AMENDMENT AND RESTATEMENT AGREEMENT

EX-10.2 3 lvs-ex102_20131231x10k.htm EX-10.2 Unassociated Document
EXHIBIT 10.2
 
EXECUTION VERSION

 
 

 
AMENDMENT AND RESTATEMENT AGREEMENT
 
 
dated as of December 19, 2013
 
among
 
LAS VEGAS SANDS, LLC,
as Borrower
 
GUARANTORS PARTY HERETO,
 
 
LENDERS PARTY HERETO,
 
and
 
THE BANK OF NOVA SCOTIA,
as Administrative Agent and Collateral Agent
 
 
 
 
 
 
 

 
 
 
AMENDMENT AND RESTATEMENT AGREEMENT dated as of December 19, 2013 (this “Amendment”), to the Amended and Restated Credit and Guaranty Agreement dated as of August 18, 2010 (the “Existing Credit Agreement”), among LAS VEGAS SANDS, LLC, a Nevada limited liability company (the “Borrower”), the Guarantors party thereto, the Lenders party thereto and The Bank of Nova Scotia, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”) and as collateral agent (in such capacity, the “Collateral Agent”).
 
A.           Pursuant to the Existing Credit Agreement, the Lenders (as defined therein, the “Existing Lenders”) have extended credit to the Borrower in an aggregate amount not to exceed $3,642,000,000, consisting of (i) $752,777,573.70 aggregate principal amount of Original Tranche B Term Loans (such capitalized term and other capitalized terms used in this paragraph A have the meanings given to them in the Existing Credit Agreement), (ii) $1,415,322,565.30 aggregate principal amount of Extended Tranche B Term Loans, (iii) $154,431,108.60 aggregate principal amount of Original Delayed Draw I Term Loans, (iv) $284,458,305.30 aggregate principal amount of Extended Delayed Draw I Term Loans, (v) $77,091,047.50 aggregate principal amount of Original Delayed Draw II Term Loans, (vi) $207,919,399.60 aggregate principal amount of Extended Delayed Draw II Term Loans and (vii) $750,000,000 aggregate principal amount of Revolving Commitments.
 
B.           The Borrower has requested that the Existing Credit Agreement be amended and restated in the form of the Second Amended and Restated Credit and Guaranty Agreement attached hereto as Exhibit A to, among other things, set forth the terms and conditions of the Revolving Loans and Term B Loans and permit Borrower to issue additional indebtedness that would be secured on a parri passu or junior basis with the Secured Obligations.
 
C.           Upon the Restatement Date (as defined below), the terms of the outstanding (i) Tranche B Term Loans (as defined in the Existing Credit Agreement), (ii) Delayed Draw I Term Loans (as defined in the Existing Credit Agreement) and (iii) Delayed Draw II Term Loans (as defined in the Existing Credit Agreement) (each loan listed in clauses (i) through (iii), an “Existing Term Loan” and collectively, the “Existing Term Loans”) of each Existing Lender that approves this Amendment and offers to convert its Existing Term Loans into Term B Loans (as defined in the Amended Credit Agreement) by executing and delivering to the Administrative Agent (or its counsel), on or prior to 11:59 p.m., New York City time, on December 18, 2013 (the “Delivery Time”), a signature page to this Amendment designating itself as a “Converting Term Lender” (each Existing Lender with an outstanding Existing Term Loan that does not so designate itself, being referred to herein as a “Declining Term Lender”) will be modified as set forth herein.
 
D.           Upon the Restatement Date, the terms of the outstanding Revolving Commitments of each Existing Lender that approves this Amendment and offers to convert its Revolving Commitments and Revolving Loan (if any) (as such terms are defined in the Existing Credit Agreement, the “Existing Revolving Commitments” and the “Existing Revolving Loans,” respectively) into Revolving Commitments and Revolving Loans (as such terms are defined in the Amended Credit Agreement (as defined below)) by executing and delivering to the Administrative Agent (or its counsel), on or prior to the Delivery Time, a signature page to this Amendment designating itself as a “Converting Revolving Lender” (each Existing Lender with a
 
 
 
 
 
 
 

 
 
 
Revolving Commitment that does not so designate itself, being referred to herein as a “Declining Revolving Lender”) will be modified as set forth herein.
 
E.           All capitalized terms used but not defined herein shall have the meanings given them in the Amended Credit Agreement (as defined below).
 
Accordingly, the parties hereto hereby agree as follows:
 
SECTION 1.   Amendment and Restatement of the Existing Credit Agreement.  Effective as of the Restatement Date, the Existing Credit Agreement is hereby amended and restated in its entirety in the form of Exhibit A hereto (the Existing Credit Agreement, as so amended and restated, being referred to as the “Amended Credit Agreement”).
 
SECTION 2.   Term B Loan.  Subject to the terms and conditions set forth herein and in the Amended Credit Agreement, as of the Restatement Date, each Converting Term Lender agrees that its Existing Term Loans (to the extent allocated by the Arrangers (as defined below) of the Amended Credit Agreement) will be modified to become a Term B Loan of like outstanding aggregate principal amount.  The Existing Term Loans of Converting Term Lenders not allocated to be modified to become a Term B Loan and the Existing Term Loans of each Declining Term Lender shall be repaid in full in cash in accordance with Section 2.13 of the Existing Credit Agreement.
 
SECTION 3.   Revolving Commitments.  Subject to the terms and conditions set forth herein and in the Amended Credit Agreement, as of the Restatement Date, each Converting Revolving Lender agrees that its Existing Revolving Commitments and outstanding Existing Revolving Loans (if any and to the extent allocated by the Arrangers of the Amended Credit Agreement) will be modified to become Revolving Commitments and Revolving Loans of like outstanding principal amount.  The Existing Revolving Commitments and Existing Revolving Loans (if any) of Converting Revolving Lenders not allocated to become a Revolving Commitment or Revolving Loan and the Existing Revolving Commitments and Existing Revolving Loans of each Declining Revolving Lender shall be repaid in full in cash in accordance with Section 2.13 of the Existing Credit Agreement.  The Interest Periods and Adjusted Eurodollar Rates in effect for the Revolving Loans (if any) immediately prior to the Restatement Date shall remain in effect for the Revolving Loans resulting from the effectiveness of this Amendment on the Restatement Date, notwithstanding any contrary provision of Section 2.8 or 2.9 of the Existing Credit Agreement or the Amended Credit Agreement, with only (i) the Applicable Margin for the Revolving Loans and Swing Line Loans and Letters of Credit allocable to the Revolving Commitments and (ii) the Applicable Revolving Commitment Fee Percentage applicable to the Revolving Commitments changing as of, and with effect from and after, the Restatement Date.
 
SECTION 4.   New Lenders.  Subject to the terms and conditions set forth herein and in the Amended Credit Agreement, as of the Restatement Date, each Lender party hereto, that is not an Existing Lender (each such Lender, a “New Lender” and collectively, the “New Lenders”), agrees to make to the Borrower Term B Loans or Revolving Loans, as the case may be, pursuant to Sections 2.1 and 2.2 of the Amended Credit Agreement, respectively.
 
 
 
 
 
 
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SECTION 5.   Commitment Termination and Prepayments.  (a)  The Borrower hereby permanently reduces any unallocated portion of a Converting Revolving Lender’s Existing Revolving Commitments and the Existing Revolving Commitments of each Declining Revolving Lender (the “Commitment Reduction”), such reduction to be effected immediately prior to the Restatement Date, but only if the Restatement Date occurs.
 
(b)           On the Restatement Date, the Borrower shall prepay in full the Existing Term Loans and Existing Revolving Loans (if any), together with all accrued and unpaid fees and interest with respect to such Existing Term Loans and Existing Revolving Loans of Converting Term Lenders or Converting Revolving Lenders, respectively, that are not allocated to be modified to become Term B Loans or Revolving Loans, respectively, and that are held by the Declining Term Lenders and Declining Revolving Lenders, respectively, pursuant to Section 2.13 of the Existing Credit Agreement (the “Prepayment”).
 
(c)           Execution and delivery of this Amendment by the Borrower and the Requisite Lenders on or prior to the Restatement Date shall be deemed to satisfy the notice requirements of the Existing Credit Agreement and the Amended Credit Agreement in connection with the Commitment Reduction and the Prepayment.
 
SECTION 6.   Fees.  The Borrower agrees to pay to the Administrative Agent, on the Restatement Date, the fees set forth in the Amended and Restated Engagement Letter dated as of December 17, 2013 (the “Engagement Letter”) between the Borrower and the Arrangers (as defined therein) and in the Confidential Administrative Agent Fee Letter dated as of December 18, 2013 between the Borrower and the Administrative Agent.
 
SECTION 7.   Representations and Warranties. To induce the other parties hereto to enter into this Amendment, the Borrower represents and warrants to each of the other parties hereto, that: (a) the representations and warranties set forth in Article IV of the Amended Credit Agreement and the other Credit Documents are true, correct and complete in all material respects on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which case they were true, correct and complete in all material respects as of such earlier date and (b) after giving effect to this Amendment, no Default or Potential Event of Default has occurred and is continuing.
 
SECTION 8.   Effectiveness.  This Amendment and the Amended Credit Agreement shall become effective as of the first date (the “Restatement Date”) that each of the following conditions have been satisfied:
 
(a)           The Administrative Agent (or its counsel) shall have received counterparts of this Amendment that, when taken together, bear the signatures of (i) the Borrower, (ii) the Guarantors, (iii) the New Lenders, (iv) the Administrative Agent, (v) the Collateral Agent, (vi) the Swing Line Lender, (vii) the Issuing Lender and (viii) each Converting Term Lender and Converting Revolving Lender.
 
(b)           The Second Amended and Restated Security Agreement shall substantially contemporaneously with the effectiveness of this Amendment be entered into by the Collateral Agent and the Grantors party thereto.  The Collateral Agent shall have received
 
 
 
 
 
 
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evidence that a Uniform Commercial Code financing statement filing in the jurisdiction of organization of each Credit Party has been provided for and evidence of filings with the United States Patent and Trademark Office and United States Copyright Office necessary or desirable to perfect the Liens created by the Security Agreement.  The Collateral Agent shall have received certified copies of UCC, tax and judgment lien searches, or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name any Credit Party as debtor and that are filed in those state and county jurisdictions in which any Credit Party is organized or maintains its principal place of business and such other searches that the Collateral Agent reasonably deems necessary.
 
(c)           To the extent required by the Security Agreement and not previously delivered, the Collateral Agent shall have received all certificates, agreements or instruments representing or evidencing Pledged Debt (as defined in the Security Agreement) accompanied by instruments of transfer undated and endorsed in blank and all other certificates, agreements, or instruments necessary to perfect the Collateral Agent’s security interest in all Chattel Paper, all Instruments and all Pledged Debt of each Credit Party (as each such term is defined in the Security Agreement and to the extent required by the Security Agreement.
 
(d)           The Administrative Agent shall have received (i) copies of each Organizational Document of each Credit Party, certified by the applicable Credit Party (or certifying that there has been no change to such documents since they were last delivered to the Administrative Agent); (ii) signature and incumbency certificates of the officers of such Person executing the Credit Documents being executed on the Restatement Date to which it is a party; (iii) resolutions of the Board of Directors or similar governing body of each Credit Party approving and authorizing the execution, delivery and performance of this Amendment and the other Credit Documents to which it is a party or by which it or its assets may be bound as of the Restatement Date, certified as of the Restatement Date by its secretary or an assistant secretary as being in full force and effect without modification or amendment; and (iv) a good standing certificate from the applicable Governmental Authority of each Credit Party’s jurisdiction of incorporation, organization or formation and in each jurisdiction in which it is qualified as a foreign corporation or other entity to do business, each dated a recent date prior to the Restatement Date.
 
(e)           The Lenders shall have received copies of the favorable written opinions of (i) Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel for Credit Parties, substantially in the form of Exhibit P-1 to the Amended Credit Agreement and (ii) Lionel Sawyer & Collins LLP, Nevada counsel for the Credit Parties, substantially in the form of Exhibit P-2 to the Amended Credit Agreement, in each case dated the Restatement Date (and each Credit Party hereby instructs such counsel to deliver such opinions to the Agents and Lenders).
 
(f)           The Borrower shall have paid (i) to the Administrative Agent, the fees payable on the Restatement Date referred to in Section 6, (ii) to the Administrative Agent and to the Arrangers, all fees and other amounts due and payable to them on or prior to the Restatement Date, including, to the extent invoiced, reimbursement or payment of all
 
 
 
 
 
 
 
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out-of-pocket expenses required to be reimbursed or paid by the Borrower in connection with this Amendment and (iii) (x) to each Revolving Lender under the Amended Credit Agreement an amount equal to 0.40% of the aggregate principal amount of such Revolving Lender’s Revolving Commitments and Revolving Loans under the Amended Credit Agreement and (y) an amount equal to 0.50% of the aggregate principal amount of such Term B Lender’s Term B Loan under the Amended Credit Agreement, which may take the form of original issue discount on the Term B Loans.
 
(g)           The Borrower shall have made the Prepayment and the Commitment Reduction, and shall have paid all amounts required to be paid by it in connection therewith.
 
(h)           On the Restatement Date, the Administrative Agent and the Arrangers shall have received a Solvency Certificate from the Borrower, substantially in the form of Exhibit R to the Amended Credit Agreement, demonstrating that after giving effect to the consummation of the transactions contemplated hereunder, the Borrower and its Subsidiaries, taken as a whole, are and will be Solvent.
 
(i)           The Administrative Agent shall have received a completed “Life-of-Loan” Federal Emergency Management Agency standard flood hazard determination with respect to each Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Borrower and each Credit Party relating thereto, with respect to any Mortgaged Property located in a special flood hazard area).
 
SECTION 9.   Post-Closing Obligations.  Within thirty (30) days of the Restatement Date (or such longer period as the Administrative Agent may agree in its sole discretion):
 
(a)           The Administrative Agent shall have received with respect to each Deed of Trust encumbering Mortgaged Property, a Deed of Trust Amendment (as defined in the Amended Credit Agreement).
 
(b)           The Administrative Agent shall have received with respect to each Mortgage Amendment, a copy of the existing Mortgage Policies and an endorsement with respect thereto (each, a “Mortgage Policy Endorsement,” collectively, the “Mortgage Policy Endorsements”) relating to the Deed of Trust encumbering the Mortgaged Property subject to such Deed of Trust assuring the Collateral Agent that such Deed of Trust, as amended by such Deed of Trust Amendment is a valid and enforceable first priority lien on such Mortgaged Property in favor of the Administrative Agent for the benefit of the Secured Parties free and clear of all defects, encumbrances and liens except as expressly permitted by Section 6.2 of the Amended Credit Agreement, and such Mortgage Policy Endorsement shall otherwise be in form and substance reasonably satisfactory to the Administrative Agent.
 
(c)           The Administrative Agent shall have received with respect to each Mortgage Amendment, opinions of local counsel to the Credit Parties, which opinions (x) shall be addressed to the Administrative Agent and each of Secured Parties and be dated the Restatement Date, (y) shall cover the enforceability of the respective Deed of
 
 
 
 
 
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Trust as amended by such Deed of Trust Amendment and such other matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request and (z) shall be in form and substance reasonably satisfactory to the Administrative Agent.
 
(d)           The Administrative Agent shall have received evidence reasonably acceptable to the Administrative Agent of payment by the Borrower of all applicable title insurance premiums, search and examination charges, survey costs and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Deed of Trust Amendments and issuance of the Mortgage Policy Endorsement.
 
(e)           The Administrative Agent shall have received a copy of, or a certificate as to coverage under, and a copy of the flood insurance policy and a declaration page relating to, the insurance policies required by the last paragraph of Section 5.5 of the Amended Credit Agreement which (i) shall (a) identify the addresses of each property located in a special flood hazard area, (b) indicate the applicable flood zone designation, the flood insurance coverage and the deductible relating thereto and (c) provide that the insurer will give the Collateral Agent 45 days written notice of cancellation or non-renewal and (ii) shall be otherwise in form and substance reasonably satisfactory to the Administrative Agent.
 
(f)           The Administrative Agent shall have received a copy of, or a certificate as to coverage under, the insurance policies required by Section 5.5 of the Amended Credit Agreement and any applicable provisions of the Collateral Documents.
 
(g)           The Collateral Agent shall have received evidence of filing of appropriate documents or instruments with the United States Patent and Trademark Office to record the name change of Interface-Group Nevada, Inc. to Sands Expo and Convention Center Inc. with respect to the applicable Intellectual Property pledged pursuant to the Credit Documents.
 
(h)           The Borrower shall have used commercially reasonable efforts (including using such efforts following the extension of the thirty-day post-Restatement Date period if such extension is granted by the Administrative Agent) to file a Uniform Commercial Code financing statement amendment, in form and substance reasonably satisfactory to the Collateral Agent, in respect of the Uniform Commercial Code financing statement by Axis Capital, Inc., as creditor, and Venetian Casino Resort, LLC, as debtor (#2013011015-3).
 
(i)           The Collateral Agent shall have received the promissory note, dated as of June 20, 2008, as amended on January 1, 2009, by and between Venetian Casino Resort, LLC, as lender and Primewine LLC, as borrower, accompanied by a duly executed instrument of transfer or assignment in blank.
 
SECTION 10.   Reaffirmation.  Each of the Borrower and the Guarantors, by its signature below, hereby (a) confirms its respective guarantees, pledges and grants of security interests, as applicable, under each of the Credit Documents to which it is a party, and agrees that,
 
 
 
 
 
 
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notwithstanding the effectiveness of this Amendment or the Amended Credit Agreement, such guarantees, pledges and grants of security interests shall continue to be in full force and effect and shall continue to accrue to the benefit of the Lenders and the Secured Parties and (b) confirms that all of the representations and warranties made by it contained in the Amended Credit Agreement and each of the other Credit Documents are true, correct and complete in all material respects on and as of the Restatement Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they were true, correct and complete in all material respects as of such earlier date.
 
SECTION 11.   Effect of Restatement.  (a)   The Amended Credit Agreement shall, except as otherwise expressly set forth therein, supersede the Existing Credit Agreement from and after the Restatement Date with respect to the transactions under the Amended Credit Agreement and with respect to the Loans and Letters of Credit outstanding under the Existing Credit Agreement as of the Closing Date.  All references in the other Credit Documents to the Existing Credit Agreement shall be deemed to refer without further amendment to the Amended Credit Agreement.
 
(b)           Except as expressly provided with respect to the Prepayment and the Commitment Reduction, neither this Amendment nor the effectiveness of the Amended Credit Agreement shall extinguish the Obligations for the payment of money outstanding under the Existing Credit Agreement or discharge or release the Lien or priority of any Credit Document or any other security therefor or any guarantee thereof, and the liens and security interests in favor of the Collateral Agent for the benefit of the Secured Parties securing payment of the Obligations are in all respects continuing and in full force and effect with respect to all Obligations.  Nothing herein contained shall be construed as a substitution or novation, or a payment and reborrowing, or a termination, of the Obligations outstanding under the Existing Credit Agreement or instruments guaranteeing or securing the same, which shall remain in full force and effect, except as modified hereby or by instruments executed concurrently herewith.  Nothing expressed or implied in this Amendment, the Amended Credit Agreement or any other document contemplated hereby or thereby shall be construed as a release or other discharge of the Borrower under the Existing Credit Agreement or the Borrower or any other Credit Party under any Credit Document from any of its obligations and liabilities thereunder, and such obligations are in all respects continuing with only the terms being modified as provided in this Amendment and in the Amended Credit Agreement.  The Existing Credit Agreement and each of the other Credit Documents shall remain in full force and effect, until and except as modified hereby.  This Amendment shall constitute a Credit Document for all purposes of the Existing Credit Agreement and the Amended Credit Agreement.
 
SECTION 12.   Notices.  All notices hereunder shall be given in accordance with the provisions of Section 10.1 of the Amended Credit Agreement.
 
SECTION 13.   Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
 
 
 
 
 
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SECTION 14.   Jurisdiction.  ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY CREDIT PARTY ARISING OUT OF OR RELATING HERETO OR ANY OTHER CREDIT DOCUMENT, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK.  BY EXECUTING AND DELIVERING THIS AMENDMENT, EACH CREDIT PARTY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (A) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (B) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (C) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE CREDIT PARTY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 10.1 OF THE AMENDED CREDIT AGREEMENT; (D) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (C) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER THE APPLICABLE CREDIT PARTY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (E) AGREES THAT AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY CREDIT PARTY IN THE COURTS OF ANY OTHER JURISDICTION.
 
SECTION 15.   Costs and Expenses.  The Borrower agrees to reimburse the Administrative Agent and the Arrangers to the extent set forth in the Engagement Letter for their reasonable and documented out-of-pocket expenses incurred in connection with this Amendment, including the reasonable and documented fees, charges and disbursements of counsel to the Administrative Agent and the Arrangers (in the case of the Arrangers, as provided for in the Engagement Letter).
 
SECTION 16.   Counterparts.  This Amendment may be executed in counterparts and by different parties hereto on different counterparts, each of which shall constitute an original but all of which when taken together shall constitute a single contract, and shall become effective as provided in Section 8 hereof.  Delivery of an executed signature page to this Amendment by facsimile or other electronic method of transmission shall be effective as delivery of a manually signed counterpart of this Amendment.
 
SECTION 17.   Headings.  Section headings used herein are for convenience of reference only, are not part of this Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment.
 
[Remainder of Page Intentionally Left Blank]
 
 
 
 
 
 
 
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
 
 
 
LAS VEGAS SANDS, LLC
 
     
       
 
By:
/s/ Michael A. Leven  
  Name: Michael A. Leven  
  Title: Secretary, President &  
    Chief Operating Officer   

 
 
 
 
 
 
 
 
 
 
[Signature Page to Amendment and Restatement Agreement]

 
 
 
 
VENETIAN CASINO RESORT, LLC
By: Las Vegas Sands, LLC
       its Managing Member
 
     
       
 
By:
/s/ Michael A. Leven  
  Name: Michael A. Leven  
  Title: Secretary, President &  
    Chief Operating Officer   
 
 
 
SANDS EXPO & CONVENTION CENTER, INC.
 
     
       
 
By:
/s/ Michael A. Leven  
  Name: Michael A. Leven  
  Title: Director  
       
 
 
VENETIAN MARKETING, INC.
 
     
       
 
By:
/s/ Michael A. Leven  
  Name: Michael A. Leven  
  Title: Director  
       
 
 
SANDS PENNSYLVANIA, INC.
 
     
       
 
By:
/s/ Michael A. Leven  
  Name: Michael A. Leven  
  Title: Secretary & President  
       

 
 
 
 
 
[Signature Page to Amendment and Restatement Agreement]

 

 
 
THE BANK OF NOVA SCOTIA,
as Administrative Agent, Collateral Agent, Swing
Line Lender, Issuing Bank and a Lender
 
     
       
 
By:
/s/ Diane Emanuel  
  Name:
Diane Emanuel
 
  Title: Managing Director  
       



 
 
 
 
 
 
 
 
 
 
 
[Signature Page to Amendment and Restatement Agreement]
 
 

 
 
 
 EXECUTION VERSION
EXHIBIT A
 
 
SECOND AMENDED AND RESTATED
CREDIT AND GUARANTY AGREEMENT
 
dated as of December 19, 2013
 
among
 
LAS VEGAS SANDS, LLC,
as Borrower
 
CERTAIN SUBSIDIARIES OF BORROWER,
as Guarantors,
 
VARIOUS LENDERS,
 
BARCLAYS BANK PLC,
as Joint Lead Arranger, Joint Bookrunner and Syndication Agent,
 
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arranger, Joint Bookrunner and Syndication Agent,
 
THE BANK OF NOVA SCOTIA,
as Administrative Agent, Collateral Agent, Joint Lead Arranger and Joint Bookrunner
 
and
 
MERRILL LYNCH, PIERCE FENNER & SMITH INCORPORATED,
 
BNP PARIBAS SECURITIES CORP,
 
and
 
GOLDMAN SACHS BANK USA,
as  Joint Lead Arrangers, Joint Bookrunners and Documentation Agents
 
and
 
CREDIT AGRICOLE CORPORATE & INVESTMENT BANK,
MORGAN STANLEY SENIOR FUNDING, INC., THE ROYAL BANK OF SCOTLAND PLC
AND SUMITOMO MITSUI BANKING CORPORATION,
 
as Senior Managing Agents
 

 
$3,500,000,000 Senior Secured Credit Facilities
 

 
 
 
 

 
 
TABLE OF CONTENTS
Page

SECTION 1. DEFINITIONS AND INTERPRETATION
2
1.1. Definitions
2
1.2. Accounting Terms
47
1.3. Interpretation, etc
47
1.4. Pro Forma Calculations
48
   
SECTION 2. LOANS AND LETTERS OF CREDIT
48
2.1. Term Loans
48
2.2. Revolving Loans
49
2.3. Swing Line Loans
50
2.4. Issuance of Letters of Credit and Purchase of Participations Therein
52
2.5. Pro Rata Shares; Availability of Funds
56
2.6. Use of Proceeds
57
2.7. Evidence of Debt; Register; Lenders’ Books and Records; Notes
57
2.8. Interest on Loans
58
2.9. Conversion/Continuation
60
2.10. Default Interest
61
2.11. Fees
61
2.12. Scheduled Payments/Commitment Reductions
62
2.13. Voluntary Prepayments/Commitment Reductions
62
2.14. Mandatory Prepayments/Commitment Reductions
64
2.15. Application of Prepayments/Reductions
66
2.16. General Provisions Regarding Payments
67
2.17. Ratable Sharing
68
2.18. Making or Maintaining Eurodollar Rate Loans
69
2.19. Increased Costs; Capital Adequacy
71
2.20. Taxes; Withholding, etc.
73
2.21. Obligation to Mitigate
77
2.22. Defaulting Lenders
78
2.23. Removal or Replacement of a Lender
80
2.24. Incremental Commitments; Commitment Extensions; Refinancing Indebtedness
81
   
SECTION 3. CONDITIONS PRECEDENT
90
3.1. Conditions to Effectiveness
90
3.2. Conditions to the Making of Loans
90
3.3. Conditions to Letters of Credit
92
   
SECTION 4. REPRESENTATIONS AND WARRANTIES
92
4.1. Organization; Requisite Power and Authority; Qualification
92
4.2. Equity Interests and Ownership
92
4.3. Due Authorization
93
4.4. No Conflict
93
4.5. Governmental Consents
93
 
 
 
i

 
 
 
4.6. Binding Obligation
93
4.7. Historical Financial Statements
93
4.8. Projections
94
4.9. No Material Adverse Change
94
4.10. Adverse Proceedings, etc
94
4.11. Payment of Taxes
94
4.12. Properties
94
4.13. Environmental Matters
95
4.14. No Defaults
96
4.15. Material Contracts
96
4.16. Governmental Regulation
96
4.17. Margin Stock
96
4.18. Employee Matters
96
4.19. Employee Benefit Plans
97
4.20. Certain Fees
97
4.21. Solvency
97
4.22. Matters Relating to Collateral
97
4.23. Compliance with Statutes, etc
98
4.24. Disclosure
98
4.25. Patriot Act
98
   
SECTION 5. AFFIRMATIVE COVENANTS
99
5.1. Financial Statements and Other Reports
99
5.2. Existence
104
5.3. Payment of Taxes and Claims
105
5.4. Maintenance of Properties
105
5.5. Insurance
105
5.6. Books and Records; Inspections
106
5.7. Lenders Meetings
106
5.8. Compliance with Laws
106
5.9. Environmental
107
5.10. Compliance with Material Contracts
108
5.11. Subsidiaries
108
5.12. Additional Material Real Estate Assets
108
5.13. FF&E
108
5.14. [Intentionally Omitted]
108
5.15. Further Assurances
108
5.16. Maintenance of Ratings
109
5.17. PA Sale Proceeds
109
5.18. Real Estate Matters
109
   
SECTION 6. NEGATIVE COVENANTS
110
6.1. Indebtedness
110
6.2. Liens and Other Matters
114
6.3. Investments; Joint Ventures; Formation of Subsidiaries
118
6.4. Restrictions on Subsidiary Distributions
121
6.5. Restricted Payments
121
 
 
 
ii

 
 
 
6.6. Financial Covenants
124
6.7. Fundamental Changes; Disposition of Assets
124
6.8. Sale and Leasebacks
128
6.9. Transactions with Shareholders and Affiliates
128
6.10. Disposal of Subsidiary Stock
130
6.11. Conduct of Business
130
6.12. Certain Restrictions on Changes to Certain Documents
130
6.13. Fiscal Year
131
6.14. No Joint Assessment
131
6.15. No Further Negative Pledge
131
6.16. PCT
132
6.17. Joint Venture Partners
132
   
SECTION 7. GUARANTY
132
7.1. Guaranty of the Obligations
132
7.2. Contribution by Guarantors
132
7.3. Payment by Guarantors
133
7.4. Liability of Guarantors Absolute
133
7.5. Waivers by Guarantors
135
7.6. Guarantors’ Rights of Subrogation, Contribution, etc
136
7.7. Subordination of Other Obligations
137
7.8. Continuing Guaranty
137
7.9. Authority of Guarantors or Borrower
137
7.10. Financial Condition of Borrower
137
7.11. Bankruptcy, etc
137
7.12. Discharge of Guaranty Upon Sale of Guarantor
138
7.13. Keepwell
138
   
SECTION 8. EVENTS OF DEFAULT
139
8.1. Events of Default
139
   
SECTION 9. AGENTS
143
9.1. Appointment of Agents
143
9.2. Powers and Duties
144
9.3. General Immunity
144
9.4. Agents Entitled to Act as Lender
145
9.5. Lenders’ Representations, Warranties and Acknowledgment
146
9.6. Right to Indemnity
146
9.7. Successor Administrative Agent, Collateral Agent and Swing Line Lender
146
9.8. Collateral Documents and Guaranty
147
9.9. Withholding Taxes
149
9.10. Intercreditor Agreements
149
   
SECTION 10. MISCELLANEOUS
149
10.1. Notices
149
10.2. Expenses
151
10.3. Indemnity
151
 
 
 
iii

 
 
 
10.4. Set-Off
153
10.5. Amendments and Waivers
153
10.6. Successors and Assigns; Participations
156
10.7. Independence of Covenants
162
10.8. Survival of Representations, Warranties and Agreements
162
10.9. No Waiver; Remedies Cumulative
163
10.10. Marshalling; Payments Set Aside
163
10.11. Severability
163
10.12. Obligations Several; Independent Nature of Lenders’ Rights
163
10.13. Headings
163
10.14. APPLICABLE LAW
163
10.15. CONSENT TO JURISDICTION
164
10.16. WAIVER OF JURY TRIAL
164
10.17. Confidentiality
165
10.18. Usury Savings Clause
165
10.19. Counterparts
166
10.20. Effectiveness
166
10.21. Patriot Act
166
10.22. Electronic Execution of Assignments
166
10.23. Gaming Authorities
166
10.24. Harrah’s Shared Garage Lease
167
10.25. Certain Matters Affecting Lenders
167
10.26. Effect of Restatement
167
10.27. No Fiduciary Duties
168
 
 
 
 
 
iv

 
 

APPENDICES:
A-1
Intentionally Omitted
 
A-2
Intentionally Omitted
 
A-3
Intentionally Omitted
 
A-4
Revolving Commitments
 
B
Notice Addresses
     
SCHEDULES:
4.2
Equity Interests and Ownership
 
4.5
Governmental Consents
 
4.12
Material Real Estate Assets and Leases
 
4.15
Material Contracts
 
4.22(b)
Permits
 
6.1
Certain Indebtedness
 
6.2
Certain Liens
 
6.3
Certain Investments
 
6.9
Certain Affiliate Transactions
 
6.9(q)
Rates of Exchange
     
EXHIBITS:
A-1
Assignment Agreement
 
A-2
Affiliate Lender Assignment and Assumption
 
B-1-B-4
Certificate Re Non-bank Status
 
C
Intentionally Omitted
 
D
Compliance Certificate
 
E
Conversion/Continuation Notice
 
F
Counterpart Agreement
 
G-1
Form Deed of Trust (Venetian Site)
 
G-2
Form Deed of Trust (Palazzo Site)
 
G-3
Form Deed of Trust (Central Park West Site)
 
G-4
Form Deed of Trust (SECC Site)
 
H-1
Intentionally Omitted
 
H-2
Revolving Loan Note
 
H-3
Swing Line Note
 
H-4
Term B Loan Note
 
H-5
Intentionally Omitted
 
H-6
Form of First Lien Intercreditor Agreement
 
I
Funding Notice
 
J
Intercompany Note
 
K
Issuance Notice
 
L
Intentionally Omitted
 
M
Security Agreement
 
N
Intentionally Omitted
 
O
Subordination, Non-Disturbance and Attornment
 
P-1
Form of Opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP
 
P-2
Form of Opinion of Lionel Sawyer & Collins
 
P-3
Intentionally Omitted
 
Q
Perfection Certificate
 
R
Solvency Certificate
 
 
 
 
v

 
 
 
SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
 
This SECOND AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT, dated as of December 19, 2013, is entered into by and among LAS VEGAS SANDS, LLC, a Nevada limited liability company (“Borrower”), CERTAIN SUBSIDIARIES of Borrower, as Guarantors, the Lenders party hereto from time to time, THE BANK OF NOVA SCOTIA (“Scotiabank”), as administrative agent for the Lenders (together with its permitted successors in such capacity, “Administrative Agent”) and as collateral agent (together with its permitted successor in such capacity, “Collateral Agent”), Swing Line Lender and Issuing Bank, BARCLAYS BANK PLC (“Barclays”), CITIGROUP GLOBAL MARKETS INC. (“Citi”), Merrill Lynch, Pierce, Fenner & Smith Incorporated (“Merrill Lynch”), BNP Paribas Securities Corp. (“BNP Paribas”), Goldman Sachs Bank USA (“Goldman Sachs” and Scotiabank  as joint lead arrangers and joint bookrunners, in such capacities, “Arrangers”), Barclays and Citi, as co-syndication agents (in such capacities, “Syndication Agents”), Merrill Lynch, BNP Paribas and Goldman Sachs, as co-documentation agents (in such capacities, “Documentation Agents”) and Credit Agricole Corporate & Investment Bank, Morgan Stanley Senior Funding, Inc., The Royal Bank of Scotland plc and Sumitomo Mitsui Banking Corporation, as senior managing agents (in such capacities, “Senior Managing Agents”).
 
RECITALS:
 
WHEREAS, capitalized terms used in these Recitals shall have the respective meanings set forth for such terms in Section 1.1 hereof;
 
WHEREAS, Borrower, certain affiliates of Borrower as guarantors, the lenders party thereto, Administrative Agent, Collateral Agent and certain other parties thereto are party to that certain Amended and Restated Credit and Guaranty Agreement, dated as of August 18, 2010 (together with all Exhibits and Schedules thereto and as amended through the date hereof, the “Existing Credit Agreement”), under which the Lenders (as defined therein) agreed to extend certain credit facilities to Borrower, in an aggregate amount not to exceed $3,642,000,000, consisting of (i) $752,777,573.70 aggregate principal amount of Original Tranche B Term Loans, (ii) $1,415,322,565.30 aggregate principal amount of Extended Tranche B Term Loans, (iii) $154,431,108.60 aggregate principal amount of Original Delayed Draw I Term Loans, (iv) $284,458,305.30 aggregate principal amount of Extended Delayed Draw I Term Loans, (v) $77,091,047.50 aggregate principal amount of Original Delayed Draw II Term Loans, (vi) $207,919,399.60 aggregate principal amount of Extended Delayed Draw II Term Loans and (vii) $750,000,000 aggregate principal amount of Revolving Commitments; and
 
WHEREAS, pursuant to the Amendment Agreement, Borrower, the Guarantors, the Lenders, Administrative Agent and Collateral Agent have agreed to amend and restate the Existing Credit Agreement in the form hereof to, among other things, set forth the terms and conditions of the Revolving Loans and Term B Loans and permit Borrower to issue additional indebtedness that would be secured on a pari passu or junior basis with the Secured Obligations.
 
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:
 
 
 
 

 
 
SECTION 1.   DEFINITIONS AND INTERPRETATION
 
1.1.   Definitions.  The following terms used herein, including in the preamble, recitals, exhibits and schedules hereto, shall have the following meanings:
 
2007 Closing Date” means May 23, 2007.
 
2007 Credit Agreement” means the Credit and Guaranty Agreement, dated as of May 23, 2007, by and among the Borrower, the lenders party thereto, Administrative Agent, Collateral Agent and certain other parties thereto, as in effect on August 17, 2010.
 
Adelson” means Sheldon G. Adelson, an individual, and his estate.
 
Adjusted Eurodollar Rate” means, for any Interest Rate Determination Date with respect to an Interest Period (and in the case of an Interest Period shorter than one month, treating such Interest Period as a one-month Interest Period) for a Eurodollar Rate Loan, the greater of (x) the rate per annum obtained by dividing (A) (i) the rate per annum equal to the London Interbank Offered Rate (“LIBOR”), as published by Reuters (or, if not available, such other commercially available source providing quotations of LIBOR as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date or (ii) in the event the rate referenced in the preceding clause (i) is not available, the arithmetic average (rounded upward to the nearest 1/100 of one percent) of the offered quotations, if any, to first class banks in the interbank Eurodollar market for Dollar deposits of amounts in same day funds comparable to the respective principal amounts of the Eurodollar Rate Loans of Administrative Agent for which the Adjusted Eurodollar Rate is then being determined with maturities comparable to such Interest Period as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date by (B) a percentage equal to 100% minus the stated maximum rate of all reserve requirements (including any marginal, emergency, supplemental, special or other reserves) applicable on such Interest Rate Determination Date to any member bank of the United States Federal Reserve System in respect of “Eurocurrency liabilities” as defined in Regulation D (or any successor category of liabilities under Regulation D) and (y) (I) for a Term B Loan, 0.75% and (II) for a Revolving Loan, 0.00%.
 
Administrative Agent” as defined in the preamble hereto.
 
Administrative Agent Fee Letter” means the Confidential Administrative Agent Fee Letter, dated as of December 18, 2013, by and between Borrower and Administrative Agent.
 
Adverse Proceeding” means any action, suit, proceeding, hearing (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf of Borrower or any of Material Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claims), whether pending or, to the knowledge of Borrower or any Material Subsidiary, threatened against or affecting Borrower or any Material Subsidiary or any property of Borrower or any Material Subsidiary.
 
Affected Lender” as defined in Section 2.18(b).
 
 
 
2

Credit and Guaranty Agreement

 
 
Affected Loans” as defined in Section 2.18(b).
 
Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, that Person (excluding, however, any trustee under, or any committee with responsibility for administering any Pension Plan).  With respect to any Lender, a Person shall be deemed to be “controlled by” another Person if such other Person possesses, directly or indirectly, power to vote 51% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors, managing general partners or managers, as the case may be.  With respect to all other Persons, “control” (including, with correlative meanings, the terms “controlling”, “controlled by” and “under common control with”), as applied to any such other Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or by contract or otherwise.
 
Affiliate Lender” as defined in Section 10.6(j).
 
Agent” means, individually, each of Administrative Agent, Syndication Agents, Collateral Agent, Documentation Agents, Senior Managing Agents and each Arranger, and “Agents” means Administrative Agent, Syndication Agents, Collateral Agent, Documentation Agents, Senior Managing Agents and Arrangers, collectively.
 
Agent Affiliates as defined in Section 10.1(b).
 
Aggregate Amounts Due” as defined in Section 2.17.
 
Aggregate Payments” as defined in Section 7.2.
 
Agreement” means this Second Amended and Restated Credit and Guaranty Agreement, dated as of December 19, 2013, as it may be amended, supplemented or otherwise modified from time to time.
 
Aircraft Agreements” means each of the interchange and time sharing agreements among certain Affiliates of Adelson, on the one hand, and LVSC and certain of its Affiliates, on the other hand, providing for the shared use of aircraft owned by such Affiliates of Adelson and Affiliates of LVSC, the allocation of costs relating thereto and time sharing arrangements with respect thereto, including any such agreements in effect on the Closing Date, and any such agreements entered into thereafter on terms not materially worse, taken as a whole, to the Credit Parties or the Lenders.
 
Aircraft Financing Documents” means any credit agreement, promissory note, letter of credit or instrument of indebtedness relating to the LVSC Aircraft Financing.
 
All-In Yield” means, as to any Loans, the yield thereon payable to all Lenders providing such Loans in the primary syndication thereof, as reasonably determined by the Administrative Agent, whether in the form of interest rate, margin, original issue discount, up-front fees, rate floors or otherwise; provided that original issue discount and up-front fees shall be equated to interest rate assuming a 4-year life to maturity (or, if less, the life of such Loans); and provided, further, that “All-In Yield” shall not include arrangement, commitment, underwriting,
 
 
3

Credit and Guaranty Agreement

 
 
structuring or similar fees paid to arrangers for such Loans and customary consent fees for an amendment paid generally to consenting lenders.
 
Amendment Agreement” means the Amendment and Restatement Agreement dated December 19, 2013 among Borrower, the Guarantors, Administrative Agent, Collateral Agent and the Lenders party thereto.
 
Applicable Margin” and “Applicable Revolving Commitment Fee Percentage” mean (a) with respect to Initial Revolving Loans that are Eurodollar Rate Loans and the commitment fee payable on unused Revolving Commitments in respect thereof, a percentage, per annum, as set forth below:
 
Applicable Margin for Initial Revolving Loans
Applicable Revolving Commitment Fee Percentage
1.50%
0.35%

(b) with respect to Initial Revolving Loans that are Base Rate Loans, a rate per annum equal to (i) the Applicable Margin for Eurodollar Rate Loans as set forth in clause (a) above minus (ii) 1.00% per annum, (c) with respect to Term B Loans that are Eurodollar Rate Loans, a rate per annum equal to 2.50%, (d) with respect to Term B Loans that are Base Rate Loans, a rate per annum equal to (i) the Applicable Margin for Eurodollar Rate Loans as set forth in clause (c) minus (ii) 1.00% per annum, (e) with respect to Swing Line Loans, a rate per annum equal to (i) the Applicable Margin for Eurodollar Rate Loans as set forth in clause (a) above minus (ii) 1.00% per annum and (f) with respect to Other Term Loans, Extended Term Loans, Refinancing Term Loans, Extended Revolving Loans and Replacement Revolving Loans, the “Applicable Margin” as set forth in the Incremental Assumption Agreement relating thereto.
 
Approved Electronic Communications” means any notice, demand, communication, information, document or other material that any Credit Party provides to Administrative Agent pursuant to any Credit Document or the transactions contemplated therein which is distributed to the Agents or to the Lenders by means of electronic communications pursuant to Section 10.1(b).
 
Arrangers” as defined in the preamble hereto.
 
Asset Sale” means the sale or other transfer by a Credit Party to any Person of (a) any of the stock of any of such Credit Party’s direct Subsidiaries, (b) substantially all of the assets of any division or line of business of a Credit Party, or (c) any other assets (whether tangible or intangible) of a Credit Party (other than (i) inventory or goods sold in the ordinary course of business, or (ii) any other assets to the extent that the aggregate fair market value of such assets sold during any Fiscal Year is less than or equal to $15,000,000).
 
Assignment Agreement” means an Assignment and Assumption Agreement substantially in the form of Exhibit A-1, with such amendments or modifications as may be approved by Administrative Agent.
 
 
 
4

Credit and Guaranty Agreement

 
 
Assignment Effective Date as defined in Section 10.6(b).
 
Availability Period” means, with respect to any Class of Revolving Commitments, the period from and including the Closing Date (or, if later, the effective date for such Class of Revolving Commitments) to but excluding the earlier of the Revolving Facility Maturity Date for such Class and, in the case of each of the Revolving Loans, Swing Line Loans and Letters of Credit, the date of termination of the Revolving Commitments of such Class.
 
Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, or any successor statute.
 
Barclays” as defined in the preamble hereto.
 
Base Rate” means, for any day, a rate per annum equal to the greatest of (i) the Prime Rate in effect on such day, (ii) the Federal Funds Effective Rate in effect on such day plus ½ of 1% and (iii) the Adjusted Eurodollar Rate for a Eurodollar Rate Loan with a one-month Interest Period commencing on such date plus 1.0%.  Any change in the Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.
 
Base Rate Loan” means a Loan bearing interest at a rate determined by reference to the Base Rate.
 
Beneficiary” means each Agent, Issuing Bank, Swing Line Lender, Lender and Lender Counterparty.
 
BNP Paribas” as defined in the preamble hereto.
 
Board of Governors” means the Board of Governors of the United States Federal Reserve System, or any successor thereto.
 
Borrower” as defined in the preamble hereto.
 
Borrowing” means a group of Loans of a single Type of Loan under a single Loan Facility, and made on a single date and, in the case of Eurodollar Rate Loans, as to which a single Interest Period is in effect.
 
Business Day” means (i) any day excluding Saturday, Sunday and any day which is a legal holiday under the laws of the State of New York or is a day on which banking institutions located in such state are authorized or required by law or other governmental action to close and (ii) with respect to all notices, determinations, fundings and payments in connection with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, the term “Business Day” shall mean any day which is a Business Day described in clause (i) and which is also a day for trading by and between banks in Dollar deposits in the London interbank market.  If an action is required to be taken in this Agreement on or no later than a day that is not a Business Day, such action shall be required to be taken on or no later than the next succeeding Business Day.
 
 
 
5

Credit and Guaranty Agreement

 
 
Capital Lease” as applied to any Person, means any lease of any property (whether real, personal or mixed) by that Person as lessee that, in conformity with GAAP, is accounted for as a capital lease on the balance sheet of that Person.  For purposes of this Agreement and each other Credit Document, the amount of a Person’s obligation under a Capital Lease shall be the capitalized amount thereof, determined in accordance with GAAP, and the stated maturity thereof shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a premium or a penalty.
 
Cash” means money, currency or a credit balance in any demand or Deposit Account.
 
Cash Equivalents” means, as at any date of determination, (i) marketable securities (a) issued or directly and unconditionally guaranteed as to interest and principal by the United States Government or (b) issued by any agency of the United States the obligations of which are backed by the implied faith and credit of the United States; (ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state, municipality or any public instrumentality thereof, in each case, having, at the time of the acquisition thereof, a rating of AAA/AAA from S&P or A1/VMIG-1 from Moody’s or AAA/AAA from Fitch; (iii) commercial paper having, at the time of the acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from Moody’s or at least F1 from Fitch; (iv) corporate notes that are rated at least A by S&P or A by Moody’s or A by Fitch; (v) [reserved]; (vi) time deposit accounts, money market deposits, certificates of deposit or bankers’ acceptances issued or accepted by any Lender or by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia or Canada that (a) is at least “adequately capitalized” (as defined in the regulations of its primary federal banking regulator) and (b) has Tier 1 capital (as defined in such regulations) of not less than $100,000,000; (vii) repurchase obligations with a term of not more than 180 days for underlying securities of these types described in clauses (i), (ii) and (vi) above; (viii) shares of any money market mutual fund that (a) has substantially all of its assets invested continuously in the types of investments referred to in clauses (i), (ii), (iii), (iv) and (v) above, (b) has net assets of not less than $500,000,000 and (c) complies with the criteria set forth in rule 2a-7 under the Investment Company Act of 1940; (ix) tri-party and deliverable repurchase agreements that are fully collateralized to at least 102% of market value by U.S. Treasury and government agency securities; and (x) loans to, deposits with or investments in Sands FinCo where, not later than ten Business Days after the date that such loans, deposits and/or investments are made, the Borrower delivers to the Administrative Agent details of such loans, deposits and/or investments.
 
Cash Management Services” means treasury and cash management services (including controlled disbursements, zero balance arrangements, cash sweeps, automated clearinghouse transactions, credit or debit card transactions, return items, overdrafts, temporary advances, interest and fees and interstate depository network services or similar transactions) provided to any Credit Party.
 
Casino Level Mall Lease means collectively, (a) the Casino Level Restaurant/Retail Master Lease between VCR and Grand Canal, dated as of May 14, 2004, with respect to the lease of certain restaurant and retail space on the ground floor of the Venetian Facility to
 
 
 
6

Credit and Guaranty Agreement

 
 
Grand Canal and (b) the Palazzo Casino Level Restaurant/Retail Master Lease by and between VCR, as lessor, and Phase II Mall Subsidiary, as lessee, dated February 29, 2008, with respect to the lease of certain restaurant and retail space on the ground floor of the Palazzo Facility to Phase II Mall Subsidiary.
 
Central Park West Site” means the approximately 18.7 acres of real property owned by VCR located near the intersection of Sands Avenue and Koval Lane in Las Vegas, NV.
 
Central Plant” means the “Electric Substation” and the “HVAC Space”, as each such term is defined in the Cooperation Agreement.
 
Change of Control” means any sale, pledge or other transfer of Securities whereby (a) LVSC ceases to own (either directly, or indirectly) 100% of the Equity Interests of Borrower, (b) except as otherwise permitted by Section 6.7(a) , (c), (d), (h) or (s), Borrower ceases to own directly or indirectly 100% of the Equity Interests (other than preferred Equity Interests held by third parties on the Closing Date, Equity Interests in Guarantors acquired or formed after the Closing Date, and any Equity Interests required to be held by a non-Affiliate in order to comply with applicable gaming laws and regulations or other Governmental Acts or laws) of each of the Guarantors; (c) any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act as in effect on the Closing Date), other than any combination of the Permitted Holders, shall have acquired beneficial ownership of more than the greater of (x) 35% on a fully diluted basis of the voting Equity Interests of LVSC and (y) the percentage owned, directly or indirectly, in the aggregate by the Permitted Holders on a fully diluted basis of the voting Equity Interests of LVSC or (d) a “Change of Control” (or similar term) as defined in (i)  any instrument evidencing Indebtedness of LVSC in excess of $250,000,000, or (ii) any other instrument evidencing Indebtedness of any Credit Party permitted hereunder and issued after the Closing Date in excess of $250,000,000, shall occur.
 
Citi” as defined in the preamble hereto.
 
Class” means (i) with respect to Lenders, each of the following classes of Lenders:  (a) Lenders having Term B Loans, (b) Lenders having Other Term Loans, (c) Lenders having Extended Term Loans, (d) Lenders having Refinancing Term Loans, (e) Lenders having Revolving Exposure (including Swing Line Loans) in respect of Initial Revolving Loans, (f) Lenders having Revolving Exposure (including Swing Line Loans) in respect of Extended Revolving Loans and (g) Lenders having Revolving Exposure (including Swing Line Loans) in respect of Replacement Revolving Loans, and (ii) with respect to Loans, each of the following classes of Loans: (a) Term B Loans, (b) Other Term Loans, (c) Extended Term Loans, (d) Refinancing Term Loans, (e) Initial Revolving Loans, (f) Extended Revolving Loans and (g) Replacement Revolving Loans.  Other Term Loans, Extended Term Loans, Refinancing Term Loans, Extended Revolving Loans and Replacement Revolving Loans that have different terms and conditions (together with the Commitments in respect thereof) from the Term B Loans or the Initial Revolving Loans, respectively, or from other Other Term Loans, Extended Term Loans, Refinancing Term Loans, Extended Revolving Loans and Replacement Revolving Loans, as applicable, shall be construed to be in separate and distinct Classes.
 
 
 
7

Credit and Guaranty Agreement

 
 
Closing Date” means December 19, 2013.
 
Collateral” means, collectively, all of the real, personal and mixed property (excluding Equity Interests) in which Liens are purported to be granted pursuant to the Collateral Documents as security for the Secured Obligations.
 
Collateral Agent as defined in the preamble hereto.
 
Collateral Documents” means the Security Agreement, the Intellectual Property Security Agreements, the Deeds of Trust, the Deeds of Trust Amendments, the Subordination, Non-Disturbance and Attornment Agreements, and all other instruments, documents and agreements delivered by any Credit Party pursuant to this Agreement or any of the other Credit Documents in order to grant to Collateral Agent, for the benefit of Secured Parties, a Lien on any real, personal or mixed property of that Credit Party as security for the Secured Obligations.
 
Commercial Letter of Credit” means any letter of credit or similar instrument issued for the purpose of providing the financing payment mechanism in connection with the purchase of any materials, goods or services by a Credit Party.
 
Commitment” means any Revolving Commitment or Term Loan Commitment.
 
Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.
 
Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit D.
 
Conforming L/C” means an unconditional, direct pay letter of credit which (a) is obtained by LVSC or Adelson or one of his Affiliates or Related Parties (but not the Credit Parties), (b) either (i) has an expiration date of not less than 24 months or (ii) has an expiration date of not less than 12 months with an automatic extension of one 12-month period unless the issuer of such letter of credit gives Administrative Agent not less than 60 days prior written notice that it will not renew the letter of credit for such successive term, (c) either (i) is irrevocable or (ii) provides that the issuer will deliver not less than 60 days prior written notice to Administrative Agent of its intention to revoke such letter of credit, (d) is issued by a financial institution acceptable to  Administrative Agent in its reasonable judgment and (e) is otherwise in form and substance acceptable to Administrative Agent in its reasonable judgment; provided that any such letter of credit shall only qualify as a Conforming L/C if it states that it may be drawn upon by Administrative Agent and applied in accordance with the terms of this Agreement upon the occurrence of any Conforming L/C Draw Event; provided, further, that no Credit Party shall have any obligations (contingent or otherwise) in respect of any such letter of credit or any reimbursement agreement applicable thereto.
 
Conforming L/C Draw Event” means, during the time that the Conforming L/C remains in full force and effect, the occurrence of any of the following (a) an Event of Default (which is continuing and has not been waived) set forth in Sections 8.1(a), (b), (f), (g), (m) or resulting from a breach of any of the covenants set forth in Section 6.6 (other than any such breach cured by the posting of such Conforming L/C pursuant to the last sentence of the defini-
 
 
 
8

Credit and Guaranty Agreement

 
 
tion of Consolidated Adjusted EBITDA); (b) if such Conforming L/C has a maturity of less than 24 months, either (x) Administrative Agent’s receipt of notice from the issuer of the Conforming L/C that such issuer will not renew the Conforming L/C or (y) the date that is five days prior to the expiration of the Conforming L/C if the Administrative Agent has not received evidence of the renewal thereof; provided that the Administrative Agent may not draw down on the Conforming L/C under such circumstances if, and only if, Adelson or his Affiliates or Related Parties substitute cash equity in Borrower in an amount equal to the face amount of the Conforming L/C in lieu of the Conforming L/C on or before the date that is five days prior to the expiration thereof (such equity to be substituted for the withdrawn Conforming L/C in the calculation of Consolidated Adjusted EBITDA); or (c) Administrative Agent’s receipt of notice from the issuer of the Conforming L/C that such issuer intends to revoke, terminate or cancel the Conforming L/C; provided that Administrative Agent may not draw down on the Conforming L/C under such circumstances if, and only if, Adelson or his Affiliates or Related Parties substitute cash equity in Borrower in an amount equal to the face amount of the Conforming L/C in lieu of the Conforming L/C on or before the date that is five days prior to the revocation, termination or cancellation thereof (such equity to be substituted for the withdrawn Conforming L/C in the calculation of Consolidated Adjusted EBITDA).
 
Consolidated Adjusted EBITDA” means, for any period, the sum of the amounts (without duplication) for such period of (a) Consolidated Net Income, (b) Consolidated Interest Expense, (c) provision for taxes based on income to the extent deducted in calculating Consolidated Net Income, (d) total depreciation expense, (e) total amortization expense, (f) total pre-opening and development expenses, (g) total amortization of deferred gain and deferred rent incurred as a result of the sale of the retail mall spaces within the Resort Complex, (h) expenses and charges related to the transactions contemplated by this Agreement and the other Credit Documents, (i) expenses and charges paid to any Lender, any Agent or any indemnity pursuant to Section 10.3 or any comparable provision of any other Credit Document and (j) other non-cash items reducing Consolidated Net Income (excluding any such non-cash item to the extent that it represents an accrual or reserve for potential cash items in any future period or amortization of a non-extraordinary cash item prepaid in the ordinary course of business in a prior period), less other non-cash items increasing Consolidated Net Income (excluding any such non-cash item to the extent it represents the reversal of an accrual or reserve for potential cash item in any prior period), all of the foregoing as determined on a consolidated basis for the Credit Parties in conformity with GAAP.  Any cash equity contributions or Shareholder Subordinated Indebtedness made by LVSC, Adelson or any of his Affiliates or Related Parties (other than one of the Credit Parties) to Borrower (to the extent such proceeds remain with a Credit Party) and/or the face amount of any Conforming L/C delivered to Administrative Agent for the benefit of the Lenders during any quarter and during a period of 20 days following such quarter may at the written election of Borrower be included in Consolidated Adjusted EBITDA for such quarter for purposes of Section 6.6, provided that Borrower may not include such cash equity contributions or the face amount of the Conforming L/C, or any combination thereof, in Consolidated Adjusted EBITDA (a) if any Conforming L/C Draw Event or any Event of Default or Potential Event of Default (other than the Event of Default or Potential Event of Default being cured thereby) has occurred and is continuing at the time such cash contribution is made or such Conforming L/C is provided to Administrative Agent, (b) if such cash equity contributions and/or Conforming L/Cs are utilized under Section 6.3 or (c) in any event, for more than two consecutive Fiscal Quarters or for more than two Fiscal Quarters in any period of four consecutive Fiscal Quarters.
 
 
 
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Consolidated Interest Expense” means, for any period, total interest expense (including that portion attributable to Capital Leases in accordance with GAAP and capitalized interest), net of interest income, of the Credit Parties on a consolidated basis with respect to all outstanding Indebtedness of the Credit Parties (other than non-cash interest on Permitted Subordinated Indebtedness), including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs under Hedging Agreements, plus all Restricted Payments made by Borrower to LVSC in accordance with Section 6.5(h) of this Agreement, but excluding, however, amortization of debt issuance costs and deferred financing fees including any amounts referred to in Section 2.11 payable to Agents or Lenders, and any fees and expenses payable to Agents or Lenders in connection with this Agreement on or prior to the Closing Date.
 
Consolidated Leverage Ratio” means, as of any date, the ratio of (a) Consolidated Total Debt outstanding on such date to (b) Consolidated Adjusted EBITDA computed for the period consisting of, if such date is a Quarterly Date, the Fiscal Quarter ending on such date and each of the three immediately preceding Fiscal Quarters, or if such date is not a Quarterly Date, the four full Fiscal Quarters most recently ended for which financial statements have been (or were required to be) delivered.  In any period of four consecutive Fiscal Quarters in which a Permitted Acquisition or Significant Asset Sale occurs, the Consolidated Leverage Ratio shall be determined on a pro forma basis in accordance with Section 1.4.
 
Consolidated Net Income” means, for any period, the net income (or loss) of the Credit Parties on a consolidated basis for such period taken as a single accounting period determined in conformity with GAAP and before any reduction in respect of preferred stock dividends; provided that there shall be excluded, without duplication, (a) the income (or loss) of any Person (other than a Credit Party or a Restaurant Joint Venture), except to the extent of the amount of dividends or other distributions actually paid to the Credit Parties by such Person during such period, (b) any amounts accrued that are paid or payable to managers of Restaurant Joint Ventures as management fees, or to equity owners (other than Credit Parties) in Restaurant Joint Ventures in accordance with their percentage of Equity Interests therein, (c) the income (or loss) of any Person accrued prior to the date it is merged into or consolidated with Borrower or any other Credit Party or that Person’s assets are acquired by Borrower or any other Credit Party, (d) any after-tax gains or losses attributable to (i) Asset Sales consummated pursuant to Section 6.7(a) , (d), (q) or (r), (ii) returned surplus assets of any Pension Plan or (iii) the disposition of any Securities or the extinguishment of any Indebtedness of any Person or any of its restricted subsidiaries, (e) dividends or distributions from any Excluded Subsidiary to Borrower or any other Credit Party which are used to fund their share of any applicable tax payments to be made under the Tax Sharing Agreement, (f) the effect of non-cash accounting adjustments resulting from a change in the tax status of a flow-through tax entity to a “C-corporation” or other entity taxed similarly, (g) any net extraordinary gains or net extraordinary losses, (h) any refinancing (or, in the case of the Amendment Agreement, transaction) costs, amortization or charges (including premiums, costs, amortization and charges associated with the Amendment Agreement and the transactions contemplated thereby or any permitted refinancing of the New Senior Notes, any LVSC Debt that is guaranteed by the Credit Parties or any of the Obligations) and (i) any compensation charge or expenses realized or resulting from stock option plans, employee benefit plans or post-employment benefit plans, or grants or sales of stock, stock appreciation or similar rights, stock options, restricted stock, preferred stock or other rights.
 
 
 
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Consolidated Senior Leverage Ratio” means, at any time of determination, the ratio of (a) Consolidated Total Senior Debt outstanding on such date to (b) Consolidated Adjusted EBITDA computed for the period consisting of the most recently ended Fiscal Quarter for which financial statements have been (or were required to be) delivered and each of the three immediately preceding Fiscal Quarters.  In any period of four consecutive Fiscal Quarters in which a Permitted Acquisition or Significant Asset Sale occurs, the Consolidated Senior Leverage Ratio shall be determined on a pro forma basis in accordance with Section 1.4.
 
Consolidated Senior Secured Leverage Ratio” means, at any time of determination, the ratio of (a) Consolidated Total Senior Debt outstanding on such date that is then secured by Liens on the Collateral to (b) Consolidated Adjusted EBITDA computed for the period consisting of the most recently ended Fiscal Quarter for which financial statements have been (or were required to be) delivered and each of the three immediately preceding Fiscal Quarters.  In any period of four consecutive Fiscal Quarters in which a Permitted Acquisition or Significant Asset Sale occurs, the Consolidated Senior Secured Leverage Ratio shall be determined on a pro forma basis in accordance with Section 1.4.
 
Consolidated Total Assets” means, as of any date of determination, the total assets of the Credit Parties without giving effect to any amortization of the amount of intangible assets since September 30, 2013, determined on a consolidated basis in accordance with GAAP, as set forth on the consolidated balance sheet of the Credit Parties (exclusive of assets in respect of investments in Excluded Subsidaries) as of the last day of the fiscal quarter most recently ended for which financial statements have been (or were required to be) delivered pursuant to Section 5.1(a) or 5.1(b), as applicable, calculated on a pro forma basis after giving effect to any acquisition or disposition of a person or assets that may have occurred on or after the last day of such fiscal quarter.
 
Consolidated Total Debt” means, as at any date of determination:  (i) the aggregate stated balance sheet amount of all Indebtedness of the Credit Parties (other than any Shareholder Subordinated Indebtedness), determined on a consolidated basis in accordance with GAAP; plus (ii) all LVSC Debt that is guaranteed by the Credit Parties; minus (iii) the aggregate stated balance sheet amount of unrestricted Cash and Cash Equivalents (including, in any event, deposits received from Palazzo Condo Tower Sales) of the Credit Parties determined on a consolidated basis in accordance with GAAP as of such date.
 
Consolidated Total Senior Debt” means as at any date of determination, Consolidated Total Debt, less the sum of (x) Permitted Subordinated Indebtedness and (y) the aggregate amount of any LVSC Debt that is guaranteed by the Credit Parties, the aggregate amount of the New Senior Notes (to the extent the proceeds thereof are used to refinance any such LVSC Debt), and Indebtedness under the LVSC Aircraft Financing guaranteed by the Credit Parties.
 
Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking, agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
 
 
 
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Contributing Guarantors” as defined in Section 7.2.
 
Conversion/Continuation Date” means the effective date of a continuation or conversion, as the case may be, as set forth in the applicable Conversion/Continuation Notice.
 
Conversion/Continuation Notice” means a Conversion/Continuation Notice substantially in the form of Exhibit E.
 
Cooperation Agreement” means that certain Fourth Amended and Restated Reciprocal Easement, Use and Operating Agreement, dated as of February 29, 2008, as amended as of October 7, 2008, entered into by and among VCR, PCT, Grand Canal, Phase II Mall Subsidiary and Sands Expo.
 
Core Assets” means the Venetian Facility (other than the convention, exhibition, entertainment, ballroom, restaurant, retail and meeting space therein) and the Palazzo Project (other than the Palazzo Condo Tower, the Palazzo Mall, any other restaurant and retail space therein and any convention, exhibition, entertainment, ballroom or meeting space therein).
 
Corporate Ratings” means LVSC’s corporate family rating by Moody’s, LVSC’s corporate or issuer credit rating by S&P or LVSC’s Issuer Default Rating by Fitch, as applicable.
 
Counterpart Agreement” means a Counterpart Agreement substantially in the form of Exhibit F delivered by a Credit Party pursuant to Section 5.11.
 
Credit Date” means the date of a Credit Extension.
 
Credit Document” means this Agreement, the Amendment Agreement, the Notes, any applications for, or reimbursement agreements or other documents or certificates executed by Borrower in favor of an Issuing Bank relating to the Letters of Credit, the Collateral Documents, any First Lien Intercreditor Agreement, any Permitted Junior Intercreditor Agreement, any Incremental Assumption Agreement, any intercreditor or similar agreements entered into in connection with a FF&E Facility and each other agreement that expressly states by its terms that it is a Credit Document.
 
Credit Extension” means the making of a Loan or the issuing of a Letter of Credit.
 
Credit Party” means Borrower and each Restricted Subsidiary.
 
Debt Fund Affiliate Lender” shall mean an Affiliate Lender that is (x) primarily engaged in, or advises funds or other investment vehicles that are primarily engaged in, making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course and (y) with respect to which none of LVSC, the Credit Parties or their respective subsidiaries, directly or indirectly, possesses the power to direct or cause the direction of the investment policies of such entity; provided that to the extent Related Parties and their respective subsidiaries, directly or indirectly, possess the power to direct or cause the direction of the investment policies of any such entity, (i) such directed entities
 
 
 
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that, taken together in the aggregate, hold more than 5% of the Term Loans outstanding as of the date of determination shall not be Debt Fund Affiliate Lenders and shall be subject to the provisions herein affecting Affiliate Lenders and (ii) such directed entities shall be subject to the restrictions provided in Section 10.6(k)(i) and (ii).
 
Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States of America or other applicable jurisdictions from time to time in effect.
 
Deeds of Trust” means (a) the Deed of Trust, Leasehold Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing, dated as of the 2007 Closing Date, granted by VCR and Borrower to the Title Company, for the benefit of Collateral Agent, as agent for the Secured Parties, substantially in the form of Exhibit G-1, (b) the Deed of Trust, Leasehold Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing, dated as of the 2007 Closing Date, granted by VCR to the Title Company, for the benefit of Collateral Agent, as agent for the Secured Parties, substantially in the form of Exhibit G-2, (c) the Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing, dated as of the 2007 Closing Date, granted by Borrower to the Title Company, for the benefit of the Collateral Agent, as agent for the Secured Parties, substantially in the form of Exhibit G-3 annexed hereto, (d) the Deed of Trust, Leasehold Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing, dated as of the 2007 Closing Date, granted by Sands Expo to the Title Company, for the benefit of Collateral Agent, as agent for the Secured Parties, substantially in the form of Exhibit G-4, and (e) any additional mortgages required to be granted in favor of the Lenders pursuant to Section 5.12.
 
Deeds of Trust Amendments” means amendments to each Deed of Trust or an amended and restated Deed of Trust encumbering Mortgaged Property, duly executed and acknowledged by the applicable Credit Party, and in form for recording in the recording office where each Deed of Trust was recorded, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof under applicable law, in each case in form and substance reasonably satisfactory to the Administrative Agent.
 
Defaulting Lender” means, subject to Section 2.22(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied or (ii) pay to the Administrative Agent, the Issuing Bank, the Swing Line Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swing Line Loans) within two Business Days of the date when due, (b) has notified the Borrower, the Swing Line Lender, Administrative Agent or the Issuing Bank in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applica-
 
 
 
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Credit and Guaranty Agreement

 
 
 
ble default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower) or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided, that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States of America or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender.  Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.22(b)) upon delivery of written notice of such determination to the Borrower, the Issuing Bank, the Swing Line Lender and each Lender.
 
Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced by a negotiable certificate of deposit.
 
Designated Non-Cash Consideration” means the fair market value (as determined in good faith by the Borrower) of non-cash consideration received by the Borrower or another Credit Party in connection with an Asset Sale that is so designated as Designated Non-Cash Consideration pursuant to an Officer’s Certificate of the Borrower, setting forth such valuation.
 
Documentation Agents” as defined in the preamble hereto.
 
Dollars” and the sign “$” mean the lawful money of the United States of America.
 
Domestic Subsidiary” means any Subsidiary organized under the laws of the United States of America, any State thereof or the District of Columbia.
 
Eligible Assignee” means (i) any Lender, any Affiliate of any Lender and any Related Fund (any two or more Related Funds being treated as a single Eligible Assignee for all purposes hereof), (ii) any commercial bank, insurance company, investment or mutual fund or other entity, including any Debt Fund Affiliate Lender, that is an “accredited investor” (as defined in Regulation D under the Securities Act) and (iii) solely for purposes of assignments of Term Loans pursuant to and in accordance with the terms and conditions of Section 10.6(j), any Affiliate Lender; in each case, which Person shall not have been denied an approval or a license,
 
 
 
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Credit and Guaranty Agreement

 
 
 
or found unsuitable under the Nevada Gaming Laws or Pennsylvania Gaming Laws applicable to Lenders and which, with respect to clauses (i) and (ii), extends credit or buys loans; provided that with respect to clauses (i) and (ii), so long as no Event of Default shall have occurred and be continuing, no (x) Person that owns or operates a casino located in Singapore, Macau, the United Kingdom, the States of Nevada, New Jersey, Massachusetts or Pennsylvania, or any other jurisdiction in which Borrower or any of its Subsidiaries has obtained or applied for a Gaming License (or is an Affiliate of such a Person) shall be an Eligible Assignee; provided that a passive investment constituting less than 10% of the common stock of any such casino shall not constitute ownership thereof for the purposes of this definition, (y) Person that owns or operates a convention, trade show, conference center or exhibition facility in Singapore, Macau, the United Kingdom, Las Vegas, Nevada or Clark County, Nevada or the States of New Jersey, Massachusetts or Pennsylvania, or any other jurisdiction in which Borrower or any of its Subsidiaries owns, operates or is developing a convention, trade show, conference center or exhibition facility (or an Affiliate of such a Person) shall be an Eligible Assignee; provided that a passive investment constituting less than 10% of the common stock of any such convention or trade show facility shall not constitute ownership for the purpose of this definition, or (z) union pension fund shall be an Eligible Assignee; provided that any intermingled fund or managed account which has as part of its assets under management the assets of a union pension fund shall not be disqualified from being an Eligible Assignee hereunder so long as the manager of such fund is not controlled by a union; provided further that (A) Affiliate Lenders that are either LVSC, Credit Parties or their respective Subsidiaries (to the extent they are Eligible Assignees pursuant to clause (iii) above) shall be permitted to acquire not more than 25% of the sum of (x) the aggregate principal amount of the Term B Loans on the Closing Date plus (y) the aggregate principal amount of any Incremental Term Loans incurred since the Closing Date and (B) Affiliate Lenders that are Related Parties (exclusive of (I) LVSC, Credit Parties and their respective Subsidiaries and (II) Debt Fund Affiliate Lenders) who are Eligible Assignees pursuant to clause (iii) above shall be permitted to acquire not more than 25% of the aggregate principal amount of the Term Loans outstanding as of the date of determination.
 
Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA which is sponsored, maintained or contributed to by, or required to be contributed by, Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates.
 
Engagement Letter” means the Engagement Letter, dated as of December 3, 2013, by and among Barclays Bank PLC, Citigroup Global Markets Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, BNP Paribas Securities Corp., Goldman Sachs Bank USA, The Bank of Nova Scotia and the Borrower.
 
Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise), by any Governmental Authority or any other Person, arising (i) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (ii) in connection with any Hazardous Material or any actual or alleged Hazardous Materials Activity; or (iii) in connection with any actual or alleged damage, injury, threat or harm to health, natural resources or the environment.
 
 
 
 
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Environmental Laws” means any and all Legal Requirements relating to (a) environmental matters, including those relating to any Hazardous Materials Activity, (b) the generation, use, storage, transportation or disposal of Hazardous Materials, or (c) the protection of human, plant or animal health or welfare, in any manner applicable to Borrower or any of its Subsidiaries or any of their Facilities, including the Comprehensive Environmental Response, Compensation, and Liability Act (42 U.S.C. § 9601 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. § 1801 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. § 7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 etseq.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §136 et seq.), the Oil Pollution Act (33 U.S.C. § 2701 et seq.), the Emergency Planning and Community Right-to-Know Act (42 U.S.C. § 11001 et seq.), the Nevada Hazardous Materials law (NRS Chapter 459), the Nevada Solid Waste/Disposal of Garbage or Sewage law (NRS 444.440 to 444.650, inclusive), the Nevada Water Controls/Pollution law (NRS Chapter 445A), the Nevada Air Pollution law (NRS Chapter 445B), the Nevada Cleanup of Discharged Petroleum law (NRS 590.700 to 590.920, inclusive), the Nevada Control of Asbestos law (NRS 618.750 to 618.850), the Nevada Appropriation of Public Waters law (NRS 533.324 to 533.4385, inclusive), the Nevada Artificial Water Body Development Permit law (NRS 502.390), the Nevada Protection of Endangered Species, Endangered Wildlife Permit (NRS 503.585), Endangered Flora Permit law (NRS 527.270), the Atomic Energy Act of 1954 (42 U.S.C. Section 2011 et seq.), the Safe Drinking Water Act (42 U.S.C. Sections 300f et seq.), the Surface Mining Control and Reclamation Act of 1974 (30 U.S.C. Sections 1201 et seq.), and the Uranium Mill Tailings Radiation Control Act of 1978 (42 U.S.C. Section 7901 et seq.), each as amended or supplemented, any analogous present or future state or local statutes or laws, and any regulations promulgated pursuant to any of the foregoing.
 
Equity Interests” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing.
 
ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor thereto.
 
ERISA Affiliate” means, as applied to any Person, (a) any corporation which is a member of a controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code of which that Person is a member; (b) any trade or business (whether or not incorporated) which is a member of a group of trades or businesses under common control within the meaning of Section 414(c) of the Internal Revenue Code of which that Person is a member; and (c) any member of an affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code of which that Person, any corporation described in clause (a) above or any trade or business described in clause (b) above is a member.  Any former ERISA Affiliate of Borrower or any of its Subsidiaries shall continue to be considered an ERISA Affiliate of Borrower or such Subsidiary within the meaning of this definition with respect to the period such entity was an ERISA Affiliate of Borrower or such Subsidiary and with respect to liabilities arising after such period for which Borrower or such Subsidiary could be liable under the Internal Revenue Code or ERISA.
 
 
 
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Credit and Guaranty Agreement

 
 
ERISA Event” means (a) a “reportable event” within the meaning of Section 4043 of ERISA and the regulations issued thereunder with respect to any Pension Plan (excluding those for which the provision for 30-day notice to the PBGC has been waived by regulation); (b) the failure to meet the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any Pension Plan (whether or not waived in accordance with Section 412(c) of the Internal Revenue Code) or the failure to make any required contribution to a Multiemployer Plan; (c) the provision by the administrator of any Pension Plan pursuant to Section 4041(a) (2) of ERISA of a notice of intent to terminate such plan in a distress termination described in Section 4041(c) of ERISA; (d) the withdrawal by Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates from any Pension Plan with two or more contributing sponsors or the termination of any such Pension Plan resulting in liability to Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4063 or 4064 of ERISA; (e) the institution by the PBGC of proceedings to terminate any Pension Plan, or the occurrence of any event or condition which would reasonably be likely to constitute grounds under ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan; (f) the imposition of liability on Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section 4212(c) of ERISA; (g) the withdrawal of Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan that would reasonably be likely to result in liability to Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates therefor, or the receipt by Borrower, any of its Subsidiaries or any of their respective ERISA Affiliates of notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or 4042 of ERISA; (h) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust forming part of any Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal Revenue Code; (i) the imposition of a Lien pursuant to Section 430(k) of the Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan; (j) a determination that any Pension Plan is, or is expected to be, in “at risk” status (as defined in Section 430(i)(4) of the Internal Revenue Code or Section 303(i)(4) of ERISA; or (k) receipt of notice by Borrower, any of its Subsidiaries or any of their ERISA Affiliates of a determination that a Multiemployer Plan is, or is expected to be, in “endangered” or “critical” status (as defined in Section 432 of the Internal Revenue Code or Section 305 of ERISA).
 
Eurodollar Rate Borrowing” means a Borrowing comprised of Eurodollar Rate Loans.
 
Eurodollar Rate Loan” means a Loan bearing interest at a rate determined by reference to the Adjusted Eurodollar Rate.
 
Event of Default” means each of the conditions or events set forth in Section 8.1.
 
Event of Loss” means, with respect to any property or asset (tangible or intangible, real or personal), any of the following:  (a) any loss, destruction or damage of such property or asset; (b) any actual condemnation, seizure or taking by exercise of the power of eminent do-
 
 
 
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Credit and Guaranty Agreement

 
 
main or otherwise of such property or asset, or confiscation of such property or asset or the requisition of the use of such property or asset; or (c) any settlement in lieu of clause (b) above.
 
Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute
 
Excluded Proceeds” means the remaining amount of any PA Subsidiary Net Asset Sale Proceeds after application of such proceeds pursuant to the provisions of Section 2.15(c).
 
Excluded Subsidiary” means (i) any foreign Subsidiaries of Borrower or Sands Expo, (ii) VML US Finance LLC and its Subsidiaries, (iii) Sands China Ltd. and its Subsidiaries, (iv) Paiza Air, LLC, (v) LV Noodle Concept, LLC, (vi) LV Cut Associates LLC, (vii) Primewine, LLC, (viii) MBS Holdings Pte. Ltd. and its Subsidiaries, (ix) all of the PA Subsidiaries, (x) each Restaurant Joint Venture, (xi) LVS (Nevada) International Holdings, Inc. and its Subsidiaries, (xii) PCT, (xiii) any subsidiary designated as an Excluded Subsidiary pursuant to the following two paragraphs and (xiv) any Subsidiary of (a) a foreign Subsidiary that is a “controlled foreign corporation” within the meaning of Section 957 of the Internal Revenue Code, (b) Sands Expo or (c) an Excluded Subsidiary described in clauses (ii) through (xiii) above.
 
Borrower may designate any newly acquired or newly formed Subsidiary of Borrower or Sands Expo to be an Excluded Subsidiary unless such Subsidiary or any of its Subsidiaries owns any capital stock or Indebtedness of, or owns or holds (or will own or will hold) any Lien on, any property of, Borrower or any Restricted Subsidiary; provided that (i) such acquisition or formation complies with Section 6.3 and (ii) each of (a) the Subsidiary to be so designated and (b) its Subsidiaries has not at the time of designation, and does not thereafter, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which any lender has recourse to any of the assets of any Credit Party.
 
Borrower may designate any existing Restricted Subsidiary to be an Excluded Subsidiary unless such Restricted Subsidiary or any of its Subsidiaries owns any capital stock or Indebtedness of, or owns or holds (or will own or will hold) any Lien on, any property of, Borrower or any Restricted Subsidiary; provided that each Subsidiary to be so designated does not (upon and after such designation) create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable with respect to any Indebtedness pursuant to which any lender has recourse to any of the assets of any Credit Party.
 
Borrower may designate any Excluded Subsidiary to be a Restricted Subsidiary; provided that, immediately after giving effect to such designation (a) such Excluded Subsidiary shall become a Credit Party and shall comply with the provisions of Section 5.11; (b) no Event of Default or Potential Event of Default shall have occurred and be continuing; and (c) Borrower is in compliance with the covenants set forth in Section 6.6 immediately following such designation, on a pro forma basis taking into account such designation.
 
Any such designation pursuant to the preceding three paragraphs by Borrower shall be notified by Borrower to Administrative Agent by promptly delivering to Administrative Agent a copy of any applicable resolution of the board of directors (or similar governing body)
 
 
 
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Credit and Guaranty Agreement

 
 
of Borrower giving effect to such designation and an officers’ certificate certifying that such designation complied with the foregoing provisions.
 
Excluded Swap Obligation” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder at the time the Guaranty of such Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation, unless otherwise agreed between the Administrative Agent and the Borrower.  If a Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes illegal.
 
Excluded Taxes” as defined in Section 2.20(a).
 
Existing Credit Agreement” as defined in the recitals hereto.
 
Existing Letters of Credit” means each letter of credit previously issued for the account of Borrower under the Existing Credit Agreement that is outstanding on the Closing Date.
 
Extended Revolving Commitment” shall have the meaning assigned to such term in Section 2.24(e).
 
Extended Revolving Loan” shall have the meaning assigned to such term in Section 2.24(e).
 
Extended Term Loan” shall have the meaning assigned to such term in Section 2.24(e).
 
Extending Lender” shall have the meaning assigned to such term in Section 2.24(e).
 
Extension” shall have the meaning assigned to such term in Section 2.24(e).
 
Extension Agreement” shall have the meaning assigned to such term in Section 2.24(e).
 
Facility” means any and all real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by the Credit Parties.
 
Fair Share” as defined in Section 7.2.
 
Fair Share Contribution Amount” as defined in Section 7.2.
 
 
 
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Credit and Guaranty Agreement

 
 
 
FATCA” means Sections 1471 through 1474 of the Internal Revenue Code as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Internal Revenue Code as of the Closing Date (or any amended or successor version described above).
 
FDIC” means the Federal Deposit Insurance Corporation.
 
Federal Funds Effective Rate” means for any day, the rate per annum (expressed, as a decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to the weighted average of the rates on overnight federal funds transactions with members of the United States Federal Reserve System arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, (i) if such day is not a Business Day, the Federal Funds Effective Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (ii) if no such rate is so published on such next succeeding Business Day, the Federal Funds Effective Rate for such day shall be the average rate charged to Administrative Agent, in its  capacity as a Lender, on such day on such transactions as determined by Administrative Agent.
 
FF&E Facility” means any credit or loan facility, vendor financing, mortgage financing, purchase money obligation, capital lease or similar arrangement incurred pursuant to Section 6.1(d) or, at the option of Borrower, Section 6.1(j), with respect to real or personal property.
 
FF&E Facility Agreements” means the credit, vendor financing, mortgage financing or capital lease agreement associated with or entered into with respect to any FF&E Facility or any similar agreement, together with all applicable guarantees, collateral documents and other loan-type documents and any associated intercreditor or standstill agreements.
 
Financial Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of the chief financial officer of Borrower (in such capacity and not individually) that such financial statements fairly present, in all material respects, the financial condition of the Credit Parties as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and/or normal period-end adjustments.
 
Financial Plan” as defined in Section 5.1(j).
 
First Lien Intercreditor Agreement” means a First Lien Intercreditor Agreement between Collateral Agent and a trustee or collateral agent representing holders of Pari Passu Indebtedness, substantially in the form of Exhibit H-6, with such changes thereto as may be reasonably agreed to by the Collateral Agent.
 
First Priority” means, with respect to any Lien purported to be created in any Collateral pursuant to any Collateral Document, that such Lien is the only Lien to which such Collateral is subject, other than any Lien permitted under Section 6.2.
 
 
 
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Credit and Guaranty Agreement

 
 
Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
 
Fiscal Year” means the fiscal year of Borrower ending on December 31 of each calendar year.
 
Fitch” means Fitch, Inc., or any successor thereto, and if such Person shall for any reason no longer perform the function of a securities rating agency, Fitch shall be deemed to refer to any other rating agency designated by Borrower with the written consent of the Administrative Agent (such consent not to be unreasonably withheld).
 
Flood Insurance Laws” means, collectively, (i) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (ii) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (iii) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (iv) the Flood Insurance Reform Act of 2004 as now or hereafter in effect or any successor statute thereto and (v) the Biggert-Waters Flood Insurance Reform Act of 2012 as now or hereafter in effect or any successor statute thereto.
 
Former Lender” is defined in Section 10.25(a).
 
Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Bank, such Defaulting Lender’s Revolving Facility Percentage of Letter of Credit Usage with respect to Letters of Credit issued by the Issuing Bank other than such Letter of Credit Usage as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or cash collateralized in accordance with the terms hereof and (b) with respect to the Swing Line Lender, such Defaulting Lender’s Swing Line Exposure other than Swing Line Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders.
 
Funding Guarantor” as defined in Section 7.2.
 
Funding Notice” means a notice substantially in the form of Exhibit I.
 
GAAP” means, subject to the limitations on the application thereof set forth in Section 1.2, United States generally accepted accounting principles in effect as of the date of determination thereof.
 
Gaming License means every license, franchise or other authorization to own, lease, operate or otherwise conduct gaming activities of the Credit Parties, including all such licenses granted under the Nevada Gaming Laws, and other applicable federal, state, foreign or local laws.
 
Goldman Sachs” as defined in the preamble hereto.
 
Gondola Lease” means the Lease between VCR and Grand Canal, dated as of May 17, 2004, with respect to the lease of the gondola amusement ride concession and related retail space.
 
 
 
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Credit and Guaranty Agreement

 
 
Governmental Acts” means any act or omission, whether rightful or wrongful, of any present or future de jure or de facto government or Governmental Authority.
 
Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency, regulatory body, central bank or instrumentality or political subdivision thereof or any entity, officer or examiner exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with a state of the United States, the United States, or a foreign entity or government.
 
Grand Canal” means Grand Canal Shops II, LLC.
 
Grantor” as defined in the Security Agreement.
 
Guaranteed Obligations as defined in Section 7.1.
 
Guarantor” means (i) each Wholly Owned Domestic Subsidiary of Borrower, other than any Excluded Subsidiary or Immaterial Subsidiary; provided that upon the designation of an Excluded Subsidiary as a Restricted Subsidiary, such Subsidiary shall be included in the definition of “Guarantor” and (ii) Sands Pennsylvania, Inc.
 
Guaranty” means the guaranty of each Guarantor set forth in Section 7.
 
Harrah’s Shared Garage Lease” means that certain Agreement of Lease dated January 24, 2005 between Harrah’s Las Vegas, Inc. as landlord and LCR, as tenant.
 
Harrah’s Shared Roadway Agreement” means the Agreement, dated as of January 16, 1998, between VCR, Sands Expo and Harrah’s Casino Resort.
 
Hazardous Materials” means (a) any chemical, material or substance at any time defined as or included in the definition of “hazardous substances”, “hazardous wastes”, “hazardous materials”, “extremely hazardous waste”, acutely hazardous waste”, “radioactive waste”, “biohazardous waste”, “pollutant”, “toxic pollutant”, “contaminant”, “restricted hazardous waste”, “infectious waste”, “toxic substances”, or any other term or expression intended to define, list or classify substances by reason of properties harmful to health, safety or the indoor or outdoor environment (including harmful properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, “TCLP toxicity” or “EP toxicity” or words of similar import under any applicable Environmental Laws); (b) any oil, petroleum, petroleum fraction or petroleum derived substance; (c) any drilling fluids, produced waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources; (d) any flammable substances or explosives; (e) any radioactive materials; (f) any asbestos-containing materials; (g) urea formaldehyde foam insulation; (h) electrical equipment which contains any oil or dielectric fluid containing polychlorinated biphenyls; (i) pesticides; and (j) any other chemical, material or substance, exposure to which is prohibited, limited or regulated by any governmental authority or which may or could pose a hazard to the health of the owners, occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor environment.
 
 
 
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Credit and Guaranty Agreement

 
 
Hazardous Materials Activity” means any activity, event or occurrence involving any Hazardous Materials, including the use, manufacture, possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or handling of any Hazardous Materials, and any corrective action or response action with respect to any of the foregoing.
 
Hedging Agreement” means any (a) currency exchange or interest rate swap agreements, currency exchange or interest rate cap agreements and currency exchange or interest rate collar agreements and (b) other agreements or arrangements designed to protect against fluctuations in currency exchange, interest rates or commodities pricing.
 
Highest Lawful Rate” means the maximum lawful interest rate, if any, that at any time or from time to time may be contracted for, charged, or received under the laws applicable to any Lender which are presently in effect or, to the extent allowed by law, under such applicable laws which may hereafter be in effect and which allow a higher maximum nonusurious interest rate than applicable laws now allow.
 
Historical Financial Statements” means as of the Closing Date, (i) the annual report on Form 10-K for each of the Fiscal Years ended December 31, 2012, and December 31, 2011, of LVSC filed with the Securities and Exchange Commission, and (ii) the quarterly report on Form 10-Q for the Fiscal Quarter ended September 30, 2013, of LVSC filed with the Securities and Exchange Commission, and, in the case of clauses (i) and (ii), certified by the chief financial officer of LVSC that they fairly present, in all material respects, the financial condition of LVSC and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and/or normal period-end adjustments.
 
HVAC Component” means, collectively (a) the Central Plant and (b) the “Other Facilities”, as defined in each HVAC Services Agreement.
 
HVAC Ground Lease” means the Ground Lease made effective as of November 14, 1997, between VCR and the HVAC Provider.
 
HVAC Provider” means Trigen-Las Vegas Energy Company, LLC, a Delaware limited liability company formerly known as Atlantic Pacific, Las Vegas LLC, or its permitted successors under the HVAC Services Agreements.
 
HVAC Services Agreements” means collectively (a) the Energy Services Agreement, dated as of November 14, 1997, as amended on July 1, 1999, between VCR and the HVAC Provider, as modified by that certain settlement agreement dated as of April 25, 2005 and as further amended by an amendment dated as of July 1, 2006, a letter agreement dated June 11, 2008 and an amendment dated as of February 10, 2009, (b) the Energy Services Agreement, dated as of November 14, 1997, as amended on July 1, 1999, between Sands Expo and the HVAC Provider and as further amended by an amendment dated as of February 10, 2009, (c) the HVAC Ground Lease, (d) (Interface Group-Nevada, Inc.) Easement Agreement, made November 14,
 
 
 
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Credit and Guaranty Agreement

 
 
1997, by and between Sands Expo and the HVAC Provider, and (e) all other agreements between the HVAC Provider (or its predecessor in interest) and the Credit Parties.
 
Immaterial Subsidiary means any Restricted Subsidiary that, taken together with all other Immaterial Subsidiaries in respect of the following clauses (i) and (ii), (i) holds no more than 5% of the tangible assets of the Credit Parties, (ii) generated no more than 5% of the aggregate revenues of the Credit Parties, measured for the four most recently-ended Fiscal Quarters prior to the date of such designation, (iii) holds no Gaming License, and (iv) holds no assets (including other licenses) material to the operations of the Resort Complex.
 
Increased Amount” of any Indebtedness means any increase in the amount of such Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortization of original issue discount, the payment of interest in the form of additional Indebtedness or in the form of common stock of the Borrower, the accretion of original issue discount or liquidation preference and increases in the amount of Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies.
 
Increased-Cost Lender” as defined in Section 2.23.
 
Incremental Amount” means, at any time, the sum of:
 
(i)           the excess (if any) of (a) $1,000,000,000 over (b) the aggregate amount of all Incremental Term Loan Commitments and Incremental Revolving Commitments, in each case established after the Closing Date and prior to such time pursuant to Section 2.24 utilizing this clause (i) (other than Incremental Term Loan Commitments and Incremental Revolving Commitments in respect of Refinancing Term Loans, Extended Term Loans, Extended Revolving Commitments or Replacement Revolving Commitments, respectively); plus
 
(ii)           any additional amounts so long as immediately after giving effect to the establishment of the commitments in respect thereof (and assuming such commitments are fully drawn) and the use of proceeds of the loans thereunder, the Consolidated Senior Secured Leverage Ratio (assuming, for purposes of such calculation, that any unsecured Indebtedness incurred pursuant to Section 2.24 or 6.1(r) is secured) on a pro forma basis is not greater than 4.00:1.00; provided that, for purposes of this clause (ii) net cash proceeds of Incremental Term Loans and Incremental Revolving Loans incurred at such time shall not be netted against the applicable amount of Consolidated Total Senior Debt or Consolidated Total Debt, as applicable, for purposes of such calculation of the Consolidated Senior Secured Leverage Ratio.
 
Incremental Assumption Agreement” means an Incremental Assumption Agreement in form and substance reasonably satisfactory to the Administrative Agent, among the Borrower, the Administrative Agent and, if applicable, one or more Incremental Term Lenders and/or Incremental Revolving Lenders.
 
Incremental Revolving Commitment” means the commitment of any Lender, established pursuant to Section 2.24, to make Incremental Revolving Loans to the Borrower.
 
 
 
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Credit and Guaranty Agreement

 
 
Incremental Revolving Lender” means a Lender with an Incremental Revolving Commitment or an outstanding Incremental Revolving Loan.
 
Incremental Revolving Loan” means Revolving Loans made by one or more Revolving Lenders to the Borrower pursuant to an Incremental Revolving Commitment to make additional Initial Revolving Loans.
 
Incremental Term Facility” means any Class of Incremental Term Loan Commitments and the Incremental Term Loans made thereunder.
 
Incremental Term Lender” means a Lender with an Incremental Term Loan Commitment or an outstanding Incremental Term Loan.
 
Incremental Term Loans” means (i) Term Loans made by one or more Lenders to the Borrower pursuant to Section 2.1(b) consisting of additional Term B Loans and (ii) to the extent permitted by Section 2.24 and provided for in the relevant Incremental Assumption Agreement, Other Term Loans  or (iii) any of the foregoing.
 
Incremental Term Loan Commitment” means the commitment of any Lender, established pursuant to Section 2.24, to make Incremental Term Loans to the Borrower.
 
Indebtedness” as applied to any Person, means (a) all indebtedness for borrowed money, (b) that portion of obligations with respect to Capital Leases that is properly classified as a liability on a balance sheet in conformity with GAAP, (c) notes payable and drafts accepted representing extensions of credit whether or not representing obligations for borrowed money, (d) any obligation owed for all or any part of the deferred purchase price of property or services (excluding any such obligations incurred under ERISA and trade payables and accruals incurred in the ordinary course of business), (e) all indebtedness secured by any Lien on any property or asset owned or held and under contracts by that Person regardless of whether the indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit of that Person, (f) the direct or indirect guaranty, endorsement (other than for collection or deposit in the ordinary course of business), co-making, discounting with recourse or sale with recourse by such Person of the indebtedness of another; (g) any obligation of such Person the primary purpose or intent of which is to provide assurance to an obligee that the indebtedness of another will be paid or discharged, or the holders thereof will be protected (in whole or in part) against loss in respect thereof; (h) any liability of such Person for indebtedness of another through any agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide funds for the payment or discharge of such obligation (whether in the form of loans, advances, stock purchases, capital contributions or otherwise) or (ii) to maintain the solvency or any balance sheet item, level of income or financial condition of another if, in the case of any agreement described under subclauses (i) or (ii) of this clause (h), the primary purpose or intent thereof is as described in clause (g) above; and (i) solely for purposes of Section 8.1(b), all obligations of such Person in respect of any Hedging Agreement.  Obligations under the HVAC Services Agreements shall be treated as service contracts or operating leases and not as Indebtedness.  Additionally, Indebtedness shall not include (i) any amount of the liability in respect of an operating lease that at the time such lease is entered into would not be required to be capitalized and reflected as a liability on the balance sheet in accord-
 
 
 
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Credit and Guaranty Agreement

 
 
ance with GAAP as in effect on the date hereof, (ii) any surety bonds for claims underlying mechanics liens and any reimbursement obligations with respect thereto so long as such reimbursement obligations are not then due, or are promptly paid when due or (iii) any indebtedness that has been either satisfied or discharged or defeased through covenant defeasance or legal defeasance.  For purposes of determining the “aggregate principal amount” of Indebtedness under any Hedging Agreement under Section 8.1(b), such amount shall be equal to:  (a) in the case of a Hedging Agreement documented pursuant to a Master Agreement published by the International Swap and Derivatives Associations, Inc., the amount, if any, that would be or is payable thereunder by the applicable Credit Party to its counterparty, as if (i) such Hedging Agreement were being terminated early on such date of determination due to a “Termination Event”, “Event of Default” or similar event thereunder, and (ii) the Credit Party party thereto were the sole “Affected Party” thereunder and (b) in all other cases, the mark-to-market value of such Hedging Agreement, which will be the unrealized loss on such Hedging Agreement to the Credit Party to such Hedging Agreement reasonably determined by the Administrative Agent as the amount, if any, by which (i) the present value of the future cash flows to be paid by the applicable Credit Party exceeds (ii) the present value of the future cash flows to be received by such Credit Party pursuant to such Hedging Agreement.
 
Indemnified Taxes” means all Taxes imposed on or with respect to or measured by any payment by or on account of any obligation of any Credit Party hereunder or under any other Credit Document other than (a) Excluded Taxes and (b) Other Taxes.
 
Indemnitee” as defined in Section 10.3(a).
 
Initial Revolving Commitment” means, with respect to each Lender, the commitment of such Lender to make Initial Revolving Loans hereunder.
 
Initial Revolving Loan” means a Revolving Loan made (i) pursuant to the Revolving Commitments in effect on the Closing Date (as the same may be amended from time to time in accordance with this Agreement) or (ii) pursuant to any Incremental Revolving Commitment on the same terms as the Revolving Loans referred to in clause (i) of this definition.
 
Installment” means each amortization payment required pursuant to Section 2.12(a).
 
Intellectual Property” as defined in the Security Agreement.
 
Intellectual Property Security Agreements” mean all agreements evidencing the security interest granted in respect of Intellectual Property, by the Credit Parties in favor of the Collateral Agent, to be registered with the United States Patent and Trademark Office or the United States Copyright Office pursuant to the terms of the Security Agreement.
 
Intercompany Note” means a global promissory note substantially in the form of Exhibit J evidencing Indebtedness owed among the Credit Parties.
 
Interest Payment Date” means (a) with respect to any Loan that is a Base Rate Loan, each Quarterly Payment Date, and (b) with respect to any Loan that is a Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan; provided, however, that in the
 
 
 
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Credit and Guaranty Agreement

 
 
case of each Interest Period of longer than three months, “Interest Payment Date” shall also include each Quarterly Payment Date.
 
Interest Period” means, in connection with a Eurodollar Rate Loan, an interest period of one-, two-, three- or six-months (and twelve-months, if agreed to by applicable Lenders), as selected by Borrower in the applicable Funding Notice or Conversion/Continuation Notice, (i) initially, commencing on the Credit Date or Conversion/Continuation Date thereof, as the case may be; and (ii) thereafter, commencing on the day on which the immediately preceding Interest Period expires; provided, (a) if an Interest Period would otherwise expire on a day that is not a Business Day, such Interest Period shall expire on the next succeeding Business Day unless no further Business Day occurs in such month, in which case such Interest Period shall expire on the immediately preceding Business Day; (b) any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall, subject to clauses (c) and (d), of this definition, end on the last Business Day of a calendar month; (c) no Interest Period with respect to any portion of any Class of Loans shall extend beyond such Class’s applicable Term Facility Maturity Date or Revolving Facility Maturity Date; and (d) no Interest Period with respect to any portion of the Revolving Loans shall extend beyond the expiration of the Availability Period.  Notwithstanding the foregoing, for any Eurodollar Rate Loan made on a day that is not the last Business Day of a calendar month, the Borrower may select an Interest Period that shall commence on the date on which such Loan is made and expire on the last Business Day of such calendar month and thereafter revert to the Interest Period selected in compliance with the foregoing.
 
Interest Rate Determination Date” means, with respect to any Interest Period, the date that is two Business Days prior to the first day of such Interest Period.
 
Internal Revenue Code” means the Internal Revenue Code of 1986, as amended prior to the Closing Date and from time to time thereafter, and any successor statute.
 
Investment” means, relative to any Person, (a) any direct or indirect purchase or other acquisition by such Person of, or of a beneficial interest in, any Securities of any other Person (including any Subsidiary), (b) any direct or indirect purchase or other acquisition for value, by such Person from any Person, of any Equity Interests of any Person, or (c) any direct or indirect loan, advance (other than advances to employees for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contribution by such Person to any other Person, including all Indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business other than Hedging Agreements required or permitted hereunder to hedge against fluctuations of interest rates or currency exchange risk.  The amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment less all returns of principal or equity thereon or repayments thereof.  For purposes of the definition of “Excluded Subsidiary” and Section 6.3, (a) “Investments” shall include the portion (proportionate to Borrower’s Equity Interest in such Subsidiary) of the fair market value (as determined in good faith by Borrower) of the net assets of a Subsidiary of Borrower at the time that such Subsidiary is designated an Excluded Subsidi-
 
 
 
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Credit and Guaranty Agreement

 
 
ary; provided that upon a redesignation of such Subsidiary as a Restricted Subsidiary, Borrower shall be deemed to continue to have an “Investment” in an Excluded Subsidiary in an amount (if positive) equal to (i) Borrower’s “Investment” in such Subsidiary at the time of such redesignation, less (ii) the portion (proportionate to Borrower’s Equity Interest in such Subsidiary) of the fair market value (as determined in good faith by Borrower) of the net assets of such Subsidiary at the time of such redesignation, and (b) any property transferred to or from an Excluded Subsidiary shall be valued at its fair market value at the time of such transfer, in each case as determined in good faith by Borrower.
 
Issuance Notice” means an Issuance Notice substantially in the form of Exhibit K.
 
Issuing Bank” means Scotiabank, as Issuing Bank hereunder, together with its permitted successors and assigns in such capacity, and such additional issuing banks that have agreed to act as an issuing bank and are approved by the Administrative Agent and Borrower.
 
JDA” means the Joint Development Agreement, dated as of February 25, 2004 (as amended on January 12, 2007), between VCR (as successor to LCR) and Cap II-Buccaneer, LLC.
 
Joint Venture” means a Supplier Joint Venture or any other joint venture, partnership or other similar arrangement, whether in corporate, partnership, limited liability company or other legal form; provided that in no event shall any Subsidiary of any Person be considered to be a Joint Venture of such Person.
 
LCR” means Lido Casino Resort, LLC, a Nevada limited liability company that was merged with and into VCR on March 19, 2007.
 
Leasehold Property” means any leasehold interest of any Credit Party as lessee under any lease of real property, other than any such leasehold interest designated from time to time by Collateral Agent in its sole discretion as not being required to be included in the Collateral.
 
Legal Requirements” means all applicable and binding laws, statutes, orders, decrees, injunctions, licenses, permits, approvals, agreements and regulations of any Governmental Authority having jurisdiction over the matter in question.
 
Lender” means each financial institution listed on Appendix A-4 or any lender of Term B Loans hereunder (other than any such Person that has ceased to be a party hereto pursuant to an Assignment Agreement or an Affiliate Lender Assignment and Assumption), and any other Person that becomes a party hereto pursuant to an Assignment Agreement or an Affiliate Lender Assignment and Assumption or an Incremental Assumption Agreement, Extension Agreement or Refinancing Amendment.
 
Lender Counterparty” as defined in the definition of Rate Protection Agreement.
 
 
 
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Credit and Guaranty Agreement

 
 
Letter of Credit” or “Letters of Credit” means Commercial Letters of Credit and Standby Letters of Credit issued or to be issued by the Issuing Banks for the account of the Credit Parties pursuant to Section 2.4.
 
Letter of Credit Sublimit” means the lesser of (i) $150,000,000, and (ii) the aggregate unused amount of Revolving Commitments then in effect.
 
Letter of Credit Usage” means, as at any date of determination, the sum of (a) the maximum aggregate amount which is or at any time thereafter may become available for drawing under all Letters of Credit then outstanding plus (b) the aggregate amount of all drawings under Letters of Credit honored by Issuing Banks and not yet reimbursed by Borrower (including any such reimbursement out of the proceeds of Revolving Loans pursuant to Section 2.4(d)).
 
Lien” means (i) any lien, mortgage, pledge, assignment, security interest, charge or encumbrance of any kind (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement, and any lease or license in the nature thereof) and any option, trust or other preferential arrangement having the practical effect of any of the foregoing and (ii) in the case of Securities, any purchase option, call or similar right of a third party with respect to such Securities.
 
Loan” means a Term Loan, a Revolving Loan and a Swing Line Loan.
 
Loan Facility” means the respective facility and commitments utilized in making Loans and credit extensions hereunder, it being understood that, as of the Closing Date there are two Facilities (i.e., the Term B Facility and the Revolving Commitments established on the Closing Date and the extensions of credit thereunder) and thereafter, the term “Facility” may include any other Class of Commitments and the extensions of credit thereunder.
 
LVSC” means Las Vegas Sands Corp., a Nevada corporation and its successors.
 
LVSC Aircraft Financing” means up to $200,000,000 in aggregate principal amount Indebtedness of LVSC at any one time outstanding for the purpose of financing the purchase and/or ownership of aircraft and related parts and equipment; provided that (a) either (i) such LVSC Aircraft Financing is outstanding as of the Closing Date, or (ii) the covenants, defaults (and events of default), redemption, amortization and other prepayment events, remedies, acceleration rights, subordination provisions and other material terms applicable to such LVSC Aircraft Financing shall not be materially more restrictive to the guarantors thereof than such provisions contained in the agreements governing LVSC Aircraft Financing outstanding on the Closing Date, taken as a whole, as reasonably determined by LVSC; and (b) such Indebtedness or any related guarantees shall not be secured by any assets or property of the Credit Parties.
 
LVSC Corporate Services Agreement means the Services Agreement, dated as of February 17, 2005, between LVSC and the Borrower.
 
LVSC Debt” means any Indebtedness of LVSC.
 
 
 
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LVSC Debt Documents” means any indenture, credit agreement or promissory note evidencing or governing any LVSC Debt and the guarantees thereof and any collateral documents relating thereto.
 
Macau” means the Macau Special Administrative Region of the People’s Republic of China.
 
Margin Stock” as defined in Regulation U of the Board of Governors as in effect from time to time.
 
Material Adverse Effect” means (a) a material adverse effect upon the business, operations, properties, assets or condition (financial or otherwise) of the Credit Parties, taken as a whole (but excluding a material adverse effect upon the business, operations, properties, assets or condition (financial or otherwise) of the Excluded Subsidiaries that only has an effect on the Credit Parties and their business and condition by decreasing the value of their direct and indirect Equity Interests in the Excluded Subsidiaries), or (b) the material impairment of the ability of the Credit Parties to observe or perform, or of the Administrative Agent or Lenders to enforce, the Obligations.
 
Material Contract” means the Cooperation Agreement, the PA Investment Note, the Walgreens’ Documents, the Harrah’s Shared Garage Lease, the Casino Level Mall Lease, and any contract or other arrangement entered into after the Closing Date to which Borrower or any of the other Credit Parties is a party (other than the Credit Documents) for which breach, nonperformance, or cancellation by an applicable Credit Party, or failure of an applicable Credit Party to renew, could reasonably be expected to have a Material Adverse Effect.
 
Material Real Estate Asset” means (i) (a) any fee-owned Real Estate Asset having a fair market value (as determined in good faith by Borrower) in excess of $75,000,000 as of the date of the acquisition thereof and (b) all Leasehold Properties other than those with respect to which the aggregate payments under the term of the lease (excluding option and renewal terms) are less than $7,500,000 per annum or (ii) any Real Estate Asset that the Requisite Lenders have reasonably determined is material to the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Credit Party.
 
Material Subsidiary” means any Restricted Subsidiary of Borrower that is either (a) a Credit Party or (b) not an Immaterial Subsidiary.
 
Merrill Lynch” as defined in the preamble hereto.
 
Moody’s” means Moody’s Investor Services, Inc., or any successor thereto, and if such Person shall for any reason no longer perform the function of a securities rating agency, Moody’s shall be deemed to refer to any other rating agency designated by Borrower with the written consent of the Administrative Agent (such consent not to be unreasonably withheld).
 
Mortgage Policy” means an ALTA mortgagee title insurance policy or unconditional commitment therefor issued by the Title Company to Collateral Agent with respect to each Mortgaged Property in such form and including such endorsements and subject to such
 
 
 
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Credit and Guaranty Agreement

 
 
co-insurance and/or reinsurance arrangements as are reasonably satisfactory to the Collateral Agent.
 
Mortgaged Property” means each Material Real Estate Asset listed on Schedule 4.12, and any Real Estate Asset in which a security interest is required to be granted hereunder after the Closing Date.
 
Multiemployer Plan” means any Employee Benefit Plan which is a “multiemployer plan” as defined in Section 3(37) or 4001(a) (3) of ERISA.
 
Narrative Report” means, with respect to the financial statements for which such narrative report is required, a narrative report describing the operations of the Credit Parties in the form substantially similar to Management’s Discussion & Analysis included in LVSC’s Form 10-Q or 10-K, as applicable, for the applicable Fiscal Quarter or Fiscal Year and for the period from the beginning of the then current Fiscal Year to the end of such period to which such financial statements relate.
 
Net Asset Sale Proceeds” means the aggregate cash proceeds received by any Credit Party in respect of any Asset Sale that are not PA Subsidiary Net Asset Sale Proceeds, net of (a) the direct costs relating to such Asset Sale (including legal, accounting and investment banking fees and expenses, sales and marketing expenses, employee severance and termination costs, any trade payables or similar liabilities related to the assets sold and required to be paid by the seller as a result thereof and sales, finders’ or broker’s commission), and any relocation expenses incurred as a result thereof and any taxes paid or payable as result thereof (including any such taxes paid or payable by an owner of any Credit Party), (b) amounts required to be applied to the repayment of Indebtedness secured by a Lien (or amounts permitted by the terms of such Indebtedness to be otherwise reinvested in other assets of such Credit Party to the extent so reinvested) which is prior to the Lien under the Collateral Documents on the asset or assets that are the subject of such Asset Sale, (c) all distributions and other payments required to be made to minority interest holders in a Subsidiary or Joint Venture as a result of such Asset Sale and (d) any reserve for adjustment in respect of the sale price of such asset or assets or any liabilities associated with the asset disposed of in such Asset Sale and the deduction of appropriate amounts provided by the seller as a reserve in accordance with GAAP against any liabilities associated with the assets disposed of in the Asset Sale and retained by a Credit Party.
 
Net Debt Proceeds” as defined in Section 2.14(c).
 
Net Loss Proceeds” means the aggregate cash proceeds received by any Credit Party in respect of any Event of Loss with respect to Collateral, including insurance proceeds from condemnation awards or damages awarded by any judgment, net of (a) the direct costs in recovery of such Net Loss Proceeds (including legal, accounting, appraisal and insurance adjuster fees and expenses) and any taxes paid or payable as a result thereof (including any such taxes paid or payable by an owner of any Credit Party), (b) amounts required to be applied to the repayment of any Indebtedness secured by a Lien (or amounts permitted by the terms of such Indebtedness to be otherwise reinvested in other assets of such Credit Party to the extent so reinvested) which is prior to the Liens of Lenders under the Collateral Documents on the asset or assets that are the subject of the Event of Loss, and (c) all distributions and other payments re-
 
 
 
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Credit and Guaranty Agreement

 
 
quired to be made to any minority interest holders in a Subsidiary or Joint Venture as a result of such Event of Loss.  Notwithstanding the foregoing, all proceeds of so-called “liquidated damages”, “subguard” and “business interruption” insurance policies shall not be Net Loss Proceeds.
 
Nevada Gaming Authorities” means, collectively, the Nevada Gaming Commission, the Nevada State Gaming Control Board, and the Clark County Liquor and Gaming Licensing Board.
 
Nevada Gaming Laws” means the Nevada Gaming Control Act, as codified in Chapter 463 of the Nevada Revised Statutes, as amended from time to time, and the regulations of the Nevada Gaming Commission promulgated thereunder, as amended from time to time.
 
New Senior Notes” means senior secured or unsecured notes of Borrower issued after the Closing Date, and the Indebtedness represented thereby; provided that (a) the terms thereof do not provide for any scheduled amortization, repayment of principal, mandatory redemption or sinking fund obligations prior to the date that is six months after the latest Term Facility Maturity Date (other than customary offers to repurchase upon a change of control, asset sale or event of loss and customary acceleration rights after an event of default), (b) the stated maturity date is no earlier than the date that is six months after the latest Term Facility Maturity Date, (c) such Indebtedness is not guaranteed by any Person other than a Guarantor, (d) Borrower prepays Term Loans with the Net Debt Proceeds therefrom in compliance with Section 2.14(c) or repays, refinances, redeems, repurchases or defeases any LVSC Debt that is guaranteed by the Credit Parties with the Net Debt Proceeds thereof, (e) the covenants and events of default and other terms thereof (other than interest rate and redemption premiums) are not, taken as a whole, more restrictive to the Credit Parties than those in this Agreement, as determined by the Borrower and evidenced by an Officer’s Certificate delivered to the Administrative Agent, (f) except as contemplated by Section 6.2(bb), the obligations in respect thereof shall not be secured by any Lien on any asset of Borrower, any Subsidiary or any other Affiliate of Borrower, other than any asset constituting Collateral, and (g) all security therefor (if any) shall be granted pursuant to the Collateral Documents and, if such notes are to be secured, the secured parties thereunder, or a trustee or collateral agent on their behalf, shall have become a party to the First Lien Intercreditor Agreement.
 
Non-Consenting Lender” as defined in Section 2.23.
 
Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.
 
Nonpublic Information” means information which has not been disseminated in a manner making it available to investors generally, within the meaning of Regulation FD promulgated under the Securities Exchange Act of 1934, as amended.
 
Non-Recourse Financing” means Indebtedness incurred in connection with the construction, installation, purchase or lease of personal or real property or equipment (a) as to which the lender upon default may seek recourse or payment against a Credit Party only through the return or foreclosure or sale of the property or equipment so constructed, installed, purchased or leased and to any proceeds of such property and Indebtedness and the related collateral ac-
 
 
 
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Credit and Guaranty Agreement

 
 
count in which such proceeds are held and (b) may not otherwise assert a valid claim for payment on such Indebtedness against a Credit Party or any other property of a Credit Party, except, in each of the foregoing clauses (a) and (b), in the case of customary or “market standard” non-recourse exceptions, including fraud and environmental indemnities.
 
Non-U.S. Lender” means a Lender that is not a “United States Person” as defined in Section 7701(a)(30) of the Internal Revenue Code.
 
Note” means a Term B Loan Note, a Revolving Loan Note or a Swing Line Note or another promissory note evidencing a Loan.
 
Notice” means a Funding Notice, an Issuance Notice, or a Conversion/Continuation Notice.
 
Obligations” means all obligations of every nature of each Credit Party from time to time owed to the Agents and/or the Lenders under the Credit Documents, whether for principal, interest, premium, if any, reimbursement of amounts drawn under Letters of Credit, fees, expenses, indemnification or otherwise including interest and fees accruing on the Loans during the pendency of any proceeding of the type described in Section 8.1(f) and (g), whether or not allowed in such proceeding.
 
Obligee Guarantor” as defined in Section 7.7.
 
Office Space Lease means the Lease between VCR and Grand Canal, dated as of May 17, 2004, with respect to the lease of certain office space to VCR.
 
Officer’s Certificate” means, as applied to any corporation or other entity, a certificate executed on behalf of such corporation or other entity by its chairman of the board (if an officer), president or any vice president or by its principal financial officer, chief accounting officer, vice president – finance or treasurer (in each case, in their capacity as such officer) or, if such entity does not have any such officer, any such officer of its managing member or managing partner, as applicable.
 
Operating Lease” means, as applied to any Person, any lease (including leases that may be terminated by the lessee at any time) of any property (whether real, personal or mixed) that is not a Capital Lease other than any such lease under which that Person is the lessor.
 
Operative Documents” means the Credit Documents, any LVSC Debt Documents as to which any Credit Party is a party, documents related to LVSC Aircraft Financing guaranteed by the Credit Parties as to which the Credit Parties are a party, the FF&E Facility Agreements, the Resort Complex Operative Documents and the Project Documents.
 
Organizational Documents” means (i) with respect to any corporation, its certificate or articles of incorporation or organization, as amended, and its by-laws, as amended, (ii) with respect to any limited partnership, its certificate of limited partnership, as amended, and its partnership agreement, as amended, (iii) with respect to any general partnership, its partnership agreement, as amended, and (iv) with respect to any limited liability company, its certificate or articles of organization, as amended, and its operating agreement, as amended.  In the event
 
 
 
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Credit and Guaranty Agreement

 
 
any term or condition of this Agreement or any other Credit Document requires any Organizational Document to be certified by a secretary of state or similar governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
 
Other Taxes” means any and all present or future stamp, court or documentary Taxes or any other excise, transfer, sales, property, intangible, mortgage recording, filing or similar Taxes arising from any payment made hereunder or under any other Credit Document or from the execution, registration, delivery, performance or enforcement of, consummation or administration of, from the receipt or perfection of security interest under, or otherwise with respect to, the Credit Documents (but excluding any Excluded Taxes).
 
Other Term Loans” shall have the meaning assigned to such term in Section 2.24(a).
 
PA Gaming” means Sands Bethworks Gaming LLC, a Pennsylvania limited liability company.
 
PA Gaming Project” means the Property, as such term is defined in the operating agreement of PA Gaming.
 
PA Investment Note” means that certain Note, dated as of May 21, 2009, made by PA Retail and PA Gaming in favor of VCR in the principal amount of $550,000,000, and that certain Note, dated as of January 1, 2011, made by PA Retail and PA Gaming in favor of VCR in the principal amount of $150,000,000, collectively, which Notes have been (i) assigned to Sands Pennsylvania, Inc. and (ii) collaterally assigned to Collateral Agent.
 
PA Project” means the PA Retail Project and/or the PA Gaming Project, as the case may be.
 
PA Retail means Sands Bethworks Retail LLC, a Pennsylvania limited liability company.
 
PA Retail Project means “Property”, as such term is defined in the operating agreement of PA Retail.
 
PA Subsidiary” means PA Gaming and/or PA Retail and any of their respective Subsidiaries.
 
PA Subsidiary Net Asset Sale Proceeds” shall mean any (x) net cash proceeds distributed to the Credit Parties pursuant to Section 2.15(c) or (y) net cash proceeds from the sale of equity interests in any PA Subsidiary pursuant to Section 6.7(q).
 
PCT” means Palazzo Condo Tower, LLC.
 
Palazzo Condo Tower” means the space within the Palazzo Condo Tower Parcel and all improvements and personal property located therein.
 
 
 
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Credit and Guaranty Agreement

 
 
Palazzo Condo Tower Parcel means the airspace parcel purchased pursuant to the Walgreens’ Sale and Purchase Agreement.
 
Palazzo Condo Tower Sales” means sales of fee interests in any individual condominium units developed in the Palazzo Condo Tower.
 
Palazzo Facility” means the approximately 3,000 room hotel, casino, retail and meeting complex (commonly known as The Palazzo Resort Hotel Casino) integrated with the Venetian Facility and located on the Palazzo Site (including the Palazzo Condo Tower and the Palazzo Mall, but excluding the SECC).
 
Palazzo Mall” means the commercial retail mall facility built in connection with the Palazzo Project and located within certain airspace within the Palazzo Project, which as of the date hereof is owned by Phase II Mall Subsidiary.
 
Palazzo Site” means the real property consisting of approximately 14 acres adjoining the Venetian Site and owned by VCR.
 
Pari Passu Indebtedness” as defined in Section 2.14(a).
 
Patriot Act” as defined in Section 4.25.
 
PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
 
Pennsylvania Gaming Authorities” means the Pennsylvania Gaming Control Board, Department of Revenue, State Police and Office of Attorney General.
 
Pennsylvania Gaming Laws” means the Pennsylvania Race Horse Development And Gaming Act, 4 Pa. C.S.A. Section 1101 et seq., the regulations promulgated by the Pennsylvania Gaming Control Board, 58 Pa Code Section 401.1 et seq., and the regulations promulgated by the Pennsylvania Department of Revenue, 61 Pa Code 1001.1 et seq.
 
Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code or Section 302 or Title IV of ERISA.
 
Permits” means all authorizations, consents, decrees, permits, waivers, privileges, approvals from and filings with all Governmental Authorities necessary for the operation of the Palazzo Project in accordance in all material respects with the Project Documents and the Resort Complex Operative Documents and any other material building, construction, land use, environmental or other material permit, license, franchise, approval, consent and authorization (including planning board approvals from applicable Governmental Authorities and approvals required under the Nevada Gaming Laws) required for or in connection with the construction, ownership, use, occupation and operation of the Palazzo Project, the Resort Complex and the transactions provided for in this Agreement and the Resort Complex Operative Documents.
 
 
 
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Credit and Guaranty Agreement

 
 
Permitted Acquisition” means the acquisition by Borrower or a Credit Party of all the Equity Interests of, or all or substantially all the assets of, or a line of business of, or an operating business or business unit of, another Person in a transaction permitted by this Agreement for aggregate consideration in excess of the greater of (x) 2.70% of Consolidated Total Assets and (y) $100,000,000.
 
Permitted Holders” means Adelson, his Affiliates and the Related Parties.
 
Permitted Junior Intercreditor Agreement” means, with respect to any Liens on Collateral that are intended to be junior to any Liens securing the Term B Loans (including, for the avoidance of doubt, junior Liens pursuant to Section 2.24(b)(ii)) and Revolving Loans, one or more intercreditor agreements the terms of which are consistent with market terms governing security arrangements for the sharing of liens on a junior basis at the time such intercreditor agreement is proposed to be established, as determined by the Administrative Agent in the reasonable exercise of its judgment.
 
 “Permitted Subordinated Indebtedness” means any unsecured Indebtedness of the Credit Parties (a) for which no installment of principal matures earlier than 12 months after the latest Term Facility Maturity Date and (b) for which the payment of principal and interest is subordinated in right of payment to the Obligations (and with respect to such Indebtedness incurred after the date hereof, Secured Obligations) pursuant to documentation containing redemption and other prepayment events, maturities, amortization schedules, covenants, events of default, remedies, acceleration rights, subordination provisions and other material terms reasonably satisfactory to Administrative Agent.
 
Person” means and includes natural persons, corporations, limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts, business trusts or other organizations, whether or not legal entities, and Governmental Authorities.
 
Phase II Mall Subsidiary means The Shoppes at the Palazzo, LLC, a Delaware limited liability company, formerly known as Phase II Mall Subsidiary, LLC.
 
Platform” as defined in Section 5.1(p).
 
Potential Event of Default” means a condition or event that, after notice or lapse of time or both, would constitute an Event of Default.
 
Prime Rate” means the rate of interest quoted in The Wall Street Journal, Money Rates Section as the Prime Rate (currently defined as the base rate on corporate loans posted by at least 75% of the nation’s thirty (30) largest banks), as in effect from time to time.  The Prime Rate is a reference rate and does not necessarily represent the lowest or best rate actually charged to any customer.  Agent or any other Lender may make commercial loans or other loans at rates of interest at, above or below the Prime Rate.
 
Principal Office” means, for each of Administrative Agent, Swing Line Lender and Issuing Bank, such Person’s “Principal Office” as set forth on Appendix B, or such other of-
 
 
 
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Credit and Guaranty Agreement

 
 
fice or office of a third party or sub-agent, as appropriate, as such Person may from time to time designate in writing to Borrower, Administrative Agent and each Lender.
 
Proceedings” as defined in Section 5.1(h).
 
Procurement Services Agreement” means the Corporate Services Agreement effective as of March 1, 2005 among Borrower, Venetian Macau Limited and World Sourcing Services Limited and any other similar agreement between or among any Credit Parties and any Affiliates for the sourcing and/or purchase of goods on terms that are substantially equivalent to the terms that could be obtained from an unaffiliated third party.
 
Projections” as defined in Section 4.8.
 
Project Documents” means the JDA, the Walgreens’ Documents and any document or agreement related to the design, development, construction or pre-opening of the Palazzo Facility and entered into on, prior to or after the Closing Date, in accordance with Section 6.12.
 
Pro Rata Extension Offers” shall have the meaning assigned to such term in Section 2.24(e).
 
Pro Rata Share” means (i) with respect to all payments, computations and other matters relating to the Term B Loans of any Lender, the percentage obtained by dividing (a) the Term B Loans of that Lender by (b) the aggregate Term B Loans of all Lenders; (ii) with respect to all payments, computations and other matters relating to any Class of Other Term Loans of any Lender, the percentage obtained by dividing (a) the Other Term Loans of such Class of that Lender by (b) the aggregate Other Term Loans of such Class of all Lenders; and (iii) with respect to all payments, computations and other matters relating to any Class of Revolving Commitment or Revolving Loans of any Lender or any Letters of Credit issued or participations purchased therein by any Lender or any participations in any Swing Line Loans purchased by any Lender, the percentage obtained by dividing (a) the Revolving Exposure of that Lender with respect to such Class of Revolving Commitments or Revolving Loans by (b) the aggregate Revolving Exposure of all Lenders with respect to such Class of Revolving Commitments or Revolving Loans.  For all other purposes with respect to each Lender, “Pro Rata Share” means the percentage obtained by dividing (a) an amount equal to the sum of the Term Loans and the Revolving Exposure of that Lender, by (b) an amount equal to the sum of the aggregate Term Loans and the aggregate Revolving Exposure of all Lenders.
 
Quarterly Date” means March 31, June 30, September 30 and December 31.
 
Quarterly Payment Date” means each April 1, July 1, October 1, and January 1.
 
Qualified ECP Guarantor” means, in respect of any Swap Obligation, each Credit  Party that has total assets exceeding $10,000,000 at the time the relevant Guaranty or grant of  the relevant security interest becomes effective with respect to such Swap Obligation or such other person as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder and can cause another person to qualify as
 
 
 
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Credit and Guaranty Agreement

 
 
an “eligible contract participant” at such time by entering into a keepwell under Section  1a(18)(A)(v)(II) of the Commodity Exchange Act.
 
Rate Protection Agreement” means, collectively, any Hedging Agreement entered into by the Credit Parties under which the counterparty of such Hedging Agreement is (or at the time such Hedging Agreement was entered into, was) an Agent, a Lender or an Affiliate of an Agent or a Lender (each, a “Lender Counterparty”); provided that such Hedging Agreement relates to (a) interest rate risk with respect to Indebtedness secured by a First Priority Lien, (b) any currency exchange risk or (c) commodities pricing risk.  Notwithstanding the foregoing, for all purposes of the Credit Documents, any Guaranty of, or grant of any Lien to secure, any obligations in respect of a Rate Protection Agreement by a Guarantor shall not include any Excluded Swap Obligations.
 
Real Estate Asset” means, at any time of determination, any interest (fee, leasehold or otherwise) then owned by any Credit Party in any real property.
 
Refinancing Effective Date” shall have the meaning assigned to such term in Section 2.24(j).
 
Refinancing Fees” means with respect to any extension, refinancing, defeasance, renewal, replacement, substitution, refunding, repurchase, repayment or redemption of Indebtedness, or any tender for or call of Indebtedness, any reasonable fees, original issue discount, expenses, premiums, make-whole payments, and accrued and unpaid interest refinanced or paid or incurred in connection therewith.
 
Refinancing Term Loans” shall have the meaning assigned to such term in Section 2.24(j).
 
Refunded Swing Line Loans” as defined in Section 2.3(b)(iv).
 
Refinancing Amendment” as defined in Section 2.24(j).
 
Register” as defined in Section 2.7(b).
 
Regulation D” means Regulation D of the Board of Governors, as in effect from time to time.
 
Regulation FD” means Regulation FD as promulgated by the Securities and Exchange Commission under the Securities Act and Exchange Act as in effect from time to time.
 
Reimbursement Date” as defined in Section 2.4(d).
 
Related Fund” means, with respect to any Lender that is an investment fund, any other investment fund that invests in commercial loans and that is managed or advised by the same investment advisor as such Lender or by an Affiliate of such investment advisor.
 
Related Parties” means:  (a) Family Members (defined below); (b) directors of LVSC or Borrower and employees of LVSC or Borrower who are senior managers or officers of
 
 
 
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Credit and Guaranty Agreement

 
 
LVSC, Borrower, Sands Expo or any of their Affiliates; (c) any Person who receives an interest in LVSC or Borrower from any individual referenced in clauses (a)-(b) in a gratuitous transfer, whether by gift, bequest or otherwise, to the extent of such interest; (d) the estate of any individual referenced in clauses (a)-(c); (e) a trust for the benefit of one or more of the individuals referenced in clauses (a)-(c); and/or (f) an entity owned or controlled, directly or indirectly, by one or more of the individuals, estates or trusts referenced in clauses (a)-(e).  For the purpose of this paragraph, a “Family Member” shall include:  (a) Sheldon G. Adelson; (b) Dr. Miriam Adelson; (c) any sibling of either of the foregoing; (d) any issue of any one or more of the individuals referenced in the preceding clauses (a)-(c); and (e) the spouse or issue of the spouse of one or more of the individuals referenced in the preceding clauses (a)-(d).
 
Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous Material into the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface water or groundwater.
 
Replacement Lender” as defined in Section 2.23.
 
Replacement Revolving Commitments” shall have the meaning assigned to such term in Section 2.24(l).
 
Replacement Revolving Facility Effective Date” shall have the meaning assigned to such term in Section 2.24(l).
 
Replacement Revolving Loans” shall have the meaning assigned to such term in Section 2.24(l).
 
Requisite Lenders” means one or more Lenders having or holding Term Loans  and/or Revolving Exposure and representing more than 50% of the sum of (i) the aggregate Term Loans of all Lenders and (ii) the aggregate Revolving Exposure of all Lenders; provided that the Loans and Revolving Exposure of any Defaulting Lender shall be disregarded in determining Requisite Lenders at any time.
 
Resort Complex” means the Venetian Facility, the SECC and the Palazzo Facility.
 
Resort Complex Operative Documents” means the Cooperation Agreement, the Harrah’s Shared Roadway Agreement, the Harrah’s Shared Garage Lease, the HVAC Services Agreements, the Office Space Lease, the Gondola Lease, the Theater Lease, the Casino Level Mall Lease, Walgreens’ Sale and Purchase Agreement, the LVSC Corporate Services Agreement, the Site Easements, and the Walgreens’ Documents.
 
Restaurant Joint Venture” means TK Las Vegas LLC, Two Roads Las Vegas, LLC, Carlo’s Bakery Las Vegas LLC and any other Joint Venture formed or entered into by a Credit Party for the purpose of development, construction and operation of one or more restaurants within the Resort Complex.
 
 
 
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Credit and Guaranty Agreement

 
 
Restricted Payment” means (a) any dividend or other distribution, direct or indirect, on account of any shares of any class of Equity Interests of Borrower now or hereafter outstanding, except a dividend or distribution payable solely in shares of that class of Equity Interests to the holders of that class (or the accretion of such dividends or distribution), (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value, direct or indirect, of any shares of any class of Equity Interests of Borrower now or hereafter outstanding, (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of Equity Interests of Borrower now or hereafter outstanding, and (d) any payment or prepayment of principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance (including in-substance or legal defeasance), sinking fund or similar payment with respect to Permitted Subordinated Indebtedness.
 
Restricted Subsidiary” means Sands Expo (whether or not a Subsidiary of Borrower), and any Subsidiary of Borrower or Sands Expo other than an Excluded Subsidiary.
 
Revolving Commitment” means, with respect to each Revolving Lender, the commitment of such Revolving Lender to make Revolving Loans pursuant to Section 2.2(a), expressed as an amount representing the maximum aggregate permitted amount of such Revolving Lender’s Revolving Exposure hereunder, as such commitment may be (a) reduced from time to time pursuant to Section 2.12, 2.13, 2.14 and 2.15, (b) reduced or increased from time to time pursuant to assignments by or to such Lender under Section 10.6, and (c) increased (or replaced) as provided under Section 2.24.  The initial amount of each Lender’s Revolving Commitment is set forth on Appendix A-4, or in the Assignment Agreement or Incremental Assumption Agreement pursuant to which such Lender shall have assumed its Revolving Commitment (or Incremental Revolving Commitment), as applicable.  The aggregate amount of the Lenders’ Revolving Commitments on the date hereof is $1,250,000,000.  On the date hereof, there is only one Class of Revolving Commitments.  After the date hereof, additional Classes of Revolving Commitments may be added or created pursuant to Extension Agreements and Refinancing Amendments.
 
Revolving Exposure” means, with respect to any Lender as of any date of determination, (i) prior to the termination of the Revolving Commitments, that Lender’s Revolving Commitment; and (ii) after the termination of the Revolving Commitments, the sum of (a) the aggregate outstanding principal amount of the Revolving Loans of that Lender, (b) in the case of Issuing Bank, the aggregate Letter of Credit Usage in respect of all Letters of Credit issued by that Lender (net of any participations by Lenders in such Letters of Credit), (c) the aggregate amount of all participations by that Lender in any outstanding Letters of Credit or any unreimbursed drawing under any Letter of Credit, (d) in the case of Swing Line Lender, the aggregate outstanding principal amount of all Swing Line Loans (net of any participations therein by other Lenders), and (e) the aggregate amount of all participations therein by that Lender in any outstanding Swing Line Loans.
 
Revolving Facility” means the Revolving Commitments of any Class and the extensions of credit made hereunder by the Revolving Lenders of such Class.
 
Revolving Facility Maturity Date” means, as the context may require, (a) with respect to the Revolving Facility in effect on the Closing Date, December 19, 2018 and (b) with
 
 
 
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respect to any other Classes of Revolving Facility Commitments, the maturity dates specified therefor in the applicable Extension Agreement or Refinancing Amendment.
 
Revolving Facility Percentage” means, with respect to any Revolving Lender of any Class, the percentage of the total Revolving Commitments of such Class represented by such Lender’s Revolving Commitment of such Class.  If the Revolving Commitments of such Class have terminated or expired, the Revolving Facility Percentages of such Class shall be determined based upon the Revolving Commitments of such Class most recently in effect, giving effect to any assignments pursuant to Section 10.6.
 
Revolving Lender” means a Lender (including an Incremental Revolving Lender) with a Revolving Commitment or with outstanding Revolving Loans.
 
Revolving Loan” means a Loan made by a Revolving Lender pursuant to Section 2.2(a).  Unless the context otherwise requires, the term “Revolving Loans” shall include Extended Revolving Loans and Replacement Revolving Loans.
 
Revolving Loan Note” means a promissory note in the form of Exhibit H-2, as it may be amended, supplemented or otherwise modified from time to time.
 
Revolving Yield Differential” as defined in Section 2.24(b)(vi).
 
S&P” means Standard & Poor’s Ratings Group, a division of The McGraw Hill Corporation, or any successor thereto, and if such Person shall for any reason no longer perform the function of a securities rating agency, S&P shall be deemed to refer to any other rating agency designated by Borrower with the written consent of Administrative Agent (such consent not to be unreasonably withheld).
 
Sands Expo” means Sands Expo & Convention Center, Inc., a Nevada corporation.
 
Sands FinCo” means the Subsidiary of LVSC which the Borrower has designated to the Administrative Agent as “Sands FinCo”, which, as of the Closing Date, is Sands IP Asset Management B.V.
 
Scotiabank” as defined in the preamble hereto.
 
SECC” means the exposition, convention and meeting facilities commonly known as the Sands Expo and Convention Center.
 
SECC Phase II Project” means any exposition, convention and meeting facilities developed and constructed on the Central Park West Site or any other development or use of the Central Park West Site for Borrower’s benefit.
 
Secured Cash Management Services Obligations” means the due and punctual payment of any and all obligations of the Credit Parties in connection with Cash Management Services that are (a) owed on the Closing Date to a person that is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender as of the Closing Date or (b)
 
 
 
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owed to a person that is the Administrative Agent or a Lender or an Affiliate of the Administrative Agent or a Lender at the time such obligations are incurred.
 
Secured Obligations means (i) the Obligations, (ii) the payment and performance of all obligations of each Credit Party under each Rate Protection Agreement  and (iii) the Secured Cash Management Services Obligations.
 
Secured Parties” has the meaning assigned to the term “Credit Secured Parties” in the Security Agreement.
 
Securities” means any stock, shares, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing.
 
Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.
 
Security Agreement” means the Second Amended and Restated Security Agreement to be executed by Borrower and each Grantor substantially in the form of Exhibit M, as it may be amended, supplemented or otherwise modified from time to time.
 
Senior Managing Agents” as defined in the preamble.
 
Settlement Confirmation as defined in Section 10.6(c).
 
Settlement Service as defined in Section 10.6(d).
 
Shareholder Subordinated Indebtedness means Permitted Subordinated Indebtedness held by Adelson, his Affiliates and/or his Related Parties that has a maturity date after the latest Term Facility Maturity Date, that does not pay any cash interest, that does not bind the obligor(s) thereon by the provisions of any covenants other than customary affirmative covenants, and that does not contain any cross-default provisions to any other Indebtedness of such obligor(s).
 
Significant Asset Sale” means any Asset Sale described in clause (a) or (b) of the definition of the term “Asset Sale” for aggregate consideration in excess of the greater of (x) 2.70% of Consolidated Total Assets and (y) $100,000,000.
 
Site Easement” means any easement appurtenant, easement in gross, license agreement and other right running for the benefit of Borrower, the Venetian Facility, the Palazzo Project, the HVAC Component or appurtenant to the Palazzo Site and/or the Venetian Site which benefits or burdens the Resort Complex, including those certain easements and licenses described in the Mortgage Policies.
 
 
 
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Solvent” means, with respect to the Credit Parties on a consolidated basis, that as of the date of determination, both (i) (a) the sum of the Credit Parties’ debt (including contingent liabilities) does not exceed the present fair saleable value of the Credit Parties’ present assets; (b) the Credit Parties’ capital is not unreasonably small in relation to their business as contemplated on the Closing Date or with respect to any transaction contemplated or undertaken after the Closing Date; and (c) the Credit Parties have not incurred and do not intend to incur, or believe (nor should they reasonably believe) that they will incur, debts beyond their ability to pay such debts as they become due (whether at maturity or otherwise); and (ii) the Credit Parties are “solvent” within the meaning given that term and similar terms under the Bankruptcy Code and applicable laws relating to fraudulent transfers and conveyances.  For purposes of this definition, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Statement of Financial Accounting Standard No. 5).
 
Specified FF&E” means any furniture, fixtures, equipment and other personal property that is financed or refinanced in full with the proceeds from an FF&E Facility (other than temporary funding with the proceeds of Loans hereunder or Cash on hand, and in the case of Loans, only once such Loans have been reimbursed with proceeds of loans under the relevant FF&E Facility, and other than costs related to transportation, installation and sales taxes), including each and every item or unit of equipment acquired with the proceeds thereof, each and every item or unit of equipment acquired by substitution or replacement thereof; all parts, components and other items pertaining to such property; all documents (including all warehouse receipts, dock receipts, bills of lading and the like); all licenses (other than Gaming Licenses), warranties, guarantees, service contracts and related rights and interests covering all or any portion of such property; and to the extent not otherwise included, all proceeds (including insurance proceeds) of any of the foregoing and all accessions to, substitutions and replacements for, and the rents, profits and products of, each of the foregoing (including collateral accounts) and such other collateral reasonably determined by the Administrative Agent in its reasonable discretion.
 
Standby Letter of Credit” means any standby letter of credit or similar instrument issued for the purpose of supporting (a) Indebtedness of Borrower or a Restricted Subsidiary in respect of industrial revenue or development bonds or financings, (b) workers’ compensation liabilities of Borrower or a Restricted Subsidiary, (c) the obligations of third party insurers of Borrower or a Restricted Subsidiary arising by virtue of the laws of any jurisdiction requiring the third party insurers, (d) obligations with respect to Capital Leases or Operating Leases of Borrower or with respect to the Harrah’s Shared Roadway Agreement, (e) performance, payment, deposit or surety obligations of Borrower or a Restricted Subsidiary, in any case, if required by Legal Requirements (including if required by any Governmental Authority or otherwise necessary in order to obtain any Permit related to the Palazzo Project) or in accordance with custom and practice in the industry, (f) Legal Requirements in connection with the development of the Palazzo Project and (g) general corporate purposes of the Credit Parties; provided that Standby Letters of Credit may not be issued for the purpose of supporting any Indebtedness constituting “antecedent debt” (as that term is used in Section 547 of Bankruptcy Code).
 
 
 
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Subordination, Non-Disturbance and Attornment Agreement” means any subordination, non-disturbance and attornment agreement substantially in the form of Exhibit O, or such other form as is reasonably agreed by the Administrative Agent, delivered pursuant hereto.
 
Subsidiary” means, with respect to any Person, (a) any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of shares of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, managers, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof and (b) any partnership or limited liability company of which more than 50% of such entities’ capital accounts, distribution rights, partnership interests or membership interests are owned or controlled directly or indirectly by such Person or one of more other Subsidiaries of that Person or a combination thereof.
 
Substitute Lender” is defined in Section 10.25(a).
 
Supplier Joint Venture” means any Person that supplies or provides materials or services to a Credit Party or any contractor in the Resort Complex and in which a Credit Party has Investments.
 
Swap Obligation” means, with respect to any Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
 
Swing Line Exposure” means at any time the aggregate principal amount of all outstanding Swing Line Loans at such time.  The Swing Line Exposure of any Revolving Lender at any time means its applicable Revolving Facility Percentage of the aggregate Swing Line Exposure at such time.
 
Swing Line Lender” means Scotiabank, in its capacity as Swing Line Lender hereunder, together with its permitted successors and assigns in such capacity.
 
Swing Line Loan” means a Loan made by Swing Line Lender to Borrower pursuant to Section 2.3.
 
Swing Line Note” means a promissory note in the form of Exhibit H-3, as it may be amended, supplemented or otherwise modified from time to time.
 
Swing Line Sublimit” means the lesser of (i) $100,000,000, and (ii) the aggregate unused amount of Revolving Commitments then in effect.
 
Syndication Agents” as defined in the preamble hereto.
 
Tax” or “Taxes” means any and all present or future tax, levy, impost, duty, charge, fee, deduction or withholding of any nature or other similar charges imposed, levied, col-
 
 
 
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lected, withheld or assessed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
 
Tax Sharing Agreement” means the Tax Sharing Agreement, dated as of January 1, 2010, by and among LVSC, Borrower, and certain other subsidiaries of Borrower solely as in effect on the Closing Date, and as thereafter amended (i) with the consent of the Administrative Agent (such consent not to be unreasonably withheld) or (ii) to make any change so long as the amount of money to be distributed by any Credit Party thereunder to LVSC or any other party thereto that is not a Credit Party is not increased as a result of such amendment.
 
Term B Facility” means the Term B Loan Commitments and the Term B Loans made hereunder.
 
Term B Facility Maturity Date” means December 19, 2020.
 
Term B Loan Commitment” means, with respect to each Lender, the commitment of such Lender to make Term B Loans hereunder.  The aggregate amount of the Term B Loan Commitments as of the Closing Date is $2,250,000,000.
 
Term B Loans” mean (a) the term loans made by the Lenders to the Borrower pursuant to Section 2.1(a), and (b) any Incremental Term Loans in the form of Term B Loans made by the Incremental Term Lenders to the Borrower pursuant to Section 2.1(b).
 
Term Facility” means the Term B Facility and/or any or all of the Incremental Term Facilities.
 
Term Facility Maturity Date” means, as the context may require, (a) with respect to the Term B Facility in effect on the Closing Date, the Term B Facility Maturity Date and (b) with respect to any other Class of Term Loans, the maturity dates specified therefor in the applicable Incremental Assumption Agreement.
 
Term Loan” means a Term B Loan and/or an Incremental Term Loan.
 
Term Loan Commitment” means the commitment of a Lender to make Term Loans, including Term B Loans and/or Other Term Loans.
 
Term Yield Differential” shall have the meaning assigned to such term in Section 2.24(b)(v).
 
Terminated Lender” as defined in Section 2.23.
 
Theater Lease means the Lease between VCR and Grand Canal, dated as of May 17, 2004, with respect to the lease of certain showroom space to VCR.
 
Title Company” means First American Title Insurance Company or an Affiliate thereof and/or one or more other title insurance companies reasonably satisfactory to the Administrative Agent.
 
 
 
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Total Utilization of Revolving Commitments” means, as at any date of determination, the sum of (i) the aggregate principal amount of all outstanding Revolving Loans (other than Revolving Loans made for the purpose of repaying any Refunded Swing Line Loans or reimbursing the Issuing Bank for any amount drawn under any Letter of Credit, but not yet so applied), (ii) the aggregate principal amount of all outstanding Swing Line Loans, and (iii) the Letter of Credit Usage.
 
Type of Loan” means (i) with respect to either Term Loans or Revolving Loans, a Base Rate Loan or a Eurodollar Rate Loan, and (ii) with respect to Swing Line Loans, a Base Rate Loan.
 
UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York; provided, that if, with respect to any UCC financing statement or by reason of any provisions of law, the perfection or the effect of perfection or non-perfection of the security interests granted to the Collateral Agent pursuant to the applicable Credit Document is governed by the Uniform Commercial Code as in effect in a jurisdiction of the United States other than New York, then “UCC” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions of each Credit Document and any UCC financing statement relating to such perfection or effect of perfection or non-perfection.
 
United States” or “U.S.” means the United States, its fifty states and the District of Columbia.
 
VCR” means Venetian Casino Resort, LLC, a Nevada limited liability company.
 
Venetian Facility” means The Venetian Resort Hotel Casino, a Venetian-themed resort hotel, casino, retail, meeting and entertainment complex located at 3355 Las Vegas Boulevard South, Clark County, Nevada (excluding the SECC and the SECC Phase II Project).
 
Venetian Site” means the land on which the Venetian Facility is constructed.
 
Walgreens’ Access Easement” means the Amended and Restated Parking and Access Agreement, dated as of January 12, 2007, by and among VCR, LCR, and CAP II-Buccaneer, LLC.
 
Walgreens’ CC&R’s” means the Amended and Restated Declaration of Covenants, Conditions and Restrictions and Reservations of Easements, dated as of January 12, 2007, by CAP II-Buccaneer, LLC.
 
Walgreens’ Documents” means the JDA, the Walgreens’ CC&R’s and the Walgreens’ Access Easement.
 
Walgreens’ Lease” means that certain Commercial Lease dated as of March 1, 2004 between the Phase II Mall Subsidiary (as assignee of LCR) and Cap II—Buccaneer, LLC, a New Mexico limited liability company, as amended as of September 30, 2004, as of January 12, 2007 and as of February 28, 2008.
 
 
 
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Credit and Guaranty Agreement

 
 
Walgreens’ Sale and Purchase Agreement” means the Agreement of Sale and Purchase, dated as of May 2, 2006, by and between CAP II-Buccaneer, LLC, and LVSC.
 
Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing:  (a) the sum of the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness.
 
Wholly Owned Domestic Subsidiary” means a Wholly Owned Subsidiary that is also a Domestic Subsidiary.
 
Wholly Owned Subsidiary” of any person means a subsidiary of such person, all of the Equity Interests of which (other than directors’ qualifying shares or nominee or other similar shares required pursuant to applicable law) are owned by such person or another Wholly Owned Subsidiary of such person.  Unless the context otherwise requires, “Wholly Owned Subsidiary” means a Subsidiary of the Borrower that is a Wholly Owned Subsidiary of the Borrower.
 
Withdrawal Period” as defined in Section 10.25(b).
 
1.2.   Accounting Terms.  Except as otherwise expressly provided herein, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP.  Financial statements and other information required to be delivered by Borrower to Lenders pursuant to Section 5.1(a) and 5.1(b) shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in Section 5.1(d), if applicable).  Subject to the foregoing, calculations in connection with the definitions, covenants and other provisions hereof shall utilize accounting principles and policies in conformity with those used to prepare the Historical Financial Statements, to the extent such principles and policies have not changed, or such principles and policies remain in effect at the time of calculation in accordance with the next sentence.  Calculations in connection with the definitions, covenants and other provisions of this Agreement shall utilize accounting principles and policies in conformity with those used to prepare the financial statements referred to in Section 4.7.  For the purposes of this Agreement, “consolidated” with respect to any Person shall mean, unless expressly stated to be otherwise, such Person consolidated with the other Credit Parties and shall not include any Excluded Subsidiary; provided that the parties acknowledge such definition of “consolidated” is not in accordance with GAAP to the extent Excluded Subsidiaries are not consolidated with such Person.  Notwithstanding any changes in GAAP after the Closing Date, any lease of the Borrower or the Subsidiaries that would be characterized as an Operating Lease under GAAP in effect on the Closing Date (whether such lease is entered into before or after the Closing Date) shall not constitute Indebtedness or a Capital Lease under this Agreement or any other Credit Document as a result of such changes in GAAP.
 
1.3.   Interpretation, etc.  Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference.  Refer-
 
 
 
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ences herein to any Section, Appendix, Schedule or Exhibit shall be to a Section, an Appendix, a Schedule or an Exhibit, as the case may be, hereof unless otherwise specifically provided.  The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.  References to any agreement or document shall include such agreement or document as amended, restated, supplemented, or otherwise modified from time to time, except where specifically noted to be solely as of a specific date, and except as amended in violation of this Agreement.  The terms lease and license shall include sub-lease and sub-license, as applicable.  Any reference to a Person party to any document shall include a successor in interest to such Person and such Person’s assigns, unless the succession of such Person or the assignment to such Person is not permitted hereunder.
 
1.4.   Pro Forma Calculations.  With respect to any period of four consecutive Fiscal Quarters during which Borrower or any Credit Party consummate a Permitted Acquisition or Significant Asset Sale, the Consolidated Leverage Ratio, the Consolidated Senior Leverage Ratio and the Consolidated Senior Secured Leverage Ratio shall be calculated with respect to such period on a pro forma basis after giving effect to such Permitted Acquisition or Significant Asset Sale (including, without duplication, (a) all pro forma adjustments permitted or required by Article 11 of Regulation S-X under the Securities Act of 1933, as amended, and (b) pro forma adjustments for cost savings (net of continuing associated expenses) to the extent such cost savings are factually supportable, are expected to have a continuing impact and have been realized or are reasonably expected to be realized within 12 months following such Permitted Acquisition or Significant Asset Sale; provided that all such adjustments shall be set forth in a reasonably detailed Officer’s Certificate of Borrower and, in the case of clause (b), shall be in form and substance reasonably satisfactory to Administrative Agent), using, for purposes of making such calculations, the historical financial statements of Borrower and the Credit Parties which shall be reformulated as if such Permitted Acquisition or Significant Asset Sale, and any other Permitted Acquisitions and Significant Asset Sales that have been consummated during the period, had been consummated on the first day of such period.
 
SECTION 2.   LOANS AND LETTERS OF CREDIT
 
2.1.   Term Loans.
 
(a)           Term B Loans.  Subject to the terms and conditions set forth herein, each Lender agrees to make Term B Loans in Dollars to the Borrower on the Closing Date in an aggregate principal amount not to exceed its Term B Loan Commitment.  Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder with respect to Term B Loans shall be paid in full no later than the Term B Facility Maturity Date.
 
(b)           Incremental Term Loan Commitments.  Subject to the terms and conditions set forth herein, each Lender having an Incremental Term Loan Commitment agrees, subject to the terms and conditions set forth in the applicable Incremental Assumption Agreement,
 
 
 
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to make Incremental Term Loans in Dollars to the Borrower, in an aggregate principal amount not to exceed its Incremental Term Loan Commitment.  Subject to Sections 2.13(a) and 2.14, all amounts owed hereunder with respect to Incremental Term Loans shall be paid in full no later than the applicable Term Facility Maturity Date.
 
(c)           Reborrowing.  Amounts of Term B Loans borrowed under Section 2.1(a) or Section 2.1(b) that are repaid or prepaid may not be reborrowed.
 
2.2.   Revolving Loans.
 
(a)           Revolving Commitments.  Subject to the terms and conditions set forth herein, each Lender agrees to make Revolving Loans in Dollars to the Borrower from time to time during the Availability Period in an aggregate principal amount that will not result in (i) such Lender’s Revolving Exposure exceeding such Lender’s Revolving Commitment under the applicable Class or (ii) the Revolving Exposure of such Class exceeding the total Revolving Facility Commitments of such Class.  Within the foregoing limits and subject to the terms and conditions set forth herein, the Borrower may borrow, prepay and reborrow Revolving Loans.  All Revolving Loans and all other amounts owed hereunder with respect to the applicable Revolving Loans and the applicable Revolving Commitments shall be paid in full no later than the applicable Revolving Facility Maturity Date.
 
(b)           Borrowing Mechanics for Revolving Loans.
 
(i)           Except pursuant to Sections 2.3(b)(iv) and 2.4(d), Revolving Loans that are Base Rate Loans shall be made in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount, and Revolving Loans that are Eurodollar Rate Loans shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount.
 
(ii)           Whenever Borrower desires that Lenders make Revolving Loans, Borrower shall deliver to Administrative Agent a fully executed and delivered Funding Notice no later than 2:00 p.m. (New York City time) at least three Business Days in advance of the proposed Credit Date (or such shorter time as is agreed to by the Administrative Agent hereunder) in the case of a Eurodollar Rate Loan, and at least one Business Day in advance of the proposed Credit Date (or such shorter time as is agreed to by the Administrative Agent hereunder) in the case of a Revolving Loan that is a Base Rate Loan.  Except as otherwise provided herein, a Funding Notice for a Revolving Loan that is a Eurodollar Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall be bound to make a borrowing in accordance therewith.
 
(iii)           Notice of receipt of each Funding Notice in respect of Revolving Loans, together with the amount of each Lender’s Pro Rata Share thereof, if any, together with the applicable interest rate, shall be provided by Administrative Agent to each applicable Lender by telefacsimile with reasonable promptness, but (provided Administrative Agent shall have received such notice by 10:00 a.m. (New York City time)) not later than 2:00 p.m. (New York City time) and, in any event, no later than 4:00 p.m. (New York
 
 
 
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City time) on the same day as Administrative Agent’s receipt of such Funding Notice from Borrower.
 
(iv)           Each Lender shall make the amount of its Revolving Loan available to Administrative Agent not later than 12:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, at the Principal Office designated by Administrative Agent.  Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of such Revolving Loans available to Borrower on the applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Revolving Loans received by Administrative Agent from Lenders to be credited to the account of Borrower at the Principal Office designated by Administrative Agent or such other account as may be designated in writing to Administrative Agent by Borrower.
 
2.3.   Swing Line Loans.
 
(a)           Swing Line Loans Commitments.  Prior to the expiration of the Availability Period, subject to the terms and conditions hereof, Swing Line Lender hereby agrees to make Swing Line Loans to Borrower in the aggregate amount up to but not exceeding the Swing Line Sublimit; provided that after giving effect to the making of any Swing Line Loan, in no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect.  Amounts borrowed pursuant to this Section 2.3 may be repaid and reborrowed prior to the expiration of the Availability Period.  Swing Line Lender’s Revolving Commitment shall expire upon the expiration of the Availability Period and all Swing Line Loans and all other amounts owed hereunder with respect to the Swing Line Loans and the Revolving Commitments shall be paid in full no later than such date.
 
(b)           Borrowing Mechanics for Swing Line Loans.
 
(i)           Swing Line Loans shall be made in an aggregate minimum amount of $500,000 and integral multiples of $100,000 in excess of that amount.
 
(ii)           Whenever Borrower desires that Swing Line Lender make a Swing Line Loan, Borrower shall deliver to Administrative Agent a Funding Notice no later than 2:00 p.m. (New York City time) on the proposed Credit Date.
 
(iii)           Swing Line Lender shall make the amount of its Swing Line Loan available to Administrative Agent not later than 2:00 p.m. (New York City time) on the applicable Credit Date by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal Office.  Except as provided herein, upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of such Swing Line Loans available to Borrower on the applicable Credit Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Swing Line Loans received by Administrative Agent from Swing Line Lender to be credited to the account of Borrower at Administrative Agent’s Principal Office, or to such other account as may be designated in writing to Administrative Agent by Borrower.
 
 
 
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(iv)           With respect to any Swing Line Loans which have not been voluntarily prepaid by Borrower pursuant to Section 2.13, Swing Line Lender may at any time in its sole and absolute discretion, deliver to Administrative Agent (with a copy to Borrower), no later than 11:00 a.m. (New York City time) at least one Business Day in advance of the proposed Credit Date, a notice (which shall be deemed to be a Funding Notice given by Borrower) requesting that each Lender holding a Revolving Commitment make Revolving Loans that are Base Rate Loans to Borrower on such Credit Date in an amount equal to the amount of such Swing Line Loans (the “Refunded Swing Line Loans”) outstanding on the date such notice is given which Swing Line Lender requests Lenders to prepay.  Anything contained in this Agreement to the contrary notwithstanding, (1) the proceeds of such Revolving Loans made by the Lenders other than Swing Line Lender shall be immediately delivered by Administrative Agent to Swing Line Lender (and not to Borrower) and applied to repay a corresponding portion of the Refunded Swing Line Loans and (2) on the day such Revolving Loans are made, Swing Line Lender’s Pro Rata Share of the Refunded Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving Loan made by Swing Line Lender to Borrower, and such portion of the Swing Line Loans deemed to be so paid shall no longer be outstanding as Swing Line Loans and shall no longer be due under the Swing Line Note of Swing Line Lender but shall instead constitute part of Swing Line Lender’s outstanding Revolving Loans to Borrower and shall be due under the Revolving Loan Note issued by Borrower to Swing Line Lender.  Borrower hereby authorizes Administrative Agent and Swing Line Lender to charge Borrower’s accounts with Administrative Agent and Swing Line Lender (up to the amount available in each such account) in order to immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to the extent the proceeds of such Revolving Loans made by Lenders, including the Revolving Loans deemed to be made by Swing Line Lender, are not sufficient to repay in full the Refunded Swing Line Loans.  If any portion of any such amount paid (or deemed to be paid) to Swing Line Lender should be recovered by or on behalf of Borrower from Swing Line Lender in bankruptcy, by assignment for the benefit of creditors or otherwise, the loss of the amount so recovered shall be ratably shared among all Lenders in the manner contemplated by Section 2.17.
 
(v)           If for any reason Revolving Loans are not made pursuant to Section 2.3(b)(iv) in an amount sufficient to repay any amounts owed to Swing Line Lender in respect of any outstanding Swing Line Loans on or before the third Business Day after demand for payment thereof by Swing Line Lender, each Lender holding a Revolving Commitment shall be deemed to, and hereby agrees to, have purchased a participation in such outstanding Swing Line Loans, and in an amount equal to its Pro Rata Share of the applicable unpaid amount together with accrued interest thereon.  Upon one Business Day’s notice from Swing Line Lender, each Lender holding a Revolving Commitment shall deliver to Swing Line Lender an amount equal to its respective participation in the applicable unpaid amount in same day funds at the Principal Office of Swing Line Lender. In order to evidence such participation each Lender holding a Revolving Commitment agrees to enter into a participation agreement at the request of Swing Line Lender in form and substance reasonably satisfactory to Swing Line Lender.  In the event any Lender holding a Revolving Commitment fails to make available to Swing Line Lender the amount of such Lender’s participation as provided in this paragraph, Swing Line Lender
 
 
 
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Credit and Guaranty Agreement

 
 
 
shall be entitled to recover such amount on demand from such Lender together with interest thereon for three Business Days at the rate customarily used by Swing Line Lender for the correction of errors among banks and thereafter at the Base Rate, as applicable.
 
(vi)           Notwithstanding anything contained herein to the contrary, (1) each Lender’s obligation to make Revolving Loans for the purpose of repaying any Refunded Swing Line Loans pursuant to the second preceding paragraph and each Lender’s obligation to purchase a participation in any unpaid Swing Line Loans pursuant to the immediately preceding paragraph shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against Swing Line Lender, any Credit Party or any other Person for any reason whatsoever; (B) the occurrence or continuation of a Potential Event of Default or Event of Default; (C) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of any Credit Party; (D) any breach of this Agreement or any other Credit Document by any party thereto; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing; provided that such obligations of each Lender are subject to the condition that Swing Line Lender believed in good faith that all conditions under Section 3.2 to the making of the applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, were satisfied at the time such Refunded Swing Line Loans or unpaid Swing Line Loans were made, or the satisfaction of any such condition not satisfied had been waived by the Requisite Lenders prior to or at the time such Refunded Swing Line Loans or other unpaid Swing Line Loans were made; and (2) Swing Line Lender shall not be obligated to make any Swing Line Loans (A) if it has elected not to do so after the occurrence and during the continuation of a Potential Event of Default or Event of Default or (B) at a time when any Fronting Exposure exists unless Swing Line Lender has entered into arrangements satisfactory to it and Borrower to eliminate Swing Line Lender’s risk with respect to the Defaulting Lender’s participation in such Swing Ling Loan, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the outstanding Swing Line Loans.
 
2.4.   Issuance of Letters of Credit and Purchase of Participations Therein.
 
(a)           Letters of Credit.  Prior to the expiration of the Availability Period, subject to the terms and conditions hereof, Issuing Bank agrees to issue Letters of Credit for the account of Borrower for the purposes specified in the definitions of Commercial Letters of Credit and Standby Letters of Credit in the aggregate amount up to but not exceeding the Letter of Credit Sublimit; provided, (i) each Letter of Credit shall be denominated in Dollars; (ii) the stated amount of each Letter of Credit shall not be less than $250,000 or such lesser amount as is acceptable to Issuing Bank; (iii) after giving effect to such issuance, in no event shall the Total Utilization of Revolving Commitments exceed the Revolving Commitments then in effect; (iv) after giving effect to such issuance, in no event shall the Letter of Credit Usage exceed the Letter of Credit Sublimit then in effect; (v) in no event shall any Standby Letter of Credit have an expiration date later than the earlier of (1) the expiration of the Availability Period and (2) the date which is one year from the date of issuance of such standby Letter of Credit; and (vi) in no event shall any Commercial Letter of Credit (x) have an expiration date later than the earlier of (1) the Revolving Loan Commitment Termination Date and (2) the date which is 180 days from the date
 
 
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Credit and Guaranty Agreement

 
 
 
of issuance of such Commercial Letter of Credit or (y) be issued if such Commercial Letter of Credit is otherwise unacceptable to Issuing Bank in its reasonable discretion.  Subject to the foregoing, Issuing Bank may agree that a Standby Letter of Credit will automatically be extended for one or more successive periods not to exceed one year each, unless Issuing Bank elects not to extend for any reason or for no reason for any such additional period; provided, in the event any Fronting Exposure exists, Issuing Bank shall not be required to issue any Letter of Credit unless Issuing Bank has entered into arrangements satisfactory to it and Borrower to eliminate Issuing Bank’s risk with respect to the participation in Letters of Credit of the Defaulting Lender, including by cash collateralizing such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage.  On the Closing Date, each Existing Letter of Credit will be deemed a Letter of Credit hereunder.
 
(b)           Notice of Issuance.  Whenever Borrower desires the issuance of a Letter of Credit, Borrower shall deliver to Administrative Agent an Issuance Notice no later than 2:00 p.m. (New York City time) at least three Business Days (in the case of Standby Letters of Credit) or five Business Days (in the case of Commercial Letters of Credit), or in each case such shorter period as may be agreed to by Issuing Bank in any particular instance, in advance of the proposed date of issuance.  The Issuance Notice shall specify (i) the proposed date of issuance (which shall be a Business Day), (ii) whether the Letter of Credit is to be a Standby Letter of Credit or a Commercial Letter of Credit, (iii) the face amount of the Letter of Credit, (iv) the expiration date of the Letter of Credit, (v) the name and address of the beneficiary, and (vi) either the verbatim text of the proposed Letter of Credit or the proposed terms and conditions thereof, including a precise description of any documents to be presented by the beneficiary which, if presented by the beneficiary prior to the expiration date of the Letter of Credit, would require the Issuing Bank to make payment under the Letter of Credit; provided that the Issuing Bank, in its reasonable discretion, may require changes in the text of the proposed Letter of Credit or any such documents; and provided, further, that no Letter of Credit shall require payment against a conforming draft to be made thereunder on the same business day (under the laws of the jurisdiction in which the office of the Issuing Bank to which such draft is required to be presented is located) that such draft is presented if such presentation is made after 10:00 a.m. (in the time zone of such office of the Issuing Bank) on such business day.  Upon satisfaction or waiver of the conditions set forth in Section 3.2, Issuing Bank shall issue the requested Letter of Credit only in accordance with Issuing Bank’s standard operating procedures.  Upon the issuance of any Letter of Credit or amendment or modification to a Letter of Credit, Issuing Bank shall promptly notify each Lender with a Revolving Commitment of such issuance, which notice shall be accompanied by a copy of such Letter of Credit or amendment or modification to a Letter of Credit and the amount of such Lender’s respective participation in such Letter of Credit pursuant to Section 2.4(e).  Borrower shall notify the applicable Issuing Bank (and the Administrative Agent, if Administrative Agent is not such Issuing Bank) prior to the issuance of any Letter of Credit in the event that any of the matters to which Borrower is required to certify in the applicable Issuance Notice is no longer true and correct as of the proposed date of issuance of such Letter of Credit, and upon the issuance of any Letter of Credit, Borrower shall be deemed to have re-certified, as of the date of such issuance, as to the matters to which Borrower is required to certify in the applicable Issuance Notice.
 
(c)           Responsibility of Issuing Bank With Respect to Requests for Drawings and Payments.  In determining whether to honor any drawing under any Letter of Credit by the
 
 
 
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Credit and Guaranty Agreement

 
 
beneficiary thereof, Issuing Bank shall be responsible only to examine the documents delivered under such Letter of Credit with reasonable care so as to ascertain whether they appear on their face to be in accordance with the terms and conditions of such Letter of Credit.  As between Borrower and Issuing Bank, Borrower assumes all risks of the acts and omissions of, or misuse of the Letters of Credit issued by Issuing Bank, by the respective beneficiaries of such Letters of Credit.  In furtherance and not in limitation of the foregoing, Issuing Bank shall not be responsible for:  (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for and issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) failure of the beneficiary of any such Letter of Credit to comply fully with any conditions required in order to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit; or (viii) any consequences arising from causes beyond the control of Issuing Bank, including any Governmental Acts; none of the above shall affect or impair, or prevent the vesting of, any of Issuing Bank’s rights or powers hereunder.  Without limiting the foregoing and in furtherance thereof, any action taken or omitted by Issuing Bank under or in connection with the Letters of Credit or any documents and certificates delivered thereunder, if taken or omitted in good faith, shall not give rise to any liability on the part of Issuing Bank to Borrower.  Notwithstanding anything to the contrary contained in this Section 2.4(c), Borrower shall retain any and all rights it may have against Issuing Bank for any liability arising solely out of the gross negligence or willful misconduct of Issuing Bank.
 
(d)           Reimbursement by Borrower of Amounts Drawn or Paid Under Letters of Credit.  In the event Issuing Bank has determined to honor a drawing under a Letter of Credit, it shall immediately notify Borrower and Administrative Agent, and Borrower shall reimburse Issuing Bank on or before the second Business Day immediately following the date on which such drawing is honored (the “Reimbursement Date”) in an amount in Dollars and in same day funds equal to the amount of such honored drawing; provided, anything contained herein to the contrary notwithstanding, unless Borrower shall have notified Administrative Agent and Issuing Bank prior to 10:00 a.m. (New York City time) on the date such drawing is honored that Borrower intends to reimburse Issuing Bank for the amount of such honored drawing with funds other than the proceeds of Revolving Loans, Borrower shall be deemed to have given a timely Funding Notice to Administrative Agent requesting Lenders with Revolving Commitments to make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars equal to the amount of such honored drawing, and Lenders with Revolving Commitments shall, on the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the amount of such honored drawing, the proceeds of which shall be applied directly by Administrative Agent to reimburse Issuing Bank for the amount of such honored drawing; and provided further, if for any reason proceeds of Revolving Loans are not received by Issuing Bank on the Reimbursement Date in an amount equal to the amount of such honored drawing, Borrower shall reimburse Issu-
 
 
 
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Credit and Guaranty Agreement

 
 
ing Bank, on demand, in an amount in same day funds equal to the excess of the amount of such honored drawing over the aggregate amount of such Revolving Loans, if any, which are so received.  Nothing in this Section 2.4(d) shall be deemed to relieve any Lender with a Revolving Commitment from its obligation to make Revolving Loans on the terms and conditions set forth herein, and Borrower shall retain any and all rights it may have against any such Lender resulting from the failure of such Lender to make such Revolving Loans under this Section 2.4(d).
 
(e)           Lenders’ Purchase of Participations in Letters of Credit.  Immediately upon the issuance of each Letter of Credit, each Lender having a Revolving Commitment shall be deemed to have purchased, and hereby agrees to irrevocably purchase, from Issuing Bank a participation in such Letter of Credit and any drawings honored thereunder in an amount equal to such Lender’s Pro Rata Share (with respect to the Revolving Commitments) of the maximum amount which is or at any time may become available to be drawn thereunder.  In the event that Borrower shall fail for any reason to reimburse Issuing Bank as provided in Section 2.4(d), Issuing Bank shall promptly notify each Lender with a Revolving Commitment of the unreimbursed amount of such honored drawing and of such Lender’s respective participation therein based on such Lender’s Pro Rata Share of the Revolving Commitments.  Each Lender with a Revolving Commitment shall make available to Issuing Bank an amount equal to its respective participation, in Dollars and in same day funds, at the office of Issuing Bank specified in such notice, not later than 12:00 p.m. (New York City time) on the first business day (under the laws of the jurisdiction in which such office of Issuing Bank is located) after the date notified by Issuing Bank.  In the event that any Lender with a Revolving Commitment fails to make available to Issuing Bank on such business day the amount of such Lender’s participation in such Letter of Credit as provided in this Section 2.4(e), Issuing Bank shall be entitled to recover such amount on demand from such Lender together with interest thereon for three Business Days at the rate customarily used by Issuing Bank for the correction of errors among banks and thereafter at the Base Rate.  Nothing in this Section 2.4(e) shall be deemed to prejudice the right of any Lender with a Revolving Commitment to recover from Issuing Bank any amounts made available by such Lender to Issuing Bank pursuant to this Section in the event that it is determined that the payment with respect to a Letter of Credit in respect of which payment was made by such Lender constituted gross negligence or willful misconduct on the part of Issuing Bank.  In the event Issuing Bank shall have been reimbursed by other Lenders pursuant to this Section 2.4(e) for all or any portion of any drawing honored by Issuing Bank under a Letter of Credit, such Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under this Section 2.4(e) with respect to such honored drawing such Lender’s Pro Rata Share of all payments subsequently received by Issuing Bank from Borrower in reimbursement of such honored drawing when such payments are received.  Any such distribution shall be made to a Lender at its primary address set forth below its name on Appendix B or at such other address as such Lender may request.
 
(f)           Obligations Absolute.  The obligation of Borrower to reimburse Issuing Bank for drawings honored under the Letters of Credit issued by it and to repay any Revolving Loans made by Lenders pursuant to Section 2.4(d) and the obligations of Lenders under Section 2.4(e) shall be unconditional and irrevocable and shall be paid strictly in accordance with the terms hereof under all circumstances including any of the following circumstances:  (i) any lack of validity or enforceability of any Letter of Credit; (ii) the existence of any claim, set-off, defense or other right which Borrower or any Lender may have at any time against a beneficiary or any transferee of any Letter of Credit (or any Persons for whom any such transferee may be act-
 
 
 
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Credit and Guaranty Agreement

 
 
ing), Issuing Bank, Lender or any other Person or, in the case of a Lender, against Borrower, whether in connection herewith, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between Borrower or one of its Subsidiaries and the beneficiary for which any Letter of Credit was procured); (iii) any draft or other document presented under any Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; (iv) payment by Issuing Bank under any Letter of Credit against presentation of a draft or other document which does not substantially comply with the terms of such Letter of Credit; (v) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of Borrower or any of its Subsidiaries; (vi) any breach hereof or any other Credit Document by any party thereto; (vii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing; or (viii) the fact that an Event of Default or a Potential Event of Default shall have occurred and be continuing; provided, in each case, that payment by Issuing Bank under the applicable Letter of Credit shall not have constituted gross negligence or willful misconduct of Issuing Bank under the circumstances in question.
 
(g)           Indemnification.  Without duplication of any obligation of Borrower under Section 10.2 or 10.3, in addition to amounts payable as provided herein, Borrower hereby agrees to protect, indemnify, pay and save harmless Issuing Bank from and against any and all claims, demands, liabilities, damages, losses, costs, charges and expenses (including reasonable and documented fees, expenses and disbursements of counsel and allocated costs of internal counsel) which Issuing Bank may incur or be subject to as a consequence, direct or indirect, of (i) the issuance of any Letter of Credit by Issuing Bank, other than as a result of (1) the gross negligence or willful misconduct of Issuing Bank or (2) the wrongful dishonor by Issuing Bank of a proper demand for payment made under any Letter of Credit issued by it, or (ii) the failure of Issuing Bank to honor a drawing under any such Letter of Credit as a result of any Governmental Act.
 
2.5.   Pro Rata Shares; Availability of Funds.
 
(a)           Pro Rata Shares.  All Loans shall be made, and all participations purchased, by Lenders simultaneously and proportionately to their respective Pro Rata Shares, it being understood that no Lender shall be responsible for any default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby nor shall any Revolving Commitment of any Lender be increased or decreased as a result of a default by any other Lender in such other Lender’s obligation to make a Loan requested hereunder or purchase a participation required hereby.
 
(b)           Availability of Funds.  Unless Administrative Agent shall have been notified by any Lender prior to the applicable Credit Date that such Lender does not intend to make available to Administrative Agent the amount of such Lender’s Loan requested on such Credit Date, Administrative Agent may assume that such Lender has made such amount available to Administrative Agent on such Credit Date and Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to Borrower a corresponding amount on such Credit Date.  If such corresponding amount is not in fact made available to Administrative Agent by such Lender, Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the customary rate set by Administra-
 
 
 
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Credit and Guaranty Agreement

 
 
tive Agent for the correction of errors among banks for three Business Days and thereafter at the Base Rate.  If such Lender does not pay such corresponding amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent shall promptly notify Borrower and Borrower shall immediately pay such corresponding amount to Administrative Agent together with interest thereon, for each day from such Credit Date until the date such amount is paid to Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Class of Loans.  Nothing in this Section 2.5(b) shall be deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitments and Revolving Commitments hereunder or to prejudice any rights that Borrower may have against any Lender as a result of any default by such Lender hereunder.
 
2.6.   Use of Proceeds.  The proceeds of the Term Loans, Revolving Loans, Swing Line Loans and Letters of Credit shall be applied by Borrower to repay amounts outstanding under the Existing Credit Agreement, for working capital and general corporate purposes of Borrower and its Affiliates, including Investments (including Investments in Excluded Subsidiaries and Affiliates to fund costs of development projects undertaken by such Excluded Subsidiaries and Affiliates) permitted hereunder, Restricted Payments permitted hereunder for corporate overhead expenses or permitted to be made in lieu of certain Investments, and to finance fees and expenses incurred in connection with this Agreement and the other Credit Documents.  No portion of the proceeds of any Credit Extension shall be used in any manner that causes or might cause such Credit Extension or the application of such proceeds to violate Regulation T, Regulation U or Regulation X of the Board of Governors or any other regulation thereof or to violate the Exchange Act.
 
2.7.   Evidence of Debt; Register; Lenders’ Books and Records; Notes.
 
(a)           Lenders’ Evidence of Debt.  Each Lender shall maintain on its internal records an account or accounts evidencing the Obligations of Borrower to such Lender, including the amounts of the Loans made by it and each repayment and prepayment in respect thereof.  Any such recordation shall be conclusive and binding on Borrower, absent manifest error; provided that the failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or Borrower’s Obligations in respect of any applicable Loans; and provided, further, in the event of any inconsistency between the Register and any Lender’s records, the recordations in the Register shall govern.
 
(b)           Register.  Administrative Agent (or its agent or sub-agent appointed by it) shall maintain at the Principal Office a register for the recordation of the names and addresses of Lenders and the Revolving Commitments and Loans of each Lender from time to time (the “Register”).  The Register shall be available for inspection by Borrower or any Lender (with respect to any entry relating to such Lender’s Loans) at any reasonable time and from time to time upon reasonable prior notice.  Administrative Agent shall record, or shall cause to be recorded, in the Register the Revolving Commitments and the Loans in accordance with the provisions of Section 10.6, and each repayment or prepayment in respect of the principal amount of the Loans (and any cancellations of Term Loans pursuant to and in accordance with the terms and conditions of Section 10.6(j)), and any such recordation shall be conclusive and binding on Borrower and each Lender, absent manifest error; provided that failure to make any such recordation, or any error in such recordation, shall not affect any Lender’s Revolving Commitments or Borrower’s Obligations in respect of any Loan.  Borrower hereby designates Scotiabank to serve as Bor-
 
 
 
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Credit and Guaranty Agreement

 
 
rower’s agent solely for purposes of maintaining the Register as provided in this Section 2.7, and Borrower hereby agrees that, to the extent Scotiabank serves in such capacity, Scotiabank and its officers, directors, employees, agents, sub-agents and affiliates shall constitute “Indemnitees.”
 
(c)           Notes.  If so requested by any Lender by written notice to Borrower (with a copy to Administrative Agent) at least two Business Days prior to the Closing Date, or at any time thereafter, Borrower shall execute and deliver to such Lender (and/or, if applicable and if so specified in such notice, to any Person who is an assignee of such Lender pursuant to Section 10.6) on the Closing Date (or, if such notice is delivered after the Closing Date, promptly after Borrower’s receipt of such notice) a Note or Notes to evidence such Lender’s Term B Loan, Other Term Loan, Revolving Loan or Swing Line Loan, as the case may be.
 
2.8.   Interest on Loans.
 
(a)           Except as otherwise set forth herein, each Class of Loan shall bear interest on the unpaid principal amount thereof from the date made through repayment (whether by acceleration or otherwise) thereof as follows:
 
(i)            in the case of Revolving Loans:
 
 
(1)
if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or
 
 
(2)
if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the Applicable Margin;
 
(ii)            in the case of Swing Line Loans, at the Base Rate plus the Applicable Margin; and
 
(iii)           in the case of Term B Loans and Other Term Loans:
 
 
(1)
if a Base Rate Loan, at the Base Rate plus the Applicable Margin; or
 
 
(2)
if a Eurodollar Rate Loan, at the Adjusted Eurodollar Rate plus the Applicable Margin per annum.
 
(b)           The basis for determining the rate of interest with respect to any Loan (except a Swing Line Loan which can be made and maintained as Base Rate Loans only), and the Interest Period with respect to any Eurodollar Rate Loan, shall be selected by Borrower and notified to Administrative Agent and Lenders pursuant to the applicable Funding Notice or Conversion/Continuation Notice, as the case may be.  If on any day a Loan is outstanding with respect to which a Funding Notice or Conversion/Continuation Notice has not been delivered to Administrative Agent in accordance with the terms hereof specifying the applicable basis for determining the rate of interest, then for that day such Loan shall be a Base Rate Loan.
 
(c)           In connection with Eurodollar Rate Loans there shall be no more than fifteen Interest Periods outstanding at any time.  In the event Borrower fails to specify between a
 
 
 
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Credit and Guaranty Agreement

 
 
 
Base Rate Loan or a Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, such Loan (if outstanding as a Eurodollar Rate Loan) will be automatically converted into a Base Rate Loan on the last day of the then-current Interest Period for such Loan (or if outstanding as a Base Rate Loan will remain as, or (if not then outstanding) will be made as, a Base Rate Loan).  In the event Borrower fails to specify an Interest Period for any Eurodollar Rate Loan in the applicable Funding Notice or Conversion/Continuation Notice, Borrower shall be deemed to have selected an Interest Period of one month.  As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Borrower and each Lender.
 
(d)           Interest payable pursuant to Section 2.8(a) shall be computed (i) in the case of Base Rate Loans on the basis of a 365-day or 366-day year, as the case may be, and (ii) in the case of Eurodollar Rate Loans, on the basis of a 360-day year, in each case for the actual number of days elapsed in the period during which it accrues.  In computing interest on any Loan, the date of the making of such Loan or the first day of an Interest Period applicable to such Loan or, with respect to a Term Loan, the last Interest Payment Date with respect to such Term Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan, as the case may be, shall be included, and the date of payment of such Loan or the expiration date of an Interest Period applicable to such Loan or, with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may be, shall be excluded; provided, if a Loan is repaid on the same day on which it is made, one day’s interest shall be paid on that Loan.
 
(e)           Except as otherwise set forth herein, interest on each Loan (i) with respect to Loans, shall accrue on a daily basis and shall be payable in arrears on each Interest Payment Date with respect to interest accrued on and to each such Interest Payment Date; (ii) shall accrue on a daily basis and shall be payable in arrears upon any prepayment of that Loan, whether voluntary or mandatory, to the extent accrued on the amount being prepaid; and (iv) shall accrue on a daily basis and shall be payable in arrears at maturity of the Loans, including final maturity of the Loans; provided, however, with respect to any voluntary prepayment of a Base Rate Loan, accrued interest shall instead be payable on the applicable Interest Payment Date.
 
(f)           Borrower agrees to pay to Issuing Bank, with respect to drawings honored under any Letter of Credit, interest on the amount paid by Issuing Bank in respect of each such honored drawing from the date such drawing is honored to but excluding the date such amount is reimbursed by or on behalf of Borrower at a rate equal to (i) for the period from the date such drawing is honored to but excluding the applicable Reimbursement Date, the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans made ratably by the Lenders with Revolving Commitments, and (ii) thereafter, a rate which is 2% per annum in excess of the rate of interest otherwise payable hereunder with respect to Revolving Loans that are Base Rate Loans made ratably by the Revolving Lenders.
 
 
 
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Credit and Guaranty Agreement

 
 
(g)           Interest payable pursuant to Section 2.8(f) shall be computed on the basis of a 365/366-day year for the actual number of days elapsed in the period during which it accrues, and shall be payable on demand or, if no demand is made, on the date on which the related drawing under a Letter of Credit is reimbursed in full.  Promptly upon receipt by Issuing Bank of any payment of interest pursuant to Section 2.8(f), Issuing Bank shall distribute to each Lender, out of the interest received by Issuing Bank in respect of the period from the date such drawing is honored to but excluding the date on which Issuing Bank is reimbursed for the amount of such drawing (including any such reimbursement out of the proceeds of any Revolving Loans), the amount that such Lender would have been entitled to receive in respect of the letter of credit fee that would have been payable in respect of such Letter of Credit for such period if no drawing had been honored under such Letter of Credit.  In the event Issuing Bank shall have been reimbursed by Lenders for all or any portion of such honored drawing, Issuing Bank shall distribute to each Lender which has paid all amounts payable by it under Section 2.4(e) with respect to such honored drawing such Lender’s share of any interest received by Issuing Bank in respect of that portion of such honored drawing so reimbursed by Lenders for the period from the date on which Issuing Bank was so reimbursed by Lenders to but excluding the date on which such portion of such honored drawing is reimbursed by Borrower.
 
2.9.   Conversion/Continuation.
 
(a)           Subject to Section 2.18, Borrower shall have the option:
 
(i)           to convert at any time all or any part of any Term Loan or Revolving Loan equal to $5,000,000 and integral multiples of $1,000,000 in excess of that amount from one Type of Loan to another Type of Loan; provided, a Eurodollar Rate Loan may only be converted on the expiration of the Interest Period applicable to such Eurodollar Rate Loan unless Borrower shall pay all amounts due under Section 2.18 in connection with any such conversion; or
 
(ii)           upon the expiration of any Interest Period applicable to any Eurodollar Rate Loan, to continue all or any portion of such Loan equal to $5,000,000 and integral multiples of $1,000,000 in excess of that amount as a Eurodollar Rate Loan.
 
(b)           Borrower shall deliver a Conversion/Continuation Notice to Administrative Agent no later than 2:00 p.m. (New York City time) at least one Business Day in advance of the proposed conversion date (in the case of a conversion to a Base Rate Loan) and at least three Business Days in advance of the proposed conversion/continuation date (in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan).  A Conversion/Continuation Notice shall specify (i) the proposed conversion/continuation date (which shall be a Business Day), (ii) the amount and type of the Loan to be converted/continued, (iii) the nature of the proposed conversion/continuation, (iv) in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan, the requested Interest Period, and (v) in the case of a conversion to, or a continuation of, a Eurodollar Rate Loan, if the Requisite Lenders request in writing, that no Potential Event of Default or Event of Default has occurred and is continuing.  Except as otherwise provided herein, a Conversion/Continuation Notice for conversion to, or continuation of, any Eurodollar Rate Loans (or telephonic notice in lieu thereof) shall be irrevocable on and after the related Interest Rate Determination Date, and Borrower shall be bound to effect a conversion or continuation in
 
 
 
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Credit and Guaranty Agreement

 
 
accordance therewith.  Neither Administrative Agent nor any Lender shall incur any liability to Borrower in acting upon any telephonic notice referred to above that Administrative Agent believes in good faith to have been given by a duly authorized officer or other Person authorized to act on behalf of Borrower or for otherwise acting in good faith under this Section 2.9(b), and upon conversion or continuation of the applicable basis for determining the interest rate with respect to any Loans in accordance with this Agreement pursuant to any such telephonic notice Borrower shall have effected a conversion or continuation, as the case may be, hereunder.
 
2.10.   Default Interest.  The principal amount of all overdue principal and, to the extent permitted by applicable law, any interest payments thereon or any past due fees or other amounts owed hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under the Bankruptcy Code or other applicable bankruptcy laws) payable on demand at a rate that is 2% per annum in excess of the interest rate otherwise payable hereunder with respect to the applicable Loans (or, in the case of any such fees and other amounts, at a rate which is 2% per annum in excess of the interest rate otherwise payable hereunder for Base Rate Loans that are Initial Revolving Loans); provided, in the case of Eurodollar Rate Loans, upon the expiration of the Interest Period in effect at the time any such increase in interest rate is effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans and shall thereafter bear interest payable upon demand at a rate which is 2% per annum in excess of the interest rate otherwise payable hereunder for the applicable Base Rate Loan.  Payment or acceptance of the increased rates of interest provided for in this Section 2.10 is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative Agent or any Lender.
 
2.11.   Fees.
 
(a)           Borrower agrees to pay to Lenders (in the case of any Defaulting Lender, subject to the provisions of Section 2.22(a)(iii)) having Revolving Exposure:
 
(i)           commitment fees equal to (A) the average of the daily difference between (1) the Revolving Commitments and (2) the aggregate principal amount of (x) all outstanding Revolving Loans plus (y) the Letter of Credit Usage, times (B) the Applicable Revolving Commitment Fee Percentage; and
 
(ii)           letter of credit fees equal to (A) the Applicable Margin for Revolving Loans that are Eurodollar Rate Loans, times (B) the average aggregate daily maximum amount available to be drawn under all such Letters of Credit (regardless of whether any conditions for drawing could then be met and determined as of the close of business on any date of determination).
 
All fees referred to in this Section 2.11(a) shall be paid to Administrative Agent at its Principal Office and upon receipt, Administrative Agent shall promptly distribute to each Lender its Pro Rata Share thereof (using the Applicable Revolving Commitment Fee Percentage and Applicable Margin appropriate to the Class of Revolving Commitment of each Revolving Lender).
 
(b)           Borrower agrees to pay directly to Issuing Bank, for its own account, the following fees:
 
 
 
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(i)           a fronting fee equal to 0.125%, per annum, times the average aggregate daily maximum amount available to be drawn under all Letters of Credit (determined as of the close of business on any date of determination); and
 
(ii)           such customary documentary and processing charges for any issuance, amendment, transfer or payment of a Letter of Credit as are in accordance with Issuing Bank’s standard schedule for such charges and as in effect at the time of such issuance, amendment, transfer or payment, as the case may be.
 
(c)           [Intentionally Omitted]
 
(d)           All fees referred to in Section 2.11(a) and 2.11(b)(i) shall be calculated on the basis of a 360-day year and the actual number of days elapsed and shall be payable quarterly in arrears on April 1, July 1, October 1 and January 1 of each year during the Availability Period, commencing on the first such date to occur after the Closing Date.
 
(e)           Borrower agrees to pay to Administrative Agent an annual administrative fee in the amount and at the times set forth in the Administrative Agent Fee Letter.
 
(f)           In addition to any of the foregoing fees, Borrower agrees to pay to Agents such other fees in the amounts and at the times separately agreed upon.
 
2.12.   Scheduled Payments/Commitment Reductions.
 
(a)           Term B Loans shall be amortized by 0.25% per Fiscal Quarter commencing with the Fiscal Quarter ended March 31, 2014 through the Term B Facility Maturity Date (with each amortization payment due on a Quarterly Date), with the remaining balance due on the Term B Facility Maturity Date.
 
In the event any Other Term Loans are made, such Other Term Loans shall be repaid on each installment date as set forth in the applicable Incremental Assumption Agreement.
 
(b)           Impact of Prepayments.  Notwithstanding the foregoing, (x) such Installments shall be reduced in connection with any voluntary or mandatory prepayments of the Term B Loans and the Other Term Loans, as the case may be, as provided in Sections 2.15(a) and (b), as applicable; and (y) the Term B Loans and the Other Term Loans, together with all other amounts owed hereunder with respect thereto, shall, in any event, be paid in full no later than the applicable Term Facility Maturity Date.
 
(c)           Impact of Cancellations.  Notwithstanding the foregoing, with respect to any Term Loans which are cancelled pursuant to and in accordance with Section 10.6(j), the amount of the remaining balance due on the applicable Term Facility Maturity Date shall be reduced by the aggregate stated principal amount of such cancelled Term B Loans or Other Term Loans, respectively; provided that in no event shall the remaining balance due on the applicable Term Facility Maturity Date exceed the aggregate stated principal amount of the Term B Loans or the applicable Other Term Loans, respectively, then outstanding.
 
2.13.   Voluntary Prepayments/Commitment Reductions.
 
 
 
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(a)           Voluntary Prepayments.
 
(i)           Any time and from time to time:
 
 
(1)
with respect to Base Rate Loans, Borrower may prepay any such Loans on any Business Day in whole or in part, in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount;
 
 
(2)
with respect to Eurodollar Rate Loans, Borrower may prepay any such Loans on any Business Day in whole or in part in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount; and
 
 
(3)
with respect to Swing Line Loans, Borrower may prepay any such Loans on any Business Day in whole or in part in an aggregate minimum amount of $500,000, and in integral multiples of $100,000 in excess of that amount.
 
(ii)           All such prepayments shall be made without premium or penalty (except as set forth in clause (c) below):
 
 
(1)
upon not less than one Business Day’s prior written or telephonic notice in the case of Base Rate Loans;
 
 
(2)
upon not less than three Business Days’ prior written or telephonic notice in the case of Eurodollar Rate Loans; and
 
 
(3)
upon written or telephonic notice on the date of prepayment, in the case of Swing Line Loans;
 
in each case, given to Administrative Agent or Swing Line Lender, as the case may be, by 2:00 p.m. (New York City time) on the date required and, if given by telephone, promptly confirmed in writing to Administrative Agent (and Administrative Agent will promptly transmit such telephonic or original notice for Term Loans or Revolving Loans, as the case may be, by telefacsimile or telephone to each Lender) or Swing Line Lender, as the case may be.  Upon the giving of any such notice, the principal amount of the Loans specified in such notice shall become due and payable on the prepayment date specified therein, unless such notice is in connection with a refinancing of the Loans or other transaction in which case such notice may be conditioned on consummation of such refinancing or other transaction.  Any such voluntary prepayment shall be applied as specified in Section 2.15(a).
 
(b)           Voluntary Commitment Reductions.
 
(i)           Borrower may, upon not less than three Business Days’ prior written or telephonic notice confirmed in writing to Administrative Agent (which original written or telephonic notice Administrative Agent will promptly transmit by telefacsimile
 
 
 
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or telephone to each applicable Lender), at any time and from time to time terminate in whole or permanently reduce in part, without premium or penalty, the Revolving Commitments in an amount up to the amount by which the Revolving Commitments exceed the Total Utilization of Revolving Commitments at the time of such proposed termination or reduction; provided, any such partial reduction of such Commitments shall be in an aggregate minimum amount of $5,000,000 and integral multiples of $1,000,000 in excess of that amount.
 
(ii)           Borrower’s notice to Administrative Agent shall designate the date (which shall be a Business Day) of such termination or reduction and the amount of any partial reduction, and such termination or reduction of the Revolving Commitments shall be effective on the date specified in Borrower’s notice and shall reduce the Revolving Commitment of each Lender proportionately to its Pro Rata Share thereof (unless such notice is in connection with a refinancing of the Loans or other transaction in which case such notice may be conditioned on consummation of such refinancing or other transaction).  Notwithstanding the foregoing, Borrower may elect to reduce or terminate any Class of Revolving Commitments (and prepay Revolving Exposure associated therewith) without reducing or terminating Revolving Commitments of any other Class.
 
(c)           In the event that, on or prior to the six month anniversary of the Closing Date, the Borrower shall (x) make a prepayment of the Term B Loans pursuant to Section 2.13(a) with the proceeds of any new or replacement tranche of term loans that have an All-In Yield that is less than the All-In Yield of such Term B Loans or (y) effect any amendment to this Agreement which reduces the All-In Yield of the Term B Loans (or any mandatory assignment under Section 2.23 by a Non-Consenting Lender shall have been made in connection therewith), the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Term Lenders, (A) in the case of clause (x), a prepayment premium of 1.00% of the aggregate principal amount of the Term Loans so prepaid and (B) in the case of clause (y), a fee equal to 1.00% of the aggregate principal amount of the applicable Term Loans for which the All-In Yield has been reduced pursuant to such amendment.  Such amounts shall be due and payable on the date of such prepayment or the effective date of such amendment, as the case may be.
 
2.14.   Mandatory Prepayments/Commitment Reductions.
 
(a)           Asset Sales.  No later than the fifth Business Day following the date of receipt by the Credit Parties of any Net Asset Sale Proceeds (other than Net Asset Sale Proceeds in respect of Asset Sales permitted by Section 6.7 (excluding clauses (d) and (r) thereof), Borrower shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.15(b) in an aggregate amount equal to such Net Asset Sale Proceeds; provided, so long as no Potential Event of Default or Event of Default shall have occurred and be continuing, Borrower shall have the option, directly or through one or more of the other Credit Parties, to invest (or commit to invest, pursuant to a binding contractual agreement that contemplates the consummation of such investment within 15 months of such receipt) such Net Asset Sale Proceeds within 365 days of receipt thereof in assets of the general type used or useful in the business of the Credit Parties.  Notwithstanding the foregoing, the Credit Parties may use a portion of such Net Asset Sale Proceeds to prepay or repurchase New Senior Notes and other Indebtedness of the Credit Parties that ranks pari passu in right of security with the Loans (“Pari Passu In-
 
 
 
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debtedness”) to the extent the indenture or other agreement therefor requires the Credit Parties to prepay or make an offer to purchase such Pari Passu Indebtedness with the proceeds of such Asset Sale, in each case in an amount not to exceed the product of (x) the amount of such Net Asset Sale Proceeds multiplied by (y) a fraction, the numerator of which is the aggregate outstanding principal amount of the Pari Passu Indebtedness with respect to which such a requirement to prepay or make an offer to purchase exists and the denominator of which is the sum of the outstanding principal amount of such Pari Passu Indebtedness and the outstanding principal amount of Loans on the date of such prepayment.
 
(b)           Insurance/Condemnation Proceeds. Subject to the Cooperation Agreement, no later than the fifth Business Day following the date of receipt by the Credit Parties, or Administrative Agent as loss payee, of any Net Loss Proceeds, Borrower shall prepay the Loans and/or the Revolving Commitments shall be permanently reduced as set forth in Section 2.15(b) in an aggregate amount equal to such Net Loss Proceeds; provided, so long as no Event of Default shall have occurred and be continuing, Borrower shall have the option, directly or through one or more of its Subsidiaries that are Guarantors to invest (or commit to invest) such Net Loss Proceeds within 365 days of receipt thereof in assets of the general type used or useful in the business of the Credit Parties, which investment may include the repair, restoration or replacement of the applicable assets thereof.  Notwithstanding the foregoing, the Credit Parties may use a portion of such Net Loss Proceeds to prepay or repurchase Pari Passu Indebtedness to the extent the indenture or other agreement therefor requires the Credit Parties to prepay or make an offer to purchase such Pari Passu Indebtedness with such Net Loss Proceeds, in each case in an amount not to exceed the product of (x) the amount of such Net Loss Proceeds multiplied by (y) a fraction, the numerator of which is the outstanding principal amount of the Pari Passu Indebtedness with respect to which such a requirement to prepay or make an offer to purchase exists and the denominator of which is the sum of the outstanding principal amount of such Pari Passu Indebtedness and the outstanding principal amount of Loans on the date of such prepayment.
 
(c)           Issuance of Debt.  On the fifth Business Day following receipt by the Credit Parties of any Cash proceeds from the incurrence of any Indebtedness of any Credit Parties (other than with respect to any Indebtedness permitted to be incurred pursuant to Section 6.1 (other than Section 6.1(s)) (or, with respect to clause (ii) below, as promptly as practicable thereafter), Borrower shall use an aggregate amount equal to 100% of such proceeds, net of underwriting discounts and commissions and other reasonable and documented costs and expenses associated therewith, including reasonable legal fees and expenses (such amount being the “Net Debt Proceeds”) (i) to prepay the Loans and/or permanently reduce the Revolving Commitments as set forth in Section 2.15(b), and/or (ii) repay, redeem, purchase or defease any LVSC Debt that is guaranteed by the Credit Parties.
 
(d)           Revolving Loans and Swing Loans.  Borrower shall from time to time prepay first, the Swing Line Loans, and second, the Revolving Loans to the extent necessary so that the Total Utilization of Revolving Commitments shall not at any time exceed the Revolving Commitments then in effect.
 
(e)           Prepayment Certificate.  Concurrently with any prepayment of the Loans and/or reduction of the Revolving Commitments pursuant to Sections 2.14(a) through 2.14(c),
 
 
 
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Borrower shall deliver to Administrative Agent an Officer’s Certificate demonstrating the calculation of the amount (the “Net Proceeds Amount”) of the applicable Net Asset Sale Proceeds, Net Loss Proceeds or Net Debt Proceeds, as the case may be, that gave rise to such prepayment.  In the event that Borrower shall subsequently determine that the actual amount received exceeded the amount set forth in such certificate, Borrower shall promptly make an additional prepayment of the Loans and/or the Revolving Commitments shall be permanently reduced in an amount equal to such excess, and Borrower shall concurrently therewith deliver to Administrative Agent an Officer’s Certificate demonstrating the derivation of the additional Net Proceeds Amount resulting in such excess.
 
(f)           Drawings on Conforming L/Cs.  In the event that any Conforming L/C Draw Event shall have occurred, Administrative Agent may draw down on each outstanding Conforming L/C in its entirety.  For the avoidance of doubt, a Conforming L/C Draw Event shall be in addition to any Event of Default described in Section 8 that may have occurred and be continuing, and (i) Administrative Agent shall not be required to exercise any rights or remedy under Section 8 in order to draw on the Conforming L/Cs and (ii) any drawing on a Conforming L/C shall not be deemed to be a waiver of any Event of Default.  Notwithstanding the foregoing, at the request of Borrower, Administrative Agent shall release any Conforming L/C or a portion thereof in its possession to Borrower, provided that each of the following conditions shall have been satisfied:  (i) no Conforming L/C Draw Event shall have occurred and be continuing, (ii) Borrower shall at such time be in compliance with Section 6.6 and shall have been in compliance therewith for the preceding four consecutive quarters (without giving effect to any such Conforming L/C or a portion thereof or any substitute cash equity contribution by Adelson or his Affiliates), (iii) no Event of Default or Potential Event of Default shall have occurred and be continuing and (iv) since the last day of the preceding calendar year, no event or change shall have occurred that caused, in any case or in the aggregate, a Material Adverse Effect.
 
2.15.   Application of Prepayments/Reductions.
 
(a)           Application of Voluntary Prepayments by Type of Loans.
 
Any prepayment of any Loan pursuant to Section 2.13(a) shall be applied as specified by Borrower in the applicable notice of prepayment; provided, any prepayment of Term Loans shall be allocated to the Term Loans on a pro rata basis or, at the option of Borrower, allocated to the Term B Loans on a pro rata basis (in each case in accordance with the respective outstanding principal amounts thereof), and applied on a pro rata basis to reduce the scheduled remaining Installments of principal of the Term B Loans or the Other Term Loans, as the case may be.
 
(b)           Application of Mandatory Prepayments by Type of Loans.  Any amount required to be paid pursuant to Sections 2.14(a) through 2.14(c) shall be applied as follows:
 
first, to prepay Term Loans on a pro rata basis (in accordance with the respective outstanding principal amounts thereof) and further applied on a pro rata basis to the remaining scheduled Installments of principal of the Term Loans; provided, that Borrower may elect to apply prepayments required by Section 2.14(c) first, to prepay Term B Loans on a pro rata basis before prepaying Other Term Loans;
 
 
 
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Credit and Guaranty Agreement

 
 
second, to prepay the Swing Line Loans to the full extent thereof;
 
third, to prepay the Revolving Loans to the full extent thereof;
 
fourth, to prepay outstanding reimbursement obligations with respect to Letters of Credit; and
 
fifth, to cash collateralize Letters of Credit.
 
(c)           The Borrower shall be required to apply all PA Subsidiary Net Asset Sale Proceeds received, directly or indirectly, by any Credit Party first to repay in full all amounts outstanding under the PA Investment Note owed by the PA Subsidiaries and second, up to an aggregate amount of $500,000,000, to prepay (with the proceeds received from the repayment of the PA Investment Note or otherwise) and permanently reduce the Revolving Commitments, in each case, within five Business Days of the receipt thereof.
 
(d)           Application of Prepayments of Loans to Base Rate Loans and Eurodollar Rate Loans.  Considering each Class of Loans being prepaid separately, any prepayment thereof shall be applied first to Base Rate Loans to the full extent thereof before application to Eurodollar Rate Loans, in each case, in a manner which minimizes the amount of any payments required to be made by Borrower pursuant to Section 2.18(c).
 
2.16.   General Provisions Regarding Payments.
 
(a)           All payments by Borrower of principal, interest, fees and other Obligations shall be made in Dollars in same day funds, without defense, setoff or counterclaim, free of any restriction or condition, and delivered to Administrative Agent not later than 2:00 p.m. (New York City time) on the date due at the Principal Office designated by Administrative Agent for the account of Lenders; for purposes of computing interest and fees, funds received by Administrative Agent after that time on such due date shall be deemed to have been paid by Borrower on the next succeeding Business Day.
 
(b)           All payments in respect of the principal amount of any Loan (other than voluntary prepayments of Revolving Loans) shall be accompanied by payment of accrued interest on the principal amount being repaid or prepaid, and all such payments (and, in any event, any payments in respect of any Loan on a date when interest is due and payable with respect to such Loan) shall be applied to the payment of interest then due and payable before application to principal.
 
(c)           Administrative Agent (or its agent or sub-agent appointed by it) shall promptly distribute to each Lender at such address as such Lender shall indicate in writing, such Lender’s applicable Pro Rata Share of all payments and prepayments of principal and interest due hereunder, together with all other amounts due thereto, including all fees payable with respect thereto, to the extent received by Administrative Agent.
 
(d)           Notwithstanding the foregoing provisions hereof, if any Conversion/Continuation Notice is withdrawn as to any Affected Lender or if any Affected Lender
 
 
 
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Credit and Guaranty Agreement

 
 
makes Base Rate Loans in lieu of its Pro Rata Share of any Eurodollar Rate Loans, Administrative Agent shall give effect thereto in apportioning payments received thereafter.
 
(e)           Subject to the provisos set forth in the definition of “Interest Period” as they may apply to Revolving Loans, whenever any payment to be made hereunder with respect to any Loan shall be stated to be due on a day that is not a Business Day, such payment shall be made on the next succeeding Business Day and, with respect to Revolving Loans only, such extension of time shall be included in the computation of the payment of interest hereunder or of the Revolving Commitment fees hereunder.
 
(f)           Borrower hereby authorizes Administrative Agent to charge Borrower’s accounts with Administrative Agent in order to cause timely payment to be made to Administrative Agent of all principal, interest, fees and expenses due hereunder (subject to sufficient funds being available in its accounts for that purpose); provided that with respect to fees and expenses, the Administrative Agent has delivered to Borrower an invoice setting forth the amounts due in reasonable detail, and Borrower has not paid such amounts within three Business Days.
 
(g)           Administrative Agent shall deem any payment by or on behalf of Borrower hereunder that is not made in same day funds prior to 2:00 p.m. (New York City time) to be a non-conforming payment.  Any such payment shall not be deemed to have been received by Administrative Agent until the later of (i) the time such funds become available funds, and (ii) the applicable next Business Day.  Administrative Agent shall give prompt telephonic notice to Borrower and each applicable Lender (confirmed in writing) if any payment is non-conforming.  Any non-conforming payment may constitute or become a Potential Event of Default or Event of Default in accordance with the terms of Section 8.1(a).  Interest shall continue to accrue on any principal as to which a non-conforming payment is made until such funds become available funds (but in no event less than the period from the date of such payment to the next succeeding applicable Business Day) at the rate determined pursuant to Section 2.10 from the date such amount was due and payable until the date such amount is paid in full.
 
(h)           If an Event of Default shall have occurred and not otherwise been waived, and the maturity of the Obligations shall have been accelerated pursuant to Section 8.1, all payments or proceeds received by Agents hereunder in respect of any of the Secured Obligations, shall be applied in accordance with the application arrangements described in Section 7.2 of the Security Agreement.
 
2.17.   Ratable Sharing.  Lenders hereby agree among themselves that, unless otherwise provided in the Collateral Documents or Section 2.18, 2.19 or 2.20 hereof with respect to amounts realized from the Collateral, if any of them shall, whether by voluntary payment (other than a voluntary prepayment of Loans made and applied in accordance with the terms hereof), through the exercise of any right of set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under the Credit Documents or otherwise, or as adequate protection of a deposit treated as cash collateral under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of principal, interest, amounts payable in respect of Letters of Credit, fees and other amounts then due and owing to such Lender hereunder or under the other Credit Documents (collectively, the “Aggregate Amounts Due” to such Lender) which is greater than the proportion received by any other Lender in respect of the Ag-
 
 
 
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Credit and Guaranty Agreement

 
 
gregate Amounts Due to such other Lender, then the Lender receiving such proportionately greater payment shall (a) notify Administrative Agent and each other Lender of the receipt of such payment and (b) apply a portion of such payment to purchase participations (which it shall be deemed to have purchased from each seller of a participation simultaneously upon the receipt by such seller of its portion of such payment) in the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them; provided, if all or part of such proportionately greater payment received by such purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of Borrower or otherwise, those purchases shall be rescinded and the purchase prices paid for such participations shall be returned to such purchasing Lender ratably to the extent of such recovery, but without interest; provided, further, that the provisions of this Section 2.17 shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in any payment or disbursement made by the Issuing Bank pursuant to a Letter of Credit to any assignee or participant in any drawing under a Letter of Credit.  Borrower expressly consents to the foregoing arrangement and agrees that any holder of a participation so purchased may exercise any and all rights of banker’s lien, set-off or counterclaim with respect to any and all monies owing by Borrower to that holder with respect thereto as fully as if that holder were owed the amount of the participation held by that holder.
 
2.18.   Making or Maintaining Eurodollar Rate Loans.
 
(a)           Determining Applicable Interest Rate.  As soon as practicable after 10:00 a.m. (New York City time) on each Interest Rate Determination Date, Administrative Agent shall determine (which determination shall, absent manifest error, be final, conclusive and binding upon all parties) the interest rate that shall apply to the Eurodollar Rate Loans for which an interest rate is then being determined for the applicable Interest Period and shall promptly give notice thereof (in writing or by telephone confirmed in writing) to Borrower and each Lender.  In the event that Administrative Agent shall have determined (which determination shall be final and conclusive and binding upon all parties hereto), on any Interest Rate Determination Date with respect to any Eurodollar Rate Loans, that by reason of circumstances affecting the London interbank market adequate and fair means do not exist for ascertaining the interest rate applicable to such Loans on the basis provided for in the definition of Adjusted Eurodollar Rate, Administrative Agent shall on such date give notice (by telefacsimile or by telephone confirmed in writing) to Borrower and each Lender of such determination, whereupon (i) no Loans may be made as, or converted to, Eurodollar Rate Loans until such time as Administrative Agent notifies Borrower and Lenders that the circumstances giving rise to such notice no longer exist, and (ii) any Funding Notice or Conversion/Continuation Notice given by Borrower with respect to the Loans in respect of which such determination was made shall be deemed to be a request for the making of, conversion to, or continuation of the applicable Loans as Base Rate Loans.
 
(b)           Illegality or Impracticability of Eurodollar Rate Loans.  In the event that on any date any Lender shall have determined (which determination shall be final and conclusive and binding upon all parties hereto but shall be made only after consultation with Borrower and Administrative Agent) that the making, maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful as a result of compliance by such Lender in good faith with any law,
 
 
 
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treaty, governmental rule, regulation, guideline or order (or would conflict with any such treaty, governmental rule, regulation, guideline or order not having the force of law even though the failure to comply therewith would not be unlawful), or (ii) has become impracticable, as a result of contingencies occurring after the date hereof which materially and adversely affect the London interbank market or the position of such Lender in that market, then, and in any such event, such Lender shall be an “Affected Lender” and it shall on that day give notice (by telefacsimile or by telephone confirmed in writing) to Borrower and Administrative Agent of such determination (which notice Administrative Agent shall promptly transmit to each other Lender).  Thereafter (1) the obligation of the Affected Lender to make Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by the Affected Lender, (2) to the extent such determination by the Affected Lender relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, the Affected Lender shall make such Loan as (or continue such Loan as or convert such Loan to, as the case may be) a Base Rate Loan, (3) the Affected Lender’s obligation to maintain its outstanding Eurodollar Rate Loans (the “Affected Loans”) shall be terminated at the earlier to occur of the expiration of the Interest Period then in effect with respect to the Affected Loans or when required by law, and (4) the Affected Loans shall automatically convert into Base Rate Loans on the date of such termination.  Notwithstanding the foregoing, to the extent a determination by an Affected Lender as described above relates to a Eurodollar Rate Loan then being requested by Borrower pursuant to a Funding Notice or a Conversion/Continuation Notice, Borrower shall have the option, subject to the provisions of Section 2.18(c), to rescind such Funding Notice or Conversion/Continuation Notice as to all Lenders by giving notice (by telefacsimile or by telephone confirmed in writing) to Administrative Agent of such rescission on the date on which the Affected Lender gives notice of its determination as described above (which notice of rescission Administrative Agent shall promptly transmit to each other Lender).  Except as provided in the immediately preceding sentence, nothing in this Section 2.18(b) shall affect the obligation of any Lender other than an Affected Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in accordance with the terms hereof.
 
(c)           Compensation for Breakage or Non-Commencement of Interest Periods.  Borrower shall compensate each Lender, upon written request by such Lender (which request shall set forth the basis for requesting such amounts and shall be conclusive and binding absent manifest error), for all reasonable losses, expenses and liabilities (including any interest paid by such Lender to Lenders of funds borrowed by it to make or carry its Eurodollar Rate Loans and any loss, expense or liability sustained by such Lender in connection with the liquidation or re-employment of such funds but excluding loss of anticipated profits or margin) which such Lender may sustain:  (i) if for any reason (other than a default by such Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date specified therefor in a Funding Notice or a telephonic request for borrowing, or a conversion to or continuation of any Eurodollar Rate Loan does not occur on a date specified therefor in a Conversion/Continuation Notice or a telephonic request for conversion or continuation; (ii) if any prepayment or other principal payment of, or any conversion of, any of its Eurodollar Rate Loans occurs on a date prior to the last day of an Interest Period applicable to that Loan; or (iii) if any prepayment of any of its Eurodollar Rate Loans is not made on any date specified in a notice of prepayment given by Borrower.  Notwithstanding the foregoing, Borrower shall not be required to compensate a Lender for any amount under this paragraph if the event (or change in law or regulation or other action) giving rise to
 
 
 
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such loss, expense or liability occurred more than 180 days prior to the date such Lender submits the statement referred to in the preceding sentence.
 
(d)           Booking of Eurodollar Rate Loans.  Any Lender may make, carry or transfer Eurodollar Rate Loans at, to, or for the account of any of its branch offices or the office of an Affiliate of such Lender.
 
(e)           Assumptions Concerning Funding of Eurodollar Rate Loans.  Calculation of all amounts payable to a Lender under this Section 2.18 and under Section 2.19 shall be made as though such Lender had actually funded each of its relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit bearing interest at the rate obtained pursuant to clause (i) of the definition of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar Rate Loan and having a maturity comparable to the relevant Interest Period and through the transfer of such Eurodollar deposit from an offshore office of such Lender to a domestic office of such Lender in the United States of America; provided, however, each Lender may fund each of its Eurodollar Rate Loans in any manner it sees fit and the foregoing assumptions shall be utilized only for the purposes of calculating amounts payable under this Section 2.18 and under Section 2.19.
 
2.19.   Increased Costs; Capital Adequacy.
 
(a)           Compensation For Increased Costs and Taxes.  Subject to the provisions of Section 2.20 (which shall be controlling with respect to the matters covered thereby), in the event that any Lender (which term shall include Issuing Bank for purposes of this Section 2.19(a)) shall determine (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto) that any law, treaty or governmental rule, regulation or order, or any change therein or in the interpretation, administration or application thereof (including the introduction of any new law, treaty or governmental rule, regulation or order), or any determination of a court or Governmental Authority, in each case, that becomes effective after the Closing Date, or compliance by such Lender with any guideline, request or directive issued or made after the Closing Date by any central bank or other Governmental Authority or quasi-governmental authority (whether or not having the force of law):  (i) subjects such Lender (or its applicable lending office) or the Administrative Agent to any additional Tax (other than (A) Indemnified Taxes and Other Taxes that are indemnified under Section 2.20 and (B) Excluded Taxes) with respect to this Agreement or any of the other Credit Documents or any of its obligations hereunder or thereunder or any payments to such Lender (or its applicable lending office) of principal, interest, fees or any other amount payable hereunder; (ii) imposes, modifies or holds applicable any reserve (including any marginal, emergency, supplemental, special or other reserve), special deposit, compulsory loan, FDIC insurance or similar requirement against assets held by, or deposits or other liabilities in or for the account of, or advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Lender (other than any such reserve or other requirements with respect to Eurodollar Rate Loans that are reflected in the definition of Adjusted Eurodollar Rate); or (iii) imposes any other condition (other than with respect to a Tax matter) on or affecting such Lender (or its applicable lending office) or its obligations hereunder or the London interbank market; and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make, making or maintaining Loans hereunder or to reduce any amount received or receivable by such Lender (or its applicable lending office)
 
 
 
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with respect thereto; then, in any such case, Borrower shall promptly pay to such Lender or the Administrative Agent, upon receipt of the statement referred to in the next sentence, such additional amount or amounts (in the form of an increased rate of, or a different method of calculating, interest or otherwise as such Lender in its sole discretion shall determine) as may be necessary to compensate such Lender or the Administrative Lender, as applicable for any such increased cost or reduction in amounts received or receivable hereunder.  Such Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to such Lender under this Section 2.19(a), which statement shall be conclusive and binding upon all parties hereto absent manifest error.  Notwithstanding the foregoing, Borrower shall not be required to compensate a Lender for any amount under this paragraph if the event (or change in law or regulation or other action) giving rise to such loss, expense, liability, additional Tax or increased cost occurred more than 180 days prior to the date such Lender submits the statement referred to in the preceding sentence.  Notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall in each case be deemed to be a change in law, regardless of the date enacted, adopted or issued.
 
(b)           Capital Adequacy Adjustment.  In the event that any Lender (which term shall include Issuing Bank for purposes of this Section  2.19(b)) shall have determined that the adoption, effectiveness, phase-in or applicability after the Closing Date of any law, rule or regulation (or any provision thereof) regarding capital adequacy or liquidity, or any change therein or in the interpretation or administration thereof by any Governmental Authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender (or its applicable lending office) with any guideline, request or directive regarding capital adequacy or liquidity (whether or not having the force of law) of any such Governmental Authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on the capital of such Lender or any corporation controlling such Lender as a consequence of, or with reference to, such Lender’s Loans or Revolving Commitments or Letters of Credit, or participations therein or other obligations hereunder with respect to the Loans or the Letters of Credit to a level below that which such Lender or such controlling corporation could have achieved but for such adoption, effectiveness, phase-in, applicability, change or compliance (taking into consideration the policies of such Lender or such controlling corporation with regard to capital adequacy or liquidity), then from time to time, within five Business Days after receipt by Borrower from such Lender of the statement referred to in the next sentence, Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling corporation for such reduction. Such Lender shall deliver to Borrower (with a copy to Administrative Agent) a written statement, setting forth in reasonable detail the basis for calculating the additional amounts owed to Lender under this Section 2.19(b), which statement shall be conclusive and binding upon all parties hereto absent manifest error.  Notwithstanding the foregoing, Borrower shall not be required to compensate a Lender for any amount under this paragraph if the event (or change in law or regulation or other action) giving rise to such loss, expense or liability occurred more than 180 days prior to the date such Lender submits the statement referred to in the preceding sentence.  Notwithstanding anything herein to the contrary, (x)
 
 
 
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the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III shall in each case be deemed to be a change in law, regardless of the date enacted, adopted or issued.
 
2.20.   Taxes; Withholding, etc.
 
(a)           Payments to Be Free and Clear.  All sums payable by or on behalf of any Credit Party hereunder and under the other Credit Documents shall (except to the extent required by law) be paid free and clear of, and without any deduction or withholding on account of, any Tax other than (i) net income taxes, franchise taxes (imposed in lieu of net income taxes) and U.S. federal backup withholding taxes, in each case imposed on the Administrative Agent or any Lender as a result of a present or former connection between the Administrative Agent or such Lender and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Administrative Agent’s or such Lender’s having executed, delivered or performed its obligations or received a payment under, secured or perfected a security interest under, engaged in any other transaction pursuant to, or enforced, this Agreement or any other Credit Document, or sold or assigned an interest in any Loan or Credit Document), (ii) any branch profits taxes or any similar tax imposed by any other jurisdiction described in clause (i) above, (iii) any taxes that are attributable to the applicable Lender’s failure to comply with the requirements of Section 2.20(c), (iv) in the case of any Non-US Lender, any U.S. federal withholding taxes resulting from any law in effect (including FATCA) on the date such Non-US Lender becomes a party to this Agreement, except to the extent that such Lender’s assignor (if any) was entitled, at the time of assignment (other than pursuant to an assignment request by the Borrower under Section 2.23), to receive additional amounts from Borrower with respect to such non excluded Taxes pursuant to this Section 2.20 (such excluded taxes hereinafter referred to as “Excluded Taxes”), or (v) any taxes that are imposed as a result of any event occurring after the Lender becomes a Lender other than a change in any applicable law, treaty or governmental rule, regulation or order or any change in the interpretation, administration or application thereof.
 
(b)           Withholding of Taxes.  If any Credit Party, the Administrative Agent or any other Person is required by law to make any deduction or withholding on account of any such Tax other than an Excluded Tax from any sum paid or payable by any Credit Party to Administrative Agent or any Lender under any of the Credit Documents (such Person, the “Withholding Agent”), then: (i) the applicable Withholding Agent shall make such deduction or withholding; (ii) the applicable Withholding Agent shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with the applicable law; and (iii) the sum payable by the applicable Credit Party in respect of which the relevant deduction, withholding or payment is required shall be increased to the extent necessary to ensure that, after the making of that deduction, withholding or payment, the Administrative Agent or any Lender, as the case may be, receives on the due date a net sum equal to what it would have received had no such deduction, withholding or payment been required or made.
 
 
 
 
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(c)           Evidence of Payments.  As soon as practicable after any payment of Taxes by any Credit Party to a Governmental Authority pursuant to this Section 2.20, such Credit Party shall deliver to Administrative Agent a copy of the receipt or other evidence satisfactory to the other affected parties of such deduction, withholding or payment and of the remittance thereof to the relevant taxing or other authority.
 
(d)           Payment of Other Taxes by the Borrower.  The Borrower shall timely pay to the relevant Governmental Authority  in accordance with the applicable law any Other Taxes.
 
(e)           Indemnification by the Borrower.  The Borrower shall indemnify and hold harmless the Administrative Agent and each Lender within 10 Business Days after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes imposed on the Administrative Agent or such Lender, as the case may be (including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts payable under this Section 2.20), and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.  A certificate setting forth in reasonable detail the basis and calculation of the amount of such payment or liability delivered to the Borrower by a Lender or the Administrative Agent (as applicable) on its own behalf or on behalf of a Lender shall be conclusive absent manifest error.
 
(f)           [Reserved].
 
(g)           Status of Lenders.
 
(i)           Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Each Lender shall, whenever a lapse of time or change in circumstances renders such documentation (including any specific documents required below in clause (g)(ii)) obsolete, expired or inaccurate in any material respect, deliver promptly to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its inability to do so.  Notwithstanding anything to the contrary in the preceding three sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.20(d)(ii)(1), (d)(ii)(2) and (d)(ii)(4) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial
 
 
 
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position of such Lender.  Notwithstanding any other provision of this clause (g), a Lender shall not be required to deliver any form that such Lender  is not legally eligible to deliver.
 
(ii)           Without limiting the generality of the foregoing,
 
 
(1)
each Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent) executed originals of U.S. Internal Revenue Service (“IRS”) Form W-9, certifying that such Lender is exempt from U.S. federal backup withholding tax;
 
 
(2)
each Non-U.S. Lender shall deliver to the Borrower or the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), whichever of the following is applicable:
 
 
A.
executed originals of IRS Form W-8BEN claiming the benefits of an income tax treaty to which the United States is a party;
 
 
B.
executed originals of IRS Form W-8ECI;
 
 
C.
in the case of a Non-U.S. Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Internal Revenue Code, (x) a certificate substantially in the form of Exhibit B-1, Exhibit B-2, Exhibit B-3 or Exhibit B-4, as appropriate, to the effect that such Non-U.S. Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Internal Revenue Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Internal Revenue Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Internal Revenue Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN; or
 
 
D.
to the extent a Non-U.S. Lender is a partnership or is not the beneficial owner, executed originals of
 
 
 
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IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, a U.S. Tax Compliance Certificate substantially in the form of Exhibit B-2 or Exhibit B-4, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Non-U.S. Lender is a partnership and one or more direct or indirect partners of such Non-U.S. Lender are claiming the portfolio interest exemption, such Non-U.S. Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit B-4 on behalf of each such direct and indirect partner;
 
 
(3)
any Non-U.S. Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Non-U.S. Holder becomes a Lender under this Agreement (and from time to time thereafter upon reasonable request of the Borrower or Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
 
 
(4)
If a payment made to any Lender under this Agreement or any other Credit Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Internal Revenue Code, as applicable), such Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Internal Revenue Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has or has not complied with such Lender’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment.  Solely for pur-
 
 
 
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poses of this Section 2.20(g)(ii)(4), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
 
(h)           Treatment of Certain Refunds.  If a Lender or the Administrative Agent receives a refund that it determines in its sole discretion is in respect of any Taxes as to which it has been indemnified by Borrower or with respect to which Borrower has paid additional amounts pursuant to Section 2.20(b), it shall within 30 days from the date of such receipt pay over the amount of such refund to  Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by  Borrower under this Section 2.20 with respect to Taxes giving rise to such refund) net of all reasonable out-of-pocket expenses (including Taxes) of such Lender or the Administrative Agent and without interest (other than interest paid by the relevant taxation authority with respect to such refund); provided that Borrower, upon request of the Administrative Agent or such Lender, agrees to repay the amount paid over to Borrower (plus any penalty, interest or other charges imposed by the relevant taxing authority) to the Administrative Agent or any Lender in the event the Administrative Agent or such Lender is required to repay such refund.  This paragraph shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or other information relating to its Taxes which it deems confidential) to Borrower or any other Person.
 
(i)           Survival.  Each party’s obligations under this Section 2.20 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the this Agreement and the repayment, satisfaction or discharge of all obligations under any Credit Document.
 
(j)           Issuing Banks and Swing Line Lenders.  For the avoidance of doubt, the term “Lender,” for purposes of this Section 2.20, shall include the Issuing Bank and any Swing Line Lender.
 
2.21.   Obligation to Mitigate.  Each Lender (which term shall include Issuing Bank for purposes of this Section 2.21) agrees that, as promptly as practicable after the officer of such Lender responsible for administering its Loans or Letters of Credit, as the case may be, becomes aware of the occurrence of an event or the existence of a condition that would cause such Lender to become an Affected Lender or that would entitle such Lender to receive payments under Section 2.18, 2.19 or 2.20, it will, to the extent not inconsistent with the internal policies of such Lender and any applicable legal or regulatory restrictions, use reasonable efforts to (a) make, issue, fund or maintain its Credit Extensions, including any Affected Loans, through another office of such Lender, or (b) take such other measures as such Lender may deem reasonable, if as a result thereof the circumstances which would cause such Lender to be an Affected Lender would cease to exist or the additional amounts which would otherwise be required to be paid to such Lender pursuant to Section 2.18, 2.19 or 2.20 would be materially reduced and if, as determined by such Lender in its sole discretion, the making, issuing, funding or maintaining of such Revolving Commitments, Loans or Letters of Credit through such other office or in accordance with such other measures, as the case may be, would not otherwise adversely affect such Revolving Commitments, Loans or Letters of Credit or the interests of such Lender; provided, such Lender will not be obligated to utilize such other office pursuant to this Section 2.21 unless Borrower agrees to pay all incremental expenses incurred by such Lender as a direct result of
 
 
 
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utilizing such other office as described above.  A certificate as to the amount of any such expenses payable by Borrower pursuant to this Section 2.21 (setting forth in reasonable detail the basis for requesting such amount) submitted by such Lender to Borrower (with a copy to Administrative Agent) shall be conclusive absent manifest error.  Each Lender and Issuing Bank agrees that it will not request compensation under Sections 2.18, 2.19 or 2.20 unless such Lender or Issuing Bank requests compensation from borrowers under other lending arrangements with such Lender or Issuing Bank who are similarly situated.
 
2.22.   Defaulting Lenders.
 
(a)           Defaulting Lender Adjustments.  Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:
 
(i)           Waivers and Amendments.  Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definitions of “Requisite Lenders”.
 
(ii)           Defaulting Lender Waterfall.  Any payment of principal, interest, fees or other amounts received by the Administrative Agent hereunder for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, following an Event of Default or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.4 shall be applied at such time or times as may be determined by the Administrative Agent as follows:  first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder, second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to the Issuing Bank or the Swing Line Lender hereunder, third, if so determined by the Administrative Agent or requested by the Issuing Bank, to be held as cash collateral for future funding obligations of that Defaulting Lender to the Issuing Bank hereunder, fourth, as the Borrower may request (so long as no Potential Event of Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent, fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement, sixth, to the payment of any amounts owing to the Lenders, the Issuing Bank or the Swing Line Lender as a result of any judgment of a court of competent jurisdiction obtained by any Lender, the Issuing Bank or the Swing Line Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, seventh, so long as no Potential Event of Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement, and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction.  Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to
 
 
 
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post cash collateral pursuant to this Section 2.22 shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
 
(iii)           Certain Fees.
 
 
(1)
No Defaulting Lender shall be entitled to receive any commitment fee pursuant to Section 2.11(a)(i) for any period during which that Lender is a Defaulting Lender.
 
 
(2)
Each Defaulting Lender shall be entitled to receive letter of credit fees pursuant to Section 2.11(a)(ii) for any period during which that Lender is a Defaulting Lender only to the extent allocable to its pro rata share of the stated amount of Letters of Credit for which it has provided cash collateral.
 
 
(3)
With respect to any such commitment fee or letter of credit fee not required to be paid to any Defaulting Lender pursuant to clause (1) or (2) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit or Swing Line Loans that has been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to the Issuing Bank and the Swing Line Lender, as applicable, the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to the Issuing Bank’s or the Swing Line Lender’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.
 
(iv)           Reallocation of Participations to Reduce Fronting Exposure.  All or any part of such Defaulting Lender’s participation in Letters of Credit and Swing Line Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective pro rata Commitments (calculated without regard to such Defaulting Lender’s Commitment) but only to the extent that such reallocation does not cause the aggregate Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment.  No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.
 
(v)           Cash Collateral, Repayment of Swing Line Loans.  If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, within three (3) Business Days following the written request of the (i) Administrative Agent or (ii) the Swing Line Lender or the Issuing Bank, as applicable (with a copy to the
 
 
 
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Administrative Agent), (x) first, prepay Swing Line Loans in an amount equal to the Swing Line Lender’s Fronting Exposure and (y) second, cash collateralize the Issuing Bank’s Fronting Exposure.
 
(b)           Defaulting Lender Cure.  If the Borrower, the Administrative Agent and the Swing Line Lender and the Issuing Bank agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any cash collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Revolving Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit and Swing Line Loans to be held pro rata by the Lenders in accordance with their Revolving Commitments (without giving effect to Section 2.22(a)(iv)), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.
 
(c)           New Swing Line Loans/Letters of Credit.  So long as any Lender is a Defaulting Lender, (i) the Swing Line Lender shall not be required to fund any Swing Line Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swing Line Loan and (ii) the Issuing Bank shall not be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.
 
2.23.   Removal or Replacement of a Lender.  Anything contained herein to the contrary notwithstanding, in the event that:  (a) (i) any Lender (an “Increased-Cost Lender”) shall give notice to Borrower that such Lender is an Affected Lender or that such Lender is entitled to receive payments under Section  2.18, 2.19 or 2.20, (ii) the circumstances which have caused such Lender to be an Affected Lender or which entitle such Lender to receive such payments shall remain in effect, and (iii) such Lender shall fail to withdraw such notice within five Business Days after Borrower’s request for such withdrawal; or (b) (i) any Lender shall become a Defaulting Lender, (ii) such Lender shall remain a Defaulting Lender, and (iii) such Defaulting Lender shall fail to cure the default as a result of which it has become a Defaulting Lender within five Business Days after Borrower’s request that it cure such default; or (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section 10.5(b), the consent of the Requisite Lenders or a majority of the applicable class of Lenders or affected Lenders, as the case may be, shall have been obtained but the consent of one or more of such other Lenders (each a “Non-Consenting Lender”) whose consent is required shall not have been obtained; then, with respect to each such Increased-Cost Lender, Defaulting Lender or Non-Consenting Lender (the “Terminated Lender”), Borrower may, by giving written notice to Administrative Agent and any Terminated Lender of its election to do so, elect to cause such Terminated Lender (and such Terminated Lender hereby irrevocably agrees) to assign its outstanding Loans and its Revolving Commitments, if any, in full to one or more Eligible Assignees (each a “Replacement Lender”) in accordance with the provisions of Section 10.6 and Borrower shall pay the fees, if any, payable
 
 
 
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thereunder in connection with any such assignment from an Increased-Cost Lender or a Non-Consenting Lender and the Defaulting Lender shall pay the fees, if any, payable thereunder in connection with any such assignment from such Defaulting Lender; provided, (1) on the date of such assignment, the Replacement Lender shall pay to the Terminated Lender an amount equal to the sum of (a) an amount equal to the principal of, and all accrued interest on, all outstanding Loans of the Terminated Lender, (b) an amount equal to all unreimbursed drawings that have been funded by such Terminated Lender, together with all then unpaid interest with respect thereto at such time and (c) an amount equal to all accrued, but theretofore unpaid fees owing to such Terminated Lender pursuant to Section 2.11; (2) on the date of such assignment, Borrower shall pay any amounts payable to such Terminated Lender pursuant to Section 2.18(c), 2.19 or 2.20; or otherwise as if it were a prepayment and (3) in the event such Terminated Lender is a Non-Consenting Lender, each Replacement Lender shall consent, at the time of such assignment, to each matter in respect of which such Terminated Lender was a Non-Consenting Lender and such assignment (together with any other assignments pursuant to this Section 2.23 or otherwise) will result in the applicable amendment, modification, termination, waiver or consent being approved; provided, Borrower may not make such election with respect to any Terminated Lender that is also an Issuing Bank unless, prior to the effectiveness of such election, Borrower shall have caused each outstanding Letter of Credit issued thereby to be cancelled or cash collateralized on terms reasonably satisfactory to the applicable Issuing Bank.  Upon the prepayment of all amounts owing to any Terminated Lender and the termination of such Terminated Lender’s Revolving Commitments, if any, such Terminated Lender shall no longer constitute a “Lender” for purposes hereof; provided, any rights of such Terminated Lender to indemnification hereunder shall survive as to such Terminated Lender.
 
2.24.   Incremental Commitments; Commitment Extensions; Refinancing Indebtedness.
 
(a)           The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Term Loan Commitments and/or Incremental Revolving Commitments (in the form of an increase in the aggregate principal amount of Initial Revolving Commitments), as applicable, in an amount not to exceed the Incremental Amount at the time such Incremental Commitments are established from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which may include any existing Lender) willing to provide such Incremental Term Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion; provided, that each Incremental Revolving Lender providing a commitment to make revolving loans shall be subject to the approval of the Administrative Agent and, to the extent the same would be required for an assignment under Section 10.6, the Issuing Bank and the Swing Line Lender (which approvals shall not be unreasonably withheld) unless such Incremental Revolving Lender is a Revolving Lender or an Affiliate of a Revolving Lender; provided further that commitments to make additional Revolving Loans are on the same terms as any Class of Revolving Loans.  Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $100,000,000, or equal to the remaining Incremental Amount or, in each case, such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become effective and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are
 
 
 
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to be (x) commitments to make term loans with terms identical to Term B Loans or (y) commitments to make term loans with pricing, maturity, amortization, participation in mandatory prepayments and/or other terms different from the Term B Loans (“Other Term Loans”).
 
(b)           The Borrower and each Incremental Term Lender and/or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Commitment of such Incremental Revolving Lender.  Each Incremental Assumption Agreement shall specify the terms of the applicable Incremental Term Loans and/or Incremental Revolving Commitments; provided that:
 
(i)           any commitments to make additional Term B Loans and/or additional Initial Revolving Loans shall have the same terms as the Term B Loans or Initial Revolving Loans, respectively,
 
(ii)           the Other Term Loans shall rank pari passu or, at the option of the Borrower, junior in right of security with the Term B Loans or shall be unsecured (provided that (X) if such Other Term Loans rank junior in right of security with  the Term B Loans, such Other Term Loans shall be subject to a Permitted Junior Intercreditor A