EXHIBIT 10.6
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LIMITED WAIVER AND SECOND AMENDMENT TO
CREDIT AGREEMENT
(MALL)
This LIMITED WAIVER AND SECOND AMENDMENT TO CREDIT AGREEMENT (MALL) (this
"Agreement") is dated as of November 12, 1999 and entered into by and among LAS
VEGAS SANDS, INC. ("LVSI"), a Nevada corporation, VENETIAN CASINO RESORT, LLC
("Venetian"), a Nevada limited liability company, GRAND CANAL MALL SHOPS
CONSTRUCTION, LLC ("Mall Construction Subsidiary"), a Delaware limited liability
company, all as joint and several obligors (each of LVSI, Venetian and Mall
Construction Subsidiary, a "Borrower" and, collectively, the "Borrowers"), GRAND
CANAL MALL SHOPS, LLC ("Mall I"), a Delaware limited liability company, XXXXXXX
X. XXXXXXX ("Xxxxxxx") and SALOMON BROTHERS REALTY CORP. ("Lender"),
successor-in-interest to GMAC COMMERCIAL MORTGAGE CORPORATION, a California
corporation, and is made with respect to that certain Las Vegas Sands, Inc.,
Venetian Casino Resort, LLC and Grand Canal Shops Mall Construction Credit
Agreement, between Borrowers and Lender dated November 14, 1997, amended by that
First Amendment to Credit Agreement dated September 30, 1999 (the Construction
Credit Agreement, as amended, the "Credit Agreement"). Capitalized terms used
herein without definition shall have the same meanings herein as set forth in
the Credit Agreement or if not defined therein then the meaning ascribed thereto
in the Disbursement Agreement (as defined in the Credit Agreement).
RECITALS
WHEREAS, Lender believes that certain Events of Default and Potential
Events of Default, as set forth on Schedule 1 hereto, exist on the date hereof;
WHEREAS, Borrowers, Mall I and Lender desire to enter into this Agreement
to (i) waive, those certain Events of Default and Potential Events of Default
set forth on Schedule 1 hereto if and to the extent such Events of Default and
Potential Events of Default exist on the date hereof, so that Mall Release and
Completion may occur on or before November 14, 1999 and so that an Advance can
be made on the Mall Release Date and/or the Completion Date, and (ii) make
certain other amendments and agreements 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, Xxxxxxx and Mall I set forth herein,
Lender hereby (a) waives each of the Events of Default and Potential Events of
Default set forth on Schedule 1 attached hereto (to the extent, if any, they
exist), to the extent and for the period expressly set forth therein and (b)
consents to the Master Leases, as defined in Section 8 of the FADAA Limited
Waiver attached hereto as Exhibit G-1 ("FADAA Waiver") on the terms described in
the FADAA Waiver.
Section 2. LIMITATION ON WAIVER
This Agreement shall constitute a limited waiver, which shall be limited in
all aspects 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 Credit Agreement or
any other instrument or agreement referred to therein, except as
expressly set forth on Schedule 1 or (ii) any Event of Default or
Potential 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;
(c) prejudice any right or remedy that the Lender has (except to the
extent such right or remedy was based upon a default that will not
exist after giving effect to this limited waiver) under or in
connection with the Credit 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 Credit Agreement and the other Loan Documents shall remain in full force
and effect and in all other respects are hereby ratified and confirmed.
Section 3. REPRESENTATIONS AND WARRANTIES
In order to induce Lender to enter into this Agreement and to provide the
limited waiver and amend the Credit Agreement in the manner provided herein,
each of LVSI, Venetian, Mall Construction Subsidiary and Mall I represents and
warrants to Lender that the following statements are true, correct and complete:
each of Venetian, LVSI, Mall Construction Subsidiary and Mall I
has all requisite corporate or limited liability company power, as the
case may be, and authority to enter into this Agreement and to carry
out the transactions contemplated hereby, and perform its obligations
hereunder;
the execution and delivery of this Agreement by Venetian, LVSI,
Mall Construction Subsidiary and Mall I and the performance of their
obligations hereunder have been duly authorized by all necessary
corporate action on the part of Venetian, LVSI, Mall Construction
Subsidiary and Mall I;
The execution and delivery by Venetian, LVSI , Mall Construction
Subsidiary and Mall I of this Agreement and the performance by
Venetian, LVSI, Mall Construction Subsidiary and Mall I of this
Agreement do not and will not (i) violate any provision of any law or
any governmental rule or regulation applicable to the Mall or the
Project or to Venetian, LVSI, Mall Construction Subsidiary or Mall I
or any of their respective Affiliates, the organizational documents of
Venetian, LVSI, Mall Construction Subsidiary or Mall I or any of their
respective Affiliates or any order, judgment or decrees of any court
or other agency of government binding on the Mall, the Project,
Venetian, LVSI, Mall Construction Subsidiary or Mall I or any of their
respective Affiliates, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under
any Contractual Obligation of Venetian, LVSI, Mall Construction
Subsidiary or Mall I or any of their respective Affiliates or which
binds the Mall or the Project, (iii) result in or require the creation
or imposition of any Lien upon any of the properties or assets of
Venetian, LVSI, Mall Construction Subsidiary or Mall I or any of their
respective Affiliates, or (iv) require any approval of stockholders or
any approval or consent of any Person under any Contractual Obligation
of Venetian, LVSI , Mall Construction Company or Mall I or any of
their respective Affiliates;
the execution and delivery by Venetian, LVSI, Mall Construction
Subsidiary and Mall I of this Agreement and the performance by
Venetian, LVSI, Mall Construction Subsidiary and Mall I 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;
this Agreement has been duly executed and delivered by Venetian,
LVSI, Mall Construction Subsidiary and Mall I and constitute the
legally valid and binding obligations of Venetian, LVSI, Mall
Construction Subsidiary and Mall I, enforceable against Venetian,
LVSI, Mall Construction Subsidiary and Mall I in accordance with their
respective terms;
the representations and warranties contained in Section 4 of the
Credit 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 (i) to the extent such
representations and warranties specifically relate to an earlier date,
in which case they were true, correct and complete in all material
respects on and as of such earlier date, and (ii) with respect to the
matters described in Schedule 1;
the Remaining Costs are accurately reflected on that certain
chart previously delivered to the Disbursement Agent and attached
hereto as Exhibit A;
the schedule to achieve Completion previously delivered to the
Disbursement Agent and attached hereto as Exhibit B is accurate and
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true;
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, subcontractor, materialman or supplier relating to or
constituting a lien upon the Mall or the Project or to Venetian, LVSI,
Mall Construction Subsidiary or Mall I or any of their Affiliates, and
any judgment or settlement amount owed by the Borrowers or Mall I to
the Construction Manager, the bonding company insuring over any such
Lien or any contractor, subcontractor, materialman or supplier as a
result of the Construction Litigation (such amounts, collectively, the
"Additional Contingent Claims") cannot reasonably be expected to have,
when taken in the aggregate, a Material Adverse Effect;
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;
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;
no Events of Default or Potential Events of Default under the
Credit Agreement or any of the other Loan Documents exist or are
continuing (other than those Events of Default and Potential Events of
Default set forth on Schedule 1);
there are no defaults beyond any applicable grace or cure period
with respect to any financing secured by the Sands Expo and Convention
Center;
Xxxxxxx has complied with the terms and conditions of that
certain Subordination Agreement (Trade Claims) ("Trade Claims
Subordination Agreement") and that certain Subordination Agreement
(the "Xxxxxxx Subordination Agreement"), the respective forms of which
are attached hereto as Exhibit D, with respect to Xxxxxxx Trade Claims
(as defined in the Xxxxxxx Subordination Agreement);
the Borrowers have satisfied the Opening Conditions;
the Master Leases referred to in Section 8 of the FADAA Waiver
entered into or to be entered into by Borrowers contain terms which
are not less favorable to Borrowers and their Subsidiaries than would
be obtainable in an arm's length transaction, including economic terms
consistent with the current rental market for comparable space in Las
Vegas, Nevada;
the Project is free of all Liens and encumbrances other than
Permitted Liens;
none of the Borrowers has taken title to any personal or real
property other than in its own names or commingled its property with
the property of any of its Affiliates (including the other Borrowers),
except as permitted by the Credit Agreement;
except to the extent permitted by the Credit Agreement, each of
the Borrowers, on the one hand, and Mall I on the other hand, have
paid solely from their own assets all obligations and have conducted
business solely in each of their own names and each hold themselves
out as separate entities and have not entered into and are not parties
to any transactions with any Affiliates, except on terms which are not
less favorable than would be obtained in a comparable arm's length
transaction with an unrelated third party;
each of the Borrowers, on the one hand, and Mall I, on the other
hand, maintain their own bank accounts, books and records on a
separate basis from those of any other party and maintain a principal
and administrative office through which their businesses are conducted
separate from that of any Affiliate; provided, however, that each of
the Borrowers on the one hand, and Mall I and their Affiliates, on the
other hand, may have offices in the same location, provided there is a
fair and appropriate allocation of overhead costs, if any, among such
Borrower on the one hand, Mall I and any such Affiliates, on the other
hand, and each of such Affiliates, bears its fair share of such costs;
each of the Borrowers, on the one hand, and Mall I, on the other
hand, has disclosed in any consolidated financial statements for a
group of which any of the Borrowers or Mall I are a member the
Borrower's and/or Mall I's separate legal existence and indicated that
the assets and liabilities of such Borrowers, on the one hand, or Mall
I, on the other hand, are intended to be available only to the
creditors of such Borrower, on the one hand, or Mall I, on the other
hand;
each of the Borrowers, on the one hand, and Mall I, on the other
hand, have observed all limited liability company or corporate
formalities, as the case may be, regarding their existence, in
memorializing the determinations on all significant transactions, in
paying the salaries of their own employees, if any (or paying a
proportionate share of the salary of any employee of any Affiliate who
performs work for such Borrower and/or Mall I and such Affiliate) and
in preparing, filing and paying all taxes of such Borrower or Mall I;
each of the Borrowers, on the one hand, and Mall I, on the other
hand, use separate stationary, invoices and checks;
each of the Borrowers, on the one hand, and Mall I, on the other
hand, correct any known misunderstanding regarding their separate
identity and do not identify themselves as a division of any other
party;
neither the Borrowers, on the one hand, nor Mall I, on the other
hand, are the obligor or guarantor of, or otherwise responsible for,
payment of any obligations for borrowed money, except as permitted
under the Credit Agreement;
Mall Construction Subsidiary has not amended Sections 2.8, 2.10
and 2.11 of its Limited Liability Company Agreement in any manner
except as otherwise permitted under the Credit Agreement;
neither the Borrowers nor Mall I have acquired obligations or
securities of (i) its members or shareholders, as the case may be, or
(ii) any other Affiliates of such members or shareholders, except to
the extent otherwise expressly permitted under the Credit Agreement;
neither the Borrowers nor Mall I have made loans to any other
party or bought or hold evidence of indebtedness issued by any other
party, except as may be permitted by the Credit Agreement;
LVSI has not amended Articles Third, Fifth, Tenth, Eleventh,
Twelfth, Thirteenth or Fourteenth of its Articles of Incorporation in
any material manner, except as permitted under the Credit Agreement;
there have been no Scope Changes with respect to the Project
other than Safe Harbor Scope Changes;
there are stored on the site of the Project all materials in
sufficient quantities and of sufficient quality to be installed in the
Mall for which labor for installation is included in the cost of the
Mall Punchlist Items and all such materials are fully paid for and
owned by Mall Construction Subsidiary and are to be transferred to
Mall I on the date hereof; and
the Mall contains at least 515,000 gross square feet and not more
than 580,000 gross square feet.
In order to induce SBRC to enter unto this Agreement and provide
the waivers and agreements provided herein, Xxxxxxx represents and
warrants to SBRC and GMACCM 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:
all governmental authorizations and actions necessary in
connection with the execution and delivery by Xxxxxxx of this
Agreement and the performance of his obligations hereunder have been
obtained or performed and remain valid and in full force and effect;
this Agreement has been duly executed and delivered by Xxxxxxx
and constitutes the legal, valid and binding obligation of Xxxxxxx,
enforceable against Xxxxxxx (and Xxxxxxx'x heirs, executors,
administrators, legal representatives, successors and assigns) in
accordance with the terms of this Agreement, subject to applicable
bankruptcy, insolvency, moratorium and other similar laws affecting
creditors' rights generally and general principles of equity;
the execution, delivery and performance of this Agreement (i) do
not and will not contravene any law, rule, regulation, order, judgment
or decree applicable to or binding on the Mall or the Project or
Xxxxxxx or any of his assets or properties; (ii) do not and will not
contravene, or result in any breach of or constitute any default
under, any agreement or instrument to which Xxxxxxx is a party or by
which Xxxxxxx or any of his assets or properties may be bound or
affected or which binds the Mall or the Project; (iii) do not and will
not require the consent of any Person under existing law or agreement
which has not already been obtained and (iv) do not and will not
result in or require the creation of any Lien upon the Project or the
Mall;
there is no pending or, to the best of Xxxxxxx'x knowledge,
threatened action or proceeding affecting Xxxxxxx, the Mall or the
Project before any court, governmental agency or arbitrator, which
might reasonably be expected to materially and adversely affect the
financial condition, results of operations, business or prospects of
Xxxxxxx or the ability of Xxxxxxx to perform his obligations under
this Agreement, including, without limitation, the Construction
Litigation and the Additional Contingent Claims;
Xxxxxxx possesses all franchises, certificates, licenses, permits
and other governmental authorizations and approvals necessary for him
to own his properties, conduct his businesses and perform his
obligations under this Agreement;
Xxxxxxx has complied with the terms and conditions of the Xxxxxxx
Subordination Agreement with respect to Xxxxxxx Trade Claims;
there have been no Scope Changes with respect to the Project
other than Safe Harbor Scope Changes;
there are stored on the site of the Project all materials in
sufficient quantities and of sufficient quality to be installed in the
Mall for which labor for installation is included in the cost of the
Mall Punchlist Items and all such materials are fully paid for and
owned by Mall Construction Subsidiary and are to be transferred to
Mall I on the date hereof; and
the Mall contains at least 515,000 gross square feet and not more
than 580,000 gross square feet.
Section 4. CONDITIONS TO EFFECTIVENESS
The waivers, consents and amendments set forth in Section 1 of this
Agreement shall become effective only upon satisfaction of each of the following
conditions precedent on or before the Outside Completion Deadline:
Execution and delivery to Lender of waivers of all presently uncured
defaults and Events of Default and Potential Events of Default under each of (i)
the Disbursement Agreement, in a form substantially similar to Exhibit G-1
attached hereto, (ii) that certain Term Loan and Security Agreement dated as of
December 22, 1997 by and among LVSI, Venetian, the lenders named therein,
BancBoston Leasing Inc. and General Electric Capital Corporation and (iii) the
Bank Credit Agreement (collectively, the "Facility Waivers"), each substantially
in the form of Exhibit G-2 and G-3 hereto;
Venetian and LVSI shall have caused the Project to be free of all Liens and
encumbrances other than Permitted Liens, and the Title Company shall have issued
to Lender endorsements insuring that the Project is free of all Liens and
encumbrances other than Permitted Liens;
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 the Lender may rely on the Construction Consultant set forth in
(e) below or the Disbursement Agent in making such determination);
Borrowers shall have certified to the Lender in form and substance
acceptable to Lender and the 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, (ii) the
Unallocated Contingency Balance equals or exceeds the Required Minimum
Contingency and Available Funds equals or exceeds Remaining Costs and such
certification shall set forth in detail the derivation of all such figures and
calculations and set forth in detail the sources for payment of all Remaining
Costs;
The Construction Consultant shall have certified to the Lender in form and
substance acceptable to Lender 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, (ii) the Unallocated Contingency Balance
equals or exceeds the Required Minimum Contingency, and Available Funds equals
or exceeds Remaining Costs and such certification shall set forth in detail the
derivation of all such figures and calculations and (iii) such certification
further sets forth in detail the sources for payment of all Remaining Costs;
Xxxxxxx and Lender shall have entered into the Trade Claims Subordination
Agreement and the Xxxxxxx Subordination Agreement in the forms attached hereto
as Exhibit D.
There shall have been a closing under the Sale and Contribution Agreement
and Mall I shall have assumed all obligations of Borrowers under the Credit
Agreement and the other Loan Documents, in a form reasonably satisfactory to
Lender;
Lender shall have received copies of each of the certificates issued for
the bonding of any Liens relating to the Project or the Mall and the Lender,
after consultation with the Construction Consultant, shall have determined that
the obligations under such bonds shall have been equitably allocated;
Borrowers shall have made the payment of principal and interest in full in
respect of the Mortgage Notes and the Subordinated Notes due on November 15,
1999;
Administrative Agent shall have received the letter from the bonding
company referred to in Section 8(i) of the FADAA Waiver;
To the extent not otherwise set forth herein, all the conditions precedent
set forth in Section 4 of the FADAA Waiver shall have been satisfied;
Lender shall have received an opinion or opinions of counsel to the
Company, Mall I and Xxxxxxx, in a form and substance reasonably acceptable to
Lender;
Lender shall have received an estoppel certificate from the HVAC Provider
in form and substance satisfactory to Lender, 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) that such
agreements remain in full force and effect;
No Events of Default or Potential Events of Default (other than those set
forth on Schedule 1 hereto) under the Credit Agreement or the other Loan
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Documents shall exist or be continuing;
Xxxxxxx, as primary obligor and not merely as surety, shall have
unconditionally and irrevocably guaranteed to Lender the Borrowers' and Mall I's
payment of the full amount of certain construction costs by execution of a Mall
Scope Change Guaranty in the form of Exhibit E, attached hereto; and
Xxxxxxx Xxxxx Mortgage Company shall have executed and delivered to Lender
an acknowledgment and agreement in the form attached hereto as Exhibit H.
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Notwithstanding the foregoing, if an Advance is made on or after the date
hereof, Section 1, Section 4, Section 7 and Section 11 shall become immediately
effective (provided that this Agreement has been executed and delivered by each
of the parties hereto), provided, however, that such effectiveness shall not be
deemed a waiver of the conditions set forth above for any other purpose or under
any other agreement.
Section 5. CERTAIN ADDITIONAL AGREEMENTS OF BORROWERS AND XXXXXXX
Borrowers and Mall I agree that they will comply with the terms, agreements
and conditions of the Facilities Waivers, including without limitation Section
6(a) of the Facilities Waiver with respect to the Bank Credit Agreement.
Borrowers' failure to comply with any covenant or agreement hereunder or
breach of any representation or warranty made herein shall constitute a default
hereunder and under the Credit Agreement.
Xxxxxxx shall cause Borrowers to comply with the terms of the Disbursement
Agreement and FADAA Limited Waiver from and after the Mall Release Date.
For the benefit of the parties to the FADAA, Interim Mall Lender and any
successors thereto (prior to and after the Mall Release Date) and Mall I, or any
other future owner of the Mall and such owner's secured lenders, Tranche A Take
Out Lender, its borrowers and any successors or assigns thereof (and all such
parties are expressly made and intended to be third party beneficiaries under
this Agreement), Borrowers and Xxxxxxx each agree to comply with Sections 6(b)
and 6(i) of the FADAA Waiver.
Section 6. ACKNOWLEDGMENT REGARDING FEES AND EXPENSES
Borrowers hereby acknowledge that all costs, fees and expenses as described
in Section 8.3 of the Credit Agreement incurred by Lender and their counsel with
respect to this Agreement, the Disbursement Agreement or any other Loan
Documents, and the documents and transactions contemplated hereby and thereby,
shall be for the account of Borrowers, Borrowers and hereby agree that all such
amounts, and any other amounts due and owing to such parties at that time, shall
be paid out of Advances made in connection with the occurrence of Mall Release
and Completion and if not so paid then immediately upon demand.
Section 7. AMENDMENT TO CREDIT AGREEMENT
The Credit Agreement is hereby amended (i) by incorporating a Section 9, as
set forth on Exhibit F attached hereto; (ii) by incorporating a Section 5.14, as
set forth on Exhibit F attached hereto; and (iii) by incorporating a Section
7.20, as set forth on Exhibit F. LVSI, Venetian and GCCLLC shall have no
liability with respect thereto.
Section 8. DEFAULT
The failure to comply with any covenant hereunder by Xxxxxxx or the Company
shall constitute an Event of Default under this Agreement and an Event of
Default under the Credit Agreement, subject to applicable cure, notice and grace
periods.
Section 9. 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 10. 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.
Section 11. NO RELEASE
Notwithstanding anything to the contrary contained in any document or
instrument executed by Lender in connection with the Mall Release Condition but
subject to that certain Release of even date herewith, a copy of which is
attached hereto as Exhibit I, Borrowers agree that they shall not be released
from any of their agreements and obligations set forth herein or in the FADAA
Limited Waiver executed currently herewith, such agreements and obligations
being deemed entered into after any such release.
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/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Secretary
GRAND CANAL SHOPS MALL CONSTRUCTION, LLC,
a Delaware limited liability company
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Secretary
GRAND CANAL SHOPS MALL, LLC,
a Delaware limited liability company
By: /s/ Xxxxx Xxxxxxxx
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Name: Xxxxx Xxxxxxxx
Title: Secretary
(Signatures continued on next page)
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
SIGNATURES CONTINUED ON NEXT PAGE
SALOMON BROTHERS REALTY CORP.,
a New York corporation
By: GMAC Commercial Mortgage Corporation,
its agent
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President
List of Schedules and Exhibits
to Limited Waiver and
Second Amendment to Credit Agreement
(MALL)
Schedule 1 Events of Defaults and Potential Events of Default
Exhibit A Chart of Remaining Costs
Exhibit B Schedule to Achieve Completion
Exhibit C Status Summary of the Construction Litigation
Exhibit D Forms of Subordination Agreements by Xxxxxxx
Exhibit E Mall Scope Change Guaranty
Exhibit F Additional Provisions to Credit Agreement
Exhibit G-1 FADAA Limited Waiver
Exhibit G-2 Bank Credit Limited Waiver
Exhibit G-3 GECC Limited Waiver
Exhibit H Agreement of Xxxxxxx Sachs Mortgage Corporation
Exhibit I Release from Lender in favor of LVSI, Venetian and
Mall Construction Subsidiary
SCHEDULE 1
EVENTS OF DEFAULT AND POTENTIAL EVENTS OF DEFAULT
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 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).
The failure to satisfy each of the Opening Conditions prior to Opening
Date as required pursuant to Section 7.20 of the Credit Agreement.
The failure to remedy or have waived any default under the
Disbursement Agreement existing on or prior to the date hereof within 30
days of the occurrence of such default as required pursuant to Section 8.5
of the Credit Agreement, but only to the extent such defaults are listed on
Schedule 1 of the waiver attached as Exhibit G hereto.
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, as
of the date hereof, been cured or waived pursuant to a Facility Waiver.
A default under Section 8.13 of the Credit 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.
Any default under any of the Operative Documents arising out of or
relating to any of the matters covered in 1-5 above to the extent such
matters have been waived as of the date hereof.
Any default under Section 7.4 of the Credit Agreement by reason of any
of the Additional Contingent Claims being deemed to be Contingent
Obligations (as defined in the Credit Agreement), but only to the extent
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 7 shall no longer be
applicable.
EXHIBIT F
ADDITIONAL PROVISIONS TO CREDIT AGREEMENT
SECTION 9 - ACCOUNTS
Section 9.1 Retainage Escrow Account; Tax Escrow Accounts;
Insurance Escrow Account; Start-Up Costs Escrow Account; Springing
Cash Management Account.
() On the Mall Release Date, Borrowers shall cause the Mall
Retainage/Punchlist Account to be funded in accordance with the
requirements of the Disbursement Agreement and the Mall Escrow
Agreement to be executed by the parties. Borrowers' and Lender's
respective rights and obligations with respect to the Mall
Retainage/Punchlist Account and the Retainage Escrow Account
Collateral, as defined at the end of this Section, shall be set forth
in the Retainage Pledge and Security Agreement.
() On or before the Mall Release Date, GMAC Commercial Mortgage
Corporation, as collateral agent (the "Collateral Agent"), shall
establish and maintain at its office located at 000 X. Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx (or such other office of Collateral Agent as the
Collateral Agent shall designate in a notice to Borrower and the
Lender), an account specified in writing by Collateral Agent to
Borrower (such account, together with any other account that the
Collateral Agent shall establish in lieu thereof, the "Tax Escrow
Account"). On the Mall Release Date, Borrower shall deposit available
funds in the amount of $180,157.29 (x) if the Mall Release Date shall
occur after the date upon which the Mall shall be assessed, for real
estate purposes, separately from any other portion of the Project (the
"Assessment Date"), into the Tax Escrow Account or (y) if the Mall
Release Date shall occur prior to the Assessment Date, into the REA
Tax Escrow Account (as defined in the Cooperation Agreement). On the
first day of each month (the "Deposit Date"), if any, occurring prior
to the Assessment Date, Borrower shall make the deposits into the REA
Tax Escrow Account in the amounts, and at the times, that Borrower is
required so to do under the Cooperation Agreement. On the Deposit
Date, if any, occurring after the Assessment Date, the Borrower shall
deposit into the Tax Escrow Account immediately available funds in an
amount equal to the greater of (x) one-twelfth (1/12) of the Taxes and
other charges that the Lender, in good faith, shall estimate will be
payable during the next following twelve (12) months or (y) the Taxes
and Other Charges that the Lender, in good faith, shall estimate will
be payable during the next following three (3) months (but in no event
less than the amount that the Lender, in good faith, determines shall
be necessary in order to accumulate in the Tax Escrow Account
sufficient funds to pay all Taxes and other charges at least fifteen
(15) business days prior to their respective delinquency dates). In
determining, at any given time, the amounts to be deposited by the
Borrower into the Tax Escrow Account pursuant to this subsection
9.1(b), the Lender shall take into account the Bank Account
Collateral, as defined at the end of Section 9, if any, then on
deposit in the Tax Escrow Account and not necessary, in the good faith
determination of the Lender, to pay Taxes and Other Charges.
() Borrower shall make the deposits into the REA Insurance
Premium Escrow Account (as defined in the Cooperation Agreement) in
the amounts, and at the times, that Borrower is required so to do
under the Cooperation Agreement.
() On or before the Mall Release Date, the Collateral Agent shall
establish and maintain at its office located at 000 X. Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx (or such other office of as the Collateral Agent
shall designate in a notice to Borrower and the Lender), an account
specified in writing by Collateral Agent to Borrower (such account,
together with any other account that the Collateral Agent shall
establish in lieu thereof, the "Start-Up Costs Escrow Account"). On
the Mall Release Date, Borrower shall deposit into the Start-Up Costs
Escrow Account Funds the amount required under the terms of the
Disbursement Agreement to be set forth on the "mall leasing
commissions reserve" line item (the "Brokerage Commissions Deposit")
plus the amount required under the terms of the Disbursement Agreement
to be set forth in the "mall tenant improvement reserve" line item
("TI Costs Deposit") (such sum, the "Shortfall Deposit"). As of the
Mall Release Date, a portion of the Shortfall Deposit equal to the
Brokerage Commissions Deposit shall be held in the Brokerage
Commissions Subaccount and a portion of the Shortfall Deposit equal to
the TI Costs Deposit shall be held in the TI Costs Subaccount. If, at
any time, there would be Realized Savings (as defined in the
Disbursement Agreement) if the amount of funds then on deposit in the
Brokerage Commissions Subaccount or the TI Costs Subaccount were a
Line Item (as defined in the Disbursement Agreement) in a Project
Budget (as defined in the Disbursement Agreement), then, Borrower
shall be entitled to direct the Collateral Agent to disburse funds to
Borrower in the amount of such Realized Savings; provided, however,
this provision shall not be operative and no such disbursements may be
made until the Construction Litigation, as defined in that certain
Limited Waiver and Second Amendment to Credit Agreement, to which this
Section 9 is attached as Exhibit F, has been finally adjudicated
(subject to no further appeal) or has been settled by all the parties
thereto and dismissed with prejudice and all sums owed by Borrowers
under judgment or settlement thereof shall have been fully paid and
satisfied. If, at any time, the amount of funds then on deposit in the
TI Costs Subaccount is less than the Required Minimum TI Budget Amount
(as defined in the Disbursement Agreement), then Borrower, within five
days thereafter, shall deposit immediately available funds into the TI
Costs Subaccount to the extent necessary for there to be on deposit in
the TI Costs Subaccount, the Required Minimum TI Budget Amount.
() The Borrower shall have no right of withdrawal from any of the
accounts to be established hereunder (the "Bank Accounts") and the
Bank Accounts shall be maintained in the name of and subject to the
exclusive dominion and control of the Collateral Agent for the benefit
of the Lender (except as otherwise expressly set forth in this Section
9.1).
() Any and all money, cash, rights to deposits or savings
accounts or other items of legal tender obtained from or for use in
connection with the operation of the Mall ("Money") remitted to a Bank
Account, together with any Permitted Investments in which such Money
are or shall be invested or reinvested during the term of this
Agreement and all amounts earned, credited or received with respect to
such Money and Permitted Investments, shall be held in such Bank
Account and applied in accordance with the terms hereof.
() From and after the Assessment Date, the Collateral Agent will
withdraw from the Tax Escrow Account amounts as are necessary, and
shall use such amounts, to pay Taxes and other charges that are then
payable and with respect to which the Collateral Agent shall have
received a xxxx, statement or estimate from a public office or other
Governmental Instrumentality; provided that it shall be the
Borrower's, and not the Collateral Agent's obligation, to ensure that
the Collateral Agent receives all such bills, statements and
estimates. In making any payment from the Tax Escrow Account in
respect of Taxes and other charges, the Collateral Agent may do so
according to any xxxx, statement or estimate received from a public
office or other Governmental Instrumentality without inquiry as to the
accuracy or validity of such xxxx, statement or estimate or into the
validity of any imposition, sale, forfeiture, tax lien or title or
claim thereof; provided that the Collateral Agent shall not make a
given payment if (x) the Borrower shall be contesting its obligation
to make such payment in accordance with the provisions of Section 5.3
of the Credit Agreement and (y) the Collateral Agent shall have
received from the Borrower notice of the same prior to the Collateral
Agent's making of such payment. If, at any time, the Collateral Agent,
in good faith, shall determine that the amount that is or will be in
the Tax Escrow Account fifteen (15) business days prior to the date
upon which any Taxes and other charges will be delinquent is
insufficient to pay any such Taxes and other charges, then Borrower,
promptly upon receipt thereof of notice from the Collateral Agent,
shall pay to the Collateral Agent, for deposit into the Tax Escrow
Account, immediately available funds necessary (as determined by the
Collateral Agent in good faith) to pay, at least fifteen (15) business
days prior to delinquency all Taxes and other charges.
() () Within fifteen (15) days after the Mall Release Date,
Borrower shall either (A) deposit into the Start-Up Cost Escrow
Account (to be held in the Operating Expense Subaccount) funds in an
amount equal to $5,000,000 (the "Operating Expense Deposit") or (B)
furnish to Lender an unconditional, irrevocable and transferable
letter of credit in form and substance satisfactory to Lender ("Letter
of Credit") in an amount that is equal to the Operating Expense
Deposit and with a term of six (6) months (which Letter of Credit
must, at all times be replaced, at least thirty (30) days prior to
each expiration date thereof, with either (x) a Letter of Credit
providing for an expiration date that occurs six (6) months from the
expiration date of the Letter of Credit being replaced or (y)
immediately available funds in an amount equal to the Operating
Expense Deposit, which Funds shall be held in the Operating Expense
Subaccount).
() Subject to the other provisions of this Section 9,
the Collateral Agent shall disburse funds from time to time on deposit
in the Brokerage Commission Subaccount or the TI Costs Subaccount to
the Borrower to pay brokerage commissions and fees payable by Borrower
in connection with Leases permitted in accordance with the terms of the
Credit Agreement ("Brokerage Commissions") or TI Costs for which the
Borrower shall not have previously requested a disbursement of funds
from the applicable subaccount and that are then due and payable or
that will be due and payable within the thirty (30) days next following
the requested disbursement date ("Leasing Costs") upon satisfaction of
each of the following conditions:
() no default or Event of Default shall exist on the date upon
which the Borrower furnishes a Leasing Cost Disbursement Request (as
defined below) to the Collateral Agent and to Lender or the date upon
which the requested disbursement is to be made;
() at least ten (10) (but no more than thirty (30)) days prior to
the date on which the Borrower desires for the Collateral Agent to
disburse such funds, the Borrower shall have given to the Collateral
Agent and to the Lender a written request for such disbursement (a
"Leasing Cost Disbursement Request") specifying, in reasonable detail,
the Leasing Costs to which such funds are to be applied (and the
amount of each Leasing Cost), the amount of the disbursement sought,
and the date upon which the Borrower desires for the Collateral Agent
to disburse such funds; and
() the Leasing Cost Disbursement Request shall be accompanied (1)
by a certificate in favor of Lender which is signed by an authorized
officer of the Borrower ("Borrower's Certificate"), in form and
substance reasonably satisfactory to the Lender, certifying that the
Leasing Costs for which the Borrower is seeking the disbursement of
funds have been incurred by the Borrower and are then due and payable
(or will be due and payable within the next following thirty (30)
days) and (2) invoices or other evidence reasonably satisfactory to
the Lender that the Leasing Costs in question are then due and payable
(or will be due and payable within the next following thirty (30)
days).
() () Within fifteen (15) days after the Mall shall first have
been open for business for six (6) consecutive full calendar months,
and, thereafter, within fifteen (15) days after request therefor by
the Lender (which request shall be made not more than once during any
calendar month) (each such fifteenth (15th) day, a "Delivery Date"),
or at any time as Borrower shall desire to do so (but in no event more
than once per calendar month) Borrower shall furnish to the Lender
(for its reasonable approval) a calculation of the DSCR (as defined at
the end of this Section 9) with respect to the period of six full
calendar months immediately preceding such Delivery Date (each such
six-month period, a "Preceding Period"), together with all relevant
financial and other information and materials relating to such
calculation (collectively, "DSCR Materials"). If the DSCR for any such
Preceding Period shall be less than 1.25 or Borrower shall fail to
furnish such DSCR Materials to the Lender within fifteen (15) days
after Lender's request (except in the case of the initial deliver of
DSCR Materials required hereunder) as aforesaid (either of the
foregoing, a "DSCR Event"), then, during the period commencing on the
applicable Delivery Date and ending at such future time as the DSCR
for the Mall for six consecutive full calendar months shall equal or
exceed 1.25 (each, a "DSCR Period"), and for each DSCR Period
thereafter occurring, the provisions of paragraph (ii) below shall be
applicable.
() If, at any time, a DSCR Event shall occur, then Borrower shall
promptly thereafter establish an interest-bearing depository account
at a nationally recognized commercial bank reasonably acceptable to
the Lender (the "CMA Bank"), for the benefit of the Collateral Agent
("Cash Management Account"). Borrower will cause all rents from the
Mall to be deposited directly into the Cash Management Account on a
daily basis. If on the last banking day prior to the date of the Loan
interest payment that is then next due, the funds in the Cash
Management Account are less than the amount of the Loan interest
payment then due, Borrower shall deposit the shortfall into the Cash
Management Account. The Collateral Agent shall have control over, and
a first priority security interest in, the Cash Management Account and
all Bank Account Collateral relating thereto. At any time that no
Event of Default shall exist, Borrower shall have the right to make
withdrawals from the Cash Management Account solely for the purpose of
paying amounts payable in respect of the Indebtedness, any bona fide
operating expenses or capital expenditures relating to the Mall that
are certified as such by Borrower pursuant to Borrower's Certificate
and any other expenditures that are approved by the Lender
(collectively, "Permitted Payments"). The Collateral Agent shall have
the right to debit the Cash Management Account in payment for each
monthly interest payment and any other amounts owed to Lender or
others under the Loan Documents. All interest earned under the Cash
Management Account shall be credited to Borrower. Promptly upon
request therefor by the Lender, Borrower shall execute and deliver to
the Collateral Agent all documents, instruments and financing
statements that the Lender shall reasonably require in order for the
Collateral Agent to obtain a perfected first priority security
interest in the Cash Management Account and all Bank Account
Collateral relating thereto. If, at any time after a DSCR Event shall
occur, the DSCR for the Property for six consecutive full calendar
months shall equal or exceed 1.25, then, provided no Event of Default
shall then exist, the Collateral Agent shall direct the CMA Bank to
release the funds then on deposit in the Cash Management Account to
Borrower.
() The Collateral Agent, at the direction of the Lender, shall
cause the Money in the Bank Accounts to be invested and reinvested in
one or more Permitted Investments (as defined at the end of this
Section 9); provided that the Borrower, upon reasonable prior notice
given by the Borrower to the Collateral Agent, shall be entitled to
select a particular Permitted Investment(s) so long as no default or
Event of Default shall then exist. All such Permitted Investments
shall be made in the name of and be under the sole dominion and
control of the Collateral Agent for the benefit of the Lender. The
Collateral Agent shall direct that all income or other gain from
investments of Money held in any Bank Account be deposited in such
Bank Account upon receipt thereof and any loss resulting from such
investments shall be charged to such Bank Account. The Borrower shall
include all such income or gain on any Bank Account as income of the
Borrower for federal and applicable state tax purposes.
Notwithstanding the foregoing, the Lender shall be entitled, without
notice or liability to the Borrower, to direct the Collateral Agent to
(and, promptly upon receiving such direction, the Collateral Agent, in
accordance with such directions, shall) liquidate Permitted
Investments and/or to cause Money on deposit in the Bank Accounts not
to be invested or reinvested in Permitted Investments if (x) the
Lender, in good faith, determines that it is prudent or necessary to
do so in order to honor a disbursement request from the Borrower or
(y) an Event of Default shall exist.
() The Collateral Agent shall not be required to (i) disburse
funds from the Start- Up Costs Escrow Account more than once during
any calendar month or (ii) disburse funds from any Bank Account (or
any Start-Up Costs Escrow Subaccount) in excess of the amount of cash
then on deposit in such Bank Account (or in such Start-Up Costs Escrow
Subaccount).
() Borrower shall use any funds disbursed to Borrower pursuant to
the provisions of subsection 9.1(h)(2) hereof to pay the Leasing Costs
with respect to which such funds were requested. Borrower shall
immediately repay to the Collateral Agent, to be redeposited into the
applicable Start-Up Cost Escrow Subaccount and held as Bank Account
Collateral, any funds not used by Borrower, within sixty (60) days of
the date disbursed, to pay the Leasing Costs with respect to which
such funds were requested. Borrower shall furnish to the Lender,
within fifteen (15) business days of request therefor by the Lender,
evidence, reasonably satisfactory to the Lender, that Borrower used
funds disbursed under subsection 9.1(h)(2) hereof to pay the Leasing
Costs with respect to which such funds were requested.
() Borrower shall use any funds disbursed to Borrower pursuant to
the provisions of subsection 9.1(i)(2) hereof to pay Permitted
Payments. Borrower shall immediately repay to the Collateral Agent, to
be redeposited into the Cash Management Account and held as Bank
Account Collateral, any funds not used by Borrower, within sixty (60)
days of the date disbursed, to pay Permitted Payments. Borrower shall
furnish to the Lender, within fifteen (15) business days of request
therefor by the Lender, evidence, reasonably satisfactory to the
Lender, that Borrower used funds disbursed under subsection 9.1(i)(2)
hereof to pay Permitted Payments.
() Without limiting any other provision of this Agreement, if, at
any time, an Event of Default shall exist, then the Collateral Agent
may at any time thereafter, without demand of performance or other
demand, advertisements and/or notices of any kind (all of which
demands, advertisements, and/or notices are hereby expressly waived),
withdraw the Bank Account Collateral from the Bank Accounts and apply
the Bank Account Collateral to the payment of the Indebtedness as the
Lender shall determine in its sole discretion and the Collateral Agent
may sell all or any portion of the instruments and securities
constituting part of the Bank Account Collateral and apply the Bank
Account Collateral and/or the Proceeds to the payment of the
Indebtedness as aforesaid, subject, with respect to the Mall Retainage
Escrow Account Collateral, the terms of the Mall Escrow Agreement.
Neither Collateral Agent nor Lender shall have any responsibility for
any loss of value to the Bank Account Collateral resulting from the
timing of any such sale.
() Upon payment and satisfaction in full of the Loan and of all
other obligations and liabilities of the Borrower under the Loan
Documents (but excluding any indemnification obligations that shall
not have theretofore arisen and that shall survive the payment of the
Principal Indebtedness), the Collateral Agent shall release any and
all amounts on deposit in the Bank Accounts to the Borrower; provided
that, if any Person other than Borrower shall make or assert a claim
to, or with respect to, such amounts, the Collateral Agent shall be
entitled to retain such amounts until such claim shall be finally
determined by a court of competent jurisdiction or otherwise act as
required under applicable law.
() On the tenth (10th) business day of each calendar month, the
Collateral Agent shall furnish to the Lender and the Borrower a
reasonably detailed statement of all deposits into and disbursements
from the Accounts during the immediately preceding month and during
the period from the beginning of the calendar year in which such month
occurs to the end of such month.
() The following definitions apply to this Section 9:
() "Bank Account Collateral" means the collective
-------------------------
reference to:
() all of the Borrower's right, title and interest in
and to the Bank Accounts and the instruments and securities
(including, without limitation, Permitted Investments), if
any, from time to time deposited or held in the Bank
Accounts or otherwise held by or for the benefit of the
Collateral Agent pursuant to the terms hereof;
() all interest, dividends, Money, and other funds and
other property from time to time on deposit in the Bank
Accounts or received, receivable or otherwise payable in
respect of, or in exchange for, the Bank Accounts or
Permitted Investments; and
() to the extent not covered by clause (i) or (ii)
above, all proceeds of any or all of the foregoing (except
to the extent that such proceeds shall have been disbursed
to Borrower from the Bank Accounts in accordance with the
provisions of the Loan Documents and applied in accordance
with the provisions of the Loan Documents).
() "Permitted Investments" means any one or more of the
---------------------
following:
() obligations with a remaining maturity of one year or
less that are (i) direct obligations of the United States of
America for the full and timely payment of which its full
faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by, and acting as an agency or
instrumentality of, and guaranteed as a full faith and
credit obligation which shall be fully and timely paid by,
the United States of America (including a depository receipt
issued by a Lender (as defined in Section 3(a) (2) of the
Securities Act of 1933, as amended) as custodian with
respect to such obligations or a specific payment of
principal of or interest on any such obligation held by such
custodian for the account of the holder of such depository
receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the
amount received by the custodian in respect of the
securities or the specific payment of principal of or
interest on the securities evidenced by such depository
receipt);
() debt obligations with a remaining maturity of one
year or less, other than obligations referred to in clause
(a) above, of any Person, whether evidenced by bonds, notes,
debentures, certificates, book entry, deposits, certificates
of deposit, commercial paper, bankers acceptances,
reinvestment letters, investment contracts, funding
agreements or other instruments, which shall be rated not
lower than (i) Aaa by Xxxxx'x or if it has a short-term debt
rating then a short-term debt rating not lower than P-1 by
Xxxxx'x and (ii) AAA by S&P or if it has a short-term debt
rating then the highest short-term debt rating category by
S&P) and bonds or other obligations with a remaining
maturity of 91 days or less rated Aaa by Xxxxx'x and AAA by
S&P, used by or by authority of any state of the United
States, any territory or possession of the United States,
including the Commonwealth of Puerto Rico and agencies
thereof, or any political subdivision of any of the
foregoing; or any combination of the foregoing.
() "Retainage Escrow Account Collateral" means the
-----------------------------------------
collective reference to:
() all of the Borrower's right, title and interest in
and to the Retainage Escrow Account and the instruments and
securities (including, without limitation, Permitted
Investments (as defined in the Retainage Escrow Agreement)),
if any, from time to time deposited or held in the Retainage
Escrow Account or otherwise held by or for the benefit of
Lender pursuant to the terms of the Retainage Escrow
Agreement;
() all interest, dividends, Money, and other funds and
other property from time to time on deposit in the Retainage
Escrow Account or received, receivable or otherwise payable
in respect of, or in exchange for, the Retainage Escrow
Account or Permitted Investments (as defined in the
Retainage Escrow Agreement);
and to the extent not covered by clause (i) or (ii)
above, all proceeds of any or all of the foregoing (except
to the extent that such Proceeds shall have been disbursed
to Borrower from the Retainage Escrow Account in accordance
with the provisions of the Retainage Escrow Agreement and
the Retainage Escrow Pledge Agreement and applied in
accordance with the provisions thereof).
EXHIBIT F CONTINUED
5.14 Borrowers shall cause Grand Canal Mall Shops, LLC
("Mall I") to promptly pay when due all amounts allocated to the
Mall in accordance with Section 6(b) and 6(i) of that certain
FADAA Waiver.
7.20 A default by any of the Borrowers or Mall I under the
FADAA Waiver or that certain Limited Waiver and Second Amendment
to Credit Agreement dated as of November 12, 1999 by and among
Borrowers, Mall I, Lender and Xxxxxxx.
