Exhibit 10.4
CONSENT, LIMITED WAIVER AND FIRST AMENDMENT TO FF&E
FACILITY CREDIT AGREEMENT
THIS
CONSENT, LIMITED WAIVER AND FIRST AMENDMENT TO FF&E FACILITY
CREDIT AGREEMENT (this “ Amendment ”) is
made and entered into as of this 23 day of May, 2007 (the
“ Effective Date ”), by and among LAS VEGAS
SANDS, LLC , a Nevada limited liability company (“
LVS ”), and VENETIAN CASINO RESORT, LLC , a
Nevada limited liability company (“ Venetian ”)
(each of LVS and Venetian are referred to herein as a “
Borrower ” and, collectively, as the “
Borrowers ”); GENERAL ELECTRIC CAPITAL
CORPORATION , as Administrative Agent for Lenders (in such
capacity herein, “ Agent ”); and the Lenders
signatory hereto.
W I T N
E S S E
T H :
WHEREAS , Borrowers, Agent and the Lenders signatory thereto
from time to time are party to that certain FF&E Facility
Credit Agreement, dated December 14, 2006 (as the same may be
amended, supplemented and modified from time to time, and as
amended herein, the “ Credit Agreement ”),
pursuant to which Lenders have extended to Borrowers certain Loans
and other financial accommodations; and
WHEREAS, Borrowers have informed Agent and Lenders that
(i) for legitimate business purposes, 100% of the Securities
of Interface will be distributed by LVS to LVSC (the “
Distribution ”), and (ii) following the
Distribution, in connection with the refinancing of the Bank Credit
Facility (as defined in the Credit Agreement prior to giving effect
hereto), the Mall Financing Agreement (as defined in the Credit
Agreement prior to giving effect hereto) and the commercial
mortgage backed securities of Interface will also simultaneously be
fully refinanced (the “ Refinancing ”; the
Distribution and the Refinancing are collectively referred to
herein as the “ Contemplated Transactions ”);
and
WHEREAS , in connection with the Contemplated Transactions,
Borrowers have requested that Agent and Lenders (i) agree to
certain amendments to the Credit Agreement, (ii) consent to
certain actions of the Borrowers otherwise prohibited under the
Credit Agreement, as in effect prior to the date hereof, and
(iii) agree to certain limited waivers with respect to certain
covenants under the Credit Agreement, in each case, on the terms
and conditions set forth herein; and
WHEREAS, to accommodate such requests, the parties have
agreed to (i) the amendments to the Credit Agreement set forth
herein, (ii) the consents with respect to certain actions of
the Borrowers otherwise prohibited under the Credit Agreement, as
in effect prior to the date hereof, and (iii) the limited
waivers with respect to certain covenants of the Borrowers under
the Credit Agreement, in each case, subject to the terms and
conditions set forth herein;
NOW, THEREFORE , in consideration of the foregoing premises,
and other good and valuable consideration, the receipt and legal
sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
Consent,
Limited Wavier and First Amendment
1.
Definitions . Unless otherwise defined herein, as the
context may require, capitalized terms used herein shall have the
meanings assigned to them in the Credit Agreement, as amended
hereby.
2.
Amendments to Credit Agreement .
(a) On
and as of the Effective Date, the Credit Agreement is hereby
amended as follows:
(i)
Section 1.1 of the Credit Agreement is hereby amended
as follows:
a)
The defined term “ Change of Control ” is hereby
amended by (1) adding to the ninth line thereof immediately
after the phrase “equity interests of LVSI” the phrase
“or Interface”, and (2) by deleting from the fifteenth
line thereof the word “Interface”.
b)
The defined term “ Excluded Subsidiary ” is
hereby amended by deleting from the second line thereof the word
and comma “Interface,”.
(b) On
and as of the New Bank Credit Facility Date (as defined below), the
Credit Agreement is hereby amended as follows:
(i)
Section 1.1 of the Credit Agreement is hereby amended
as follows:
a)
The defined term “ Excluded Subsidiary ” is
hereby amended by (1) deleting from the first and second lines
thereof the phrases “Lido Casino Resort Holding Company, LLC,
Phase II Mall Subsidiary, Phase II Mall Subsidiary Holdings,”
(2) deleting from the third line thereof the phrase
“Sands Pennsylvania, Inc.,” and (3) adding to the
third line thereof immediately following the phrase “Sands
Bethworks Gaming, LLC” the phrases “, Grand Canal Shops
Mall MM Subsidiary, Inc., Venetian Far East Limited”.
b)
The defined term “ Intercompany Mall Note ” is
hereby deleted in its entirety.
c)
The defined term “ Intercreditor Agreement ” is
hereby deleted in its entirety and the following is inserted in
lieu thereof:
“
Intercreditor Agreement ” means the Agreement Among
Creditors, dated as of the New Bank Credit Facility Date, among the
Administrative Agent and the Bank Administrative Agent, on behalf
of the Bank Lenders and the LVSC Notes Indenture Trustee, and as
Trustee under the Cooperation Agreement, attached hereto as
Exhibit G .
d)
The defined terms “ Mall Financing Agreement”
and “ Mall Permitted Refinancing Indebtedness”
are hereby deleted in their entirety.
e)
The following new defined term “ New Bank Credit Facility
Date” is hereby added in the correct alphabetical
order:
Consent,
Limited Wavier and First Amendment
2
“ New
Bank Credit Facility Date” means May 23, 2007, or
such later date on which the new Bank Credit Facility is closed and
funded.
f)
The defined term “ Permitted Lien ” is hereby
amended by adding the following new clause (xxxi)
immediately following the end of clause (xxx) thereof:
and
(xxxi) Liens on assets (other than Collateral) securing any
obligations under the LVSC Notes Documents; provided , that
the Administrative Agent and the Bank Administrative Agent (on
behalf of the Bank Lenders and the LVSC Notes Indenture Trustee)
shall have entered into the Intercreditor Agreement (or an
intercreditor agreement in substantially the same form as the
Intercreditor Agreement or otherwise reasonably satisfactory to
Administrative Agent) or an amendment to the Intercreditor
Agreement with Bank Administrative Agent (on behalf of the Bank
Lenders and the LVSC Notes Indenture Trustee) reasonably
satisfactory to Administrative Agent and all other relevant parties
thereto;
g)
The defined term “ Permitted Lien ” is hereby
further amended by deleting the phrase “and (xxx)” from
the second to last line thereof and inserting in lieu thereof the
phrase “, (xxx) and (xxxi)”.
h)
The defined term “ Phase II Mall Borrower Taxes”
is hereby deleted in its entirety.
i)
The defined term “ Restricted Subsidiary ” is
hereby amended by adding the phrase “Interface and” to
the first line thereof immediately following the word
“means”.
(ii)
Section 6.3C of the Credit Agreement is hereby deleted
in its entirety and the following is inserted in lieu
thereof:
C. [Intentionally
Reserved.]
(iii)
Section 7.2D of the Credit Agreement is hereby amended
by adding the phrase “, the LVSC Notes Documents” to
the tenth line thereof immediately following the phrase
“Facility Documents”.
(iv)
Section 7.3 of the Credit Agreement is hereby amended
by deleting therefrom clause (xviii) in its entirety.
(v)
Section 7.3 of the Credit Agreement is hereby further
amended by deleting the last sentence thereof in its
entirety.
(vi)
Section 7.4(x) of the Credit Agreement is hereby
amended by deleting the word “unsecured” from the
second line thereof.
Consent,
Limited Wavier and First Amendment
3
(vii)
Section 7.10(xxi) of the Credit Agreement is hereby
amended by deleting therefrom the reference to the phrase and comma
“the Intercompany Mall Note,”.
(viii)
Exhibit G to the Credit Agreement is hereby deleted in
its entirety and the Exhibit G attached to this
Amendment is inserted in lieu thereof.
(ix) The
existing Schedules 5.1D and 7.10 to the Credit
Agreement are hereby deleted in their entirety and the attached
Schedules 5.1D and 7.10 are inserted in lieu
thereof.
3.
Consents . Subject to the terms and conditions hereof
and notwithstanding anything to the contrary in the Credit
Agreement, the Agent and Lenders hereby consent as of the Effective
Date to the Distribution; provided , (i) immediately
following the consummation of the Distribution, Interface is and
shall remain a wholly-owned Subsidiary of LVSC, and (ii) after
giving effect to this Amendment, no Potential Event of Default or
Event of Default exists at the time of the Distribution (or would
be caused thereby). The parties hereto agree that on and as of the
New Bank Credit Facility Date, Interface shall become a Subsidiary
Guarantor under the Credit Agreement and other Loan Documents in
accordance with the terms of Section 6.11 of the Credit
Agreement.
4.
Limited Waivers . Subject to the terms and conditions
hereof and notwithstanding anything to the contrary in the Credit
Agreement, Agent and Lenders hereby agree that the covenants
contained in Section 7.6 (including subsection A
and subsection B thereof) will not be tested for a period of
120 days following the Effective Date (the “ Waiver
Period ”) and no Potential Event of Default or Event of
Default shall be deemed to occur as a result of Borrowers’
non-compliance (and Borrowers shall not be required to comply) with
Section 7.6 during the Waiver Period; provided ,
that immediately following the expiration of the Waiver Period, the
covenants set forth in Section 7.6 (including, without
limitation, with respect to Fiscal Quarters ending prior to and/or
during the Waiver Period) shall again be tested and any
non-compliance therewith (including, without limitation, any such
non-compliance which occurred with respect to Fiscal Quarters
ending prior to and/or during the Waiver Period) shall constitute a
Potential Event of Default and/or an Event of Default in accordance
with terms of the Credit Agreement. The limited waivers granted
herein shall be limited to those Potential Events of Default or
Events of Default, if any, arising solely with respect to
Section 7.6 of the Credit Agreement during the Waiver
Period and do not apply to any past, present or future Potential
Events of Default or Events of Default caused by any breach of
Section 7.6 outside the Waiver Period or any other
breach or violation of any provisions of the Credit Agreement or
any of the other Loan Documents (whether arising under
Section 7.6 or otherwise).
5.
Re
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