EXHIBIT 10.36
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VENETIAN CASINO RESORT, LLC
LAS VEGAS SANDS, INC.
LIMITED WAIVER AND FIRST AMENDMENT
TO TERM LOAN AND SECURITY AGREEMENT
This LIMITED WAIVER AND FIRST AMENDMENT TO TERM LOAN AND SECURITY AGREEMENT
(this "Agreement") is dated as of November 12, 1999 and entered into by and
among LAS VEGAS SANDS, INC., a Nevada corporation ("LVSI" ), and VENETIAN CASINO
RESORT, LLC, a Nevada limited liability company ("VCR"), as joint and several
obligors (each of LVSI and VCR, a "Borrower" and, collectively, the
"Borrowers"), GENERAL ELECTRIC CAPITAL CORPORATION, as administrative agent (in
such capacity, "Administrative Agent") for the financial institutions party to
the Equipment Loan Agreement referred to below ("Lenders"), and the Lenders
listed on the signature pages hereto and is made with reference to that certain
Term Loan and Security Agreement, dated as of December 22, 1997 (the "Equipment
Loan Agreement"), by and among Borrowers, Lenders, Administrative Agent and
BancBoston Leasing Inc., as co-agent. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Equipment
Loan Agreement.
RECITALS
WHEREAS, the Administrative Agent believes that certain Events of Default
and Defaults, as set forth on Schedule 1 hereto, may exist as of the date
hereof;
WHEREAS, Borrowers, Administrative Agent and Lenders desire to enter into
this Agreement to (i) waive those certain Events of Default and Defaults set
forth on Schedule 1 hereto (if and to the extent such defaults exist as of the
date hereof) so that Mall Release Date and Completion Date may occur on or
before November 14, 1999 and so that a release from the cash collateral account
referenced in Section 1.2(i) of the Equipment Loan Agreement can be made on the
Completion Date, and (ii) make certain other agreements and amendments as set
forth below, all upon the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
Section 1. WAIVER
Subject to the terms and conditions and in reliance on the representations,
warranties and covenants of the Borrowers set forth herein, Administrative Agent
and Requisite Lenders on behalf of the Lenders hereby waive each of the Events
of Default and Defaults set forth on Schedule 1 attached hereto (to the extent,
if any, they exist) to the extent and for the period expressly set forth in such
Schedule.
Section 2. LIMITATION ON WAIVER
This Agreement shall constitute a limited waiver, which shall be limited in
all respects precisely as set forth herein and in Schedule 1 and nothing
contained herein shall be deemed to:
(a) constitute a waiver of (i) compliance by the Borrowers with respect to
any term, provision or condition of the Equipment Loan Agreement or
any other instrument or agreement referred to therein, except as
expressly set forth in Schedule 1, or (ii) any Default or Event of
Default, except as expressly set forth on Schedule 1;
(b) constitute a waiver of any of the Mall Release Conditions or any of
the conditions for Completion or extend the time for satisfaction of
such conditions; or
(c) prejudice any right or remedy that the Administrative Agent or the
Lenders have (except to the extent such right or remedy was based upon
a default that will not exist after giving effect to this Agreement)
under or in connection with the Equipment Loan Agreement or any other
instrument or agreement referred to therein or delivered thereunder.
Except as expressly set forth herein, the terms, provisions and conditions
of the Equipment Loan Agreement and the other Loan Documents shall remain in
full force and effect and in all other respects are hereby ratified and
confirmed.
Section 3. REPRESENTATIONS AND WARRANTIES OF BORROWERS
In order to induce Lenders to enter into this Agreement and to provide the
limited waivers and consents and amend the Equipment Loan Agreement in the
manner provided herein, each of VCR and LVSI represents and warrants to each
Lender that the following statements are true, correct and complete as of the
date hereof and as of the date the conditions set forth in Section 4 are
satisfied:
(1) Each of VCR and LVSI has all requisite power and authority to enter
into this Agreement and to carry out the transactions contemplated
hereby and perform its obligations hereunder;
(2) The execution and delivery of this Agreement by VCR and LVSI and the
performance of their obligations hereunder have been duly authorized
by all necessary action on the part of VCR and LVSI;
(3) The execution and delivery by VCR and LVSI of this Agreement and the
performance by VCR and LVSI of this Agreement do not and will not (i)
violate any provision of any law or any governmental rule or
regulation applicable to the Project or to VCR or LVSI or any of their
Affiliates, the organizational documents of VCR or LVSI or any of
their Affiliates or any order, judgment or decree of any court or
other agency of government binding on VCR or LVSI or any of their
Affiliates, (ii) conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any
Material Contract of VCR or LVSI or any of their Affiliates, (iii)
result in or require the creation or imposition of any Lien upon any
of the properties or assets of VCR or LVSI or any of their Affiliates,
or (iv) require any approval of stockholders or any approval or
consent of any Person under any Material Contract of VCR or LVSI or
any of their Affiliates;
(4) The execution and delivery by VCR and LVSI of this Agreement and the
performance by VCR and LVSI of this Agreement do not and will not
require any registration with, consent or approval of, or notice to,
or other action to, with or by, any federal, state or other
governmental authority or regulatory body;
(5) This Agreement has been duly executed and delivered by VCR and LVSI
and constitutes the legally valid and binding obligation of VCR and
LVSI, enforceable against VCR and LVSI in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights
generally or by equitable principles relating to enforceability;
(6) The representations and warranties contained in Section 3 of the
Equipment Loan Agreement are and will be true, correct and complete in
all material respects on and as of the date hereof and on the date the
conditions in Section 4 hereof are satisfied to the same extent as
though made on and as of that date, except to the extent (i) such
representations and warranties specifically relate to an earlier date,
in which case they were true, correct and complete in all material
respects on and as of such earlier date and (ii) the existence of the
matters described on Schedule 1 are inconsistent with any of such
representations and warranties;
(7) The Remaining Costs are accurately reflected on that certain chart
previously delivered to the Administrative Agent and attached hereto
as Exhibit A;
(8) The schedule to achieve Completion previously delivered to the
Administrative Agent and attached hereto as Exhibit B is accurate and
true;
(9) The litigation arising out of the lawsuit filed by Borrowers against
the Construction Manager in United States District Court for the
District of Nevada and the countersuit filed by the Construction
Manager against the Borrowers and any other outstanding lawsuit,
action, claim or Lien arising out of or relating to the construction
of the Mall or the Project (the "Construction Litigation"), including
any claim made or Lien filed by Construction Manager or any contractor
or subcontractor or relating to the bonding company insuring over any
Lien relating to or binding upon the Mall or the Project or to VCR,
LVSI, Mall Construction Subsidiary or any of their Affiliates in
connection therewith, and any judgment or settlement amount owed by
the Borrowers to the Construction Manager or any contractor or
subcontractor or to the bonding company insuring over any such Lien as
a result of the Construction Litigation (all of the foregoing
collectively the "Additional Contingent Claims") cannot reasonably be
expected to have, when taken in the aggregate, a Material Adverse
Effect;
(10) the status summary of the Construction Litigation attached hereto as
Exhibit C is true and correct in all material respects as of the date
hereof;
(11) the Borrowers have sufficient Available Funds such that Available
Funds will equal or exceed Remaining Costs after giving effect to the
Additional Contingent Claims as a Remaining Cost;
(12) no Defaults or Events of Default under the Equipment Loan Agreement
exist or are continuing (other than those Defaults and Events of
Default set forth on Schedule 1 which are waived hereunder);
(13) there are no defaults beyond any applicable grace or cure period with
respect to any financing secured by the Sands Expo and Convention
Center;
(14) Xxxxxxx X. Xxxxxxx has complied with all of the terms and conditions
of that certain Subordination and Intercreditor Agreement (Trade
Claims) (the "Xxxxxxx Subordination Agreement"), the form of which is
attached hereto as Exhibit E, with respect to Xxxxxxx Trade Claims (as
defined in the Xxxxxxx Subordination Agreement) and each Lender Party
is an express third party beneficiary of the Xxxxxxx Subordination
Agreement;
(15) the Master Leases referred to in Section 8 of the FADAA Waiver to be
entered into by Borrowers contains terms which are not less favorable
to Borrowers and their Subsidiaries than would be obtainable in an
arms length transaction, including economic terms consistent with the
current rental market for comparable space in Las Vegas, Nevada; and
(16) The Project is free of all Liens and encumbrances other than Permitted
Liens.
Section 4. CONDITIONS SUBSEQUENT
Notwithstanding any of the provisions of this Agreement to the contrary,
each of the conditions set forth in this Section 4 shall be satisfied in full on
or before November 29, 1999 and the failure of one or more of the conditions set
forth in this Section 4 to be satisfied on or before November 29, 1999 shall be
deemed an Event of Default under the terms of the Equipment Loan Agreement and
the Administrative Agent and the Lenders shall be entitled to exercise any and
all available remedies:
(a) execution and delivery of waivers of all presently uncured defaults
and events of default under each of the Interim Mall Credit Agreement,
the Bank Credit Agreement and Disbursement Agreement (collectively,
the "Other Facility Waivers"), each substantially in the form of
Xxxxxxxx X-0, X-0 and D-3 hereto, and delivery to Administrative Agent
of an executed copy of each of the Other Facility Waivers;
(b) the Company shall have caused the Project to be free of all Liens and
encumbrances other than Permitted Liens, and the Title Insurer shall
have issued endorsements insuring that the Project is free of all
Liens and encumbrances other than Permitted Liens;
(c) the Unallocated Contingency Balance shall equal or exceed the Required
Minimum Contingency and Available Funds shall equal or exceed
Remaining Costs after giving effect to the Additional Contingent
Claims as a Remaining Cost (it being understood that the delivery of
the certificate set forth in (d) below shall be deemed satisfaction of
this condition);
(d) Borrowers shall have certified to the Administrative Agent, in form
and substance reasonably acceptable to Administrative Agent and
Construction Consultant, that (i) the schedule to achieve Completion
attached hereto as Exhibit B is accurate and complete and all
conditions for Completion will be satisfied by November 12, 1999 and
(ii) the Unallocated Contingency Balance equals or exceeds the
Required Minimum Contingency and Available Funds equals or exceeds
Remaining Costs after giving effect to the Additional Contingent
Claims as a Remaining Cost and such certification shall set forth in
detail the derivation of all such figures and calculations (setting
forth in detail the sources for payment of all Remaining Costs and the
sources of Available Funds);
(e) the Construction Consultant shall have certified to the Administrative
Agent, in form and substance reasonably acceptable to the
Administrative Agent, that (i) the schedule to achieve Completion
attached hereto as Exhibit B is reasonable and all conditions for
Completion may be satisfied by November 12, 1999 and (ii) the
Unallocated Contingency Balance equals or exceeds the Required Minimum
Contingency and Available Funds equals or exceeds Remaining Costs
after giving effect to the Additional Contingent Claims as a Remaining
Cost and such certification shall set forth in detail the derivation
of all such figures and calculations (setting forth in detail the
sources for payment of all Remaining Costs and the sources of
Available Funds);
(f) the Borrowers shall have made the payment of principal and interest in
full in respect of the Mortgage Notes and the Subordinated Notes due
on or before November 15, 1999;
(g) Borrowers shall have paid to the Lenders the fee described in Section
5 below;
(h) delivery to the Administrative Agent of an estoppel certificate from
the HVAC Provider in form and substance reasonably satisfactory to the
Administrative Agent, stating that, as of the date of such
certificate, (i) there are no uncured defaults, nor is the HVAC
Provider aware of any condition or state of events that with the
passage of time may result in a default, by the Company under the HVAC
Services Agreement, the Construction Agency Agreement or the HVAC
Ground Lease and (ii) such agreements remain in full force and effect;
(i) delivery to Administrative Agent of an opinion or opinions of counsel
to the Company in form and substance reasonably acceptable to the
Administrative Agent; and
(j) the Company shall have delivered to Administrative Agent, for the
benefit of Lenders, revised financial projections covering the term of
the Loans.
Section 5. WAIVER; FEE
(a) Prior to the effectiveness of this Agreement, in lieu of paying any
default interest required by Section 1.7(e) of the Equipment Loan
Agreement with respect to any Events of Default waived herein and as a
condition to granting the waivers set forth herein, Borrowers agree to
pay to each Lender a non-refundable fee of .25% of the outstanding
principal amount of the Loans and unfunded commitment for such Lender.
The fee obligation set forth herein is in addition to, and not in lieu
of, all other fees owed to Agents or Lenders pursuant to any other
document or agreement, including without limitation Section 11.4 of
the Equipment Loan Agreement.
(b) Upon effectiveness of the waivers provided for in Section 1 hereof,
Lenders waive any requirement for the conversion of LIBOR Rate Loans
to Base Rate Loans set forth in Section 1.7(d)(ii) of the Equipment
Loan Agreement based on any Defaults and Events of Default waived
hereunder and for the period of such waiver.
Section 6. CERTAIN ADDITIONAL AGREEMENTS OF BORROWERS
(a) the Borrowers agree that they shall not directly or indirectly make
any payment to or for the benefit of Xxxxxxx X. Xxxxxxx until the
Additional Contingent Claims shall be finally determined and paid in
full except for (i) payments made pursuant to and as permitted by the
Xxxxxxx Subordination Agreement, (ii) payments made in respect of
Xxxxxxx X. Xxxxxxx'x taxes, salary and as reimbursement for reasonable
expenses, in each case, if and to the extent permitted under the
Equipment Loan Agreement, and (iii) payments made to Affiliates that
are required under the Cooperation Agreement or any other arm's length
agreement entered into with an Affiliate, provided that nothing
contained herein shall be deemed to permit any such payment to or for
the benefit of Xxxxxxx X. Xxxxxxx if such payment shall be otherwise
prohibited or restricted under the Equipment Loan Agreement any other
agreement or document;
(b) Borrowers' failure to comply with any covenant hereunder shall
constitute a default hereunder and an Event of Default under the
Equipment Loan Agreement.
Section 7. ACKNOWLEDGEMENT AND CONSENT REGARDING MULTI-PARTY AGREEMENT
REGARDING GRAND CANAL SHOPS MALL, LAS VEGAS NEVADA
Lenders hereby acknowledge that Mall Construction Subsidiary and certain
other parties have entered into that certain Multiparty Agreement Regarding
Grand Canal Shops Mall, Las Vegas, Nevada, dated as of September 30, 1999, a
true, correct and complete copy of which is attached hereto as Exhibit F (the
"Mall Agreement"). Lenders hereby consent to (i) the consummation of the
transactions contemplated by the Mall Agreement on the terms described therein,
(ii) the creation of New Mall Subsidiary (as defined in the Mall Agreement) as a
wholly-owned Subsidiary of Mall Subsidiary, (iii) the creation of "Mall Inc.
Subsidiary," (as defined in the Mall Agreement) (the "New Mall Manager") as a
wholly-owned subsidiary of Mall Manager, and (iv) the transfer of a one percent
interest in Mall Subsidiary and/or New Mall Subsidiary to New Mall Manager upon
consummation of the transactions contemplated by the Mall Agreement and hereby
waive any applicable provisions of the Equipment Loan Agreement to the extent
necessary to permit consummation of such transactions and the ownership and
operation of such companies after giving effect to the consummation of such
transactions in accordance with the terms of the Mall Agreement. Borrowers and
Lenders agree that the Equipment Loan Agreement is hereby amended effective
immediately upon consummation of the transactions contemplated by the Mall
Agreement to change the defined term "Mall Subsidiary" to mean "New Mall
Subsidiary." Borrowers hereby covenant and agree that (i) until consummation of
the transactions contemplated by the Mall Agreement, neither New Mall Subsidiary
nor New Mall Manager will engage in any business or transactions except as
expressly contemplated by the Mall Agreement, (ii) from and after consummation
of the transactions contemplated by the Mall Agreement, (w) Grand Canal Shops
Mall, LLC shall be bound by all of the covenants of the Equipment Loan Agreement
applicable to Mall Direct Holdings and references to Mall Direct Holdings shall
be deemed to include a reference to Grand Canal Shops Mall, LLC, (x) New Mall
Manager shall be bound by all of the covenants of the Equipment Loan Agreement
applicable to Mall Manager and references to Mall Manager shall be deemed to
include a reference to New Mall Manager, (y) Grand Canal Shops Mall, LLC and
Mall Direct Holdings will not engage in any business or transactions except (1)
in the case of Grand Canal Shops Mall, LLC, ownership of equity in New Mall
Subsidiary and the pledge of such equity to lenders to New Mall Subsidiary and
(2) in the case of Grand Canal Shops Mall Holding Company, LLC, ownership of
equity interests in Grand Canal Shops Mall, LLC. Borrowers further represent and
warrant that upon consummation of the transactions contemplated by the Mall
Agreement, ownership of Mall Intermediate Holding Company, LLC, Grand Canal
Shops Mall Holding Company, LLC, Grand Canal Shops Mall, LLC, New Mall
Subsidiary, Grand Canal Shops Mall MM, Inc. and New Mall Manager shall be as set
forth on Schedule 2 hereto and Borrowers agree (without limiting any other
applicable restriction set forth herein or in the Equipment Loan Agreement) that
from and after the consummation of the transactions contemplated by the Mall
Agreement, no equity interests in Grand Canal Shops Mall, LLC or New Mall
Manager shall be sold or transferred. The representations and covenants set
forth herein shall be deemed to be representations and covenants set forth in
the Equipment Loan Agreement and any material breach thereof shall constitute an
Event of Default. Nothing set forth herein shall be deemed to constitute a
waiver or modification of any of the Mall Release Conditions.
Section 8. AMENDMENT TO SECTION 6.3 OF THE EQUIPMENT LOAN AGREEMENT
Section 6.3 of the Equipment Loan Agreement is hereby amended by deleting
Section 6.3(q) and by adding the following new clauses (q) and (r):
"(q) From and after the Completion Date, Borrowers may incur Indebtedness
in an aggregate principal amount not to exceed $15,000,000 (plus any
accrued and unpaid interest thereon added to principal) at any time
outstanding ("Additional Indebtedness"), provided that (a) such
Additional Indebtedness shall not be secured by, directly or
indirectly, any Liens on any property or assets owned directly or
indirectly by VCR or LVSI or any Subsidiary of VCR or LVSI or by any
stock, securities, membership interest, partnership interest or other
direct or indirect equity interests in VCR or LVSI or any Subsidiary
of VCR or LVSI; (b) such Additional Indebtedness shall be subordinated
to all Obligations under this Agreement and all Indebtedness under the
Mortgage Notes Indenture, the Subordinated Notes Indenture and the
Bank Credit Agreement (all of the documents and instruments described
in this clause collectively, the "Superior Facilities") on terms
reasonably acceptable to the Administrative Agent and no payments in
respect thereof may be made or demanded prior to the payment in full
of all Obligations (and further provided the principal of such
Additional Indebtedness may not be paid back until all Obligations and
all Indebtedness with respect to the Superior Facilities has been paid
in full and this covenant of Borrowers shall survive the earlier
termination of this Equipment Loan Agreement), other than payment of
interest in kind provided that any instruments or documents evidencing
such payments in kind contain the same terms and conditions as the
Additional Indebtedness (provided that such subordination shall not
prohibit the exchange of any note evidencing any such Additional
Indebtedness or the exchange of the payment of any amounts under any
such note in whole or in part for securities of any Borrower),
provided that no Restricted Junior Payment may be made in respect of
such securities; (c) prior to incurring any Additional Indebtedness
all documents and instruments evidencing such Indebtedness shall be
delivered to Administrative Agent and such documents and instruments
shall (x) incorporate the terms set forth in the other clauses of this
proviso and otherwise be in form and substance reasonably satisfactory
to Administrative Agent (y) provide that the Lender Parties shall be
third party beneficiaries of such documents and instruments and (z)
contain provisions prohibiting any amendment, modification or waiver
thereof binding on Borrowers or their Subsidiaries without the prior
written consent of Administrative Agent (which consent shall not be
unreasonably withheld) and (d) the Additional Indebtedness shall be
permitted under the other Superior Facilities and all other agreements
to which Xxxxxxx X. Xxxxxxx and the Borrowers are a party, and prior
to the incurrence thereof counsel to the Borrowers shall have
delivered an opinion to the Lender Parties to that effect (with
respect to the Superior Facilities only), in form and substance
reasonably satisfactory (including reasonably satisfactory
assumptions) to the Administrative Agent.
(r) Indebtedness, not to exceed $10,000,000 in the aggregate, not
permitted under any of the foregoing clauses (a) through (q),
inclusive."
Section 9. ACKNOWLEDGEMENT REGARDING FEES AND EXPENSES
Borrowers hereby acknowledge that all reasonable costs, fees and expenses
incurred by Administrative Agent and its counsel with respect to this Agreement
and the documents and transactions contemplated hereby, shall be for the account
of the Borrowers and hereby agree that all such amounts, and any other amounts
due and owing to such parties at that time, shall be promptly paid.
Section 10. GOVERNING LAW
THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES.
Section 11. COUNTERPARTS; EFFECTIVENESS
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by Requisite Lenders and each of the other parties hereto and
receipt by Administrative Agent of written or telephonic notification of such
execution and authorization of delivery thereof.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
VENETIAN CASINO RESORT, LLC,
a Nevada limited liability company
By: Las Vegas Sands, Inc., its managing member
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Secretary
LAS VEGAS SANDS, INC., a Nevada corporation
By: /s/
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Name: Xxxxx Xxxxxxxx
Title: Secretary
GENERAL ELECTRIC CAPITAL CORPORATION,
as Administrative Agent
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL CORPORATION, as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President
GMAC COMMERCIAL MORTGAGE CORPORATION, as a Lender
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Vice President
BANCBOSTON LEASING INC., as a Lender
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Executive Vice President
SCHEDULE 1
DEFAULTS AND EVENTS OF DEFAULT
1. The failure to remove any Liens resulting from the Construction
Litigation that are not Permitted Liens in a timely manner, provided
that all Liens have been removed or bonded over as of the date hereof
and continue to be bonded over until removed (this waiver shall be
effective with respect to any Lien that has been and continues to be
bonded and insured over by the Title Insurer, notwithstanding the
Company's failure to complete the legal procedure for having such Lien
removed of record.)
2. A default by the Borrowers under any of the other Financing Agreements
existing on or prior to the date hereof, provided that such default has
been cured or waived as of the date hereof pursuant to a Other Facility
Waiver.
3. A default under Section 8.1(l) of the Equipment Loan Agreement that has
occurred because of any default under the Construction Management
Agreement relating to or arising out of the Construction Litigation,
provided that such waiver shall not extend beyond the Completion Date.
4. Any default under any of the Operative Documents arising out of or
relating to any of the matters covered in 1-4 above to the extent such
matters have been waived as of the date hereof.
5. Any default under Section 6.7 of the Equipment Loan Agreement by reason
of any of the Additional Contingent Claims being deemed to be a
Contingent Obligations, but only to the extent that such Additional
Contingent Claims are being contested by the Borrowers in good faith.
If such Additional Contingent Obligations become due and payable, the
waivers contained in this Item 5 shall no longer be applicable.
6. Any default under Section 8.1(w)(vi) of the Equipment Loan Agreement
that has occurred because the Construction Consultant has reasonably
determined (based on its experience, familiarity and review of the
Project and information and schedule provided to the Borrowers and the
Construction Manager) that the Final Completion Date is not likely to
occur within 75 days of the Outside Completion Date.
7. Any default under Section 8.1(x) of the Equipment Loan Agreement that
has occurred because the Final Completion Date has failed to occur
prior to the Outside Completion Date.
8. Any default under Section 6.23(e) of the Equipment Loan Agreement,
provided that Completion is achieved on or before November 12, 1999.
9. Any default under Section 6.18(b) of the Equipment Loan Agreement with
respect to all amendments to Financing Agreements set forth in the
Other Facility Waivers.
