COMPLETION GUARANTY
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COMPLETION GUARANTY
THIS COMPLETION GUARANTY (this "Guaranty") dated as of November 14,
1997, is made by SHELDON G. ADELSON ("Guarantor"), in favor of (a) The Bank of
Nova Scotia, a Canadian chartered bank, as the Bank Agent acting on behalf of
the Bank Lenders, (b) GMAC Commercial Mortgage Corporation, a California
corporation, as the Interim Mall Lender, and (c) First Trust National
Association, as the Mortgage Notes Indenture Trustee acting on behalf of the
Mortgage Note Holder(s). This Guaranty is made and delivered pursuant to the
Funding Agents' Disbursement and Administration Agreement (the "Funding Agents'
Disbursement and Administration Agreement") dated as of even date herewith among
Las Vegas Sands, Inc., a Nevada corporation ("LVSI"), Venetian Casino Resort,
LLC, a Nevada limited liability company ("VCR"), and Grand Canal Shops Mall
Construction, LLC, a Delaware limited liability company ("GCCLLC" and, jointly
and severally with LVSI and VCR, the "Company"), the Bank Agent, the Interim
Mall Lender, the Mortgage Notes Indenture Trustee, Atlantic-Pacific Las Vegas,
LLC, a Delaware limited liability company, as the HVAC Provider, and The Bank of
Nova Scotia, a Canadian chartered bank, as the Disbursement Agent. The Bank
Agent, the Interim Mall Lender, the Mortgage Notes Indenture Trustee and the
Lenders under their respective Facility Agreements are hereinafter referred to
as the "Lender Beneficiaries" (it being understood that the term "Lender
Beneficiaries" shall not include the HVAC Provider).
RECITALS
A. The Project. The Company proposes to develop, construct and operate the
Venetian Casino Resort, a large scale Venetian-themed hotel, casino, retail,
convention, trade show, meeting and entertainment complex, with related heating,
ventilation and air conditioning and power station facilities, as part of the
redevelopment of the site of the former Las Vegas Sands Hotel and Casino.
B. Bank Credit Agreement. Concurrently herewith, LVSI, VCR, the Bank
Agent, Goldman Sachs Credit Partners L.P., as arranger, and the Bank Lenders
have entered into the Bank Credit Agreement pursuant to which the Bank Lenders
have agreed, subject to the terms thereof, to provide certain loans to LVSI and
VCR, jointly and severally, in an aggregate amount not to exceed $170,000,000.
Of such amount, subject to Section 2.2.3(b) of the Funding Agents' Disbursement
and Administration Agreement, $150,000,000 is intended to finance Project Costs
(other than working capital), as more particularly described therein. GCCLLC
has, pursuant to the GCCLLC Bank Guaranty, guaranteed LVSI's and VCR's
obligations under the Bank Credit Agreement.
C. Interim Mall Credit Agreement. Concurrently herewith, LVSI, VCR, GCCLLC
and the Interim Mall Lender have entered into the Interim Mall Credit Agreement
pursuant to which the Interim Mall Lender has agreed, subject to the terms
thereof, to provide certain loans to LVSI, VCR and GCCLLC, jointly and
severally, in an aggregate amount not to exceed $140,000,000, to finance certain
Project Costs, as more particularly described therein.
D. Mortgage Notes Indenture. Concurrently herewith, LVSI, VCR, certain
guarantors signatory thereto and the Mortgage Notes Indenture Trustee have
entered into the Mortgage Notes Indenture pursuant to which LVSI and VCR will
issue the Mortgage Notes in an aggregate principal amount equal to $425,000,000
to finance Project Costs, as more particularly described therein.
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E. Funding Agents' Disbursement and Administration Agreement. Concurrently
herewith, the Company, the Disbursement Agent, the Bank Agent, the Mortgage
Notes Indenture Trustee, the Interim Mall Lender and the HVAC Provider have
entered into the Funding Agents' Disbursement and Administration Agreement in
order to set forth, among other things, (a) the mechanics for and allocation of
the Company's requests for Advances under the various Facilities and from the
Company's Funds Account, (b) the conditions precedent to the initial Advance and
conditions precedent to subsequent Advances, (c) certain common representations,
warranties and covenants of the Company in favor of the Funding Agents and (d)
the common events of default and remedies.
F. Requirement of Guaranty. The Lender Beneficiaries and the Disbursement
Agent have agreed to enter into and consummate the transactions contemplated
under the respective Facility Agreements and the Funding Agents' Disbursement
and Administration Agreement on the condition that Guarantor guarantee certain
of the Company's obligations under the Funding Agents' Disbursement and
Administration Agreement as provided herein.
G. Benefit to Guarantor. Guarantor owns all the outstanding stock of each
of LVSI and Interface Holding, the sole members in VCR. VCR is the sole member
in GCCLLC. As such, Guarantor acknowledges that it will benefit, directly and
indirectly, if the Lender Beneficiaries and the Disbursement Agent enter into
the respective Facility Agreements and the Funding Agents' Disbursement and
Administration Agreement.
H. Concurrent Obligations. The obligations of Guarantor hereunder are
being incurred concurrently with respective the obligations of VCR, LVSI and
GCCLLC under the Facility Agreements, the guaranty executed by GCCLLC and the
Funding Agents' Disbursement and Administration Agreement.
I. Capitalized Terms. Capitalized terms used but not defined herein shall
have the respective meanings given them in Exhibit A to the Funding Agents'
Disbursement and Administration Agreement, and the Rules of Interpretation
contained in said Exhibit A shall apply hereto.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and as an inducement to the Lender
Beneficiaries and the Disbursement Agent to enter into the Facility Agreements
and the Funding Agents' Disbursement and Administration Agreement, Guarantor
hereby consents and agrees as follows:
1. Guaranty.
(a) The undersigned Guarantor, as primary obligor and not
merely as surety, unconditionally and irrevocably guarantees to (i) the Bank
Agent acting on behalf of the Bank Lenders, (ii) the Interim Mall Lender and
(iii) the Mortgage Notes Indenture Trustee acting on behalf of the Mortgage Note
Holder(s), payment and performance when due, whether by acceleration or
otherwise, of the full amount of any and all obligations and liabilities of the
Company under Section 5.9.1 of the Funding Agents' Disbursement and
Administration Agreement (the "Relevant Provision") together with all expenses
incurred by the Disbursement Agent or the Lender Beneficiaries in enforcing any
of such obligations and liabilities or the terms hereof, including, without
limitation,
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reasonable fees and expenses of legal counsel (collectively, the "Obligations"),
and agrees that if for any reason the Company shall fail to pay or perform when
due any of such Obligations, Guarantor will pay or perform the same forthwith.
Notwithstanding any other provision hereof (but without in any way affecting
Guarantor's obligations under Section 2(e)), Guarantor's aggregate liability
under this Section 1(a) shall in no event exceed Twenty-Five Million Dollars
($25,000,000), as adjusted in accordance with the following sentence (as so
adjusted, the "Liability Cap"). The Liability Cap shall, from time to time, be
(i) increased by the aggregate amount of all funds deposited into the Guaranty
Deposit Account pursuant to Section 2(d) below and Section 5.9.2 of the Funding
Agents' Disbursement and Administration Agreement and (ii) decreased (but in no
event by an amount greater than the amount of any increases pursuant to clause
(i) above) by the aggregate amount of all funds withdrawn from the Guaranty
Deposit Account and returned to Guarantor pursuant to Section 2(f) below.
Guarantor waives notice of acceptance of this Guaranty and of any obligation to
which it applies or may apply under the terms hereof, and waives diligence,
presentment, demand of payment, notice of dishonor or non-payment, protest,
notice of protest, of any such obligations, suit or taking other action by the
Disbursement Agent, the Lender Beneficiaries or Lenders against, and giving any
notice of default or other notice to, or making any demand on, any party liable
thereon (including Guarantor).
(b) This Guaranty is a primary obligation of Guarantor and is
an absolute, unconditional, continuing and irrevocable guaranty of payment and
not of collectibility and is in no way conditioned on or contingent upon any
attempt to enforce in whole or in part the Company's liabilities and obligations
to the Funding Agents, the Lenders and the Disbursement Agent. Subject to the
limitation on liability set forth in Section 1(a) above, if the Company shall
fail to pay any of the Obligations as and when they are due, Guarantor shall
forthwith pay such Obligations in immediately available funds. Each failure by
the Company to pay any Obligations shall give rise to a separate cause of action
herewith, and separate suits may be brought hereunder as each cause of action
arises.
(c) The Funding Agents or the Lenders may, in accordance with
the Financing Agreements, at any time and from time to time (whether or not
after revocation or termination of this Guaranty) without the consent of or
notice to Guarantor, except such notice as may be required by the Financing
Agreements or applicable law which cannot be waived, without incurring
responsibility to Guarantor, without impairing or releasing the obligations of
Guarantor hereunder, upon or without any terms or conditions and in whole or in
part, (i) change the manner, place and terms of payment or change or extend the
time of payment of, renew, or alter any Obligation, or any obligations and
liabilities (including any of those hereunder) incurred directly or indirectly
in respect thereof or hereof or in any manner modify, amend or supplement the
terms of any Facility Agreement, the Funding Agents' Disbursement and
Administration Agreement (including the Relevant Provision) or any documents,
instruments or agreements executed in connection therewith (in each case, with
the consent of the Company if required by such documents) and the guaranty
herein made shall apply to the Obligations, changed, extended, renewed,
modified, amended, supplemented or altered in any manner; (ii) exercise or
refrain from exercising any rights against the Company or others (including
Guarantor) or otherwise act or refrain from acting; (iii) add or release any
other guarantor from its obligations without affecting or impairing the
obligations of Guarantor hereunder; (iv) settle or compromise any Obligations
and/or any obligations and liabilities (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and may
subordinate the payment of all or any part thereof to the payment of any
obligations and liabilities which may be due to the Lenders or others; (v) sell,
exchange, release, surrender, realize upon or otherwise deal with in any manner
or in any order any property by whomsoever pledged or mortgaged to secure or
howsoever securing the Obligations or any liabilities or obligations (including
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any of those hereunder) incurred directly or indirectly in respect thereof or
hereof and/or any offset thereagainst; (vi) apply any sums by whomsoever paid or
howsoever realized to any obligations and liabilities of the Company to the
Funding Agents and the Lenders under any of the Financing Agreements in the
manner provided therein regardless of what obligations and liabilities remain
unpaid; (vii) consent to or waive any breach of, or any act, omission or default
under, any Facility Agreement or the Funding Agents' Disbursement and
Administration Agreement (including the Relevant Provision) or otherwise amend,
modify or supplement (with the consent of the Company, if required by such
documents) any Facility Agreement or the Funding Agents' Disbursement and
Administration Agreement (including the Relevant Provision) or any of such other
instruments or agreements; and/or (viii) act or fail to act in any manner
referred to in this Guaranty which may deprive Guarantor of any right to
subrogation which Guarantor may, notwithstanding the provisions of Section 7,
have against the Company to recover full indemnity for any payments made
pursuant to this Guaranty or of any right of contribution which Guarantor may
have against any other party.
(d) No invalidity, irregularity or unenforceability of the
Obligations shall affect, impair, or be a defense to this Guaranty, which is a
primary obligation of Guarantor.
(e) This is a continuing Guaranty and all obligations to which
it applies or may apply under the terms hereof shall be conclusively presumed to
have been created in reliance hereon. In the event that, notwithstanding the
provisions of Section 1(a) hereof, this Guaranty shall be deemed revocable in
accordance with applicable law, then any such revocation shall become effective
only upon receipt by the Bank Agent, the Interim Mall Lender, the Mortgage Notes
Indenture Trustee and the Disbursement Agent of written notice of revocation
signed by Guarantor. No revocation or termination hereof shall affect in any
manner rights arising under this Guaranty with respect to Obligations (i)
arising prior to receipt by the Bank Agent, the Interim Mall Lender, the
Mortgage Notes Indenture Trustee and the Disbursement Agent of written notice of
such revocation or termination and the sole effect of revocation and termination
hereof shall be to exclude from this Guaranty Obligations thereafter arising
which are unconnected with Obligations theretofore arising or transactions
theretofore entered into or (ii) arising as a result of an Event of Default
under the Funding Agents' Disbursement and Administration Agreement occurring by
reason of the revocation or termination of this Guaranty.
(f) (i) Except as otherwise required by law, each payment
required to be made by Guarantor hereunder shall be made without deduction or
withholding for or on account of Taxes. If such deduction or withholding is so
required, Guarantor shall, upon notice thereof from the Bank Agent, the Interim
Mall Lender, the Mortgage Notes Indenture Trustee or the Disbursement Agent, (A)
pay the amount required to be deducted or withheld to the appropriate
authorities before penalties attach thereto or interest accrues thereon, (B) on
or before the sixtieth (60th) day after payment of such amount, forward to the
Bank Agent, the Interim Mall Lender, the Mortgage Notes Indenture Trustee and
the Disbursement Agent an official receipt evidencing such payment (or a
certified copy thereof), and (C) in the case of any such deduction or
withholding, but subject to the Liability Cap, forthwith pay to the Disbursement
Agent for application in accordance with Section 5.9.1 of the Funding Agents'
Disbursement and Administration Agreement such additional amount as may be
necessary to ensure that the net amount actually received by the Disbursement
Agent free and clear of such Taxes, including any Taxes on such additional
amount, is equal to the amount that the Disbursement Agent would have received
had there been no such deduction or withholding.
(ii) As used herein, the term "Tax" means any present or
future tax, levy, impost, duty, charge, assessment or fee of any nature
(including interest, penalties and additions
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thereto) that is imposed by any government or other taxing authority in respect
of any payment under this Guaranty other than any income, franchise, transfer,
inheritance, capital stock or similar tax imposed upon the gross or net income
of any Lender by the United States, any state of the United States, any
jurisdiction where any Lender is organized and/or the jurisdiction in which is
located any office from or at which any Lender is making or maintaining any
Loans or acquiring the Mortgage Note(s), as the case may be, or receiving any
payments under any of the Financing Agreements.
2. Guaranty Deposit Account.
(a) As security for Guarantor's obligations hereunder,
Guarantor shall, on or prior to the Financing Date, establish or cause to be
established the Guaranty Deposit Account and deposit in the Guaranty Deposit
Account, in cash or Permitted Investments, Twenty-Five Million Dollars
($25,000,000).
(b) The Disbursement Agent shall have the right to withdraw
funds from the Guaranty Deposit Account at the following times and in the
following amounts:
(i) On any date on which the Company is required
to (but does not prior to 11:00 a.m. New York, New York time) deposit amounts in
the Company's Funds Account pursuant to Section 5.9.1 of the Funding Agents'
Disbursement and Administration Agreement, in the amount so required to be
deposited; or
(ii) Unless the Final Completion Date shall have
occurred, upon (A) the occurrence of an Event of Default, (B) the occurrence of
a Death Event (as defined below) or (C) Guarantor's Bankruptcy (as defined in
the Mortgage Notes Indenture Fee Deed of Trust), in the full amount of funds
then on deposit in the Guaranty Deposit Account. As used herein, the term Death
Event shall mean Guarantor's death, provided that Guarantor's death shall not be
a Death Event if, within ten (10) Banking Days after such death, either (a)
representatives of Guarantor's estate, in a written instrument reasonably
satisfactory to the Bank Agent and the Interim Mall Lender, affirm that
Guarantor's estate is fully bound by and agrees to keep, observe and perform all
of the terms, covenants, conditions and provisions of this Guaranty on the part
of Guarantor to be kept, observed and performed and the Bank Agent, the Interim
Mall Lender and the Mortgage Notes Indenture Trustee receive a legal opinion in
form and substance, and from counsel, reasonably acceptable to the Bank Agent
and the Interim Mall Lender to the effect that such written instrument was duly
executed and delivered and is enforceable against Guarantor's estate in
accordance with its terms, or (b) the Bank Agent, the Interim Mall Lender and
the Mortgage Notes Indenture Trustee receive a legal opinion in form and
substance, and from counsel, reasonably acceptable to the Bank Agent and the
Interim Mall Lender to the effect that this Guaranty is enforceable against
Guarantor's estate in accordance with its terms.
(c) Proceeds of any withdrawal from the Guaranty Deposit
Account shall (except as provided in Section 2(f) below) be applied by the
Disbursement Agent to the satisfaction of the Company's obligation to cause
funds to be deposited into the Company's Funds Account pursuant to Section 5.9.1
of the Funding Agents' Disbursement and Administration Agreement or as otherwise
permitted by Section 3 hereof.
(d) Guarantor shall be permitted from time to time to deposit
or cause to be deposited funds in the Guaranty Deposit Account (beyond the
$25,000,000 required to be deposited therein pursuant to Section 2(a) above)
thereby increasing the amount of Available Funds
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under the Funding Agents' Disbursement and Administration Agreement. Any such
increases shall (except as provided in Section 2(f) below) be irrevocable and,
as noted in Section 1(a) above, shall increase the Liability Cap.
(e) The Disbursement Agent shall, on the first day of each
calendar month assess the aggregate value of cash and Permitted Investments in
the Guaranty Deposit Account. In the event that the Disbursement Agent
determines that there has been a decrease in value since the first day of the
previous month, the Disbursement Agent shall issue notice to such effect to
Guarantor and Guarantor shall, within two (2) after the receipt of such notice,
deposit in the Guaranty Deposit Account cash or Permitted Investments in an
amount equal to such drop in value; provided, however, that Guarantor shall not
be required to so deposit funds in the Guaranty Deposit Account if, and to the
extent, that after giving effect to such deposit, Guarantor shall be permitted
to obtain a release of funds from the Guaranty Deposit Account pursuant to
Section 2(f) below.
(f) The Disbursement Agent shall, on the first day of any
month, at Guarantor's request, release funds in the Guaranty Deposit account to,
or as directed by, Guarantor so long as after such release (i) the aggregate
value of cash and Permitted Investments on deposit in the Guaranty Deposit
Account shall be equal to or greater than $25,000,000 less amounts withdrawn
pursuant to Section 2(b) above and (ii) the (A) the Available Funds will equal
or exceed Remaining Costs and (B) the Unallocated Contingency Balance will equal
or exceed the Required Minimum Contingency (provided that for purposes of this
clause (ii), the Net Guaranty Amount shall be disregarded in calculating the
Available Funds and the Unallocated Contingency Balance).
(g) On the Completion Date, (i) the Disbursement Agent shall
release all amounts remaining in the Guaranty Deposit Account to, or as directed
by, Guarantor and (ii) this Guaranty shall, except for the provisions set forth
in Sections 7 and 8 below and subject to Section 18, be deemed terminated and of
no force or effect. The provisions of Sections 7 and 8 below shall, subject to
Section 18, survive until all the Financing Agreements Obligations (as defined
in Section 7) have been paid in full.
3. Safekeeping of Guaranty Deposit Account.
(a) Amounts deposited in the Guaranty Deposit Account shall be
applied exclusively as provided in this Guaranty and the Disbursement Agent
shall at all times act and direct the securities intermediary under the
Completion Guaranty Collateral Account Agreement so as to implement the
application of funds provisions and procedures herein set forth. The
Disbursement Agent is hereby authorized to direct the securities intermediary to
reduce to cash any Permitted Investment (without regard to maturity) in any
account in order to make any application required hereunder. No amount held in
the Guaranty Deposit Account shall be disbursed or applied except in accordance
with the provisions hereof or as required by law.
(b) The Disbursement Agent shall take such actions within its
control that it customarily takes in the conduct of its business to protect the
Guaranty Deposit Account and all cash, funds and Permitted Investments from time
to time deposited therein, as well as any proceeds or income therefrom
(collectively, the "Guaranty Collateral") and maintain the same free and clear
of all liens, security interests, safekeeping or other charges, demands and
claims of any nature whatsoever now or hereafter arising in favor of any parties
other than the Secured Parties (or the Disbursement Agent as agent for the
Secured Parties) (collectively, "Third Party Claims"); it being understood,
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however, that the foregoing shall in no way be deemed to be a guaranty or other
assurance by the Disbursement Agent that Third Party Claims will not arise.
(c) The Disbursement Agent shall take any other steps from
time to time requested by the Bank Agent, Interim Mall Lender or Mortgage Notes
Indenture Trustee to confirm or cause the securities intermediary under the
Completion Guaranty Collateral Account Agreement to confirm and maintain the
priority of the security interests in the Guaranty Collateral.
4. Representations and Warranties. Guarantor makes the
representations and warranties set forth below to the Lender Beneficiaries and
the other Lenders as of the date hereof:
(a) All governmental authorizations and actions necessary in
connection with the execution and delivery by Guarantor of this Guaranty and the
performance of its obligations hereunder have been obtained or performed and
remain valid and in full force and effect.
(b) This Guaranty has been duly executed and delivered by
Guarantor and constitutes the legal, valid and binding obligation of Guarantor,
enforceable against Guarantor (and Guarantor's heirs, executors, administrators,
legal representatives, successors and assigns) in accordance with the terms of
this Guaranty, subject to applicable bankruptcy, insolvency, moratorium and
other similar laws affecting creditors' rights generally and general principles
of equity.
(c) The execution, delivery and performance of this Guaranty
(i) do not and will not contravene any law, rule, regulation, order, judgment or
decree applicable to or binding on Guarantor or any of his assets or properties;
(ii) do not and will not contravene, or result in any breach of or constitute
any default under, any agreement or instrument to which Guarantor is a party or
by which Guarantor or any of his assets or properties may be bound or affected;
and (iii) do not and will not require the consent of any Person under any
existing law or agreement which has not already been obtained.
(d) 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, which might reasonably be expected to
materially and adversely affect the financial condition, results of operations,
business or prospects of Guarantor or the ability of Guarantor to perform his
obligations under this Guaranty.
(e) Guarantor possesses all franchises, certificates,
licenses, permits and other governmental authorizations and approvals necessary
for him to own his properties, conduct his businesses and perform his
obligations under this Guaranty.
(f) Guarantor has established adequate means of obtaining
financial and other information pertaining to the businesses, operations and
condition (financial and otherwise) of the Company and its properties on a
continuing basis, and Guarantor now is and hereafter will be completely familiar
with the businesses, operations and condition (financial and otherwise) of the
Company and its properties.
(g) (i) Guarantor is not, and will not as a result of the
execution and delivery of this Guaranty, be rendered insolvent and (ii)
Guarantor does not intend to incur, or believe it is incurring, obligations
beyond its ability to pay.
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5. Covenants. So long as any Obligations are outstanding, Guarantor
agrees that:
(a) He will maintain in full force and effect all consents of
any governmental or other authority that are required to be obtained by it with
respect to this Guaranty and will obtain any such consent that may become
necessary in the future;
(b) He will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Guaranty;
(c) Promptly, and in any event within thirty (30) Banking Days
after the obtaining knowledge thereof, Guarantor will give to the Bank Agent,
the Interim Mall Lender, the Mortgage Notes Indenture Trustee and the
Disbursement Agent notice of the occurrence of any event or of any litigation or
governmental proceeding pending (i) against Guarantor which could reasonably be
expected to affect the business, operations, property, assets or condition
(financial or otherwise) of Guarantor so as to materially and adversely affect
the ability of Guarantor to perform his obligations hereunder or (ii) which
relates to this Guaranty; and
(d) He will deliver such other documents and other information
(other than personal financial statements of any type or kind, including
personal asset statements, income statements, net worth statements and any tax
returns) reasonably requested by the Bank Agent, the Interim Mall Lender, the
Mortgage Notes Indenture Trustee or the Disbursement Agent.
6. Waiver. To the fullest extent permitted by law, Guarantor hereby
waives and relinquishes all rights and remedies accorded by applicable law to
sureties or guarantors and agrees not to assert or take advantage of any such
rights or remedies, including without limitation (a) any right to require the
Funding Agents, the Lenders or the Disbursement Agent to proceed against the
Company or any other person or to proceed against or exhaust any security held
by the Funding Agents, the Lenders or the Disbursement Agent at any time or to
pursue any other remedy in the Funding Agents', the Lenders' or the Disbursement
Agent's power before proceeding against Guarantor, (b) any defense that may
arise by reason of the incapacity, lack of power or authority, death,
dissolution, merger, termination or disability of the Company or any other
Person or the failure of the Funding Agents, the Lenders or the Disbursement
Agent to file or enforce a claim against the estate (in administration,
bankruptcy or any other proceeding) of the Company or any other Person, (c)
demand, presentment, protest and notice of any kind, including without
limitation notice of the existence, creation or incurring of any new or
additional indebtedness or obligation or of any action or non-action on the part
of the Company, the Funding Agents, the Lenders, the Disbursement Agent, any
endorser or creditor of the Company or Guarantor or on the part of any other
person under this or any other instrument in connection with any obligation or
evidence of indebtedness held by the Funding Agents, the Lenders or the
Disbursement Agent as collateral or in connection with any Obligations, (d) any
defense based upon an election of remedies by the Funding Agents, the Lenders or
the Disbursement Agent, including without limitation an election to proceed by
non-judicial rather than judicial foreclosure, which destroys or otherwise
impairs any subrogation rights which Guarantor may, notwithstanding the
provisions of Section 7, have against the Company, any right which Guarantor
may, notwithstanding the provisions of Section 7, have to proceed against the
Company for reimbursement, or both, (e) any defense based on any offset against
any amounts which may be owed by any Person to Guarantor for any reason
whatsoever, (f) any defense based on any act, failure to act, delay or omission
whatsoever on the part of the Company of the failure by the
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Company to do any act or thing or to observe or perform any covenant, condition
or agreement to be observed or performed by it under the Financing Agreements,
(g) any defense based upon any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other respects
more burdensome than that of the principal provided, that, upon payment in full
of the Obligations, this Guaranty shall no longer be of any force or effect, (h)
any defense, setoff or counterclaim which may at any time be available to or
asserted by the Company against the Funding Agents, the Lenders, the
Disbursement Agent, the Construction Consultant or any other Person under any of
the Financing Agreements, including in connection with the exercise of any
judgment by the Disbursement Agent, the Construction Consultant or any other
Person under the Funding Agents' Disbursement and Administration Agreement or by
reason of the delay or failure by the Disbursement Agent or the Construction
Consultant or any other Person to perform their duties thereunder, (i) any duty
on the part of the Funding Agents, the Lenders or the Disbursement Agent to
disclose to Guarantor any facts the Funding Agents, the Lenders or the
Disbursement Agent may now or hereafter know about the Company, regardless of
whether the Funding Agents, the Lenders or the Disbursement Agent have reason to
believe that any such facts materially increase the risk beyond that which
Guarantor intends to assume, or have reason to believe that such facts are
unknown to Guarantor, or have a reasonable opportunity to communicate such facts
to Guarantor, since Guarantor acknowledges that Guarantor is fully responsible
for being and keeping informed of the financial condition of the Company and of
all circumstances bearing on the risk of non-payment of any obligations and
liabilities hereby guaranteed, (j) the fact that Guarantor may at any time in
the future dispose of all or part of its direct or indirect interest in the
Company, (k) any defense based on any change in the time, manner or place of any
payment under, or in any other term of, any Facility Agreement, the Funding
Agents' Disbursement and Administration Agreement (including the Relevant
Provision) or any other amendment, renewal, extension, acceleration, compromise
or waiver of or any consent or departure from the terms of any Facility
Agreement, the Funding Agents' Disbursement and Administration Agreement
(including the Relevant Provision) or any other Financing Agreement, (l) any
defense arising because of the any Funding Agents', any Lender's or the
Disbursement Agent's election, in any proceeding instituted under the Federal
Bankruptcy Code, of the application of Section 1111(b)(2) of the Federal
Bankruptcy Code, and (m) any defense based upon any borrowing or grant of a
security interest under Section 364 of the Federal Bankruptcy Code.
7. Subrogation. Until all obligations and liabilities of all kinds
and nature (including the "Obligations" (as defined in the Funding Agents'
Disbursement and Administration Agreement)) of the Company to the Lender
Beneficiaries (the "Financing Agreements Obligations") have been paid in full,
(a) Guarantor shall not have any right of subrogation and waives all rights to
enforce any remedy which the Lender Beneficiaries, the Lenders or the
Disbursement Agent now have or may hereafter have against the Company, and
waives the benefit of, and all rights to participate in, any security now or
hereafter held by the Lender Beneficiaries, the Lenders or the Disbursement
Agent from the Company and (b) subject to the terms of the Adelson Intercreditor
Agreement, Guarantor waives any claim, right or remedy which Guarantor may now
have or hereafter acquire against the Company that arises hereunder and/or from
the performance by the Guarantor hereunder including, without limitation, any
claim, remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right or remedy of the Lender
Beneficiaries, the Lenders or the Disbursement Agent against the Company, or any
security which the Lender Beneficiaries, the Lenders or the Disbursement Agent
now have or hereafter acquire, whether or not such claim, right or remedy arises
in equity, under contract, by statute, under common law or otherwise.
8. Bankruptcy.
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(a) So long as any of the Financing Agreements Obligations are
owed to the Lender Beneficiaries, Guarantor shall not commence, or join with any
other Person in commencing, any bankruptcy, reorganization, or insolvency
proceeding against the Company. The obligations of Guarantor under this Guaranty
shall not be altered, limited or affected by any proceeding, voluntary or
involuntary, involving the bankruptcy, reorganization, insolvency, receivership,
liquidation or arrangement of the Company, or by any defense which the Company
may have by reason of any order, decree or decision of any court or
administrative body resulting from any such proceeding.
(b) So long as any Financing Agreements Obligations are owed
to the Lender Beneficiaries, to the extent of such Financing Agreements
Obligations, Guarantor shall file, in any bankruptcy or other proceeding of or
against the Company in which the filing of proofs of claims is required or
permitted by law, all claims which Guarantor may have against the Company (but
only to the extent) relating to any indebtedness of the Company to Guarantor,
and hereby assigns to the Disbursement Agent, on behalf of the Lenders all
rights of Guarantor thereunder. If Guarantor does not file any such claim, the
Disbursement Agent as attorney-in-fact for Guarantor, is hereby authorized to do
so in the name of Guarantor or, in the Disbursement Agent's discretion, to
assign the claim to a nominee and to cause proofs of claim to be filed in the
name of such nominee. The foregoing power of attorney is coupled with an
interest and cannot be revoked. The Disbursement Agent or its nominee shall have
the sole right to accept or reject any plan proposed in any such proceeding and
to take any other action which a party filing a claim is entitled to take. In
all such cases, whether in administration, bankruptcy or otherwise, the person
authorized to pay such a claim shall pay the same to the Disbursement Agent to
the extent of any Financing Agreements Obligations which then remain unpaid,
and, to the full extent necessary for that purpose, Guarantor hereby assigns to
the Disbursement Agent all of Guarantor's rights to all such payments or
distributions to which Guarantor would otherwise be entitled; provided, however,
that Guarantor's obligations hereunder shall not be satisfied except to the
extent that the Disbursement Agent receives cash by reason of any such payment
or distribution. If the Disbursement Agent receives anything hereunder other
than cash, the same shall be held as collateral for amounts due under this
Guaranty.
9. Successions or Assignments.
(a) This Guaranty shall inure to the benefit of the successors
or assigns of the Lender Beneficiaries who shall have, to the extent of their
interest, the rights of the Lender Beneficiaries hereunder.
(b) This Guaranty is binding upon Guarantor and his heirs,
executors, administrators, legal representatives, successors and assigns,
regardless of whether, after Guarantor's death, the actions described in clause
(a) or (b) of the last sentence of Section 2(b)(ii) hereof are taken within the
required time period set forth in said sentence. Guarantor is not entitled to
assign its obligations hereunder to any other person, and any purported
assignment in violation of this provision shall be void.
10. Waivers.
(a) No delay on the part of the Lender Beneficiaries, the
Lenders or the Disbursement Agent in exercising any of their rights (including
those hereunder) and no partial or single exercise thereof and no action or
non-action by the Lender Beneficiaries, the Lenders or the
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Disbursement Agent, with or without notice to Guarantor or anyone else, shall
constitute a waiver of any rights or shall affect or impair this Guaranty.
(b) GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY OR RELATING
TO THE SUBJECT MATTER OF THIS GUARANTY AND THE RELATIONSHIP BETWEEN GUARANTOR
AND THE LENDER BENEFICIARIES AND THE DISBURSEMENT AGENT THAT IS BEING
ESTABLISHED. GUARANTOR ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO
ENTER INTO A BUSINESS RELATIONSHIP, THAT THE LENDER BENEFICIARIES AND THE
DISBURSEMENT AGENT HAVE ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS
GUARANTY, AND THAT THE LENDER BENEFICIARIES AND THE DISBURSEMENT AGENT WILL
CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. GUARANTOR
FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
11. Interpretation. The section headings in this Guaranty are for
the convenience of reference only and shall not affect the meaning or
construction of any provision hereof.
12. Notices. All notices in connection with this Guaranty shall be
given by notice in writing hand-delivered or sent by facsimile transmission or
by certified mail return-receipt requested (airmail, if overseas), postage
prepaid. All such notices shall be sent to the appropriate telecopier number or
address, as the case may be, set forth in Section 16 below or to such other
number or address as shall have been subsequently specified by written notice to
the other party, and shall be sent with copies, if any, as indicated below. All
such notices shall be effective upon receipt, and confirmation by answerback of
any such notice so sent by telecopier shall be sufficient evidence of receipt
thereof.
13. Amendments. This Guaranty may be amended only with the written
consent of the parties hereto.
14. Jurisdiction; Governing Law.
(a) Any action or proceeding relating in any way to this
Guaranty shall be brought and enforced in the courts of the State of New York in
Manhattan or of the United States for the Southern District of New York. Any
such process or summons in connection with any such action or proceeding may be
served by mailing a copy thereof by certified or registered mail, or any
substantially similar form of mail, addressed to Guarantor as provided for
notices hereunder.
(b) This Guaranty and the rights and obligations of Agent and
of the Guarantor shall be governed by and construed in accordance with the law
of the State of New York without reference to principles of conflicts of laws
(other than Section 5-1401 of the New York General Obligations Law).
15. Integration of Terms. This Guaranty contains the entire
agreement between the Guarantor, the Lender Beneficiaries, the Lenders and the
Disbursement Agent relating to the subject matter hereof and supersedes all oral
statements and prior writing with respect hereto.
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16. Addresses.
(a) The address of Guarantor for notices is:
Sheldon G. Adelson
3355 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Telephone Number: (702)733-5500
Telecopier Number: (702)733-5499
(b) The address of the Bank Agent for notices is:
The Bank of Nova Scotia
580 California Street, 21st Floor
San Francisco, California 94104
Attention: Allan Pendergast
Telephone Number: (415) 986-1100
Telecopier Number: (415) 397-0791
(c) The address of the Mortgage Notes Indenture Trustee for
notices is:
First Trust National Association
180 East Fifth Street
St. Paul, MN 55101
Attention: Corporate Trust Administration
Telephone Number: (612) 244-0721
Telecopier Number: (612) 244-0711
(d) The address of the Interim Mall Lender for notices is:
GMAC Commercial Mortgage Corporation
100 South Wacker Dr. Suite 100
Chicago, IL 60604
Attention: Vacys Garbonkus
Telephone Number:
Telecopier Number:
(e) The address of the Disbursement Agent for notices is:
The Bank of Nova Scotia
580 California Street, 21st Floor
San Francisco, CA 94104
Attention: Allan Pendergast
Telephone Number: (415) 986-1100
Telecopier Number: (415) 397-0791
17. Interest; Collection Expenses. Any amount required to be paid by
Guarantor pursuant to the terms hereof shall bear interest at the highest
default rate provided in the Financing Agreement or the maximum rate permitted
by law, whichever is less, from the date due until paid in
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full. If the Lender Beneficiaries or the Disbursement Agent are required to
pursue any remedy against Guarantor hereunder (including, without limitation,
any remedy in connection with enforcing clause (B) of the first sentence of
Section 2(b)(ii) hereof), Guarantor shall pay to the Lender Beneficiaries or the
Disbursement Agent, as the case may be, upon demand, all reasonable attorneys'
fees and expenses all other costs and expenses incurred by the Lender
Beneficiaries or the Disbursement Agent in enforcing this Guaranty and such
amounts shall not be taken into account for purposes of the Liability Cap.
18. Reinstatement of Guaranty. This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any payment to or
on behalf of the Company or by the Company under the Relevant Provision or by
Guarantor hereunder is rescinded or must otherwise be returned by the Lender
Beneficiaries, the Lenders or the Disbursement Agent upon the insolvency,
bankruptcy, reorganization, dissolution or liquidation of the Company or
otherwise, all as though such payment had not been made.
19. Counterparts. The Guaranty may be executed in one or more
duplicate counterparts, and when executed and delivered by all of the parties
listed below shall constitute a single binding agreement.
20. Disbursement Agent.
(a) The Lender Beneficiaries may appoint or designate the
Disbursement Agent to exercise or enforce their rights and remedies under this
Guaranty and to otherwise act on their behalf in all matters related hereto.
Guarantor shall respect and treat any and all actions so taken by the
Disbursement Agent as if taken by the Lender Beneficiaries.
(b) All references in this Guaranty to the Disbursement Agent
shall mean and be construed as the Disbursement Agent acting pursuant to the
Funding Agents' Disbursement and Administration Agreement.
21. No Benefit to the Company. This Guaranty is for the benefit of
only the Lender Beneficiary and is not for the benefit of the Company.
Notwithstanding that, pursuant to that certain Note dated of even date herewith,
by the Company in favor of Guarantor, Guarantor may treat any amounts actually
paid hereunder as a loan to the Company, the Guaranty shall not be deemed to be
a contract to make a loan, or extend other debt financing or financial
accommodation, for the benefit of the Company, in each case within the meaning
of Section 365(e) of the Bankruptcy Code.
22. Limitation on Personal Liabilities.
(a) Except as expressly set forth in Section 22(b) below, the
recourse of the Lender Beneficiaries with respect to the obligations of
Guarantor hereunder other than Guarantor's obligations under Section 2(e) above,
shall be solely to the Guaranty Collateral.
(b) Notwithstanding anything to the contrary contained in this
Guaranty or in any Financing Agreement, nothing shall be deemed in any way to
impair, limit or prejudice the rights of the Lender Beneficiaries (i) in
foreclosure proceedings or in any ancillary proceedings brought to facilitate
the Disbursement Agent's and the Lender Beneficiaries' foreclosure on the
Guaranty Collateral or any portion thereof; (ii) to recover from Guarantor
damages or costs (including without limitation reasonable attorneys' fees)
incurred by Disbursement Agent and the Lender
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Beneficiaries as a result of actions taken by Guarantor to delay or prevent the
Disbursement Agent or the Lender Beneficiaries from exercising their rights
hereunder, and (iii) to exercise any specific rights to remedies afforded the
Disbursement Agent and the Lender Beneficiaries under any other provisions of
the Financing Agreements or by law or in equity, subject, in the case of this
clause (iii), to the non-recourse provisions set forth in Section 22(a).
(c) The agreement contained in this Section 22 to limit the
personal liability of Guarantor shall become null and void and be of no further
force and effect in the event that the Guaranty Collateral, or any part thereof
or any interest therein, shall be further encumbered by a voluntary lien
securing any obligation upon which Guarantor or affiliate of Guarantor shall be
personally liable for repayment, either as obligor or guarantor.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
duly executed and delivered as of the day and year first written above.
Agreed and accepted: SHELDON G. ADELSON
--------------------------------------------------
/s/ Sheldon G. Adelson
THE BANK OF NOVA SCOTIA,
a Canadian chartered bank,
as the Bank Agent
By: /s/ Allan Pendergast
----------------------------------
Name: Allan Pendergast
Title: Relationship Manager
GMAC COMMERCIAL MORTGAGE CORPORATION,
a California corporation,
as the Interim Mall Lender
By: /s/ Vacys Garbonkus
----------------------------------
Name: Vacys Garbonkus
Title: Senior Vice President
FIRST TRUST NATIONAL ASSOCIATION,
as the Mortgage Notes Indenture Trustee
By: /s/ Richard H. Prokosch
----------------------------------
Name: Richard H. Prokosch
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA,
a Canadian chartered bank,
as the Disbursement Agent
By: /s/ Allan Pendergast
----------------------------------
Name: Allan Pendergast
Title: Relationship Manager
16