default with respect to either Borrower described in subsection 7.6 or 7.7 , (b) the occurrence and continuance of any other Event of Default and either (i) the declaration of all or any portion of the Loans to be due and payable, or (ii) the giving of notice by the Administrative Agent, acting at the direction of the Requisite Lenders, to the Borrowers that the Commitments have been terminated.
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“ Consents ” means the consents to the collateral assignment by the Borrowers of the Project Documents, as required by the terms of the Loan Documents.
“ Construction Consultant ” means Tishman Construction Corporation of Nevada, or any other Person designated from time to time under the Disbursement Agreement by the Disbursement Agent to serve as the Construction Consultant.
“ Construction Litigation ” has the meaning assigned to that term in Section 4.16 .
“ Construction Management Agreement ” has the meaning given in the Disbursement Agreement.
“ Contingent Obligation ”, as applied to any Person, means any direct or indirect liability, contingent or otherwise, of that Person (a) with respect to any Indebtedness, lease, dividend or other obligation of another if the primary purpose or intent thereof by the Person incurring the Contingent Obligation is to provide assurance to the obligee of such obligation of another that such obligation of another will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such obligation will be protected (in whole or in part) against loss in respect thereof, (b) with respect to any letter of credit issued for the account of that Person or as to which that Person is otherwise liable for reimbursement of drawings, or (c) under Hedging Agreements. Contingent Obligations shall include (a) the direct or indirect guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the obligation of another, (b) the obligation to make take-or-pay or similar payments if required regardless of non-performance by any other party or parties to an agreement, and (c) any liability of such Person for the obligation of another through any agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (ii) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subclauses (i) or (ii) of this sentence, the primary purpose or intent thereof is as described in the preceding sentence. The amount of any Contingent Obligation shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if less, the amount to which such Contingent Obligation is specifically limited. Notwithstanding the foregoing, Contingent Obligations shall not include any surety bonds for claims underlying mechanics liens and any reimbursement obligations with respect thereto so long as such reimbursement obligations are not then due or are promptly paid when due.
“ Contractors ” means any architects, consultants, designers, contractors, sub-contractors, suppliers, laborers or any other Person engaged by either or both of the Borrowers in connection with the design, engineering, installation and construction of the Phase II Mall or by LCR in connection with the design, engineering, installation and construction of the Phase II Project.
“ Contracts ” means, collectively, the contracts entered into, from time to time, between either of both of the Borrowers or LCR and any Contractor for performance of services or sale of goods in connection with the design, engineering, installation or construction of the Phase II Mall.
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“ Contractual Obligation ” means, as applied to any Person, any provision of any Security issued by that Person or of any material indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“ Conversion/Continuation Notice ” means a notice substantially in the form of Exhibit B-2 annexed hereto delivered to the Administrative Agent pursuant to subsection 2.2D with respect to a proposed conversion or continuation of the applicable basis for determining the interest rate with respect to the Loans specified therein.
“ Cooperation Agreement ” means that certain Second Amended and Restated Reciprocal Easement, Use and Operating Agreement, dated as of May 17, 2004, as amended as of July 30, 2004, by and between Venetian, LCR, Grand Canal and Interface.
“ COREA ” has the meaning given in the Disbursement Agreement.
“ Credit Extension ” means the making of a Loan by a Lender.
“ Debt Service ” means all principal repayments or interest and other amounts (including commitment fees) payable or accrued from time to time under this Agreement and the other Loan Documents.
“ Deed of Trust ” means the Deed of Trust, Leasehold Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing, dated as of the Closing Date, granted by the Borrowers to the Title Company, for the benefit of the Administrative Agent, as agent for the Secured Parties, substantially in the form of Exhibit D-1 annexed hereto.
“ Deposit Account ” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.
“ Disbursement Account ” has the meaning given in the Collateral Account Agreement.
“Disbursement Agent” has the meaning given in the Disbursement Agreement.
“ Disbursement Agreement ” means the Master Disbursement Agreement, dated as of the Closing Date, by and among the Administrative Agent, the Bank Facilities Administrative Agent, the Disbursement Agent, the Borrowers and LCR, in substantially the form of Exhibit D-3 hereto, as the same may be amended, supplemented, amended and restated, or otherwise modified in accordance with the terms hereof and thereof.
“ Dollars ” and the sign “ $ ” mean the lawful money of the United States.
“ Eligible Assignee ” means (a) (i) a commercial bank organized under the laws of the United States or any state thereof; (ii) a savings and loan association or savings bank organized under the laws of the United States or any state thereof; (iii) a commercial bank organized under the laws of any other country or a political subdivision thereof; provided that (x) such bank is acting through a branch or agency located in the United States or (y) such bank is organized
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under the laws of a country that is a member of the Organization for Economic Cooperation and Development or a political subdivision of such country; and (iv) any other Person which is an “accredited investor” (as defined in Regulation D under the Securities Act) which extends credit or buys loans as one of its businesses including insurance companies, mutual funds and lease financing companies; (b) any Approved Fund; and (c) any Lender and any Affiliate of any Lender; provided that no Borrower, any Affiliate of the Borrowers, Adelson and/or his Affiliates or Related Parties shall be an Eligible Assignee; provided further that so long as no Event of Default shall have occurred and be continuing, no (i) Person that owns or operates a casino located in Macau, the United Kingdom, the State of Nevada or the State of New Jersey (or is an Affiliate of such a Person) ( provided that a passive investment constituting less than 20% of the common stock of any such casino shall not constitute ownership thereof for the purposes of this definition), (ii) Person that owns or operates a trade show, convention, exhibition or conference center in Macau, the United Kingdom, Las Vegas, Nevada or Clark County, Nevada (or an Affiliate of such a Person) ( provided that a passive investment constituting less than 20% of the common stock of any such trade show, convention, exhibition or conference center shall not constitute ownership for the purpose of this definition), or (iii) union pension fund ( provided that any intermingled fund or managed account which has as part of its assets under management the assets of a union pension fund shall not be disqualified from being an Eligible Assignee hereunder so long as the manager of such fund is not controlled by a union), shall be an Eligible Assignee, in each case which Person shall not have been denied an approval or a license, or found unsuitable under the Nevada Gaming Laws applicable to Lenders.
“ Employee Benefit Plan ” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is or was maintained or contributed to by the Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates.
“ Environmental Claim ” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Instrumentality or any other Person, arising (a) pursuant to or in connection with any actual or alleged violation of any Environmental Law, (b) in connection with any Hazardous Materials or any actual or alleged Hazardous Materials Activity, or (c) in connection with any actual or alleged damage, injury, threat or harm to health, safety, natural resources or the environment.
“ Environmental Indemnity ” means the Environmental Indemnity in the form of Exhibit H hereto, dated as of the Closing Date, granted by the Borrowers, LCR, Venetian and LVSI to the Administrative Agent for the benefit of the Lenders.
“ Environmental Laws ” means any and all current or future statutes, ordinances, orders, rules, regulations, guidance documents, judgments, Permits, or any other requirements of Governmental Instrumentalities relating to (a) environmental matters, including those relating to any Hazardous Materials Activity, (b) the generation, use, storage, transportation or disposal of Hazardous Materials, or (c) occupational safety and health, industrial hygiene, land use or the protection of human, plant or animal health or welfare, in any manner applicable to the Borrowers or any of their Subsidiaries or any of their Facilities, including the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq .), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq .), the Resource Conservation
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and Recovery Act (42 U.S.C. § 6901 et seq .), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq .), the Clean Air Act (42 U.S.C. § 7401 et seq .), the Toxic Substances Control Act (15 U.S.C. § 2601 et seq .), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §136 et seq .), the Occupational Safety and Health Act (29 U.S.C. § 651 et seq .), the Oil Pollution Act (33 U.S.C. § 2701 et seq .), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq .), the Nevada Hazardous Materials law (NRS Chapter 459), the Nevada Solid Waste/Disposal of Garbage or Sewage law (NRS 444.440 to 444.650, inclusive), the Nevada Water Controls/Pollution law (NRS Chapter 445A), the Nevada Air Pollution law (NRS Chapter 445B), the Nevada Cleanup of Discharged Petroleum law (NRS 590.700 to 590.920, inclusive), the Nevada Control of Asbestos law (NRS 618.750 to 618.850), the Nevada Appropriation of Public Waters law (NRS 533.324 to 533.4385, inclusive), the Nevada Artificial Water Body Development Permit law (NRS 502.390), the Nevada Protection of Endangered Species, Endangered Wildlife Permit (NRS 503.585), Endangered Flora Permit law (NRS 527.270), the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et . seq .), the Safe Drinking Water Act (42 U.S.C. Sections 300f et . seq .), the Surface Mining Control and Reclamation Act of 1974 (30 U.S. C. Sections 1201 et . seq .), and the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. Section 7901 et . seq .), each as amended or supplemented, any analogous present or future state or local statutes or laws, and any regulations promulgated pursuant to any of the foregoing.
“ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.
“ ERISA Affiliate ” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Code of which that Person is a member; (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Code of which that Person is a member; and (c) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Code of which that Person, any corporation described in clause (a) above or any trade or business described in clause (b) above is a member. Any former ERISA Affiliate of the Borrowers or any of their Subsidiaries shall continue to be considered an ERISA Affiliate of the Borrowers or such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of the Borrowers or such Subsidiary and with respect to liabilities arising after such period for which Borrowers or such Subsidiary could be liable under the Code or ERISA.
“ ERISA Event ” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived by regulation); (b) the failure to meet the minimum funding standard of Section 412 of the Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(d) of the Code) or the failure to make by its due date a required installment under Section 412(m) of the Code with respect to any Pension Plan or the failure to make any required contribution to a Multiemployer Plan; (c) the provision by the administrator of any Pension Plan pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by the Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing
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sponsors or the termination of any such Pension Plan resulting in liability pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of liability on Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the withdrawal of the Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor, or the receipt by the Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (h) the occurrence of an act or omission which could give rise to the imposition on Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates of fines, penalties, taxes or related charges under Chapter 43 of the Code or under Section 409, Section 502(c), (i) or (l), or Section 4071 of ERISA in respect of any Employee Benefit Plan; (i) the assertion of a material claim (other than routine claims for benefits) against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against Borrowers, any of their Subsidiaries or any of their respective ERISA Affiliates in connection with any Employee Benefit Plan; (j) receipt from the PBGC of notice of the failure of any Pension Plan (or any other Employee Benefit Plan intended to be qualified under Section 401(a) of the Code) to qualify under Section 401(a) of the Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Code; or (k) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the Code or pursuant to ERISA with respect to any Pension Plan.
“ Eurodollar Rate Loans ” means Loans bearing interest at rates determined by reference to the Adjusted Eurodollar Rate as provided in subsection 2.2A .
“ Event of Default ” is defined in Section 7 .
“ Event of Loss ” means, with respect to any property or asset (tangible or intangible, real or personal), any of the following: (a) any loss, destruction or damage of such property or asset; (b) any actual condemnation, seizure or taking by exercise of the power of eminent domain or otherwise of such property or asset, or confiscation of such property or asset or the requisition of the use of such property or asset; or (c) any settlement in lieu of clause (b) above.
“ Exchange Act ” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.
“ Excluded Subsidiaries ” has the meaning given in the Bank Facilities Agreement.
“ Existing Facility ” means the Venetian Casino Resort, a Venetian-themed hotel, casino, retail, meeting and entertainment complex located at 3355 Las Vegas Boulevard South, Clark County, Nevada.
“ Existing Site ” means the land on which the Existing Facility is constructed.
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“ Facilities ” means any and all real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by the Borrowers or any of their Subsidiaries, including the Phase II Mall.
“ FDIC ” means the Federal Deposit Insurance Corporation.
“ Federal Funds Effective Rate ” means, for any period, a fluctuating interest rate equal for each day during such period to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by the Administrative Agent.
“ Final Completion ” has the meaning given in the Disbursement Agreement.
“ Final Completion Date ” means the date on which Final Completion occurs.
“ First Priority ” means, with respect to any Lien created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien (other than Permitted Liens) to which such Collateral is subject.
“ Fiscal Quarter ” means a fiscal quarter of any Fiscal Year.
“ Fiscal Year ” means the fiscal year of the Borrowers ending on December 31 of each calendar year.
“ Former Lender ” is defined in subsection 9.7(a) .
“ Funding and Payment Office ” means (a) the office of the Administrative Agent located at 600 Peachtree Street NE, Suite 2700, Atlanta, Georgia 30308 (Attention: Hilda Gabbidon or Vicki Gibson) or (b) such other office of the Administrative Agent or of a third party or sub-agent, as appropriate, as may from time to time hereafter be designated as such in a written notice delivered by the Administrative Agent to the Borrowers and each Lender.
“ Funding Date ” means the date of the funding of a Loan.
“ GAAP ” means, subject to the limitations on the application thereof set forth in subsection 1.2 , generally accepted accounting principles set forth in opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as may be approved by a significant segment of the accounting profession, in each case, as the same are applicable to the circumstances as of the Closing Date.
“ Gaming License ” means every license, franchise or other authorization to own, lease, operate or otherwise conduct gaming activities of LVSI, VCR or any of their Restricted
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Subsidiaries, including all such licenses granted under the Nevada Gaming Laws, and other applicable federal, state, foreign or local laws.
“GGP” means GGP Limited Partnership, a Delaware limited partnership, and any successor thereto by merger or by operation of law.
“ Governmental Instrumentality ” means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental, quasi-governmental, judicial, public or statutory instrumentality, authority, body, agency, bureau or entity, (including the Nevada Gaming Authorities, any zoning authority, the FDIC, the Comptroller of the Currency or the Federal Reserve Board, any central bank or any comparable authority) or any arbitrator with authority to bind a party at law.
“ Grand Canal ” means Grand Canal Shops II, LLC.
“ Harrah’s Shared Roadway Agreement ” means the Agreement, dated as of January 16, 1998, between Venetian and Harrah’s Casino Resort.
“ Hazardous Materials ” means (a) any chemical, material or substance at any time defined as or included in the definition of “hazardous substances”, “hazardous wastes”, “hazardous materials”, “extremely hazardous waste”, acutely hazardous waste”, “radioactive waste”, “biohazardous waste”, “pollutant”, “toxic pollutant”, “contaminant”, “restricted hazardous waste”, “infectious waste”, “toxic substances”, or any other term or expression intended to define, list or classify substances by reason of properties harmful to health, safety or the indoor or outdoor environment (including harmful properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, “TCLP toxicity” or “EP toxicity” or words of similar import under any applicable Environmental Laws); (b) any oil, petroleum, petroleum fraction or petroleum derived substance; (c) any drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; (d) any flammable substances or explosives; (e) any radioactive materials; (f) any asbestos-containing materials; (g) urea formaldehyde foam insulation; (h) electrical equipment which contains any oil or dielectric fluid containing polychlorinated biphenyls; (i) pesticides; and (j) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any Governmental Instrumentality or which may or could pose a hazard to the health and safety of the owners, occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor environment.
“ Hazardous Materials Activity ” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.
“ Hedging Agreements ” means (a) currency exchange or interest rate swap agreements, currency exchange or interest rate cap agreements and currency exchange or interest rate collar
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agreements and (b) other agreements or arrangements designed to protect against fluctuations in currency exchange or interest rates.
“ Holdco ” means a corporation formed for the purpose of selling its capital stock in an initial public offering which will own 100% of the common stock of LVSI.
“ HVAC Provider ” means Sempra Energy Solutions, a California corporation (successor to Atlantic-Pacific, Las Vegas LLC, a Delaware limited liability company) or its permitted successors under the HVAC Services Agreements.
“ HVAC Services Agreements ” means all agreements between the HVAC Provider, Venetian, LVSI, their Restricted Subsidiaries, the Borrowers or their Subsidiaries for the provision of air conditioning or utility services which pertain to or affect the Phase II Mall.
“ Improvement Phasing Agreement ” means the Improvement Phasing Agreement, dated on or about August 11, 2004 between Clark County, Nevada and LCR.
“In Balance” has the meaning given in the Disbursement Agreement.
“ Included Taxes ” is defined in subsection 2.7B(i) .
“ Indebtedness ”, as applied to any Person, means (a) all indebtedness for borrowed money, (b) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP, (c) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money, (d) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA and trade payables and accruals incurred in the ordinary course of business), and (e) all indebtedness secured by any Lien on any property or asset owned or held and under contracts by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person. Obligations under Hedging Agreements constitute Contingent Obligations and not Indebtedness. Obligations under the HVAC Services Agreements, the Phase II Mall Lease and the Walgreens Lease shall be treated as service contracts or operating leases and not as Indebtedness. Additionally, Indebtedness shall not include (i) any amount of the liability in respect of an operating lease that at such time would not be required to be capitalized and reflected as a liability on the balance sheet in accordance with GAAP, (ii) any surety bonds for claims underlying mechanics liens and any reimbursement obligations with respect thereto so long as such reimbursement obligations are not then due, or are promptly paid when due or (iii) any indebtedness that has been either satisfied or discharged or defeased through covenant defeasance or legal defeasance.
“ Indemnified Liabilities ” is defined in subsection 9.3 .
“ Indemnitees ” is defined in subsection 9.3 .
“ Independent Financial Advisor ” means an accounting, appraisal or investment banking or financial advisory firm of nationally or internationally recognized standing that is not an Affiliate of LVSI and Adelson and his Related Parties.
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“ Intercompany Mall Note ” means a promissory note or notes of the Borrowers, initially in the principal amount of $25,371,098 (as such amount may be increased pursuant to subsection 6.1 (iv) ) payable to Venetian, substantially in the form of Exhibit J hereto (as such promissory note may be amended, endorsed or otherwise modified from time to time), evidencing the Phase II Mall Contribution, and also means all other promissory notes accepted from time to time in substitution therefor or renewal thereof.
“ Interest Payment Date ” means (a) with respect to any Loan that is a Base Rate Loan, each Quarterly Payment Date and (b) with respect to any Loan that is a Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan; provided , however , that in the case of each Interest Period of longer than three months “Interest Payment Date” shall also include each Quarterly Payment Date.
“ Interest Period ” is defined in subsection 2.2B .
“ Interest Rate Determination Date ” means, with respect to any Interest Period, two Business Days prior to the first day of such Interest Period.
“ Interface ” means Interface Group-Nevada, Inc., a Nevada corporation.
“ Investment ” means, relative to any Person, (a) any direct or indirect purchase or other acquisition by such Person of, or of a beneficial interest in, any Securities of any other Person (including any Subsidiary), (b) any direct or indirect purchase or other acquisition for value, by such Person from any Person, of any equity Securities of any Person, or (c) any direct or indirect loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contribution by such Person to any other Person, including all Indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business other than Hedging Agreements required or permitted hereunder to hedge against fluctuations of interest rates or currency exchange risk. The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment less all returns of principal or equity thereon.
“ IPO Restructuring ” means, in connection with the formation of Holdco, a restructuring in which (i) LVSI will form Holdco as a wholly-owned subsidiary which, in turn, will form a wholly-owned subsidiary (“ Merger Co ”), (ii) LVSI will merge with and into Merger Co. with LVSI being the surviving corporation, and (iii) the stockholders of LVSI immediately prior to the merger described in clause (ii) will receive shares in Holdco in exchange for their shares of common stock of LVSI. Upon completion of the merger described in clause (ii) , Holdco will own 100% of the common stock of LVSI.
“ Joint Venture ” means a Supplier Joint Venture or any other joint venture, partnership or other similar arrangement, whether in corporate, partnership, limited liability company or other legal form; provided that in no event shall any Subsidiary of any Person be considered to be a Joint Venture to which such Person is a party.
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“ LCR ” means Lido Casino Resort, LLC, a Nevada limited liability company.
“ Legal Requirements ” means all laws, statutes, orders, decrees, injunctions, licenses, Permits, approvals, agreements and regulations of any Governmental Instrumentality having jurisdiction over the matter in question.
“ Lender ” and “ Lenders ” is defined in the preamble, together with their successors and permitted assigns pursuant to subsection 9.1 .
“ Lien ” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law (including any conditional sale or other title retention agreement or any lease in the nature thereof).
“ Lien Protection Account ” has the meaning given in the Disbursement Agreement.
“ Line Item ” means each of the individual line items set forth in the Project Budget.
“ Loan ” or “ Loans ” means the portion of the Phase II Mall Construction Loan made by the Lenders to the Borrower pursuant to subsection 2.1(B)(i) .
“ Loan Documents ” means this Agreement, the Notes, each Rate Protection Agreement, the Collateral Documents, the Disbursement Agreement, and each other agreement that expressly states by its terms that it is a Loan Document; provided , however for the purposes of Section 4 , subsections 7.1 , 7.4 , 7.5 and subsection 9.6 , Rate Protection Agreements shall not be considered to be a Loan Document.
“ Loan Exposure ” means, with respect to any Lender as of the date of determination, the outstanding principal amount of the Loans made by such Lender.
“ LVSI ” means Las Vegas Sands, Inc. and its successors.
“ Macau ” means the Macau Special Administrative Region of the People’s Republic of China.
“ MAI Appraisal ” means an appraisal conducted by a member of the Appraisal Institute in accordance with the standards of the Appraisal Institute.
“ Margin Stock ” has the meaning given in Regulation U of the Board of Governors of the Federal Reserve System as in effect from time to time.
“Master Lease ” has the meaning given in the Disbursement Agreement.
“ Material Adverse Effect ” means (a) a material adverse effect upon the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Borrowers and their Subsidiaries, taken as a whole, or (b) the material impairment of the ability of the Borrowers to observe or perform, or the Administrative Agent or the Lenders to enforce, the Obligations.
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“ Material Contract ” means the Intercompany Mall Note and any Contract or other arrangement to which either of the Borrowers, LCR or any of the Borrowers’ Subsidiaries are a party (other than the Loan Documents) for which breach, nonperformance, cancellation or failure to renew could reasonably be expected to have a Material Adverse Effect.
“ Maturity Date ” means, the earlier of (i) March 30, 2008 or (ii) the date on which the equity interests of Phase II Mall Subsidiary are transferred, sold and assigned to GGP in accordance with the Phase II Mall Sale Agreement.
“ Mortgage Notes Indenture ” means the Indenture, dated as of June 4, 2002, as supplemented, among LVSI, Venetian, U.S. Bank National Association, in its capacity as trustee under the Mortgage Notes Indenture, and its successors in such capacity, and others.
“ Mortgage Policy ” is defined in subsection 3.1E(ii) .
“ Mortgaged Property ” means the real property described in Schedule 4.5 .
“ Multiemployer Plan ” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA.
“ Net Asset Sale Proceeds ” means the aggregate cash proceeds received by either Borrower or any of its Subsidiaries in respect of any Asset Sale, net of (a) the direct costs relating to such Asset Sale (including legal, accounting and investment banking fees and expenses, employee severance and termination costs, any trade payables or similar liabilities related to the assets sold and required to be paid by the seller as a result thereof and sales, finders’ or broker’s commission), any relocation expenses incurred as a result thereof and taxes paid or payable as result thereof (including any such taxes paid or payable by an owner of any Borrower or any of its Subsidiaries), (b) amounts required to be applied to the repayment of Indebtedness secured by a Lien (or amounts permitted by the terms of such Indebtedness to be otherwise reinvested in other assets of such Borrower or such Subsidiary to the extent so reinvested) which is prior to the Lien under the Collateral Documents on the asset or assets that are the subject of such Asset Sale, (c) all distributions and other payments required to be made to minority interest holders in a Subsidiary or joint venture as a result of such Asset Sale and (d) any reserve for adjustment in respect of the sale price of such asset or assets or any liabilities associated with the asset disposed of in such Asset Sale and the deduction of appropriate amounts provided by the seller as a reserve in accordance with GAAP against any liabilities associated with the assets disposed of in the Asset Sale and retained by a Borrower or any Subsidiary.
“ Net Loss Proceeds ” means the aggregate cash proceeds received by either Borrower or any of its Subsidiaries in respect of any Event of Loss, including insurance proceeds from condemnation awards or damages awarded by any judgment, net of the direct costs in recovery of such Net Loss Proceeds (including legal, accounting, appraisal and insurance adjuster fees and expenses) and any taxes paid or payable as a result thereof (including any such taxes paid or payable by an owner of either Borrower or any of its Subsidiaries) and amounts required to be applied to the repayment of any Indebtedness secured by a Lien (or amounts permitted by the terms of such Indebtedness to be otherwise reinvested in other assets of such Borrower or such
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Subsidiary to the extent so reinvested) which is prior to the Liens of Lenders under the Collateral Documents on the asset or assets that are the subject of the Event of Loss. Notwithstanding the foregoing, all proceeds of so-called “liquidated damages”, “subguard” and “business interruption” insurance policies shall not be Net Loss Proceeds.
“ Net Proceeds ” is defined in subsection 2.4A(iii)(d) .
“ Net Proceeds Amount ” is defined in subsection 2.4A(iii)(e) .
“ Nevada Gaming Authorities ” shall mean, collectively, the Nevada Gaming Commission, the Nevada State Gaming Control Board, and the Clark County Liquor and Gaming Licensing Board.
“ Nevada Gaming Laws ” shall mean the Nevada Gaming Control Act, as modified in Chapter 463 of the Nevada Revised Statutes, as amended from time to time, and the regulations of the Nevada Gaming Commission promulgated thereunder, as amended from time to time.
“ Non-Recourse Financing ” means Indebtedness incurred in connection with the construction, installation, purchase or lease of personal or real property or equipment (a) as to which the lender upon default may seek recourse or payment against a Borrower or any of its Subsidiaries only through the return or foreclosure or sale of the property or equipment so constructed, purchased or leased and to any proceeds of such property and Indebtedness and the related collateral account in which such proceeds are held and (b) may not otherwise assert a valid claim for payment on such Indebtedness against a Borrower or any of its Subsidiaries or any other property of a Borrower or any of its Subsidiaries, except, in each of the foregoing clauses (a) and (b) , in the case of customary non-recourse exceptions, including fraud and environmental indemnities.
“ Non-US Lender ” is defined in subsection 2.7B(iii)(a) .
“ Note ” means a promissory note of the Borrowers payable to any Lender, in the form of Exhibit A hereto (as such promissory note may be amended, endorsed or otherwise modified from time to time), evidencing the aggregate Indebtedness of the Borrowers to such Lender resulting from outstanding Loans, and also means all other promissory notes accepted from time to time in substitution therefor or renewal thereof.
“ Obligations ” means all obligations of every nature of each Borrower from time to time owed to the Administrative Agent and/or the Lenders (or in the case of a Rate Protection Agreement, an Affiliate of a Lender) under the Loan Documents, whether for principal, interest, premium, if any, fees, expenses, indemnification or otherwise including interest accruing on the Loans during the pendency of any proceeding of the type described in subsections 7.6 or 7.7 , whether or not allowed in such proceeding.
“ Officers’ Certificate ” means, as applied to any corporation, a certificate executed on behalf of such corporation by its chairman of the board (if an officer) or its president or one of its vice presidents and by its chief financial officer or its treasurer (in their capacity as such officer).
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“ Operating Lease ” means, as applied to any Person, any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) that is not a Capital Lease other than any such lease under which that Person is the lessor.
“ Operative Documents ” means the Loan Documents, the Resort Complex Operative Documents and the Project Documents.
“ Organizational Documents ” means (a) with respect to any corporation, its certificate or articles of incorporation and its bylaws, (b) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with respect to any general partnership, its partnership agreement, (d) with respect to any limited liability company, its articles or certificate of organization and its operating agreement and (e) with respect to any other entity, its equivalent organizational, governing documents.
“ Patriot Act ” is defined in subsection 9.22 .
“ PBGC ” means the Pension Benefit Guaranty Corporation or any successor thereto.
“ Pension Plan ” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Code or Section 302 of ERISA.
“ Percentage ” means, relative to any Lender, the applicable percentage relating to Loans, as set forth opposite its signature hereto or as set forth in an Assignment Agreement under the applicable column heading, as such percentage may be adjusted from time to time pursuant to Assignment Agreement(s) executed by such Lender and its Eligible Assignee Lender(s) and delivered pursuant to subsection 9.1B .
“ Permits ” means all material authorizations, consents, decrees, permits, waivers, privileges, approvals from and filings with all Governmental Instrumentalities necessary for the realization of the Phase II Project in accordance with the Project Documents and the Resort Complex Operative Documents, the Plans and Specifications, the Project Budget, and any other material building, construction, land use, environmental or other material permit, license, franchise, approval, consent and authorization (including planning board approvals from applicable Governmental Instrumentalities and approvals required under the Nevada Gaming Laws) required for or in connection with the construction, ownership, use, occupation and operation of the Phase II Project and the transactions provided for in this Agreement and the other Operative Documents.
“ Permitted Liens ” means the following types of Liens (excluding any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Code or by ERISA, any such Lien relating to or imposed in connection with any Environmental Claim, any such Lien expressly prohibited by any applicable terms of any of the Collateral Documents and any such Lien (other than the Liens listed in clauses (i) and (ii) of this definition) which is a Phase II Mall Title Defect (unless the amount required in order to obtain the discharge of such Lien which is a Phase II Mall Title Defect is included in the Project Budget as a Line Item, the Borrowers are in compliance with Section 5.5 of the Disbursement Agreement and the Borrowers have demonstrated to the Administrative Agent in its sole determination that such Lien can and will be removed prior to the anticipated Phase II Mall Release Date)):
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(i) Liens granted pursuant to the Collateral Documents;
(ii) Liens securing the Intercompany Mall Note and the other Phase II Mall Contribution Documents; provided that such Liens are subordinate to the Liens held by the Administrative Agent for the benefit of the Lenders;
(iii) Liens existing on the Closing Date and described in Schedule 6.2 annexed hereto;
(iv) Liens for taxes, assessments or governmental charges or claims the payment of which is not, at the time, required by subsection 5.3 ;
(v) statutory Liens of landlords, statutory Liens of banks and rights of set-off, statutory Liens of carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by law, in each case incurred in the ordinary course of business or in connection with the construction of the Phase II Mall (a) for amounts not yet overdue, (b) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of 5 days) are being contested in good faith by appropriate proceedings, so long as (1) such reserves (including through funds on deposit in the Lien Protection Account which, in the aggregate with all amounts on deposit therein shall not exceed $20,000,000) or other appropriate provisions, if any, as shall be required by GAAP shall have been made for any such contested amounts, and (2) in the case of a Lien with respect to any portion of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral on account of such Lien or (c) with respect to Liens of mechanics, repairmen, workmen and materialmen, with respect to which the Borrowers have obtained a title insurance endorsement insuring against losses arising therewith or if such Lien arises in the ordinary course of business or in the construction of the Phase II Project, the Borrowers have bonded such Lien within a reasonable time after becoming aware of the existence thereof;
(vi) Liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of tenders, statutory obligations, surety and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money), incurred in the ordinary course of business or in connection with the construction of the Phase II Project (a) for amounts not yet overdue, (b) for amounts that are overdue and that (in the case of any such amounts overdue for a period in excess of five days) are being contested in good faith by appropriate proceedings, so long as (1) such reserves or other appropriate provisions, if any, as shall be required by GAAP shall have been made for any such contested amounts, (2) in the case of a Lien with respect to any portion of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral on account of such Lien or (c) with respect to Liens of mechanics, repairmen, workmen and materialmen, with respect to which the Borrowers have obtained a title insurance endorsement insuring against losses arising therewith or if
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such Lien arises in the ordinary course of business or in the construction of the Phase II Project, the Borrowers have bonded such Lien within the time required by the Phase II Mall Sale Agreement or otherwise within a reasonable time after becoming aware of the existence thereof;
(vii) any attachment or judgment Lien not constituting an Event of Default under subsection 7.8 ;
(viii) leases or subleases granted to third parties in accordance with any applicable terms of this Agreement, the Collateral Documents and/or the Phase II Mall Sale Agreement;
(ix) (a) easements, rights-of-way, avigational servitudes, restrictions, encroachments, and other minor defects or irregularities in title and other similar charges or encumbrances, in each case which are permitted by the Phase II Mall Sale Agreement and which do not and will not interfere in any material respect with the ordinary conduct of the business of a Borrower or any of its Subsidiaries or result in a material diminution in the value of any Collateral as security for the Obligations and (b) any Liens or other exceptions to title that appear in the Mortgage Policy, as the same may be updated from time to time in accordance with subsection 3.2C ;
(x) leases permitted under subsection 6.6(iv) and any leasehold mortgage in favor of any party financing the lessee under any such lease, provided that neither of the Borrowers nor their Subsidiaries is liable for the payment of, or interest, premiums or fees on, such financing;
(xi) Liens arising from filing UCC financing statements relating solely to leases permitted by this Agreement;
(xii) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(xiii) any zoning or similar law or right reserved to or vested in any governmental office or agency to control or regulate the use of any real property;
(xiv) licenses of patents, trademarks and other intellectual property rights granted by a Borrower or any of its Subsidiaries in the ordinary course of business and not interfering in any material respect with the ordinary conduct of the business of such Borrower or such Subsidiary;
(xv) Liens created under the HVAC Services Agreements;
(xvi) Liens created under the Predevelopment Agreement and the Improvement Phasing Agreement (as in effect on the Closing Date);
(xvii) Liens incurred in connection with the Rate Protection Agreement required by subsection 5.12 ; provided that such Liens only extend to the Collateral securing such Indebtedness with the same priority thereto;
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(xviii) Liens created or contemplated by the Cooperation Agreement; and
(xix) Liens securing Indebtedness permitted pursuant to subsection 6.1 (i) , (iv) and (ix) ;
provided that other than with respect to Liens of the type set forth under clauses (i) , (ii) , (xvii) and (xix) , such Liens do not secure Indebtedness for borrowed money.
“ Person ” means natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and governments (whether federal, state or local, domestic or foreign, and including political subdivisions thereof) and agencies or other administrative or regulatory bodies thereof.
“ Phase II Hotel/Casino ” means an approximately 3,000 suite hotel, a gaming facility of approximately 100,000 square feet, a multi-story parking structure and meeting complex on a portion of the Site to be integrated with the Phase II Mall and the Existing Facility.
“Phase II Hotel/Casino Equity Account” has the meaning given in the Disbursement Agreement.
“ Phase II Hotel/Casino Retail Stores ” means certain retail space in the Phase II Hotel/Casino that are to be leased by LCR to Phase II Mall Subsidiary pursuant to the Master Lease.
“ Phase II Mall ” means the Phase II Mall Space (a portion of which shall be initially leased by Phase II Mall Subsidiary from LCR pursuant to the Phase II Mall Lease and eventually transferred from LCR to Phase II Mall Subsidiary upon its designation as one or more separate legal parcels in accordance with the Disbursement Agreement to become the Phase II Mall Air Parcel, a portion of which shall be leased by Phase II Mall Subsidiary pursuant to the Walgreens Lease and a portion of which shall be leased by Phase II Mall Subsidiary pursuant to the Master Lease) and the Phase II Mall Improvements located therein, in each case to be integrated with the Phase II Hotel/Casino and the Existing Facility.
“ Phase II Mall Air Parcel ” means the one or more separate legal parcels owned or to be owned in fee simple by Phase II Mall Subsidiary after the Phase II Mall Air Space is subdivided in accordance with Section 5.11 of the Disbursement Agreement and within which a portion of the Phase II Mall Improvements is to be constructed.
“ Phase II Mall Air Space ” is described in Exhibit L .
“ Phase II Mall Appraisal ” means an appraisal of the Phase II Mall conducted by Jones Lang LaSalle and prepared in accordance with the standards of the Appraisal Institute.
“ Phase II Mall Borrower Taxes ” is defined in subsection 5.3C .
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“ Phase II Mall Construction Loan ” means the Loans in the aggregate amount of $250,000,000 to be made by the Lenders to the Borrower in accordance with and subject to the terms of this Agreement and the other Loan Documents.
“ Phase II Mall Contribution ” means the intercompany loan from Venetian to Phase II Mall Subsidiary evidenced and secured by the Phase II Mall Contribution Documents in the initial amount of $25,371,098 and as such amount may be increased pursuant to subsection 6.1 (iv) .
“ Phase II Mall Contribution Documents ” means the Intercompany Mall Note, together with all related agreements, instruments and documents executed or delivered pursuant thereto at any time (including all mortgages, guarantees, security agreements and all other collateral and security documents), in each case as such agreements, instruments and documents may be amended, supplemented, amended and restated, or otherwise modified in accordance with the terms hereof.
“ Phase II Mall Equity Account ” has the meaning given in the Disbursement Agreement.
“ Phase II Mall Improvements ” means “Mall Improvements” as such term is defined in the Phase II Mall Sale Agreement.
“ Phase II Mall Lease ” means that certain Indenture of Lease, dated as of the date hereof, by and between LCR and the Phase II Mall Subsidiary covering the Phase II Mall Air Space, as the same may be amended, supplemented, amended and restated, or otherwise modified in accordance with the terms hereof and thereof.
“ Phase II Mall Loan Proceeds Account ” has the meaning given in the Disbursement Agreement.
“ Phase II Mall Project Costs ” means the Project Costs related to the financing, design, development and construction of the Phase II Mall (but not to any corresponding costs related to the Phase II Hotel/Casino) incurred prior to the Phase II Mall Release Date.
“ Phase II Mall Recognition Agreement ” has the meaning given in subsection 5.13 .
“ Phase II Mall Release Conditions ” has the meaning given in the Disbursement Agreement.
“ Phase II Mall Release Date ” means the date on which each of the Phase II Mall Release Conditions have been satisfied.
“Phase II Mall SA Assignment Agreement” means that certain Assignment and Assumption Agreement and First Amendment to Agreement, dated as of September 30, 2004, among LCR, as the assignor, Phase II Mall Subsidiary Holding, as the assignee, and GGP.
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“ Phase II Mall Sale ” means the sale by Phase II Mall Subsidiary Holding to GGP of the equity interests of Phase II Mall Subsidiary pursuant to the terms of the Phase II Mall Sale Agreement.
“ Phase II Mall Sale Reimbursement Agreement ” has the meaning given in the Disbursement Agreement.
“ Phase II Mall Sale Agreement ” means the Agreement, dated as of April 12, 2004 between LCR and GGP, as amended by the Phase II Mall SA Assignment Agreement, and as the same may be further amended, supplemented, amended and restated, or otherwise modified in accordance with the terms hereof and thereof.
“ Phase II Mall Sale Reserve Account ” means the reserve account to be established by Phase II Mall Subsidiary Holding pursuant to the terms of the Phase II Mall Sale Reimbursement Agreement and pledged to LCR thereunder.
“ Phase II Mall Space ” means, collectively, the retail space in which the Phase II Hotel/Casino Retail Stores will be situated (which shall be leased by Phase II Mall Subsidiary pursuant to the Master Lease), the Phase II Mall Air Space (which shall be initially leased by Phase II Mall Subsidiary from LCR pursuant to the Phase II Mall Lease and eventually transferred from LCR to Phase II Mall Subsidiary upon its designation as one or more separate legal parcels in accordance with the Disbursement Agreement to become the Phase II Mall Air Parcel), the Phase II Mall Air Parcel and the Walgreens Air Space.
“ Phase II Mall Space Easements ” means any easements appurtenant, easements in gross, license agreements or other rights running for the benefit of Phase II Mall Subsidiary with respect to the Phase II Mall Space and/or appurtenant to the Phase II Mall Space, including, without limitation, those certain easements and licenses described in each Title Policy related to the Phase II Mall Space.
“ Phase II Mall Subsidiary ” has the meaning given in the preamble.
“ Phase II Mall Subsidiary Holding ” has the meaning given in the preamble.
“ Phase II Mall Title Defect ” means “Title Defect” as defined in the Phase II Mall Sale Agreement.
“ Phase II Project ” means an approximately 3,000 room hotel, casino, retail and meeting complex to be integrated with the Existing Facility and located on the Site and which will include the Phase II Mall.
“ Plans and Specifications ” has the meaning given in the Disbursement Agreement.
“ Potential Event of Default ” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
“ Predevelopment Agreement ” means the Sands Resort Hotel Casino Agreement, dated as of February 18, 1997, as amended, between Clark County, Nevada and LVSI.
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“ Prime Rate ” means the rate that the Administrative Agent announces from its New York office from time to time as its Dollar prime lending rate, as in effect from time to time. The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer. The Administrative Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
“ Proceedings ” is defined in subsection 5.1(vii) .
“ Project Budget ” has the meaning given in the Disbursement Agreement.
“ Project Costs ” has the meaning given in the Disbursement Agreement.
“ Project Documents ” means the Phase II Mall Lease, the Phase II Mall Sale Agreement, the Phase II Mall SA Assignment Agreement, the Construction Management Agreement, the COREA, the Walgreens Lease, and any document or agreement related to the design, development, construction or pre-opening of the Phase II Mall and entered into on, prior to or after the Closing Date, in accordance with subsection 6.1.2 of the Disbursement Agreement.
“ Pro Rata Share ” means, with respect to all payments of the Loans of any Lender, the percentage obtained by dividing (i) the Loan Exposure of that Lender by (ii) the Loan Exposure of all Lenders.
“ Quarterly Date ” means March 31, June 30, September 30 and December 31.
“ Quarterly Payment Date ” means each April 1, July 1, October 1 and January 1.
“ Rate Protection Agreement ” means, collectively, any Hedging Agreement entered into by the Borrowers or any of their Subsidiaries pursuant to subsection 5.12 under which the counterparty of such Hedging Agreement is (or at the time such Hedging Agreement was entered into, was) a Lender or an Affiliate of a Lender.
“ Rating Agencies ” is defined in the definition of “Cash Equivalents”.
“ Refinancing ” has the meaning given in the Bank Facilities Agreement.
“ Refinancing Fees ” with respect to any refinancing of Indebtedness permitted under subsection 6.1(ii) , any reasonable fees, expenses, premiums, make whole payments, and accrued and unpaid interest refinanced or paid or incurred in connection therewith.
“ Register ” is defined in subsection 2.1D(i) .
“ Regulation D ” means Regulation D of the Board of Governors of the Federal Reserve System, as in effect from time to time.
“ Related Parties ” means: (a) Family Members (defined below); (b) directors of LVSI or Venetian and employees of LVSI or Venetian who are senior managers or officers of LVSI, Venetian, Interface or any of their Affiliates; (c) any Person who receives an interest in LVSI or Venetian from any individual referenced in clauses (a) - (b) in a gratuitous transfer, whether by
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gift, bequest or otherwise, to the extent of such interest; (d) the estate of any individual referenced in clauses (a) - (c) ; (e) a trust for the benefit of one or more of the individuals referenced in clauses (a) - (c) ; and/or (f) an entity owned or controlled, directly or indirectly, by one or more of the individuals, estates or trusts referenced in clauses (a) - (e) . For the purpose of this paragraph, a “Family Member” shall include: (a) Sheldon G. Adelson; (b) Dr. Miriam Adelson; (c) any sibling of either of the foregoing; (d) any issue of any one or more of the individuals referenced in the preceding clauses (a) - (c) ; and (e) the spouse or issue of the spouse of one or more of the individuals referenced in the preceding clauses (a) - (d) .
“ Release ” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Materials), including the movement of any Hazardous Materials through the air, soil, surface water or groundwater.
“ Requisite Lenders ” means Lenders having or holding more than 50% of the sum of the aggregate outstanding principal amount of all Loans and unused amount of the Commitments of all Lenders.
“Resort Complex” means the Existing Facility and the Phase II Project.
“ Resort Complex Operative Documents ” means the Cooperation Agreement, the Harrah’s Shared Roadway Agreement, the HVAC Services Agreements, the Predevelopment Agreement, the Improvement Phasing Agreement, the Site Easements, the Master Lease and the Walgreens Lease.
“ Restricted Payment ” means (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of equity Securities of either Borrower now or hereafter outstanding, except a dividend or distribution payable solely in shares of that class of equity Securities to the holders of that class (or the accretion of such dividends or distribution), (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of equity Securities of any Borrower now or hereafter outstanding, (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of equity Securities of any Borrower now or hereafter outstanding, and (d) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to the Phase II Mall Contribution.
“ Restricted Subsidiary ” has the meaning given in the Bank Facilities Agreement.
“ Scotia Capital ” is defined in the preamble.
“ SECC ” means the exposition and meeting facilities commonly known as the Sands Expo and Convention Center.
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“ Secured Parties ” means, collectively, the Lenders, the Administrative Agent, each counterparty to a Rate Protection Agreement that is (or at the time such Rate Protection Agreement was entered into, was) a Lender or an Affiliate thereof.
“ Securities ” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
“ Securities Act ” means the Securities Act of 1933, as amended from time to time, and any successor statute.
“ Security Agreement ” means the Security Agreement executed and delivered by each Borrower, substantially in the form of Exhibit D-2 annexed hereto.
“Site” means the real property consisting of approximately 14 acres adjoining the Existing Site and owned by LCR.
“Site Easement” means any easement appurtenant, easement in gross, license agreement and other right running for the benefit of the Borrowers, the Existing Facility, the Phase II Project or appurtenant to the Site and/or the Existing Site which benefits or burdens the Resort Complex, including those certain easements and licenses described in the Title Insurance Policies.
“ Solvent ” means, with respect to any Person, that as of the date of determination both (a) (i) the then fair saleable value of the property of such Person is (A) greater than the total amount of liabilities (including contingent liabilities) of such Person and (B) not less than the amount that will be required to pay the probable liabilities on such Person’s then existing debts as they become absolute and matured considering all financing alternatives and potential asset sales reasonably available to such Person; (ii) such Person’s capital is not unreasonably small in relation to its business or any contemplated or undertaken transaction; and (iii) such Person does not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts as they become due; and (b) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
“Stop Funding Notice” has the meaning given in the Disbursement Agreement.
“ Subsidiary ” means, with respect to any Person, (a) any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether
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directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof and (b) any partnership or limited liability company of which more than 50% of such entities’ capital accounts, distribution rights, general or limited partnership interests or membership interests are owned or controlled directly or indirectly by such Person or one of more other Subsidiaries of that Person or a combination thereof.
“ Subsidiary Guarantor ” has the meaning given in the Bank Facilities Agreement.
“ Substantial Completion ” has the meaning given in the Disbursement Agreement.
“ Substantial Completion Date ” means the date on which Substantial Completion occurs.
“ Substitute Lender ” is defined in subsection 9.7(A) .
“ Supplemental Agent ” is defined in subsection 8.1B .
“ Supplier Joint Venture ” means any Person that supplies or provides materials or services to any Borrower or any contractor in the Resort Complex and in which a Borrower or one of its Subsidiaries have Investments.
“ Tax ” or “ Taxes ” means any present or future tax, levy, impost, duty, charge, fee, deduction or withholding of any nature and whatever called, by whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or assessed; provided that “ Tax on the overall net income ” of a Person shall be construed as a reference to a tax imposed by the jurisdiction in which that Person is organized or in which that Person’s principal office (and/or, in the case of a Lender, its lending office) is located or in which that Person (and/or, in the case of a Lender, its lending office) is deemed to be doing business on all or part of the net income, profits or gains (whether worldwide, or only insofar as such income, profits or gains are considered to arise in or to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in the case of a Lender, its lending office).
“ Termination Date ” means the date on which all payment Obligations then due and payable have been repaid in full in cash and all Commitments shall have terminated.
“ Title Company ” means First American Title Insurance Company or an Affiliate thereof and/or one or more other title insurance companies reasonably satisfactory to the Administrative Agent.
“ Title Insurance Policies ” means the Secured Parties’ A.L.T.A. policy of title insurance issued by the Title Company as of the Closing Date, including all amendments thereto, endorsements thereof and substitutions or replacements therefor.
“ Transactions ” is defined in subsection 3.1K(ii) .
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“ Transaction Costs ” means the fees, costs and expenses payable by the Borrowers on or before the Closing Date in connection with this Agreement, the other Loan Documents and the initial Credit Extension hereunder.
“ type ” means, relative to any Loan, the portion thereof, if any, being maintained as a Base Rate Loan or a Eurodollar Rate Loan.
“ UCC ” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided , that if, with respect to any UCC financing statement or by reason of any provisions of law, the perfection or the effect of perfection or non-perfection of the security interests granted to the Administrative Agent pursuant to the applicable Loan Document is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New York, then “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of each Loan Document and any UCC financing statement relating to such perfection or effect of perfection or non-perfection.
“ United States ” or “ U.S. ” means the United States, its fifty states and the District of Columbia.
“ Venetian ” means Venetian Casino Resort, LLC and its successors.
“ Walgreens Lease ” means that certain Commercial Lease dated as of February 2004 between LCR and Cap II—Buccaneer, LLC, a New Mexico limited liability company, as assigned in accordance with the terms of this Agreement by LCR to the Phase II Mall Subsidiary.
“ Walgreens Air Space ” means the real property situated in the County of Clark, State of Nevada described in the Walgreens Lease and more specifically described in Exhibit B to the Deed of Trust.
“ Withdrawal Period ” is defined in subsection 9.7(B) .
1.2 Accounting Terms ; Utilization of GAAP for Purposes of Calculations Under Agreement .
Except as otherwise expressly provided in this Agreement (including the last sentence of this subsection 1.2 ), all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by the Borrowers to Lenders pursuant to clauses (i) , (ii) and (iii) of subsection 5.1 shall be prepared in accordance with GAAP as in effect at the time of such preparation. Calculations in connection with the definitions, covenants and other provisions of this Agreement shall utilize accounting principles and policies in conformity with those used to prepare the financial statements referred to in subsection 4.3 .
1.3 Other Definitional Provisions and Rules of Construction .
(A) Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference.
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(B) References to “Sections” and “subsections” shall be to Sections and subsections, respectively, of this Agreement unless otherwise specifically provided.
(C) The use in any of the Loan Documents of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not nonlimiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.
(D) Any reference to any agreement or instrument shall be deemed to include a reference to such agreement or instrument as assigned, amended, supplemented or otherwise modified from time to time, but only to the extent in accordance with subsection 6.12 (to the extent applicable).
2. Amounts and Terms of Commitments and Loans.
2.1 Commitments; Making of Loans; the Register; Notes.
(A) Commitments . Subject to the terms and conditions of this Agreement, from time to time on any Business Day occurring from and after the Closing Date but on or prior to the Commitment Termination Date, each Lender that has a Commitment, agrees that it will severally make loans (relative to such Lender, its “ Loans ”) to the Borrowers equal to such Lender’s Percentage of the aggregate amount of each borrowing of the Loans requested by the Borrowers to be made on such day. No amounts paid or prepaid with respect to Loans may be reborrowed. No Lender shall be permitted or required to make any Loan if, after giving effect thereto, the aggregate outstanding principal amount of all Loans of such Lender would exceed such Lender’s Percentage of the then existing Commitment Amount. Each Lender’s Commitment shall expire on the Commitment Termination Date.
(B) Borrowing Mechanics . Loans made on any Funding Date shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in excess of that amount.
(i) Whenever the Borrowers desire that Lenders make Loans, the Borrowers shall deliver to the Disbursement Agent the Advance Request and related documentation required by the terms of Section 2.4.1(a) of the Disbursement Agreement. In addition, the Borrowers shall deliver to the Administrative Agent a Borrowing Notice no later than 1:00 p.m. (New York City time) at least three Business Days in advance of the proposed Funding Date (in the case of a Eurodollar Rate Loan) or at least one Business Day in advance of the proposed Funding Date (in the case of a Base Rate Loan). The Borrowing Notice shall specify (i) the proposed Funding Date (which shall be a Business Day), (ii) the amount and type of Loans requested, (iii) whether such Loans shall be Base Rate Loans or Eurodollar Rate Loans, and (iv) in the case of any Loans requested to be made as Eurodollar Rate Loans, the initial Interest Period requested therefor. The Borrowers shall notify the Administrative Agent prior to the funding of any such Loans in the event that any of the matters to
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which the Borrowers are required to certify in the applicable Borrowing Notice and/or the applicable Advance Request is no longer true and correct as of the applicable Funding Date, and the acceptance by the Borrowers of the proceeds of any Loans shall constitute a recertification by the Borrowers, as of the applicable Funding Date, as to the matters to which the Borrowers is required to certify in the applicable Borrowing Notice and the applicable Funding Date.
(ii) Except as otherwise provided in subsections 2.6B , 2.6C and 2.6G , a Borrowing Notice for a Eurodollar Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and the Borrowers shall be bound to make a Borrowing in accordance therewith.
(iii) All proceeds of Loans shall be deposited in the Phase II Mall Loan Proceeds Account and/or the Disbursement Account in accordance with the Disbursement Agreement.
(C) Lending of Funds . All Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their respective Percentage, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of a default by any other Lender in that other Lender’s obligation to make a Loan requested hereunder. Promptly after receipt by the Administrative Agent of an Advance Request, the Construction Consultant’s certificate from the Disbursement Agent and a Borrowing Notice pursuant to subsection 2.1B , the Administrative Agent shall notify each Lender of the proposed Borrowing. Each Lender shall (unless the Administrative Agent shall have subsequently received a Stop Funding Notice) make the amount of its Loan available to the Administrative Agent not later than 12:00 Noon (New York City time) on the applicable Funding Date, in same day funds in Dollars, at the Funding and Payment Office, and, after receipt thereof as aforesaid the Administrative Agent shall deposit such funds in the Phase II Mall Loan Proceeds Account and/or the Disbursement Account in accordance with the Disbursement Agreement no later than 1:00 p.m. (New York City time) on the applicable Funding Date (and in so doing such Loans shall be deemed made available to the Borrowers hereunder) and the Disbursement Agent shall then make the proceeds of such Loans available to the Borrowers in accordance with and upon fulfillment of the conditions set forth in the Disbursement Agreement.
(i) The Administrative Agent shall notify each relevant Lender promptly upon receipt of any Stop Funding Notice, but shall bear no liability if, despite the receipt of such Stop Funding Notice, any Lender makes available any money to the Administrative Agent in respect of the requested Loans. In such event, the Administrative Agent shall refund the amount received by it as promptly as possible and in any event by the following Business Day.
(ii) Unless the Administrative Agent shall have been notified by any Lender prior to the Funding Date for any Loans that such Lender does not intend to make available to the Administrative Agent the amount of such Lender’s Loan requested on such Funding Date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such Funding Date and the
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Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the Borrowers a corresponding amount on such Funding Date. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Funding Date until the date such amount is paid to the Administrative Agent, at the customary rate set by the Administrative Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate. If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrowers and the Borrowers shall immediately pay such corresponding amount to the Administrative Agent together with interest thereon, for each day from such Funding Date until the date such amount is paid to the Administrative Agent, at the rate payable under this Agreement for Base Rate Loans. Nothing in this subsection 2.1C shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrowers may have against any Lender as a result of any default by such Lender hereunder.
(D) The Register .
(i) The Administrative Agent (or its agent or sub-agent appointed by it) shall maintain, as agent for the Borrower, at its address referred to in subsection 9.9 , a register for the recordation of the names and addresses of Lenders and the Commitments and Loans of each Lender from time to time (the “ Register ”). The Register, as in effect at the close of business on the preceding Business Day, shall be available for inspection by the Borrowers or any Lender at any reasonable time and from time to time upon reasonable prior notice.
(ii) The Administrative Agent shall record, or shall cause to be recorded, in the Register the Commitment and the Loans (in accordance with the provisions of subsection 9.1 ) from time to time of each Lender, and each repayment or prepayment in respect of the principal amount of the Loans of each Lender. Any such recordation shall be conclusive and binding on Borrowers and each Lender, absent manifest error; provided that failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitments or the Obligations of either of the Borrowers in respect of any applicable Loans.
(iii) Each Lender shall record on its internal records (including the Notes held by such Lender) the amount of each Loan made by it and each payment in respect thereof. Any such recordation shall be conclusive and binding on Borrowers, absent manifest error; provided that failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Commitments or the Obligations of either of the Borrowers in respect of any applicable Loans; and provided , further that in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.
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(iv) The Administrative Agent and Lenders shall deem and treat the Persons listed as Lenders in the Register as the holders and owners of the corresponding Commitments and Loans listed therein for all purposes hereof, and no assignment or transfer of any such Commitment or Loan shall be effective, in each case unless and until an Assignment Agreement effecting the assignment or transfer thereof shall have been accepted by the Administrative Agent and recorded in the Register as provided in subsection 9.1B(ii) . Prior to such recordation, all amounts owed with respect to the applicable Commitment or Loan shall be owed to the Lender listed in the Register as the owner thereof, and any request, authority or consent of any Person who, at the time of making such request or giving such authority or consent, is listed in the Register as a Lender shall be conclusive and binding on any subsequent holder, assignee or transferee of the corresponding Commitments or Loans.
(E) Notes . The Borrowers agree that, upon request to the Administrative Agent by any Lender, the Borrowers will execute and deliver to such Lender a Note evidencing the Loans made by, and payable to the order of, such Lender in a maximum principal amount equal to such Lender’s Percentage of the Phase II Mall Construction Loan. Each Borrower hereby irrevocably authorizes each Lender to make (or cause to be made) appropriate notations on the grid attached to such Lender’s Note (or on any continuation of such grid), which notations, if made, shall evidence, inter alia , the date of, the outstanding principal amount of, and the interest rate and Interest Period applicable to the Loans evidenced thereby. Such notations shall, to the extent not inconsistent with notations made by the Administrative Agent in the Register, be conclusive and binding on each Obligor absent manifest error; provided , however , that the failure of any Lender to make any such notations shall not limit or otherwise affect any Obligations of any Borrower.
2.2 Interest on the Loans .
(A) Rate of Interest . Subject to the provisions of subsections 2.6 and 2.7 , each Loan shall bear interest on the unpaid principal amount thereof from the date made through maturity (whether by acceleration or otherwise) at a rate determined by reference to the Base Rate or the Adjusted Eurodollar Rate. The applicable basis for determining the rate of interest with respect to any Loan shall be selected by the Borrowers initially at the time a Borrowing Notice is given with respect to such Loan pursuant to subsection 2.1B , and the basis for determining the interest rate with respect to any Loan may be changed from time to time pursuant to subsection 2.2D . If on any day a Loan is outstanding with respect to which notice has not been delivered to the Administrative Agent in accordance with the terms of this Agreement specifying the applicable basis for determining the rate of interest, then for that day that Loan shall bear interest determined by reference to the Base Rate. Subject to the provisions of subsections 2.2E and 2.7 , the Loans shall bear interest at a rate per annum as follows:
(i) if a Base Rate Loan, then from the date of funding of such Loan at the sum of the Base Rate plus the Applicable Margin for such Loans; or
(ii) if a Eurodollar Rate Loan, then from the date of funding of such Loan at the sum of the Adjusted Eurodollar Rate plus the Applicable Margin for such Loans.
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All Eurodollar Rate Loans shall bear interest from and including the first day of the applicable Interest Period to (but not including) the last day of such Interest Period at the interest rate determined as applicable to such Eurodollar Rate Loan.
(B) Interest Periods . In connection with each Eurodollar Rate Loan, the Borrowers may, pursuant to the applicable Borrowing Notice or Conversion/Continuation Notice, as the case may be, select an interest period (each an “ Interest Period ”) to be applicable to such Loan, which Interest Period shall be, at Borrowers’ option, either a one, two, three or six month period; provided that:
(i) the initial Interest Period for any Eurodollar Rate Loan shall commence on the Funding Date in respect of such Loan, in the case of a Loan initially made as a Eurodollar Rate Loan, or on the date specified in the applicable Conversion/Continuation Notice, in the case of a Loan converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable to a Eurodollar Rate Loan continued as such pursuant to a Conversion/Continuation Notice, each successive Interest Period shall commence on the day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided that, if any Interest Period would otherwise expire on a day that is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to subsection 2.2B(v) , end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the Loans shall extend beyond the Maturity Date for such Loans;
(vi) no Interest Period shall extend beyond a date on which Borrowers are required to make a scheduled payment of principal of the Loans unless the sum of (a) the aggregate principal amount of Loans that are Base Rate Loans plus (b) the aggregate principal amount of Loans that are Eurodollar Rate Loans with Interest Periods expiring on or before such date plus (c) the excess of the Commitments then in effect over the aggregate principal amount of the Loans then outstanding equals or exceeds the principal amount required to be paid on the Loans or the permanent reduction of the Commitments that is scheduled to occur, on such date;
(vii) there shall be no more than nine Interest Periods outstanding at any time;
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(viii) in the event the Borrowers fail to specify an Interest Period for any Eurodollar Rate Loan in the applicable Borrowing Notice or Conversion/Continuation Notice, the Borrowers shall be deemed to have selected an Interest Period of one month; and
(ix) the Borrowers may not select an Interest Period of greater than one month until sixty days after the Closing Date (unless prior thereto the Administrative Agent provides written notice that the syndication has been completed).
(C) Interest Payments . Subject to the provisions of subsection 2.2E , interest on each Loan shall be payable in arrears (i) on each Interest Payment Date with respect to such Loan, (ii) upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid and (iii) at maturity of the Loans, including final maturity of the Loans; provided , however , with respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be payable on the applicable Interest Payment Date. The Borrowers shall include in each Advance Request delivered pursuant to Section 2.4.1(a) of the Disbursement Agreement a request that a portion of the Advance covered by such Advance Request shall be made to pay Debt Service which is then due and payable (or will be due and payable prior to 30 days after the Advance Date set forth in such Advance Request). If the Borrowers fail to set forth such information in any Advance Request or fail to deliver timely any Advance Request therefor, then the Administrative Agent may deliver such information and a request for payment to the Disbursement Agent, the Construction Consultant and the Borrowers, upon which request the Borrowers shall revise the Advance Request to provide for such payment. The Borrowers acknowledge that failure of any notice referenced in this subsection 2.2(C) or Section 2.8 of the Disbursement Agreement to be delivered shall not in any way exonerate or diminish the Borrowers’ obligation to make all payments under the Loan Documents as and when due.
(D) Conversion or Continuation . Subject to the provisions of subsection 2.6 , the Borrowers shall have the option (i) to convert at any time all or any part of its outstanding Loans equal to $1,000,000 and integral multiples of $1,000,000 in excess of that amount from Loans bearing interest at a rate determined by reference to one basis to Loans bearing interest at a rate determined by reference to an alternative basis or (ii) upon the expiration of any Interest Period applicable to a Eurodollar Rate Loan, to continue all or any portion of such Loan equal to $1,000,000 and integral multiples of $1,000,000 in excess of that amount as a Eurodollar Rate Loan; provided, however , that a Eurodollar Rate Loan may only be converted into a Base Rate Loan on the expiration date of an Interest Period applicable thereto.
Borrowers shall deliver a Conversion/Continuation Notice to the Administrative Agent no later than 1:00 p.m. (New York City time) at least one Business Day in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least three Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan). A Conversion/Continuation Notice shall specify (i) the proposed conversion/continuation date (which shall be a Business Day), (ii) the amount and type of the Loan to be converted/continued, (iii) the nature of the proposed conversion/continuation, (iv) in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan, the requested Interest Period, and (v) in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan, that no Potential Event of Default or Event of Default has occurred
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and is continuing. In lieu of delivering the above-described Conversion/Continuation Notice, the Borrowers may give the Administrative Agent telephonic notice by the required time of any proposed conversion/continuation under this subsection 2.2D ; provided that such notice shall be promptly confirmed in writing by delivery of a Conversion/Continuation Notice to the Administrative Agent on or before the proposed conversion/continuation date. Upon receipt of written or telephonic notice of any proposed conversion/continuation under this subsection 2.2D , the Administrative Agent shall promptly transmit such notice by telefacsimile or telephone to each Lender.
Neither the Administrative Agent nor any Lender shall incur any liability to the Borrowers in acting upon any telephonic notice referred to above that the Administrative Agent believes in good faith to have been given by a duly Authorized Officer or other Person authorized to act on behalf of the Borrowers or for otherwise acting in good faith under this subsection 2.2D , and upon conversion or continuation of the applicable basis for determining the interest rate with respect to any Loans in accordance with this Agreement pursuant to any such telephonic notice Borrowers shall have effected a conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B , 2.6C and 2.6G , a Conversion/Continuation Notice for conversion to, or continuation of, a Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate Determination Date, and Borrowers shall be bound to effect a conversion or continuation in accordance therewith.
(E) Default Rate . Upon the occurrence and during the continuation of any Event of Default, the outstanding principal amount of all overdue amounts and, to the extent permitted by applicable law, any interest payments thereon not paid when due and any fees and other amounts then due and payable hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable upon demand at a rate that is 2% per annum in excess of the interest rate otherwise payable under this Agreement for Base Rate Loans. Payment or acceptance of the increased rates of interest provided for in this subsection 2.2E is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of the Administrative Agent or any Lender.
(F) Computation of Interest and Commitment Fees. Interest on the Loans and commitment fees shall be computed on the basis of (i) a 360-day year, in the case of Eurodollar Rate Loans and (ii) a 365 or 366-day year, in respect of Base Rate Loans and commitment fees, in each case for the actual number of days elapsed in the period during which it accrues. In computing interest on any Loan, (x) the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, the last Interest Payment Date with respect to such Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be included, and (y) the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the
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case may be, shall be excluded; provided that if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.
2.3 Fees .
(A) Commitment Fees . The Borrowers agree to pay to the Administrative Agent, for distribution to each Lender in proportion to that Lender’s Percentage, commitment fees for the period from and including the Closing Date to and excluding the Commitment Termination Date equal to the average of the daily aggregate Commitment Amounts multiplied by 0.375% per annum , in each case such commitment fees to be calculated on the basis of a 360-day year and the actual number of days elapsed and to be payable quarterly in arrears on each Quarterly Payment Date, commencing on the first such date to occur after the Closing Date, and on the Commitment Termination Date, as applicable.
(B) Annual Administrative Fee . The Borrowers agree to pay to the Administrative Agent an annual administrative fee in the amount and at the times set forth in the Arranger’s Fee Letter.
(C) Other Fees . The Borrowers agree to pay to the Agents such other fees in the amounts and at the times as may be agreed by them in writing.
2.4 Repayments , Prepayments and Reductions in Commitments; General Provisions Regarding Payments . The Borrowers shall repay, in full, the unpaid principal amount of the Loans upon the Maturity Date. Prior thereto, payments and prepayments of the Loans shall or may be made as set forth below:
(A) Prepayments and Unscheduled Reductions in Commitments .
(i) Voluntary Prepayments . The Borrowers may, upon not less than one Business Day’s prior written or telephonic notice, in the case of Base Rate Loans, and three Business Days’ prior written or telephonic notice, in the case of Eurodollar Rate Loans, in each case given to the Administrative Agent by 1:00 p.m. (New York City time) on the date required and, if given by telephone, promptly confirmed in writing to the Administrative Agent (which original written or telephonic notice Administrative Agent will promptly transmit by telefacsimile or telephone to each Lender), at any time and from time to time prepay any Loans on any Business Day in whole or in part in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in excess of that amount; provided , however , that with respect to any Eurodollar Rate Loan not prepaid on the expiration of the Interest Period applicable thereto the Borrowers shall pay any amount payable pursuant to subsection 2.6D ; provided , further , that no such voluntary partial prepayments will be permitted prior to Substantial Completion unless the Borrowers demonstrate in an Officers’ Certificate that the Phase II Project is In Balance on a pro forma basis for such prepayment. Notice of prepayment having been given as aforesaid, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein. Any such voluntary prepayment shall be applied as specified in subsection 2.4B(iv) .
39 . (ii) Voluntary Reductions of Commitments . After Substantial Completion, the Borrowers may, upon not less than three Business Days’ prior written or telephonic notice confirmed in writing to the Administrative Agent (which original written or telephonic notice Administrative Agent will promptly transmit by telefacsimile or telephone to each Lender), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Loan Commitments; provided that any such partial reduction of such Commitments shall be in an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in excess of that amount; and further provided that the Borrowers may terminate in whole the Loan Commitments prior to Substantial Completion upon payment in full of the Obligations (other than those which survive the expiration or earlier termination of the Loan Documents). The Borrowers’ notice to the Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of such Commitments shall be effective on the date specified in Borrowers’ notice and shall reduce such Commitment of each Lender proportionately to its unfunded Commitment. Any such voluntary reduction of the Commitments shall be applied as specified in subsection 2.4B(iv) .
(iii) Mandatory Prepayments . The Loans shall be prepaid in the amounts and under the circumstances set forth below, all such prepayments to be applied as set forth below or as more specifically provided in subsection 2.4B(iv) :
(a) Change of Control . No later than the fifth Business Day following any Change of Control.
(b) Prepayments From Net Asset Sale Proceeds . No later than the fifth Business Day following the date of receipt by the Borrowers of any Net Asset Sale Proceeds in respect of any Asset Sale (other than Net Asset Sale Proceeds in respect of the sale of (i) any obsolete worn out or surplus assets or assets no longer used or useful in the business of the Phase II Mall and (ii) construction equipment having a fair market value not in excess of $4,000,000 prior to the Phase II Mall Release Date, but only in each case to the extent reinvested in the business of the Borrowers within 180 days of receipt), the Borrowers shall prepay the Loans in an aggregate amount equal to such Net Asset Sale Proceeds.
(c) Prepayments from Net Loss Proceeds . Subject to the Disbursement Agreement and the Cooperation Agreement (to the extent applicable to the Phase II Project), no later than the fifth Business Day on which Net Loss Proceeds are required to be applied to prepayment of Loans pursuant to the last sentence of this subsection 2.4A(iii)(c) , the Borrowers shall prepay the Loans in an amount equal to such Net Loss Proceeds; provided , however , so long as no Event of Default has occurred and is continuing, the Borrowers may use such Net Loss Proceeds to repair, restore and replace the property or asset with respect to which such Net Loss Proceeds were paid in order to compensate the Borrowers for the Event of Loss which occurred thereto so long as such Net Loss Proceeds are used for such purposes within 365 days of the Borrowers’ receipt of such Net Loss Proceeds or as otherwise required under the Phase II Mall Sale
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Agreement. To the extent such Net Loss Proceeds are not so reinvested, the Borrowers will make a prepayment of the Loans within five Business Days of the end of such 365 day period.
(d) Prepayments Due to Incurrence of Debt . On the fifth Business Day following the date of receipt by the Borrowers, of the proceeds (including Cash, real property or other property) (any such proceeds, net of underwriting discounts and commissions and other reasonable costs and expenses associated therewith, including reasonable legal fees and expenses, being “ Net Proceeds ”) from the incurrence of any debt of the Borrowers (other than any debt expressly permitted under subsection 6.1 ), the Borrowers shall prepay the Loans in an aggregate amount equal to 100% of such Net Proceeds.
(e) Calculations of Net Proceeds Amounts; Additional Prepayments Based on Subsequent Calculations . Concurrently with any prepayment of the Loans pursuant to subsections 2.4A(iii)(a)-(d) , the Borrowers shall deliver to the Administrative Agent an Officers’ Certificate demonstrating the calculation of the amount (the “ Net Proceeds Amount ”) of the applicable Net Asset Sale Proceeds, Net Loss Proceeds or Net Proceeds, as the case may be, that gave rise to such prepayment. In the event that the Borrowers shall subsequently determine that the actual Net Proceeds Amount was greater than the amount set forth in such Officers’ Certificate, the Borrowers shall promptly make an additional prepayment of the Loans in an amount equal to the amount of such excess, and Borrowers shall concurrently therewith deliver to the Administrative Agent an Officers’ Certificate demonstrating the derivation of the additional Net Proceeds Amount resulting in such excess.
(iv) Application of Prepayments .
(a) Application of Voluntary Prepayments by Type of Loan and Order of Maturity . Any voluntary prepayments pursuant to subsection 2.4A(i) shall be applied as specified by the Borrowers in the applicable notice of prepayment; provided that in the event the Borrowers fail to specify the Loans to which any such prepayment shall be applied, such prepayment shall be applied first to repay outstanding Base Rate Loans to the full extent thereof on a pro rata basis and second to repay outstanding Euro dollar Rate Loans on a pro rata basis in each case in a manner which minimizes the amount of any payments required to be made by the Borrowers pursuant to subsection 2.6D .
(B) General Provisions Regarding Payments .
(i) Manner and Time of Payment . All payments by the Borrowers of principal, interest, fees and other Obligations hereunder and under the Notes shall be made in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or condition, and delivered to the Administrative Agent not later than 1:00 p.m. (New York City time) on the date due at the Funding and Payment Office for the account of Lenders; for purposes of computing interest and fees, funds received by the Administrative Agent after that time on such due date shall be deemed to have been paid by the Borrowers on the next succeeding Business Day. The Borrowers hereby
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authorize the Administrative Agent to charge their accounts with the Administrative Agent in order to cause timely payment to be made to the Administrative Agent of all principal, interest, fees and expenses due hereunder (subject to sufficient funds being available in its accounts for that purpose).
(ii) Application of Payments to Principal and Interest . All payments in respect of the principal amount of any Loan shall include payment of accrued interest on the principal amount being repaid or prepaid, and all such payments shall be applied to the payment of interest before application to principal.
(iii) Apportionment of Payments . Aggregate principal and interest payments in respect of Loans shall be apportioned among all outstanding Loans proportionately to Lenders’ respective Pro Rata Shares. The Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute to each Lender, at its primary address set forth on Schedule 2.1 or at such other address as such Lender may request, its Pro Rata Share of all such payments and Percentage of the commitment fees received by the Administrative Agent pursuant to subsection 2.3 . Notwithstanding the foregoing provisions of this subsection 2.4B(iii) , if, pursuant to the provisions of subsection 2.6C , any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate Loans in lieu of its Percentage of any Eurodollar Rate Loans, the Administrative Agent shall give effect thereto in apportioning payments received thereafter.
(iv) Payments on Business Days . Whenever any payment to be made hereunder shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and, such extension of time shall be included in the computation of the payment of interest hereunder or of the commitment fees hereunder, as the case may be.
(v) Notation of Payment . Each Lender agrees that before disposing of any Note held by it, or any part thereof (other than by granting participations therein), that Lender will make a notation thereon of all Loans evidenced by that Note and all principal payments previously made thereon and of the date to which interest thereon has been paid; provided that the failure to make (or any error in the making of) a notation of any Loan made under such Note shall not limit or otherwise affect the obligations of the Borrowers hereunder or under such Note with respect to any Loan or any payments of principal or interest on such Note.
2.5 Use of Proceeds .
(A) Phase II Mall Project Costs . The proceeds of Borrowings shall be used to pay for the financing, design, development and construction costs of the Phase II Mall as set forth therefor in the Project Budget (including interest and fees relating to the Loans) and to reimburse the Borrowers for design, development and construction costs for the Phase II Mall for which payments have been made and which such payments exceed the initial Phase II Mall Contribution of $25,371,098 but only so long as (i) such payments were made by the Borrowers prior to the subdivision of the Phase II Land into one or more separate legal parcels for the Phase
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II Mall Air Parcel, (ii) the initial Phase II Mall Contribution in the amount of $25,371,098 has been fully funded and applied in accordance with the Phase II Mall Construction Loan Documents and (iii) such reimbursement is for such payments which exceed the initial Phase II Mall Contribution of $25,371,098. In no event shall any proceeds of Borrowings be used to pay for any damages, liquidated or otherwise, or other amounts payable by LCR or the Borrowers pursuant to the Phase II Mall Sale Agreement and/or the Phase II Mall SA Assignment Agreement or for operating costs of the Phase II Mall (unless, in each case, such item is set forth in the Project Budget as a separate Line Item) or for operating costs of the Phase II Hotel/Casino.
(B) Margin Regulations . No portion of the proceeds of any Borrowing under this Agreement shall be used by the Borrowers or any of their Subsidiaries in any manner that might cause the Borrowing or the application of such proceeds to violate Regulation U, Regulation T or Regulation X of the Board of Governors of the Federal Reserve System or any other regulation of such Board or to violate the Exchange Act, in each case as in effect on the date or dates of such Borrowing and such use of proceeds.
2.6 Special Provisions Governing Eurodollar Rate Loans .
Notwithstanding any other provision of this Agreement to the contrary, the following provisions shall govern with respect to Eurodollar Rate Loans as to the matters covered:
(A) Determination of Applicable Interest Rate . As soon as practicable after 10:00 A.M. (New York City time) on each Interest Rate Determination Date, the Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to the Borrowers and each Lender.
(B) Inability to Determine Applicable Interest Rate . In the event that the Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans, that by reason of circumstances affecting the interbank Eurodollar market adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of Adjusted Eurodollar Rate, the Administrative Agent shall on such date give notice (by telefacsimile or by telephone confirmed in writing) to the Borrowers and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans until such time as Administrative Agent notifies the Borrowers and Lenders that the circumstances giving rise to such notice no longer exist and (ii) any Borrowing Notice or Conversion/Continuation Notice given by the Borrowers with respect to the Loans in respect of which such determination was made shall be deemed to be made with respect to Base Rate Loans.
(C) Illegality or Impracticability of Eurodollar Rate Loans . In the event that on any date any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with Borrowers and the Administrative Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans
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(i) has become unlawful as a result of compliance by such Lender in good faith with any law, treaty, governmental rule, regulation, guideline or order not in effect on the date such Person became a Lender (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) would cause such Lender material financial hardship as a result of contingencies occurring after the date of this Agreement which materially and adversely affect the interbank Eurodollar market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “ Affected Lender ” and it shall on that day give notice (by telefacsimile or by telephone confirmed in writing) to the Borrowers and the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each other Lender). Thereafter (a) the obligation of the Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by the Affected Lender (which such Affected Lender shall do at the earliest practicable date), (b) to the extent such determination by the Affected Lender relates to a Eurodollar Rate Loan then being requested by the Borrowers pursuant to a Borrowing Notice or a Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or convert such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender’s obligation to maintain its outstanding Eurodollar Rate Loans (the “ Affected Loans ”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (d) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination. Except as provided in the immediately preceding sentence, nothing in this subsection 2.6C shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance with the terms of this Agreement.
(D) Compensation For Breakage or Non-Commencement of Interest Periods . The Borrowers shall compensate each Lender, upon written request by that Lender (which request shall set forth the basis for requesting such amounts), for all reasonable losses, expenses and liabilities (including any interest paid by that Lender to lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense or liability sustained by that Lender in connection with the liquidation or re-employment of such funds) which that Lender may sustain: (i) if for any reason (other than a default by that Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date specified therefor in a Borrowing Notice or a telephonic request for borrowing, as applicable, or a conversion to or continuation of any Eurodollar Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic request for conversion or continuation, (ii) if any prepayment (including any prepayment pursuant to subsection 2.4A(i) ) or other principal payment or any conversion of any of its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan, (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any date specified in a notice of prepayment given by the Borrowers, or (iv) as a consequence of any other default by the Borrowers in the repayment of its Eurodollar Rate Loans when required by the terms of this Agreement.
(E) Booking of Eurodollar Rate Loans . Any Lender may make, carry or transfer Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of that Lender.
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(F) Assumptions Concerning Funding of Eurodollar Rate Loans . Calculation of all amounts payable to a Lender under this subsection 2.6 and under subsection 2.7A shall be made as though that Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (a) of the definition of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit from an offshore office of that Lender to a domestic office of that Lender in the United States; provided , however , that each Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this subsection 2.6 and under subsection 2.7A .
(G) Eurodollar Rate Loans After Default . After the occurrence of and during the continuation of a Potential Event of Default or an Event of Default, (i) Borrowers may not elect to have a Loan be made or maintained as, or converted to, a Eurodollar Rate Loan after the expiration of any Interest Period then in effect for that Loan and (ii) subject to the provisions of subsection 2.6D , any Borrowing Notice or Conversion/Continuation Notice given by the Borrowers with respect to a requested borrowing or conversion/continuation that has not yet occurred shall be deemed made with respect to Base Rate Loans.
2.7 Increased Costs ; Taxes; Capital Adequacy .
(A) Compensation for Increased Costs and Taxes . Subject to the provisions of subsection 2.7B (which shall be controlling with respect to the matters covered thereby), in the event that any Lender shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or Governmental Instrumentality, in each case that becomes effective after the date hereof, or compliance by such Lender with any guideline, request or directive issued or made after the date hereof by any central bank or other Governmental Instrumentality or quasi-Governmental Instrumentality (whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to any additional Tax (other than any Tax on the overall net income of such Lender) with respect to this Agreement or any of its obligations hereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to Eurodollar Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate); or
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(iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the interbank Eurodollar market;
and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office) with respect thereto; then , in any such case, the Borrowers shall promptly pay to such Lender, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender for any such increased cost or reduction in amounts received or receivable hereunder. Such Lender shall deliver to the Borrowers (with a copy to the Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this subsection 2.7A , which statement shall be conclusive and binding upon all parties hereto absent manifest error.
(B) Withholding of Taxes .
(i) Payments to Be Free and Clear . All sums payable by the Borrowers under this Agreement and the other Loan Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of, any Tax (other than a Tax on the overall net income of any Lender) imposed, levied, collected, withheld or assessed by or within the United States or any political subdivision in or of the United States or any other jurisdiction from or to which a payment is made by or on behalf of the Borrowers or by any federation or organization of which the United States or any such jurisdiction is a member at the time of payment, all such non-excluded Taxes being hereinafter collectively referred to as “ Included Taxes ”.
(ii) Grossing-up of Payments . If the Borrowers or any other Person is required by law to make any deduction or withholding on account of any such Included Tax from any sum paid or payable by the Borrowers to the Administrative Agent or any Lender under any of the Loan Documents:
(a) the Borrowers shall notify the Administrative Agent of any such requirement or any change in any such requirement as soon as the Borrowers become aware of it;
(b) the Borrowers shall pay any such Included Tax before the date on which penalties attach thereto, such payment to be made (if the liability to pay is imposed on the Borrowers) for its own account or (if that liability is imposed on the Administrative Agent or such Lender, as the case may be) on behalf of and in the name of the Administrative Agent or such Lender;
(c) the sum payable by the Borrowers in respect of which the relevant deduction, withholding or payment is required shall be increased to the extent necessary
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to ensure that, after the making of that deduction, withholding or payment, the Administrative Agent or such Lender, as the case may be, receives on the due date a net sum equal to what it would have received had no such deduction, withholding or payment been required or made; and
(d) within 30 days after paying any sum from which it is required by law to make any deduction or withholding, and within 30 days after the due date of payment of any Included | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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