EXHIBIT 10.21
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GUARANTY
THIS GUARANTY (this "Guaranty") is made as of the 20th day of December,
1999, by and from SHELDON G. ADELSON ("Guarantor"), having an address at c/o The
Venetian, 3355 Las Vegas Boulevard South, Las Vegas, NV 89109, to and for (i)
The Bank of Nova Scotia, a Canadian chartered bank, as Collateral Agent under
that certain Loan Agreement dated of even date herewith among (A) Goldman Sachs
Mortgage Company, and the other lenders from time to time parties thereto, (B)
Goldman Sachs Mortgage Company, as Syndication Agent, (C) The Bank of Nova
Scotia, a Canadian chartered bank, as Administrative Agent, (D) The Bank of Nova
Scotia, a Canadian chartered bank, Collateral Agent, and (E) Grand Canal Shops
Mall Subsidiary, LLC, a Delaware limited liability company, as borrower (as
amended, supplemented or otherwise modified from time to time, the "Loan
Agreement"; capitalized terms used herein and not defined herein having the
meanings ascribed to them in the Loan Agreement), having an address noted in the
Loan Agreement, (ii) Goldman Sachs Mortgage Company and the other Lenders and
(iii) the respective successors and assigns of the Collateral Agent and the
Lenders (all of the Persons described in the foregoing clauses (i) through and
including (iii), the "Beneficiaries"; each such Person, a "Beneficiary").
W I T N E S S E T H:
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WHEREAS, Grand Canal Shops Mall Subsidiary, LLC., a Nevada limited
liability company (the "Borrower") desires to have the Lenders make to the
Borrower, pursuant to and subject to the terms, covenants, agreements and
conditions of the Loan Agreement, a loan in the principal amount of $105,000,000
(or such lesser amount as Lender shall fund pursuant to that certain commitment
letter dated as of November 14, 1997 among Borrower, Principal and Goldman Sachs
Mortgage Company) (the "Loan");
WHEREAS, the Lenders are unwilling to make the Loan to the Borrower as
aforesaid unless, among other things, Guarantor executes and delivers this
Guaranty;
WHEREAS, (i) the Guarantor owns all of the issued and outstanding voting
stock of (A) Las Vegas Sands, Inc., a Nevada corporation ("LVSI") and (B)
Interface Group Holding Company, Inc., a Nevada corporation ("Interface Holding
Co."), (ii) LVSI owns a managing member interest in, and Interface Holding Co.
holds all non-managing membership interests in, Venetian Casino Resort, LLC, a
Nevada limited liability company ("Venetian"), (iii) Venetian owns all of the
membership interests in Mall Intermediate Holding Company, LLC, a Delaware
limited liability company ("Mall Intermediate Holdings"), (iv) Mall Intermediate
Holdings owns all of the membership interests in Grand Canal Shops Mall Holding
Company, LLC, a Delaware limited liability company ("Mall Holdings"), (v) Mall
Holdings owns all of the membership interests in Grand Canal Shops Mall, LLC
("Mall LLC") and (vi) Mall LLC owns all of the membership interests in Borrower;
WHEREAS, (i) LVSI owns all of the issued and outstanding voting stock of
Grand Canal Shops MM, Inc., a Nevada corporation ("MM Inc."), (ii) MM Inc. owns
all of the issued and outstanding voting stock of Grand Canal Shops Mall MM
Subsidiary Inc., a Nevada corporation ("Managing Member") and (iii) immediately
after the funding of the Loan, (A) Mall Holdings shall assign a one percent (1%)
membership interest in Mall Holdings to MM Inc. (such that MM Inc. is the sole
managing member of Mall Holdings); and (B) Mall LLC shall assign a one percent
(1%) managing membership interest in Borrower to Managing Member (such that
Managing Member is the sole managing member of Borrower);
WHEREAS, Guarantor will benefit, directly and indirectly, from the making
by the Lenders to the Borrower of the Loan as aforesaid;
NOW, THEREFORE, in consideration of agreement by the Lenders to make the
Loan to the Borrower pursuant to and subject to the terms, covenants, agreements
and conditions of the Loan Agreement, and the covenants, agreements,
representations and warranties set forth in this Agreement, the parties hereby
covenant, agree, represent and warrant as follows:
1. Guaranty of Payment.
(a) Guarantor hereby unconditionally, absolutely and irrevocably guarantees, as
a primary obligor and not merely as a surety, to the Beneficiaries:
(i) The prompt and complete indefeasible payment in full, when due and
otherwise in accordance with the terms, provisions and conditions of
the Notes and the Loan Agreement (but subject to the provisions of
Section 1(b) hereof), of all principal of the Loan (including amounts
that would be due under the Loan Documents, pursuant to applicable
state law, but for the operation of the automatic stay under Section
362(a) of Title 11 of the United States Code (the "Bankruptcy Code"));
and
(ii) The prompt and complete indefeasible payment in full of all costs and
expenses of any enforcement, collection or other realization under,
this Guaranty, including, without limitation, reasonable attorneys'
fees, disbursements and other expenses (collectively, "Costs"; the
principal of the Loan, together with all Costs, are collectively
referred to as the "Obligations").
(b) Notwithstanding the aggregate amount of the Obligations and/or the
Indebtedness that at any time or from time to time may be payable by
Borrower, the aggregate liability of Guarantor to Beneficiaries under this
Guaranty shall not exceed the sum of (x) the Twenty Million Dollars
($20,000,000) plus (y) all Costs (the portion of the principal of the Loan
that, at any given time, shall be payable by the Guarantor under this
Guaranty, together with all Costs, are collectively referred to as the
"Guaranteed Obligations"). Guarantor agrees that the Obligations and/or the
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Indebtedness may at any time and from time to time exceed the amount of the
liability of Guarantor hereunder without impairing this Guaranty or
affecting the rights and remedies of any Beneficiary hereunder. Guarantor
agrees that whenever at any time or from time to time it shall make any
payment on account of Guarantor's liability hereunder, it will notify the
Collateral Agent in writing that such payment is made under this Guaranty
for such purpose. No payment or payments made by Borrower or any other
Person or received or collected by any Agent or Lender from Borrower or any
other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in reduction
of or in payment of the Indebtedness shall be deemed to modify, reduce,
release or otherwise affect the liability of Guarantor hereunder who shall,
notwithstanding any such payment or payments, remain liable for the
Guaranteed Obligations until the date upon which the Obligations are paid
in full. Guarantor shall not be entitled to make any payment under this
Guaranty prior to demand therefor by any Beneficiary.
2. Representations, Warranties and Covenants.
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(a) Guarantor represents, warrants and covenants that:
(i) No consents or approvals of any kind by others, including any
creditors of Guarantor, and no license, permit, approval or
authorization of, exemption by, notice or report to, or registration,
filing or declaration with, any governmental authority is required by
Guarantor, in connection with this Guaranty or the execution,
delivery, performance, validity or enforceability of this Guaranty and
all obligations required hereunder, and this Guaranty is not in
violation of the terms of any agreement or instrument to which
Guarantor or Borrower is a party or by which either of them or either
of their respective assets may be bound or affected, and this Guaranty
will not violate any provision of any existing law or regulation of
material import, that would result in a material adverse effect on
Guarantor, which is binding on Guarantor, or any order, judgment,
award or decree of any court, arbitrator or governmental authority
binding on Guarantor;
(ii) There is no pending or, to the best of Guarantor's knowledge,
threatened, action or proceeding affecting Guarantor before any court,
governmental agency or arbitrator that could reasonably be expected to
have a material adverse effect on the ability of Guarantor to perform
or observe any of its obligations hereunder or that could reasonably
be expected to have a material adverse effect on Guarantor's guaranty
of the Guaranteed Obligations hereunder;
(iii)Guarantor has full power, authority and legal right to execute this
Guaranty and to observe and perform all of the terms of this Guaranty
on Guarantor's part to be observed and performed and this Guaranty
constitutes the valid and binding obligation of Guarantor, enforceable
in accordance with its terms, except as such enforcement may be
limited by bankruptcy laws and other laws affecting the rights of
creditors generally, or by virtue of the application of general
principles of equity;
(iv) This Guaranty is made by Guarantor at the request of Borrower, and the
Beneficiaries' agreement to enter into the transactions described in
the recitals to this Guaranty is of substantial, material and direct
benefit to Guarantor;
(v) Guarantor has established means with which it is satisfied of
obtaining from Borrower on a continuing basis financial and other
information pertaining to the financial condition of Borrower, and its
ability to promptly pay the Guaranteed Obligations;
(vi) Guarantor has reviewed and approved copies of the Loan Documents, and
is fully informed of the rights and remedies that each of the
Beneficiaries may pursue, with or without notice to Borrower.
3. Access to Information. Guarantor shall, at its sole cost and expense,
establish and maintain means whereby Guarantor shall be kept informed to
its satisfaction of any facts, events or circumstances that might in any
way affect Guarantor's risks hereunder, and the Beneficiaries shall have no
obligation to disclose to Guarantor information or material acquired in the
course of any Beneficiary's relationship with Borrower.
4. Payment by Guarantor; Application of Payments. Guarantor hereby agrees, in
furtherance of the foregoing and not in limitation of any other right that
any Beneficiary may have at law or in equity against Guarantor, that upon
the Collateral Agent's exercise, at any time and from time to time, of any
rights hereunder or any demand pursuant to the terms hereof for payment,
Guarantor will upon such demand pay, or cause to be paid, in cash, to the
Collateral Agent, for the benefit of the Lenders, an amount equal to the
Guaranteed Obligations then owed under this Guaranty. All such payments
shall be applied promptly from time to time in the following order:
First, to the payment of Costs; and
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Second, to the payment of all other Guaranteed Obligations
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then owed under this Guaranty.
5. Release of Guaranty. When the Obligations are paid in full, then this
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Guaranty shall automatically terminate and become void and of no further
force or effect; at such time, at Guarantor's written request, the
Beneficiaries shall execute and deliver a written statement stating that
the Obligations have been paid in full and that this Guaranty has been
terminated and is of no further force and effect.
6. Liability of Guarantor Absolute.
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(a) Guarantor agrees that its obligations hereunder shall not be affected by
any circumstance that constitutes a legal or equitable discharge of a
guarantor or surety (other than payment in full of the Obligations), and
Guarantor's obligations hereunder are irrevocable, absolute, independent
and unconditional without regard to:
(i) any claim or defense that would be available to the Borrower;
(ii) the imposition of any court-imposed stay, including any amounts that
would be payable but for the imposition of the automatic stay under
Section 362(a) of the Bankruptcy Code;
(iii)any readjustments, modifications, impositions, or extensions that may
be imposed by any court in connection with any bankruptcy, insolvency,
receivership, liquidation, arrangement, reorganization or similar
action, case or proceeding affecting Guarantor or the Borrower (any of
the foregoing, a "Bankruptcy Proceeding") that may affect the
Obligations and/or the Indebtedness or any of the Loan Documents;
(iv) any law that restricts or prohibits the payment of interest, principal
or any other amount after the commencement of a Bankruptcy Proceeding;
or
(v) any sale or disposition of any security given for the Obligations
and/or the Indebtedness.
(b) In furtherance of the provisions of subsection 6(a) hereof, and without
limiting the generality thereof, Guarantor agrees that:
(i) This Guaranty is a guaranty of payment and not of collection.
(ii) Any Beneficiary may enforce this Guaranty upon the terms and
conditions herein set forth notwithstanding any exercise or failure to
exercise any right or remedy available to such Beneficiary against any
Person under any documents, at law, in equity or otherwise.
(iii)The obligations of Guarantor hereunder are independent of the
obligations of Guarantor, Borrower, any members, partners, joint
venturers, officers, directors, shareholders, trustees or
beneficiaries (as applicable) of Borrower or any other Person under
the Loan Documents (other than this Guaranty), including the
obligations of any other guarantor, and a separate action or actions
may be brought and prosecuted against Guarantor whether or not any
action is brought against Guarantor, Borrower or any other Persons
under the Loan Documents (other than this Guaranty) and whether or not
Borrower or any other Person is joined in any such action or actions.
(iv) Payment by Guarantor of a portion, but not all, of the Guaranteed
Obligations shall in no way limit, affect, modify or abridge
Guarantor's liability for any portion of the Guaranteed Obligations
that has not been paid to the Beneficiaries.
(v) The Beneficiaries and the Borrower, upon such terms as they deem
appropriate, without notice or demand and without affecting the
validity or enforceability of this Guaranty or giving rise to any
reduction, limitation, impairment, discharge or termination of
Guarantor's liability hereunder, from time to time may (i) renew,
extend, accelerate, increase the rate of interest on, or otherwise
change the time, place, manner or terms of payment of the Obligations
and/or the Indebtedness; (ii) settle, compromise, release or
discharge, or accept or refuse any offer of performance with respect
to, or substitutions for, the Obligations and/or the Indebtedness or
any agreement relating thereto and/or subordinate the payment of the
same to the payment or performance of any other obligations; (iii)
request and accept other guaranties of the Obligations and/or the
Indebtedness and take and hold security for the payment of this
Guaranty, the Obligations and/or the Indebtedness; (iv) release,
surrender, exchange, substitute, compromise, settle, rescind, waive,
alter, subordinate or modify, with or without consideration, any
security for payment of the Obligations and/or the Indebtedness, any
other guaranties of the Obligations and/or the Indebtedness, or any
other obligation of any Person with respect to the Obligations and/or
the Indebtedness; (v)enforce and apply any security now or hereafter
held by or for the benefit of any Beneficiary in respect of this
Guaranty or the Obligations and/or Indebtedness and direct the order
or manner of sale thereof, or exercise any other right or remedy that
the Beneficiaries may have against any such security, as the
Beneficiaries, in their discretion, may determine, including
foreclosure on any such security pursuant to one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable, and even though such action operates to
impair or extinguish any right of reimbursement or subrogation or
other right or remedy of Guarantor against Borrower or any security
for the Obligations and/or the Indebtedness; and (vi) exercise any
other rights and/or remedies available to it under any documents
including the Loan Documents), at law or in equity.
(c) This Guaranty and the obligations of Guarantor hereunder shall be valid and
enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than the payment
in full of the Obligations), including the occurrence of any of the
following, whether or not Guarantor shall have had notice or knowledge of
any of them: (i) any failure or omission to assert or enforce, or agreement
or election not to assert or enforce, or the stay or enjoining, by order of
court, by operation of law or otherwise, of the exercise or enforcement of,
any claim or demand or any right, power or remedy (whether arising under
any documents (including the Loan Documents), at law, in equity or
otherwise) with respect to the Obligations and/or the Indebtedness or any
agreement relating thereto, or with respect to any other guaranty of, or
security for, the payment of the Obligations and/or the Indebtedness; (ii)
any rescission, waiver, amendment or modification of, or any consent to
departure from, any of the terms or provisions of any document referred to
herein, (including the provisions relating to "Events of Default", as
defined in the Loan Documents) or of any other guaranty or security for the
Obligations and/or the Indebtedness, in each case whether or not in
accordance with the terms thereof; (iii) the Obligations and/or the
Indebtedness, or any agreement relating thereto, at any time being found to
be illegal, invalid or unenforceable in any respect; (iv) any consent by
the Beneficiaries to the change, reorganization or termination of the
structure or existence of Borrower; (v) any failure to perfect or continue
perfection of a security interest in any collateral that secures any of the
Obligations and/or the Indebtedness; (vi) any defenses, set-offs or
counterclaims that Borrower may allege or assert against any Beneficiary or
could assert against any Beneficiary in respect of the Obligations and/or
the Indebtedness, including failure of consideration, breach of warranty,
statute of frauds, statute of limitations, accord and satisfaction, the
doctrine of laches, equitable estoppel and usury; or (vii) any other act or
thing or omission, or delay to do any other act or thing, that may or might
in any manner or to any extent vary the risk of Guarantor as an obligor in
respect of the Guaranteed Obligations.
7. Waivers by Guarantor. Guarantor hereby waives, for the benefit of the
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Beneficiaries:
(a) Any right to require any Beneficiary, as a condition of payment by
Guarantor, (i) to proceed against any other guarantor of the Obligations
and/or the Indebtedness, Borrower or any other Person, (ii) to proceed
against or exhaust any security held from any other guarantor of the
Obligations and/or the Indebtedness, Borrower or any other Person, (iii) to
proceed against or have resort to any balance of any deposit account or
credit on the books of the Beneficiaries in favor of any other guarantor of
the Obligations and/or the Indebtedness, Borrower or any other Person, or
(iv) to pursue any other remedy in the power of any Beneficiary whatsoever;
(b) Any defense arising by reason of the incapacity, lack of authority or any
disability or other defense of Borrower or any Beneficiary, including any
defense based on or arising out of the lack of validity or the
unenforceability of the Obligations and/or the Indebtedness or any
agreement or instrument relating thereto or by reason of the cessation of
the liability of Borrower from any cause other than the payment in full of
the Indebtedness;
(c) Any defense based upon any statute or rule of law that provides that the
obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal;
(d) Any defense based upon errors or omissions by the Beneficiaries in the
administration of the Obligations and/or the Indebtedness;
(e) Any principles or provisions of law, statutory or otherwise, that are or
might be in conflict with the terms of this Guaranty and any legal or
equitable discharge of Guarantor's obligations hereunder;
(f) Any rights to set-offs, recoupments and counterclaims (other than
compulsory counterclaims);
(g) Promptness, diligence and any requirement that the Beneficiaries protect,
secure, perfect or insure any security interest or lien or any property
subject thereto;
(h) Notices, demands, presentments, demands for payment, protests, notices of
protest, notices of dishonor and notices of any action or inaction,
including acceptance of this Guaranty, notices of default, notices of any
renewal, extension or modification of the Obligations and/or the
Indebtedness or any agreement related thereto, notices of any extension of
credit to Borrower and notices of any of the matters referred to in Section
6 and any right to consent to any of them, except to the extent provided in
the Loan Documents;
(i) Any defenses or benefits that may be derived from or afforded by law
that limit the liability of or exonerate Guarantor or sureties, or that
may conflict with the terms of this Guaranty; and
(j) The provisions of NRS 40.430 to the full extent provided for in NRS
40.495(2).
8. Guarantor's Rights of Subrogation, Contribution, Etc. Until the
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Indebtedness shall have been indefeasibly paid in full, Guarantor shall
withhold exercise of (a) any claim, right or remedy, direct or indirect,
that Guarantor now has or may hereafter have against Borrower or any of its
assets in connection with this Guaranty or the performance by Guarantor of
its obligations hereunder, in each case whether such claim, right or remedy
arises in equity, under contract, by statute, under common law or otherwise
and including (i) any right of subrogation, reimbursement or
indemnification that Guarantor now has or may hereafter have against
Borrower, (ii) any right to enforce, or to participate in, any claim, right
or remedy that the Beneficiaries now has or may hereafter have against
Borrower, and (iii) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by the Beneficiaries, and (b)
any right of contribution Guarantor may have against any other guarantor of
the Obligations and/or the Indebtedness. Guarantor further agrees that, to
the extent the waiver of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification Guarantor may have against
any of Borrower or against any collateral or security, and any rights of
contribution Guarantor may have against any such other guarantor, shall be
junior and subordinate to any rights any Beneficiary may have against
Borrower to all right, title and interest the Beneficiaries may have in any
such collateral or security. Each Beneficiary may use, sell or dispose of
any item of collateral or security as it sees fit without regard to any
subrogation rights Guarantor may have, and upon any such disposition or
sale, any rights of subrogation Guarantor may have shall terminate. If any
amount shall be paid to Guarantor on account of any such subrogation,
reimbursement or indemnification rights at any time when all Indebtedness
shall not have been indefeasibly paid in full, such amount shall be held in
trust for the Beneficiaries and shall forthwith be paid over to the
Beneficiaries to be credited and applied against the Indebtedness, whether
matured or unmatured, in accordance with the terms hereof. The provisions
of this Section 8 shall survive the release of the Guarantor under this
Guaranty.
9. Subordination of Other Obligations. Guarantor hereby subordinates any and
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all indebtedness of Borrower now or hereafter owed to Guarantor to all
indebtedness of Borrower to any Beneficiary, and agrees with the
Beneficiaries that Guarantor shall not demand or accept any payment of
principal or interest from Borrower, shall not claim any offset or other
reduction of Guarantor's obligations hereunder because of any such
indebtedness and shall not take any action to obtain any of the collateral
for the Loan; provided that, the Junior Lender shall be entitled to
receive, to the extent permitted under the Loan Agreement, from the
Borrower, payments in respect of the Junior Loan.
10. Continuing Guaranty. This Guaranty is a continuing guaranty and shall
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remain in effect until the payment in full of the Obligations or the
Guaranteed Obligations (as extended by the provisions of Section 11),
whichever is sooner.
11. Bankruptcy; Post-Petition Interest; Reinstatement of Guaranty.
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(a) The obligations of Guarantor under this Guaranty shall not be reduced,
limited, impaired, discharged, deferred, suspended or terminated by any
proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Borrower or by
any defense that Borrower may have by reason of the order, decree or
decision of any court or administrative body resulting from any such case
or proceeding.
(b) Following the payment by any Person of all or any portion of any payment
obligations that are Guaranteed Obligations hereunder, the obligations of
Guarantor hereunder with respect thereto shall continue and remain in full
force and effect or be reinstated, as the case may be, if all or any part
of such payments are rescinded or recovered directly or indirectly from as
a preference, fraudulent transfer or otherwise in connection with any
bankruptcy, insolvency, receivership, reorganization, liquidation,
arrangement or similar proceeding, and any such payments that are so
rescinded or recovered shall constitute Guaranteed Obligations for all
purposes under this Guaranty.
(c) Following a transfer of the Trust Property to any Beneficiary or to its
designee, the obligations of Guarantor hereunder shall continue and shall
remain in full force and effect or be reinstated, as the case may be, if
all or any part of such transfer is rescinded or recovered directly or
indirectly from such Beneficiary as a preference, fraudulent transfer or
otherwise in connection with any bankruptcy, insolvency, receivership,
reorganization, liquidation, arrangement or similar proceeding.
12. Set Off. In addition to any other rights that the Beneficiaries may have at
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law or in equity, if any amount shall at any time be due and owing by any
Guarantor to the Beneficiaries under this Guaranty, the Beneficiaries are
authorized at any time or from time to time, without notice (any such
notice being hereby expressly waived), to set off and to appropriate and to
apply any and all indebtedness of the Beneficiaries owing to Guarantor and
any other property of Guarantor held by the Beneficiaries to or for the
credit or the account of Guarantor against and on account of the Guaranteed
Obligations and liabilities of Guarantor to the Beneficiaries under this
Guaranty.
13. Further Assurances. At any time or from time to time, upon the reasonable
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request of the Beneficiaries, Guarantor shall execute and deliver such
further documents and do such other acts and things as the Beneficiaries
may reasonably request in order to effect fully the purposes of this
Guaranty.
14. General Provisions
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(a) Fully Recourse. Notwithstanding any provisions of any other Loan Documents
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to the contrary, all of the terms and provisions of this Guaranty are
recourse obligations of Guarantor and not restricted by any limitation on
personal liability.
(b) Unsecured Obligations. Guarantor hereby acknowledges that the Lenders would
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not make the Loan but for the unsecured personal liability undertaken by
Guarantor herein.
(c) Rights Cumulative; Payments. The obligations of Guarantor hereunder of
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Borrower and the Beneficiaries' rights under this Guaranty shall be in
addition to all rights of the Beneficiaries under the Notes, the Deed of
Trust and the other Loan Documents. In the event of any default hereunder,
a separate action or actions may be brought and prosecuted against
Guarantor whether or not Guarantor is the alter ego of Borrower and whether
or not Borrower is joined therein or a separate action or actions are
brought against Borrower. The Beneficiaries' rights hereunder shall not be
exhausted until all of the obligations of Guarantor hereunder have been
fully paid and performed. TO THE EXTENT THAT PAYMENTS ARE MADE HEREUNDER BY
GUARANTOR WITH RESPECT TO OBLIGATIONS AND LIABILITIES FOR WHICH BORROWER IS
NOT LIABLE UNDER ANY NOTE, THE DEED OF TRUST OR THE OTHER LOAN DOCUMENTS,
SUCH PAYMENTS MADE BY GUARANTOR UNDER THIS GUARANTY SHALL NOT REDUCE IN ANY
RESPECT BORROWER'S OBLIGATIONS AND LIABILITIES UNDER ANY NOTE, THE DEED OF
TRUST OR THE OTHER LOAN DOCUMENTS, AND TO THE EXTENT THAT PAYMENTS ARE MADE
HEREUNDER BY GUARANTOR WITH RESPECT TO OBLIGATIONS AND LIABILITIES FOR
WHICH BORROWER IS LIABLE UNDER ANY NOTE, THE DEED OF TRUST OR THE OTHER
LOAN DOCUMENTS, SUCH PAYMENTS SHALL BE APPLIED FIRST TO THOSE OBLIGATIONS
AND LIABILITIES ARISING UNDER ANY NOTE, THE DEED OF TRUST AND THE OTHER
LOAN DOCUMENTS WITH RESPECT TO WHICH BORROWER IS NOT PERSONALLY LIABLE.
(d) No Limitation on Liability. Guarantor hereby consents and agrees that the
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Beneficiaries may at any time and from time to time without further consent
from Guarantor do any of the following events, and the liability of
Guarantor under this Guaranty shall be unconditional and absolute and shall
in no way be impaired or limited by any of the following events, whether
occurring with or without notice to Guarantor or with or without
consideration: (i) any extensions of time for performance required by any
of the Loan Documents or otherwise granted by any Beneficiary or extension
or renewal of any Note; (ii) any sale, assignment or foreclosure of any
Note, the Deed of Trust or any of the other Loan Documents or any sale or
transfer of the Trust Property; (iii) any change in the composition of
Borrower, including, without limitation, the withdrawal or removal of
Guarantor from any current or future position of ownership, management or
control of Borrower; (iv) the accuracy or inaccuracy of the representations
and warranties made by Guarantor herein or by Borrower in any of the Loan
Documents; (v) the release of Borrower or of any other Person or entity
from performance or observance of any of the agreements, covenants, terms
or conditions contained in any of the Loan Documents by operation of law,
any Beneficiary's voluntary act or otherwise; (vi) the release or
substitution in whole or in part of any security for the Loan; (vii) the
failure to record the Deed of Trust or to file any financing statement (or
the improper recording or filing thereof) or to otherwise perfect, protect,
secure or insure any lien or security interest given as security for the
Loan; (viii) the modification by the Beneficiaries and Borrower of the
terms of any one or more of the Loan Documents; or (ix) the taking or
failure to take any action of any type whatsoever. No such action which any
Beneficiary shall take or fail to take in connection with the Loan
Documents or any collateral for the Loan, nor any course or dealing with
Borrower or any other Person, shall limit, impair or release Guarantor's
obligations hereunder, affect this Guaranty in any way or afford Guarantor
any recourse against any Beneficiary. Nothing contained in this Section
shall be construed to require any Beneficiary to take or refrain from
taking any action referred to herein.
(e) Attorneys' Fees. In the event it is necessary for any Beneficiary to retain
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the services of an attorney or any other consultants in order to enforce
this Guaranty, or any portion thereof, Guarantor agrees to pay to such
Beneficiary any and all reasonable costs and expenses, including, without
limitation, reasonable attorneys' fees, costs and disbursements, incurred
by such Beneficiary as a result thereof and such costs, fees and expenses
shall be included in Costs.
(f) Reliance. The Lenders would not agree to make the Loan to Borrower without
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Guarantor entering into this Guaranty. Accordingly, Guarantor intentionally
and unconditionally enters into the covenants and agreements as set forth
above and understands that, in reliance upon and in consideration of such
covenants and agreements, the Loan shall be made and, as part and parcel
thereof, specific monetary and other obligations have been, are being and
shall be entered into which would not be made or entered into but for such
reliance.
(g) Waiver by Guarantor. Guarantor covenants and agrees that, upon the
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commencement of a voluntary or involuntary bankruptcy proceeding by or
against Borrower, Guarantor shall not seek or cause Borrower or any other
Person or entity to seek a supplemental stay or other relief, whether
injunctive or otherwise, pursuant to 11 U.S.C.ss. 105 or any other
provision of the Bankruptcy Reform Act of 1978, as amended, or any other
debtor relief law, (whether statutory, common law, case law or otherwise)
of any jurisdiction whatsoever, now or hereafter in effect, which may be or
become applicable, to stay, interdict, condition, reduce or inhibit the
ability of any Beneficiary to enforce any rights of any Beneficiary against
Guarantor or the collateral for the Loan by virtue of this Guaranty or
otherwise.
(h) Governing Law; Submission to Jurisdiction. (i) This Guaranty was negotiated
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in New York, which State the parties agree has a substantial relationship
to the parties and to the underlying transaction embodied hereby, and in
all respects (including, without limitation, matters of construction,
validity and performance), this Guaranty and the obligations arising
hereunder shall be governed by, and construed in accordance with, the laws
of the State of New York applicable to contracts made and performed in such
State and any applicable law of the United States of America.
(ii) Any legal suit, action or proceeding arising out of or relating to
this Guaranty may be instituted in any federal or state court in New
York, New York. The Guarantor hereby (i) irrevocably waives, to the
fullest extent permitted by applicable law, any objection which it may
now or hereafter have to the laying of venue of any such suit, action
or proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient
forum, and (ii) irrevocably submits to the jurisdiction of any such
court in any such suit, action or proceeding. The Guarantor does
hereby designate and appoint Prentice-Hall Corporation System, Inc. as
his authorized agent to accept and acknowledge on his behalf service
of any and all process which may be served in any such suit, action or
proceeding in any federal or state court in New York, New York, and
agrees that service of process upon said agent with a copy to the
Guarantor at its address set forth below (mailed or delivered to the
Borrower in the manner provided herein) shall be deemed in every
respect effective service of process upon the Guarantor, in any such
suit, action or proceeding in the State of New York. The Guarantor (i)
shall give prompt notice to the Administrative Agent of any changed
address of its authorized agent hereunder, (ii) may at any time and
from time to time designate a substitute authorized agent with an
office in New York, New York (which office shall be designated as the
address for service of process), and (iii) shall promptly designate
such a substitute if its authorized agent ceases to have an office in
New York, New York or is dissolved without leaving a successor.
(i) TRIAL BY JURY. EACH OF GUARANTOR AND EACH BENEFICIARY, TO THE FULLEST
EXTENT THAT IT MAY LAWFULLY DO SO, WAIVES TRIAL BY JURY IN ANY ACTION
OR PROCEEDING, INCLUDING, WITHOUT LIMITATION, ANY TORT ACTION, BROUGHT
BY ANY PARTY HERETO WITH RESPECT TO THIS GUARANTY, ANY NOTE OR ANY
OTHER LOAN DOCUMENT. BY THEIR ACCEPTANCE OF THIS AGREEMENT, EACH
BENEFICIARY SHALL BE DEEMED TO HAVE AGREED TO SUCH WAIVER.
(j) Notices. All notices, demands, consents, approvals, requests and other
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communications required or permitted hereunder ("Notices") shall be given
in accordance with the provisions of Section 10.6 of the Loan Agreement,
provided that the Guarantor's address for Notices is as follows:
c/o The Venetian
3355 Las Vegas Boulevard South
Las Vegas, NV 89109
Telephone Number: (702) 733-5500
Facsimile Number: (702) 733-5620
(k) Guarantor and Beneficiaries acknowledge and agree that this Guaranty
supersedes and replaces in its entirety that certain Guaranty put into
escrow on November 14, 1997 made by Sheldon G. Adelson in favor of Goldman
Sachs Mortgage Company and any other Lenders and which was intended to be
replaced hereby.
IN WITNESS WHEREOF, Guarantor has duly executed this Guaranty as of the day
and year first above written.
/s/ Sheldon G. Adelson
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SHELDON G. ADELSON
State of New York )
:
County of New York )
On the ____ day of December, 1999, before me personally came SHELDON G. ADELSON,
to me known to be the individual described in and who executed the foregoing
instrument, and acknowledged that he executed the same.
/s/
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Notary Public
(Seal)
My Commission expires: