EXHIBIT 4.1
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EXECUTION COPY
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (the "SUPPLEMENTAL INDENTURE"), dated as
of February 14, 2005, among Las Vegas Sands, Inc., a Nevada corporation (the
"COMPANY"), Venetian Casino Resort, LLC, a Nevada limited liability company
("VENETIAN" and, together with the Company, the "ISSUERS"), the Note Guarantors
named on the signature pages hereto, and U.S. Bank National Association, as
trustee (the "TRUSTEE").
WHEREAS, the Issuers, the Guarantors and the Trustee are parties to
that certain Indenture, dated as of June 4, 2002, as amended by a First
Supplemental Indenture, dated as of August 20, 2004 and a Second Supplemental
Indenture, dated as of September 30, 2004 (as amended, the "Indenture"),
pursuant to which the Issuers' 11% Mortgage Notes due 2010 (the "NOTES") were
issued. Capitalized terms used but not defined herein shall have the same
meanings ascribed to such terms in the Indenture;
WHEREAS, Section 9.02 of the Indenture provides that the Issuers and
the Trustee may make certain amendments to the Indenture with the written
consent of the Holders of not less than a majority in principal amount of the
Notes then outstanding;
WHEREAS, the Issuers distributed an Offer to Purchase and Consent
Solicitation Statement dated as of February 1, 2005 (the "OFFER TO PURCHASE") in
order to, among other things, make an offer to purchase (the "OFFER") all
Outstanding Notes upon terms and conditions described in the Offer to Purchase
and to solicit consents (the "CONSENTS") from the Holders to amendments to the
Indenture (the "AMENDMENTS");
WHEREAS, Holders of at least a majority in aggregate principal amount
of the Notes outstanding have given and not withdrawn their consent to the
Amendments; and
WHEREAS, the execution of this Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Indenture, the
Issuers have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel with respect to such authorization, and all things necessary to make
this Supplemental Indenture a valid agreement of the Issuers and the Trustee in
accordance with its terms have been done.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, each
Issuer, the Guarantors and the Trustee mutually covenant and agree as follows:
1. EFFECT. This Supplemental Indenture shall become effective
upon its execution and delivery by the parties hereto. Notwithstanding the
foregoing, the amendments set forth in Section 2 below shall become operative
only when the Notes that were validly tendered and not withdrawn prior to the
Consent Time (as such term is
defined in the Offer to Purchase) are accepted for purchase by the Issuers
pursuant to the terms of the Offer. If after the date hereof, either the Offer
is terminated or withdrawn or all payments in respect of the Notes accepted for
payment pursuant to the Offer are not made promptly after the applicable date of
acceptance, then the amendments set forth in Section 2 shall have no effect and
the Indenture shall be deemed to be amended so that it reads the same as it did
immediately prior to the date hereof.
2. AMENDMENTS.
The Indenture is hereby amended as follows:
(a) Section 1.01 is hereby amended as follows:
(i) the definition of "Asset Sale" is
hereby amended by deleting the phrases "under Section 4.07
hereof" and "thereunder" in clause (3) and the phrase
"pursuant to Section 4.21" in clause (7) and replacing such
phrases with the word "hereunder";
(ii) the definition of "Disqualified
Stock" is hereby amended by deleting the words ", including
Sections 4.10, 4.11 and 4.16 hereof" at the end of the
definition;
(iii) the definition of "Consolidated Net
Income" is hereby amended by deleting the clause "Section 4.08
hereof" in clause (3) thereof and replacing it with
"hereunder";
(iv) the definitions of "Permitted
Investments," "Permitted Liens," "Permitted Macau Guarantee"
and "Repurchase Offer" are hereby deleted in their entirety;
and
(v) the definition of "Specified FF&E"
is hereby amended by deleting the phrase "pursuant to clauses
(g), (j) or (p) of the second paragraph of Section 4.09
hereof" and replacing it with "permitted under this
Indenture".
(b) Section 1.02 is hereby amended by deleting
the following terms in their entirety: "Affiliate Transaction," "Asset Sale
Offer," "Change of Control Offer," "Change of Control Payment," "Change of
Control Payment Date," "Employee Stock Buybacks," "Event of Loss Offer," "Excess
Loss Proceeds," "Excess Proceeds," "incur," "Lease Transaction," "Offer Amount,"
"Offer Period," "Purchase Date, "Refinancing Fee Amounts," "Refinancing
Indebtedness," "Repurchase Offer" and "Restricted Payments";
(c) Section 2.01(a) is hereby amended by
deleting the phrase "compliance with Section 4.09 hereof and" and by deleting
the phrase "in an aggregate principal amount permitted to be incurred pursuant
to Section 4.09 hereof";
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(d) Section 2.06(i)(ii) is hereby amended by
deleting the phrase ", 4.10, 4.11, 4.16" ;
(e) Section 3.01 is hereby amended by deleting
the second paragraph of such Section;
(f) Section 3.02 is hereby amended by (i)
deleting the phrase "purchased in an Asset Sale Offer or Event of Loss Offer,
or" in the first sentence of the first paragraph of such Section, (ii) deleting
the last sentence of the first paragraph of such Section and (iii) deleting the
third paragraph of such Section;
(g) the text of Section 3.10 is hereby deleted
in its entirety and such Section shall be of no further force and effect and the
words "[INTENTIONALLY DELETED]" shall be inserted in place of the deleted text;
(h) the text of Section 4.03 is hereby deleted,
other than the first sentence thereof;
(i) Sections 4.04 (b), (c) and (d) are hereby
deleted;
(j) the text of Sections 4.05, 4.06, 4.07, 4.08,
4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.18, 4.19, 4.20, 4.21, 4.22 and
4.23 of the Indenture is hereby deleted in its entirety and these Sections shall
be of no further force and effect and the words "[INTENTIONALLY DELETED]" shall
be inserted, in each case, in place of the deleted text;
(k) Section 4.17 is hereby amended by deleting
the second and fourth paragraphs of such Section;
(l) Section 5.01 is hereby amended by deleting
the text of clauses (3) through (6) and the last two sentences of such Section
and by replacing the phrase: "; (2)" with ; "and (2)." and ";" at the end clause
(2) with ".";
(m) Section 6.01 is hereby amended by deleting
the text of clauses (c), (d), (f), (g), (k) and (l) and by replacing such text
with the words "[INTENTIONALLY DELETED]";
(n) Section 8.04 is hereby amended by deleting
the text of clauses (c) and (f) and by replacing such text with the words
"[INTENTIONALLY DELETED]";
(o) The first two sentences of Section 11.02 are
hereby deleted; and
(p) Section 11.04 is hereby amended by deleting
the text of clauses (ii) and (iii) of paragraph (a) thereof and by replacing
such text with the words "[INTENTIONALLY DELETED]".
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3. GOVERNING LAW. This Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
4. COUNTERPARTS. This Supplemental Indenture may be executed in
one or more counterparts, each of which shall be an original, but all of which
together shall constitute one and the same document.
5. EFFECT ON INDENTURE. This Supplemental Indenture shall form a
part of the Indenture for all purposes, and every Holder of Notes heretofore or
hereafter authenticated and delivered shall be bound hereby. Except as expressly
set forth herein, the Indenture is in all respects ratified and confirmed and
all the terms, conditions and provisions thereof shall remain in full force and
effect, including with respect to this Supplemental Indenture.
6. CONFLICT WITH TRUST INDENTURE ACT. If any provision of this
Supplemental Indenture limits, qualifies or conflicts with any provision of the
Trust Indenture Act that may not be so limited, qualified or conflicted with,
such provision of such Act shall control. If any provision of this Supplemental
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the provision of such Act shall be deemed to apply
to the Indenture as so modified or to be excluded by this Supplemental
Indenture, as the case may be.
7. SEPARABILITY CLAUSE. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
8. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
9. BENEFITS OF SUPPLEMENTAL INDENTURE, ETC. Nothing in this
Supplemental Indenture, the Indenture or the Notes, express or implied, shall
give to any person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders of Notes, any benefit of any
legal or equitable right, remedy or claim under the Indenture, this Supplemental
Indenture or the Notes.
10. SUCCESSORS AND ASSIGNS. All agreements of the Issuers and the
Guarantors in this Supplemental Indenture and the Notes shall bind their
respective successors.
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IN WITNESS WHEREOF, the parties have executed this
Supplemental Indenture as of the date first written above.
LAS VEGAS SANDS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
VENETIAN CASINO RESORT, LLC
By: Las Vegas Sands, Inc.
AS MANAGING MEMBER
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
MALL INTERMEDIATE HOLDING COMPANY, LLC
By: Venetian Casino Resort, LLC
AS SOLE MEMBER
By: Las Vegas Sands, Inc.
AS MANAGING MEMBER
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
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VENETIAN HOTEL OPERATIONS LLC
By: Venetian Casino Resort, LLC
AS SOLE MEMBER
By: Las Vegas Sands, Inc.
AS MANAGING MEMBER
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
LIDO INTERMEDIATE HOLDING COMPANY, LLC
By: Venetian Casino Resort, LLC
AS SOLE MEMBER
By: Las Vegas Sands, Inc.
AS MANAGING MEMBER
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
LIDO CASINO RESORT, LLC
By: Lido Intermediate Holding Company,
LLC
AS SOLE MEMBER
By: Venetian Casino Resort, LLC
AS SOLE MEMBER
By: Las Vegas Sands, Inc.
AS MANAGING MEMBER
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
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VENETIAN VENTURE DEVELOPMENT, LLC
By: Venetian Casino Resort, LLC
AS SOLE MEMBER
By: Las Vegas Sands, Inc.
AS MANAGING MEMBER
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
VENETIAN OPERATING COMPANY LLC
By: Venetian Casino Resort, LLC
AS SOLE MEMBER
By: Las Vegas Sands, Inc.
AS MANAGING MEMBER
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
VENETIAN TRANSPORT LLC
By: Las Vegas Sands, Inc.
AS MANAGING MEMBER
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
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INTERFACE EMPLOYEE LEASING, LLC
By: Las Vegas Sands, Inc.
AS MANAGING MEMBER
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
YONA VENETIAN LLC
By: Las Vegas Sands, Inc.
AS MANAGING MEMBER
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
VENETIAN MARKETING, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
U.S. BANK NATIONAL
ASSOCIATION AS
MORTGAGE NOTE TRUSTEE
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
Vice President
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