ASSIGNMENT, ASSUMPTION AND AMENDMENT OF
CONSTRUCTION MANAGEMENT AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND AMENDMENT OF CONSTRUCTION MANAGEMENT
AGREEMENT (this "Amendment") is made and entered into as of November 14, 1997 by
and between LAS VEGAS SANDS, INC., a Nevada corporation ("Assignor"), VENETIAN
CASINO RESORT, LLC, a Nevada limited liability company ("Assignee") and LEHRER
McGOVERN BOVIS, INC., a New York corporation ("Construction Manager").
W I T N E S S E T H:
WHEREAS, Assignor and Construction Manager have entered into that
certain Construction Management Agreement dated as of February 15, 1997 (the
"Agreement"); and
WHEREAS, Assignor desires to assign the Agreement (and certain
guaranties thereof) to Assignee and Assignee desires to accept such assignment
and assume all of Assignor's obligations under the Agreement; and
WHEREAS, following such assignment and assumption, Assignee and
Construction Manager desire to amend the Agreement on the terms hereinafter set
forth and to have Construction Manager acknowledge and consent to the
above-described assignment and assumption;
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree as follows:
1. Defined Terms. All capitalized terms used and not defined herein
shall have the respective meanings ascribed thereto in the Agreement.
2. Assignment. As a capital contribution to Assignee, Assignor
hereby assigns, conveys, transfers and sets over to Assignee any and all of
Assignor's right, title and interest in and to the Agreement and the Guaranties
(collectively, the "Contracts").
3. Assumption. Assignee does hereby accept the foregoing assignment
and assume, covenant and agree to perform, be bound by, discharge and observe
all of the terms, covenants, conditions, duties, obligations, undertakings and
liabilities of Assignor under the Contracts accruing prior to, on and after the
date hereof.
4. Consent. Assignor and Assignee hereby jointly and severally
represent and warrant to Construction Manager, Bovis and P&O that Assignee is a
Permitted Assignee. Relying on such representation, (a) Construction Manager
acknowledges and consents to the above-described assignment of the Agreement and
agrees that the provisions of Section 12.2(b) of the Agreement apply with
respect to such assignment and (b) Bovis and P&O acknowledge and consent to the
above-described assignment of the Bovis Guaranty and P&O Guaranty, respectively,
and are executing this Amendment for the purpose of so acknowledging and
consenting.
5. Amendments to the Agreement. Assignee and Construction Manager
hereby agree that the Agreement is amended as follows:
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(a) Paragraph 1 of Section 2b (General Assumptions) of Exhibit B is
hereby deleted. As a result of such deletion, Construction Manager is entitled
to, and is hereby granted, an increase in the Guaranteed Maximum Price of
$390,000.
(b) The "List of Documents" set forth as Section 3 of Exhibit B of
the Agreement is hereby deleted and replaced in its entirety by Architect's
"ASI's" 1-50 and all of Architect's "submittal packages" and revisions thereof
to date, other than (i) submittal packages 7, 10A and 10B and (ii) the 7/21/97
revision of submittal package 7; (iii) the 6/16/97 revision of submittal package
10A; and (iv) the 7/28/97 revision of submittal package 10B; provided, however,
that each of Construction Manager and Assignee reserves all of its rights under
the Agreement to make a claim for, or assert, Scope Changes with respect to the
foregoing change in the List of Documents.
(c) Schedule F of the Agreement is amended and restated in its
entirety by Schedule F attached hereto and made a part hereof.
(d) All notices sent to Owner as provided for in Section 12.9 of the
Agreement shall be sent to:
Venetian Casino Resort, LLC
3355 Las Vegas Boulevard South
Room 1C
Las Vegas, Nevada 89109
Attention: Sheldon Adelson
Facsimile number: (702) 733-5620
with a copy to: David Friedman
Facsimile number: (702) 733-5110
and with a copy to: Stuart Mason
Facsimile number: (702) 369-8306
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(e) The last sentence of Section 10.7(b) of the Agreement is hereby
deleted and the following sentence is hereby added in lieu thereof: "As used
herein, the "Independent Expert" shall mean Michael Shane."
(f) The following is added at the end of subsection 3.3.13 of the
Agreement: "Notwithstanding anything to the contrary contained herein, (a) the
General Warranty, and all other warranties, guaranties and indemnities of
Construction Manager herein that survive Final Completion, shall, from and after
Final Completion and to the extent they relate to the Energy Improvements and
the Other Customers Facilities (as such terms are defined in that certain Energy
Services Agreement dated as of May 1, 1997 by and between Owner and
Atlantic-Pacific, Las Vegas, LLC (the "HVAC Provider")), be made to, and run in
favor and for the benefit of, the HVAC Provider; (b) from and after Final
Completion, the HVAC Provider, and not Owner, shall have the right to request
that the guaranties and warranties described in the third-to-last sentence of
this subsection 3.3.13 (the "Trade Warranties") be assigned to it, but only to
the extent said guaranties and warranties relate to the Energy Improvements and
the Other Customers Facilities, (c) all guaranties, warranties and indemnities
(including the General Warranty) of Construction Manager hereunder are, to the
extent they relate to the "mall" and "retail annex" portions of the Project, for
the benefit of, and may be enforced by, Grand Canal Shops Mall Construction, LLC
or Grand Canal Shops Mall, LLC (in either case, the "Mall Owner"); and (d) the
Mall Owner, and not Owner, shall have the right to request that the Trade
Warranties be assigned to it, but only to the extent they relate to the "mall"
and "retail annex" portions of the Project. Construction Manager hereby
acknowledges and confirms that the HVAC Provider and the Mall
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Owner are valid third-party beneficiaries of the previous sentence and of the
proviso clauses of the first sentence of Section 7.5."
(g) The following is added at the end of the first sentence of
Section 7.5 of the Agreement: ";provided, however, that title to all Energy
Improvements and Other Customers Facilities shall be vested in the HVAC
Provider; and provided further, however, that title to all improvements and
equipment constituting part of the "mall" and "retail annex" portions of the
Project shall be vested in the Mall Owner."
(h) The following sentence is added at the end of Section 12.12 of
the Agreement: "The foregoing is subject, however, to the last sentence of
subsection 3.3.13".
(i) The phrase "and each subcontractor of any tier" is added after
the word "Contractor" in clause (b) of the fourth sentence of Section 9.2 of the
Agreement.
6. HVAC Provider and Mall Owner. Assignee and Construction Manager
agree that (a) the rights granted to the HVAC Provider and the Mall Owner in
Sections 3.3.13 and 7.5 of the Agreement, as modified hereby, (b) the
contemplated lease of the central plant portion of the Project to the HVAC
Provider, and (c) the contemplated lease of the "mall" and "retail annex"
portions of the Project to Grand Canal Shops Mall Construction, LLC and the
contemplated transfer of fee title of such portions to Mall Owner, shall not
give Construction Manager the right to terminate the Agreement pursuant to
clause (2) of Section 11.1 of the Agreement.
7. Allocation Direction. Assignee and Construction Manager confirm
that Construction Manger has received the Allocation Direction referred to in
Section 6.4 of the Agreement and that the so-called "Element Specific
Anticipated Cost Reports" show the Allocation Schedule.
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8. Certification to Lender. Construction Manager agrees that when
Substantial Completion has been achieved, it will, promptly upon Owner's
request, certify to Lender (including any "take-out lender" whose financing is
contingent on, among other things, such certification) that such is the case.
9. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of Nevada.
10. Additional Documents. Each party shall, at the request of the
other, execute, acknowledge and deliver whatever additional instruments, and do
such other acts, as may be reasonably required to accomplish and carry forward
the purposes and intent of this Amendment.
11. Successors and Assigns. This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
12. Ratification of Agreement. The Agreement, as modified hereby, is
ratified and confirmed in all respects by Assignee and Construction Manager.
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IN WITNESS WHEREOF, this Amendment is executed by the parties as of
the date first above written.
ASSIGNOR:
LAS VEGAS SANDS, INC.
By: /s/ William P. Weidner
----------------------------------------
Name: William P. Weidner
Title: President
ASSIGNEE:
VENETIAN CASINO RESORT, LLC
By: Las Vegas Sands, Inc.,
as managing member
By: /s/ William P. Weidner
----------------------------------------
Name: William P. Weidner
Title: President
CONSTRUCTION MANAGER:
LEHRER McGOVERN BOVIS, INC.
By: /s/ Mark Melor
----------------------------------------
Name: Mark Melor
Title: Senior Vice President
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EXECUTED SOLELY FOR
THE PURPOSE DESCRIBED
IN SECTION 4:
BOVIS, INC.
By: _____________________
Name:
Title:
THE PENINSULAR AND ORIENTAL STEAM
NAVIGATION COMPANY
By: /s/ D.E.A. Morris
--------------------------------
Name: D.E.A. Morris
Title: Director
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