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TRI-PARTY AGREEMENT
among
GRAND CANAL SHOPS MALL, LLC,
VENETIAN CASINO RESORT, LLC,
LAS VEGAS SANDS, INC.,
GRAND CANAL SHOPS MALL CONSTRUCTION, LLC,
SHELDON G. ADELSON,
GOLDMAN SACHS MORTGAGE COMPANY, and
GMAC COMMERCIAL MORTGAGE CORPORATION
Dated as of November 14, 1997
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TRI-PARTY AGREEMENT
THIS TRI-PARTY AGREEMENT (this "Agreement") is dated as of this 14th day
of November, 1997 by and among GOLDMAN SACHS MORTGAGE COMPANY, a New York
limited partnership (the "TAKE-OUT LENDER"), GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation (the "CONSTRUCTION LENDER"), GRAND CANAL
SHOPS MALL, LLC, a Delaware limited liability company (the "BORROWER"), VENETIAN
CASINO RESORT, LLC, a Nevada limited liability company ("VENETIAN"), LAS VEGAS
SANDS, INC., a Nevada corporation ("LVSI"), GRAND CANAL SHOPS MALL CONSTRUCTION,
LLC, a Delaware limited liability company ("INTERIM MALL LLC") and SHELDON G.
ADELSON (the "PRINCIPAL").
RECITALS
WHEREAS, subject to the terms, provisions and conditions thereof,
including, without limitation, the condition that the TAKE-OUT LENDER issue the
Take-Out Commitment (as defined below) and that the parties hereto execute and
deliver this Agreement, CONSTRUCTION LENDER has agreed to make the Construction
Loan pursuant to the GMAC Credit Agreement;
Pursuant to a certain letter agreement among TAKE-OUT LENDER, the BORROWER
and the PRINCIPAL dated as of the date hereof, together with all attachments
thereto (collectively, the "Take-Out Commitment"), and subject to all of the
terms, conditions and provisions thereof, TAKE-OUT LENDER has issued to BORROWER
a commitment to make a loan (the "Take-Out Loan") for the financing of a portion
of the Purchase Price of the Real Property Collateral (which term, for purposes
of this Agreement, shall mean the fee and/or leasehold estate, as applicable, in
the Property held by Borrower at the time in question) pursuant to the Purchase
Agreement, the proceeds of which Purchase Price will, in turn, be used to payoff
a portion of the Construction Loan; capitalized terms used in this Agreement but
not defined herein shall have the meanings ascribed thereto in the Take-Out
Commitment;
WHEREAS, Borrower, Venetian, LVSI, Interim Mall LLC and Principal will
benefit from the making of the Construction Loan and therefor desire to execute
and deliver this Agreement in order to induce CONSTRUCTION LENDER to make the
Construction Loan;
NOW, THEREFORE, for and in consideration of the mutual covenants,
agreements and undertakings herein contained and other
good and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Take-Out Commitment - Status. Each of TAKE-OUT LENDER, BORROWER and
PRINCIPAL hereby represents, warrants, covenants and agrees that: (a) the
Take-Out Commitment has not heretofore been modified, supplemented, terminated
or canceled, and (b) from and after the date hereof, no modification or
supplement thereof shall be agreed upon hereafter by it without the prior
written consent of CONSTRUCTION LENDER to the extent such modification or
supplement (i) imposes any additional conditions to TAKE-OUT LENDER'S obligation
to fund the Take-Out Loan, (ii) requires that any additional commitment fees to
be paid to TAKE-OUT LENDER or (iii) accelerates the stated expiration date of
the Take-Out Commitment. Borrower shall maintain the Take-Out Commitment in full
force and effect, and shall cause all of the conditions to funding of the
Take-Out Loan to be satisfied. Notwithstanding the foregoing, Borrower shall
have, upon ten (10) days' prior written notice ("Borrower's Termination Notice")
to TAKE-OUT LENDER and CONSTRUCTION LENDER, the right to terminate the Take-Out
Commitment (other than any provisions thereof that, pursuant to their terms,
survive the termination of the Take-Out Commitment (the "Surviving Provisions"))
provided that, at or prior to the time Borrower gives Borrower's Termination
Notice (i) Borrower shall pay any portion of the Commitment Fee (including,
without limitation, the Second Installment) that Borrower has not therefore paid
but is then due and payable, (ii) without relieving Borrower and Principal of
their obligations under the Surviving Provisions (including, without limitation,
those relating to Transaction Costs), Borrower shall pay all Loan Transaction
Costs with respect to which TAKE-OUT LENDER shall have theretofore notified
Borrower and (iii)(A) Borrower shall have obtained, from a lender that is a
Permitted Assignee (as defined in the GMAC Credit Agreement) or is otherwise
satisfactory to CONSTRUCTION LENDER (a "Replacement Take-Out Lender"), a
replacement take-out loan commitment which (x) does not include material
conditions not contained in the Take-Out Commitment or impose any material
obligations on the Borrower or on the CONSTRUCTION LENDER not imposed in the
Take-Out Commitment and (y) contains the same pre-approvals as does the
Tri-Party Agreement and (B) the Replacement Take-Out Lender shall have executed
and delivered a tri-party agreement that is substantially similar to this
Agreement.
2. Take-Out Commitment - Defaults. Each of TAKE-OUT LENDER, BORROWER and
PRINCIPAL hereby represents and warrants that, as of the date hereof, it does
not have any actual knowledge of any default, either on its own behalf or by any
other party to the Take-Out Commitment, under the terms and conditions of the
Take-Out Commitment. TAKE-OUT LENDER agrees that in the event of any default by
BORROWER or the PRINCIPAL under the Take-Out Commitment of which TAKE-OUT LENDER
has actual
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knowledge and which is not cured within the applicable notice or grace period
provided therein, if any (a "Take-Out Commitment Event of Default"), then
TAKE-OUT LENDER, promptly after such default becomes a Take-Out Commitment Event
of Default shall provide CONSTRUCTION LENDER with written notice of such
Take-Out Commitment Event of Default. If such Take-Out Commitment Event of
Default shall be susceptible of cure by CONSTRUCTION LENDER, then CONSTRUCTION
LENDER shall have an opportunity (but not an obligation) to cure such default
within a period of time which shall expire on the earlier to occur of (x) the
date that occurs seven (7) (in the case of a monetary Take-Out Commitment Event
of Default) or thirty (30) days (in the case of a non-monetary Take-Out
Commitment Event of Default) after TAKE-OUT LENDER shall give such notice to
CONSTRUCTION LENDER or (y) the expiration date of the Take-Out Commitment set
forth therein, during which period TAKE-OUT LENDER shall not terminate the
Take-Out Commitment as a result of such Take-Out Commitment Event of Default. In
the event that any such non-monetary Take-Out Commitment Event of Default cannot
be cured within thirty (30) days and the Take-Out Commitment shall not have
expired, TAKE-OUT LENDER shall grant to CONSTRUCTION LENDER an additional thirty
(30) days (or the period of time until the expiration of the Take-Out
Commitment, if less than thirty (30) days) to cure such Take-Out Commitment
Event of Default, during which period TAKE-OUT LENDER shall not terminate the
Take-Out Commitment as a result of such Take-Out Commitment Event of Default,
provided that CONSTRUCTION LENDER (i) commenced cure within the original thirty
(30) day period and (ii) proceeds diligently and continuously to take action to
cure such Take-Out Commitment Event of Default within such additional cure
period. If (x) such Take-Out Commitment Event of Default shall not be
susceptible of cure by CONSTRUCTION LENDER or (y) CONSTRUCTION LENDER shall fail
to proceed diligently and continuously to, and actually, cure such Take-Out
Commitment Event of Default within the cure period afforded CONSTRUCTION LENDER
in this Paragraph 2, then TAKE-OUT LENDER may, at its option, exercise its
rights against BORROWER and/or the PRINCIPAL under the Take-Out Commitment, at
law and/or in equity and/or terminate this Agreement. Notwithstanding anything
to the contrary contained in this Agreement, in no event shall TAKE-OUT LENDER
be obligated to fund the Take-Out Loan after the Take-Out Commitment has (x)
expired pursuant to its terms or (y) been terminated by TAKE-OUT LENDER
(subject, in the case of clause (y) only to the provisions of this Paragraph 2)
and nothing (other than a writing signed by TAKE-OUT LENDER) shall extend, or be
deemed to extend, the expiration date of the Take-Out Commitment expressly set
forth therein or the date upon which the Take-Out Commitment shall terminate as
aforesaid. The benefit of this Paragraph 2 shall be for CONSTRUCTION LENDER
only, and neither BORROWER nor the PRINCIPAL shall have any rights to any notice
or cure period other than those, if any, as are expressly set forth in the
Take-Out Commitment. The failure of TAKE-OUT LENDER to send notice of
any Take-Out Commitment Event of Default under the Take-Out Commitment to
CONSTRUCTION LENDER shall not in any way impair the
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effect, vis-a-vis BORROWER and the PRINCIPAL of any such notice delivered to
BORROWER and/or PRINCIPAL.
3. Take-Out Commitment Fees. All fees required to have been paid as of
the date hereof by BORROWER or the PRINCIPAL to TAKE-OUT LENDER, pursuant to the
Take-Out Commitment, have been paid by BORROWER or the PRINCIPAL and received by
TAKE-OUT LENDER.
4. Construction Loan - Status. Each of CONSTRUCTION LENDER, BORROWER,
VENETIAN, LVSI, INTERIM MALL LLC and PRINCIPAL hereby represents, warrants,
covenants and agrees that the GMAC Credit Agreement and the other Construction
Loan Documents (as defined below) are in full force and effect and have not
heretofore been modified, supplemented, terminated or canceled. Each of
VENETIAN, LVSI, INTERIM MALL LLC and the PRINCIPAL represent and warrant it has
delivered fully executed copies of all Construction Loan Documents to TAKE-OUT
LENDER and VENETIAN, LVSI and BORROWER covenant that they shall deliver fully
executed copies of all amendments and supplements, if any, made after the date
hereof.
5. Construction Loan - Defaults. (a) Each of CONSTRUCTION LENDER,
BORROWER, VENETIAN, LVSI, INTERIM MALL LLC and PRINCIPAL hereby represents and
warrants that, as of the date hereof, the representing party has no actual
knowledge of any default by any party under the terms and conditions of the
Construction Loan Documents. CONSTRUCTION LENDER agrees that in the event of any
default by BORROWER, VENETIAN, LVSI, INTERIM MALL LLC or the PRINCIPAL under the
Construction Loan Documents of which CONSTRUCTION LENDER has actual knowledge
and which is not cured within the applicable notice or grace period provided
therein, if any (a "Construction Loan Event of Default"), then, promptly after
such default becomes a Construction Loan Event of Default, CONSTRUCTION LENDER
shall provide TAKE-OUT LENDER with written notice of such Construction Loan
Event of Default (together with a certificate (the "CL Amount Certificate")
setting forth, in reasonable detail, the then outstanding principal amount of
the Construction Loan, accrued and unpaid interest thereon and all other amounts
then outstanding under the Construction Loan Documents). If any such
Construction Loan Event of Default shall be a monetary default or a material
non-monetary default, than TAKE-OUT LENDER shall have an opportunity (but not an
obligation) to (x) cure such default within a period of time which shall expire
seven (7) days (in the case of a monetary Construction Loan Event of Default) or
thirty (30) days (in the case of a non-monetary Construction Loan Event of
Default) after CONSTRUCTION LENDER gives such notice to TAKE-OUT LENDER
(provided that such Construction Loan Event of Default shall be susceptible of
cure by TAKE-OUT LENDER) or (y) to elect, by written notice (the "Purchase
Notice") given within such seven (7) or thirty (30)-day, as applicable, period,
to purchase (or to cause its designee to purchase) (the applicable purchaser,
the "Purchaser") the
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Construction Loan Documents for a purchase price equal to the Purchase Price (as
defined below), in which case the provisions of subparagraph (b) below shall be
applicable. During such seven (7) or thirty (30)-day period, CONSTRUCTION LENDER
shall not exercise any rights or remedies against BORROWER, VENETIAN, LVSI,
INTERIM MALL LLC, PRINCIPAL or with respect to the Real Property Collateral. In
the event that such non-monetary Construction Loan Event of Default cannot be
cured within thirty (30) days, CONSTRUCTION LENDER shall grant to TAKE-OUT
LENDER an additional thirty (30) days to cure such Construction Loan Event of
Default, during which period CONSTRUCTION LENDER shall not exercise any rights
or remedies against BORROWER, VENETIAN, LVSI, INTERIM MALL LLC, PRINCIPAL or
with respect to the Real Property Collateral, provided that TAKE-OUT LENDER (i)
commences cure within the original thirty (30) day period, and (ii) proceeds
diligently and continuously to take action to cure such Construction Loan Event
of Default. If (x) such Construction Loan Event of Default shall not be
susceptible of cure by TAKE-OUT LENDER or (y) TAKE-OUT LENDER shall fail to
diligently and continuously proceed to, and actually, cure such Construction
Loan Event of Default, condition or occurrence within such seven (7) or thirty
(30) day cure period, or the additional thirty (30) day cure period, if
applicable, then, if TAKE-OUT LENDER shall not have elected to purchase the
Construction Loan Documents as aforesaid, CONSTRUCTION LENDER may, at its
option, exercise its rights against BORROWER, VENETIAN, INTERIM MALL LLC, LVSI
and/or PRINCIPAL under the Construction Loan Documents, at law and/or in equity
and/or terminate this Agreement by notice thereof to TAKE-OUT LENDER (which
termination shall be effective as of the date upon which such notice shall be
given). The benefit of this Paragraph 5 shall be for TAKE-OUT LENDER only, and
neither BORROWER, VENETIAN, INTERIM MALL LLC, LVSI nor the PRINCIPAL shall have
any rights to any notice or cure period other than those, if any, as are
expressly set forth in the Construction Loan Documents. The failure of
CONSTRUCTION LENDER to send notice of any Construction Loan Event of Default
under the Construction Loan Documents to TAKE-OUT LENDER shall not in any way
impair the effect, vis-a-vis BORROWER, VENETIAN, INTERIM MALL LLC, LVSI and the
PRINCIPAL, of any such notice delivered to BORROWER, VENETIAN, INTERIM MALL LLC,
LVSI and/or PRINCIPAL. The term "Construction Loan Documents" shall mean the
Loan Documents (as such term is defined in the GMAC Credit Agreement).
(b) If TAKE-OUT LENDER shall elect to purchase the Construction Loan
Documents pursuant to subparagraph (a) above, then CONSTRUCTION LENDER shall not
exercise any rights or remedies against BORROWER, VENETIAN, LVSI, PRINCIPAL or
with respect to the Real Property Collateral and the closing of the sale of the
Construction Loan Documents from CONSTRUCTION LENDER to the Purchaser shall
occur at the office of the TAKE-OUT LENDER'S counsel located in New York City on
a date that is reasonably satisfactory to CONSTRUCTION LENDER and the Purchaser,
provided that such date shall occur on or prior to the date that
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occurs thirty (30) days after TAKE-OUT LENDER shall have given the Purchase
Notice. At such closing, (i) the Purchaser shall pay to CONSTRUCTION LENDER a
purchase price (the "Purchase Price") equal to the sum of the principal amount
of the Construction Loan outstanding on such closing date plus accrued and
unpaid interest thereon outstanding on such closing date plus all other amounts
outstanding under the Construction Loan Documents on such closing date (provided
that if any such amounts shall be incurred or shall accrue from and after the
date of the CL Amount Certificate (other than regularly scheduled interest or
so-called "protective advances" made by CONSTRUCTION LENDER with the approval of
the TAKE-OUT LENDER (which approval shall not be unreasonably withheld)) then
TAKE-OUT LENDER shall have the right to revoke its election to purchase the
Construction Loan Documents) and (ii) CONSTRUCTION LENDER shall execute,
acknowledge and deliver to Purchaser, or cause to be executed, acknowledged and
delivered, as applicable, an assignment of the Construction Loan Documents and
all other documents necessary to assign to the Purchaser all of the legal and
beneficial interests in the Construction Loan Documents, which assignment shall
be without representation, warranty or recourse to CONSTRUCTION LENDER (other
than representations (1) as to the Purchase Price (with a breakdown of the
components thereof) and (2) that CONSTRUCTION LENDER did not assign, sell or
otherwise transfer all, or any portion of, or any participation or other
interest in, the Construction Loan Documents (or if CONSTRUCTION LENDER shall
have made any such assignment, sale or other transfer, the representation that
CONSTRUCTION LENDER did not assign, sell or otherwise transfer all, or any
portion of, or any participation or other interest in, the Construction Loan
Documents other than to certain enumerated parties)).
6. Title Insurance. TAKE-OUT LENDER approves Lawyers Title Insurance
Corporation (the "Title Company") as the title insurance company that will
insure the lien of TAKE-OUT LENDER's deed of trust upon the Real Property
Collateral, with re-insurance being provided by the insurers, and in the
percentages of liability, set forth on Exhibit A-1 hereto. TAKE-OUT LENDER
approves the form of the title insurance policy or title commitment attached
hereto as Exhibit A-2 and the endorsements attached hereto as Exhibit A-2 (i.e.,
subject to the third sentence of this Section 6, such endorsements constitute
all endorsements that TAKE-OUT LENDER may require pursuant to clauses (ii) and
(iv) of the second sentence of Paragraph 3.H. of the Take-Out Commitment) and,
except for Objectionable Title Exceptions (as defined below), if any, approves
the exceptions to title identified in Exhibit A-2 attached hereto and made a
part hereof (as well as all Permitted Encumbrances (as defined in the Form Loan
Agreement), which title insurance policy shall be updated and issued as of the
date of the Take-Out Loan closing (the "Take-Out Closing Date") and shall be in
an amount that is not less than the principal amount of the Take-Out Loan.
Notwithstanding the foregoing, if, during the period commencing
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on the date hereof and ending on the Take-Out Closing Date, (x) there shall
occur a material adverse change in the financial condition of any of the title
insurers or reinsurers referenced in this Paragraph 6 and/or (y) it shall become
unlawful for any such title insurer or reinsurer to issue the contemplated title
insurance or reinsurance (in whole or part), then TAKE-OUT LENDER shall be
entitled to replace such title insurer or reinsurer and/or the applicable title
insurance or reinsurance, as applicable, with a title insurer or reinsurer or
title insurance or reinsurance, as applicable, reasonably acceptable to TAKE-OUT
LENDER. TAKE-OUT LENDER also hereby approves the matters described in the U.C.C.
and other searches attached hereto as Exhibit A-3.
7. Survey. Subject to TAKE-OUT LENDER's receipt and approval of an
updated as-built survey as required by paragraph 3.I. of Exhibit B to the
Take-Out Commitment containing a certification to the TAKE-OUT LENDER reasonably
satisfactory to it (the "As-Built Survey"), TAKE-OUT LENDER approves (a) the
survey (the "Existing Survey") of the Land entitled "ALTA/ACSM Survey Sands
Hotel & Casino", Job No. 970709, made by John E. Forsman dated 11/7/97, and all
matters shown thereon and the form of surveyor's certificate and (b) the
location of the Mall in the Mall Space, the Retail Annex on the Retail Annex
Land and the rest of the Improvements (as defined in the Form Loan Documents) on
the Land (in each case, with such adjustments thereto as shall be permitted
under the REA); provided that, notwithstanding the foregoing, TAKE-OUT LENDER
shall not be deemed to have approved any encroachment of any portion of the
Project, as completed, upon any lot line, easement or other matter (unless such
encroachment shall be permitted under an OEA approved by Lender in accordance
with the provisions of Paragraph 15 hereof) (collectively, "Objectionable Title
Exceptions"). TAKE-OUT LENDER approves John E. Forsman as the surveyor who will
prepare the As-Built Survey required by the Take-Out Commitment provided that
John E. Forsman shall be an appropriately licensed or registered land surveyor
at the time that it completes that As-Built Survey.
8. Approval of Plans and Specifications; FADAA. (a) TAKE-OUT LENDER and
CONSTRUCTION LENDER hereby approve the plans and specifications for the
construction of the Mall Improvements and of the remainder of the Project
described on Exhibit B hereto (collectively the "Existing Plans and
Specifications"). BORROWER, VENETIAN, LVSI and the PRINCIPAL hereby represent
and warrant that (x) a complete copy of the Existing Plans and Specifications
has been delivered to the Construction Consultant on or prior to the date hereof
and (y) the Existing Plans and Specifications described on Exhibit B hereto are
the Plans and Specifications (as such term is defined in the FADAA). Except as
provided in the next following sentence, no Scope Changes (as defined in the
FADAA) to the Existing Plans and Specifications shall be made without TAKE-OUT
LENDER's prior written consent
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(which consent may be granted or withheld in TAKE-OUT LENDER's sole discretion).
Notwithstanding the provisions of the Take-Out Commitment, Scope Changes to the
Existing Plans and Specifications that constitute Safe Harbor Scope Changes (as
defined in the FADAA) and/or which do not, under Section 6.2.1 of the FADAA,
require the Required Scope Change Approval (as defined in the FADAA) may be made
to the Existing Plans and Specifications without TAKE-OUT LENDER's prior written
consent.
(b) As used herein, the term "FADAA" means that certain Funding Agents'
Disbursement and Administration Agreement among LVSI, Venetian, Interim Mall
LLC, The Bank of Nova Scotia, as agent, First Trust National Association, as
indenture trustee, Construction Lender, Atlantic/Pacific JV and The Bank of Nova
Scotia, as disbursement agent, a copy of which is attached to the Take-Out
Commitment as Exhibit A-3 (as such agreement exists on the date hereof). With
respect to the FADAA, for purposes of the Take-Out Commitment and this
Agreement, notwithstanding anything to the contrary contained in the FADAA, in
the Take-Out Commitment or in this Agreement: (i) the "Construction Consultant"
shall mean Tishman Construction Corporation of Nevada, a Nevada corporation, and
any replacement thereof selected in accordance with the provisions of the FADAA,
provided that such replacement must be acceptable to the TAKE-OUT LENDER (which
consent will not be unreasonably withheld) and (ii) the "Project Architect"
shall mean the collective reference to TSA of Nevada, LLP, and WAT&G, Inc.
Nevada, and any replacement thereof selected in accordance with the provisions
of the FADAA, provided that such replacement must be acceptable to the TAKE-OUT
LENDER (which consent will not be unreasonably withheld).
9. [Intentionally omitted]
10. Environmental Matters. TAKE-OUT LENDER hereby acknowledges receiving
a copy of the Tank Removal Report prepared by Converse Environmental Consultants
dated October 2, 1996; the May 14, 1997 letter from Converse Environmental
Consultants Southwest, Inc. to Las Vegas Sands, Inc. on the subsurface
exploration; the May 13, 1997 Temporary Construction Dewatering Permit issued to
Lehrer, McGovern, Bovis, the draft Phase I environmental site assessment of the
Former Sands Hotel, by EMG, dated July 22, 1997, the November 5, 1996 letter
from Clark County Health District to Sands Hotel; the October 2, 1997 letter
from Converse Environmental Consultants Southwest, Inc. to Nevada Department of
Environmental Protection, the August 7, 1997 letter from Converse Environmental
Consultants Southwest, Inc. to Las Vegas Sands, Inc., and the July 28, 1997
letter from Converse Environmental Consultants Southwest, Inc. to Las Vegas
Sands, Inc. (the "Existing Environmental Reports"). TAKE-OUT LENDER hereby
agrees that it shall not refuse to fund the Take-Out Loan solely because it
finds the environmental condition of the Land to be unacceptable; provided that
no reasonably likely source of material environmental liability (except the soil
and groundwater
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contamination identified in the Existing Environmental Reports, to the extent
and severity identified in the Existing Environmental Reports) is identified and
the environmental condition of the Land, as reflected in the Environmental
Reports (as defined in the Take-Out Commitment), shall be substantially the same
as or better than that which is reflected in the Existing Environmental Reports.
11. Appraiser. TAKE-OUT LENDER hereby approves Landauer Associates, Inc.
("Landauer") as the appraiser described in paragraph 3.G. of Exhibit B to the
Commitment Letter provided that Landauer, at the time it prepares the appraisal
described in such paragraph 3.G., is an independent appraiser holding an M.A.I.
designation and shall be licensed in the State of Nevada.
12. [Intentionally omitted].
13. Counsel Opinion. Subject to (a) the unconditional execution and
delivery, on the Take-Out Closing Date, by Qualified Nevada Counsel (as defined
below), of a legal opinion in the form of Exhibit C-1 hereto and (b) the
unconditional execution and delivery, on the Closing Date, by Qualified New York
Counsel (as defined below), of legal opinions in the forms of Exhibit C-2 (the
"Enforceability Opinion") and Exhibit C-3 hereto (the "Non-Consolidation
Opinion"), respectively, TAKE-OUT LENDER hereby approves the forms (as the same
may be changed as described below) of such legal opinions (with such changes, if
any, (x) as TAKE-OUT LENDER, Qualified New York Counsel or Qualified Nevada
Counsel, as applicable, shall reasonably require due to changes, if any, in
applicable law that shall occur after the date hereof and/or (y) with respect to
the Non-Consolidation Opinion, as the applicable Qualified New York Counsel
shall reasonably require due to changes, if any, in facts or circumstances,
provided that, in the case of any such change(s) described in the foregoing
clauses (x) or (y), such change(s) shall not, individually, or in the aggregate,
(aa) add any additional qualifications, limitations or the like that are, in any
material respect, disadvantageous to Take-Out Lender and/or (bb) alter the
conclusions contained in any such opinion) for the purposes of paragraph 3.J of
Exhibit B to the Take-Out Commitment. As used herein, (x) "Qualified Nevada
Counsel" shall mean Lionel, Sawyer & Collins or another law firm the main office
of which is located in the State of Nevada and which law firm is reasonably
satisfactory to the TAKE-OUT LENDER and (y) "Qualified New York Counsel" shall
mean Paul, Weiss, Rifkind, Wharton & Garrison or another national law firm with
at least 200 lawyers the main office of which is located in the State of New
York and which law firm is reasonably satisfactory to the TAKE-OUT LENDER. In
connection with the delivery of the Non-Consolidation Opinion, Borrower and
TAKE-OUT LENDER shall execute and deliver the memorandum in the form attached
hereto as Exhibit D.
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14. Formation Documents. TAKE-OUT LENDER hereby approves the forms of
the organizational documents of Borrower, Mall Holdings, Managing Member,
Intermediate Holdings, Venetian and Interface attached hereto as Exhibit E-1,
Exhibit E-2, Exhibit E-3, Exhibit E-4 , Exhibit E-5 and Exhibit E-6,
respectively. The documents relating to the transfer of a 1% membership interest
in Borrower from Mall Holdings to Managing Member, and the admission of Managing
Member as the sole managing member of Borrower, are subject to TAKE-OUT LENDER's
consent (not to be unreasonably withheld).
15. Easement, HVAC, Sale and Contribution and Other Agreements. For
purposes of paragraph 3.D of Exhibit B to the Take-Out Commitment, TAKE-OUT
LENDER hereby approves the forms of the REA, HVAC Agreement, HVAC Ground Lease
and the Sale and Contribution Agreement attached hereto as Exhibit F-1, Exhibit
F-2, Exhibit F-3 and Exhibit F-4.
16. [Intentionally Omitted]
17. [Intentionally omitted].
18. Property Manager, Property Management Agreement and Leasing Broker.
For purposes of paragraph 3.D. of Exhibit B to the Take-Out Commitment, TAKE-OUT
LENDER hereby approves (x) Forest City Commercial Management, Inc. ("Manager"),
as the Property Manager, (y) the form of the Management Agreement between LVSI,
as owner, and Forest, as manager attached hereto as Exhibit G.
19. Lease Forms. TAKE-OUT LENDER hereby approves the standard retail
tenant lease form and the standard restaurant tenant lease form attached hereto
as Exhibits H-1 and Exhibit H-2, respectively.
20. Take-Out Loan Documents. Subject to the terms and provisions of
paragraph 4 of Exhibit B to the Take-Out Commitment, BORROWER, the PRINCIPAL and
TAKE-OUT LENDER hereby approve the forms of the Form Loan Documents referenced
in such paragraph 4.
21. Take-Out Commitment. A true and complete copy of the Take-Out
Commitment is attached hereto as Exhibit I.
22. Billboard Master Lease and Mall Master Lease. For purposes of
paragraph 3.F. of Exhibit B to the Take-Out Commitment, TAKE-OUT LENDER hereby
approves the forms of the Billboard Master Lease, the Memorandum of Billboard
Master Lease, Subordination of Billboard Operating Lease to Billboard Master
Lease, the Mall Master Lease, the Memorandum of Mall Master Lease and
Subordination of Fee Deeds of Trust to Billboard Master Lease and to Mall Master
Lease attached hereto as Exhibit J-1, Exhibit
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J-2, Exhibit J-3, Exhibit J-4, Exhibit J-5 and Exhibit J-6, respectively.
23. BORROWER'S, VENETIAN'S, LVSI'S, PRINCIPAL'S, INTERIM MALL LLC and
TAKE-OUT LENDER'S Covenants. (a)(i) BORROWER hereby covenants and agrees to
provide CONSTRUCTION LENDER with prompt written notice of any default that
occurs under the Take-Out Commitment, (ii) BORROWER hereby agrees to pay, within
ten (10) days of demand therefor by CONSTRUCTION LENDER or TAKE-OUT LENDER, all
fees, expenses and costs (including, without limitation, reasonable attorneys'
fees, disbursements and expenses) incurred in connection with this Agreement and
(iii) BORROWER, VENETIAN, LVSI, and INTERIM MALL LLC hereby agree to execute and
deliver such further documents and to perform and cause to be performed such
further acts as TAKE-OUT LENDER or CONSTRUCTION LENDER shall reasonably require
in connection with this Agreement.
(b) Subject to all of the terms, provisions, requirements and
conditions set forth in the Take-Out Commitment, TAKE-OUT LENDER hereby
covenants and agrees, solely for the benefit of CONSTRUCTION LENDER and
BORROWER, to fund the Take-Out Loan in accordance with the terms, provisions,
requirements and conditions of the Take-Out Commitment.
24. BORROWER'S and PRINCIPAL'S Obligations under Take-Out Commitment.
Nothing contained in this Agreement shall (x) relieve, or shall be deemed to
relieve, BORROWER or PRINCIPAL of any of its obligations, or TAKE-OUT LENDER of
any of its rights or remedies, under the Take-Out Commitment (other than
TAKE-OUT LENDER's right to approve the form of any document (or any other
matter) that TAKE-OUT LENDER approved hereby) or (y) require TAKE-OUT LENDER to
fund the Take-Out Loan to, or at the direction of, BORROWER (or any other
Person) unless and until all of the conditions to TAKE-OUT LENDER'S obligation
to fund the Take-Out Loan, and all requirements of the Take-Out Commitment,
shall have been satisfied prior to the date upon which the Take-Out Commitment
shall expire or be terminated.
25. Notices. Any notice, demand, consent, authorization, request,
approval or other communication (each, a "Communication") given pursuant to this
Agreement shall be effective and valid only if in writing, signed by the party
giving such notice, and delivered by a reputable overnight courier or a delivery
service from whom a receipt is obtained, or, if mailed, sent by registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
If to TAKE-OUT LENDER:
Goldman Sachs Mortgage Company
c/o Goldman, Sachs & Co.,
85 Broad Street, 12th Floor
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New York, New York 10004
Attention: Peter Briger
with a copy to:
Willkie Farr & Gallagher
One Citicorp Center
153 East 53rd Street
New York, New York 10022-4677
Attention: Eugene A. Pinover, Esq.
If to CONSTRUCTION LENDER:
GMAC Commercial Mortgage Corporation
100 S. Wacker Drive - 4th Floor
Chicago, Illinois 60606
Attention: Phillip Keel
with a copy to:
Altheimer & Gray
10 S. Wacker Drive
Suite 4000
Chicago, Illinois 60606
Attention: Nancy L. Kasko, Esq.
If to BORROWER:
Grand Canal Shops Mall, LLC
3355 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: David Friedman
with a copy to:
Paul, Weiss, Rifkind, Wharton
& Garrison
1285 Avenue of the Americas
New York, New York 10019-60604
Attention: James Purcell, Esq.
If to VENETIAN:
Venetian Casino Resort, LLC
3355 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: David Friedman
with a copy to:
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Paul, Weiss, Rifkind, Wharton
& Garrison
1285 Avenue of the Americas
New York, New York 10019-60604
Attention: James Purcell, Esq.
If to LVSI:
Las Vegas Sands, Inc.
3355 Las Vegas Boulevard South
Las Vegas, Nevada 89109
Attention: David Friedman
with a copy to:
Paul, Weiss, Rifkind, Wharton
& Garrison
1285 Avenue of the Americas
New York, New York 10019-60604
Attention: James Purcell, Esq.
If to PRINCIPAL:
Sheldon G. Adelson
c/o Las Vegas Sands, Inc.
3355 Las Vegas Blvd. South
Las Vegas, Nevada 89109
with a copy to:
Paul, Weiss, Rifkind, Wharton
& Garrison
1285 Avenue of the Americas
New York, New York 10019-60604
Attention: James Purcell, Esq.
Each Communication shall be considered given: in the case of courier
service, on the business day after the same was sent; in the case of hand
delivery, at the time of delivery; and, in the case of registered or certified
mail, when delivered or two business days after mailing (whichever occurs
first). Any party may change its address (or that of any of its notice parties)
for purposes of this Paragraph 25 by giving written notice thereof to the other
parties hereto as aforesaid.
26. Parties Benefited; Successors and Assigns. (a) The representations,
warranties, covenants and agreements contained herein and the powers granted
hereby shall inure to the benefit of and bind all parties hereto and their
respective successors and permitted assigns. Except as expressly set forth in
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subparagraphs (b) and (c) of this Paragraph 26, neither BORROWER nor VENETIAN
nor LVSI nor INTERIM MALL LLC nor PRINCIPAL nor CONSTRUCTION LENDER nor TAKE-OUT
LENDER shall be entitled to assign its rights, or delegate its duties or
obligations, under this Agreement, without the prior written consent of
CONSTRUCTION LENDER and TAKE-OUT LENDER.
(b) TAKE-OUT LENDER shall be entitled to assign its rights and to
delegate its duties and obligations under this Agreement (x) without any other
party's consent, to any Affiliate of Lender and (y) with the consent of Borrower
and Construction Lender (which consent shall not be unreasonably withheld or
delayed (unless the proposed assignee shall be a Competitor)), to any other
Person, provided that, in any case, the same shall not release TAKE-OUT LENDER
from its duties or obligations hereunder.
(c) If an event of default shall occur under the Construction Loan
Documents and CONSTRUCTION LENDER or a Subsidiary (as defined below) shall
obtain record title to the Real Property Collateral by foreclosure or by a deed
in lieu of foreclosure (the party so obtaining title to the Real Property
Collateral, the "CL Assignee"), then, at its option, exercisable within ten (10)
days after the date upon which CONSTRUCTION LENDER or a Subsidiary so obtains
record title to the Real Property Collateral, time being of the essence with
respect to such ten (10) day period, CONSTRUCTION LENDER may notify TAKE-OUT
LENDER in writing that the CL Assignee desires to obtain the benefits afforded
BORROWER, and thereby assumes all of the duties and obligations of BORROWER and
PRINCIPAL under, the Take-Out Commitment and this Agreement (the "CL Assignment
Notice"). If CONSTRUCTION LENDER gives the CL Assignment Notice in accordance
with the terms of the immediately preceding sentence, then, effective as of the
date upon which the CL Assignment Notice shall be given, it shall be deemed that
all of BORROWER'S rights under the Take-Out Commitment were assigned to the CL
Assignee, and all of BORROWER'S and PRINCIPAL'S obligations and duties under the
Take-Out Commitment and under this Agreement, were delegated to and jointly and
severally assumed by, CONSTRUCTION LENDER and the applicable Subsidiary (if such
Subsidiary shall be the CL Assignee). Once given, the CL Assignment Notice shall
be irrevocable. If the CL Assignment Notice shall not be given in accordance
with the provisions of this Paragraph 26(c), then neither CONSTRUCTION LENDER
nor any Subsidiary nor any other person or entity claiming by, through or under
any of the same shall have any rights or remedies under this Paragraph 26(c).
Upon the giving of the CL Assignment Notice as aforesaid and the satisfaction,
in accordance with the terms and provisions of the Take-Out Commitment and this
Agreement, of all conditions to the funding of the Take-Out Loan and all
requirements pertaining thereto, including, without limitation, the
unconditional execution and delivery by the CL Assignee (in lieu of BORROWER and
PRINCIPAL) of the Loan Documents, the TAKE-OUT LENDER shall (x) release the
Escrowed Guaranty from escrow (Principal and
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Borrower hereby agreeing that neither Principal nor Borrower shall have or raise
any defense or objection to such release from escrow or to the effectiveness of
the Escrowed Guaranty) and (y) fund the Take-Out Loan to the CL Assignee.
TAKE-OUT LENDER hereby agrees, solely for the benefit of CONSTRUCTION LENDER,
that TAKE-OUT LENDER shall not refuse to fund the Loan to the CL Assignee,
pursuant to this Section 26(c), solely because the Principal refuses to execute
and deliver a Replacement Guaranty if and when requested so to do if all other
conditions to TAKE-OUT LENDER's obligation to fund the Loan to the CL Assignee
shall be satisfied. Neither the giving of the CL Assignment Notice nor any other
action taken, or not taken, by any CL Assignee or any other person or entity,
shall relieve BORROWER or VENETIAN or LVSI or PRINCIPAL of liability that such
party may have to TAKE-OUT LENDER nor shall it waive, or be deemed to waive, any
conditions or requirements under the Take-Out Commitment or contained herein.
Furthermore, notwithstanding anything to the contrary contained in this
Agreement, in no event shall TAKE-OUT LENDER be obligated to fund the Take-Out
Loan after the Take-Out Commitment has (x) expired pursuant to its terms or (y)
been terminated by TAKE-OUT LENDER pursuant to its terms or pursuant to
applicable law (subject, in the case of clause (y) only to the provisions of
Paragraph 2 hereof) and nothing (other than a writing signed by TAKE-OUT LENDER)
shall extend, or be deemed to extend, the expiration date of the Take-Out
Commitment beyond the Outside Closing Date or the date upon which the Take-Out
Commitment shall terminate as aforesaid. As used herein, the term "Subsidiary"
shall mean a single asset corporation, partnership or limited liability company
(x) that is organized under, and in accordance with, the laws of the State of
Nevada, (y) otherwise complies with the requirements and conditions set forth in
paragraph 3.K. of Exhibit B to the Take-Out Commitment, and (z) all of the
issued and outstanding stock, all of the partnership interests or all of the
membership interests, as applicable, of which are directly owned by CONSTRUCTION
LENDER.
27. Indemnification.
(a) Venetian and LVSI (collectively, the "Indemnitors") shall, at their
sole cost and expense, protect, defend, indemnify, release and hold harmless
Lender and the other Indemnified Parties (as defined in the Form Loan Documents)
from and against any and all claims, suits, liabilities (including, without
limitation, strict liabilities), administrative and judicial actions and
proceedings, obligations, debts, damages, losses, costs, expenses, fines,
penalties, charges, fees, expenses, judgments, awards, amounts paid in
settlement, and litigation costs, of whatever kind or nature and whether or not
incurred in connection with any judicial or administrative proceedings
(including, without limitation, reasonable attorneys' fees and expenses) (the
"Losses") imposed upon or incurred by or asserted against Lender or any other
Indemnified Parties (other than those arising solely from the bad faith, gross
negligence or
-15-
willful misconduct of the Indemnified Party seeking indemnification hereunder
(without relieving the Indemnitors from liability to the other Indemnified
Parties)), and directly or indirectly arising out of or in any way relating to
any one or more of the following: (i) the execution, delivery or performance of
the Take-Out Commitment or this Agreement; (ii) any amendment to, or
restructuring of, the Take-Out Commitment or this Agreement; (iii) any and all
lawful action that may be taken by Lender in connection with the enforcement of
the provisions of the Take-Out Commitment or this Agreement, whether or not suit
is filed in connection with same, or in connection with the Borrower or any
Affiliate of the Borrower becoming a party to a voluntary or involuntary federal
or state bankruptcy, insolvency or similar proceeding; (iv) the development and
construction of the Project or any actual or alleged accident, injury to or
death of persons or loss of or damage to property occurring in, on or about the
Project or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets or ways; (v) any actual or alleged
use, nonuse or condition in, on or about the Project or any part thereof or on
the adjoining sidewalks, curbs, adjacent property or adjacent parking areas,
streets or ways; (vi) performance of any labor or services or the furnishing of
any materials or other property in respect of the Project or any part thereof;
(vii) any failure, or alleged failure, of the Project (or any portion thereof)
to be in compliance with any Legal Requirement (as defined in the Form Loan
Documents); (viii) any action, proceeding or claim made or brought by Borrower
in violation of the provisions of the paragraph of the Take-Out Commitment
entitled "Remedies of Borrower", (ix) the enforcement by any Indemnified Party
of the provisions of this Section 27, or (x) any and all claims and demands
whatsoever which may be asserted against any Indemnified Party by reason of any
alleged obligations or undertakings on its part to perform or discharge any of
the terms, covenants, or agreements contained in any Lease.
(b) The provisions of this Section 27 (other than the provisions of
Section 27(a)(viii), to which the provisions of this Section 27 shall apply)
shall not apply to any dispute solely between Borrower, any Indemnitor or
Principal, on the one hand, and Lender, on the other hand (but without prejudice
to Lender's right to collect, pursuant to any other provision of any Loan
Document or otherwise at law or in equity, any amounts (including, without
limitation, legal fees, disbursements and other expenses) relating to any such
dispute).
(c) Any amounts payable to an Indemnified Party by reason of the
application of this Section 27 shall become immediately due and payable and
shall bear interest at the Default Rate (as defined in the Form Loan Documents)
from the date loss or damage is sustained by such Indemnified Party until paid.
(d) Upon written request by any Indemnified Party, the Indemnitors shall
diligently defend such Indemnified Party (if
-16-
requested by any Indemnified Party, in the name of the Indemnified Party) by
attorneys and other professionals approved by the TAKE-OUT LENDER (which
approval, so long as no Termination Event shall then exist, shall not be
unreasonably withheld or delayed). Except to the extent that (A) a conflict of
interest exists between or among the interests of any Indemnitor, any Affiliate
thereof that is involved in the claim, dispute, action or proceeding in
question, and/or any applicable Indemnified Party and/or (B) a Termination Event
shall exist, the Indemnitors shall be permitted to cause the same counsel and
other professionals to defend the Indemnitors, all such Affiliates and all such
Indemnified Parties in any such claim, dispute, action or proceeding. From and
after such time, if any, as a Termination Event and/or such a conflict of
interest shall arise, and/or, in the reasonable judgment of any Indemnified
Part(ies), Indemnitors shall not be fulfilling their obligation to defend such
Indemnified Part(ies) in accordance with the provisions hereof, upon notice to
Indemnitors, any Indemnified Party (in the case of a Termination Event) or any
affected Indemnified Party (in the case of such a conflict of interest or a
determination by an Indemnified Party that Indemnitors shall not be so
fulfilling their obligations) may, at its or their, as applicable, option
(exercisable in such Indemnified Party(ies)' sole and absolute discretion), (aa)
require the Indemnitors to cause counsel and other professionals acceptable to
such Indemnified Part(ies), in its or their, as applicable, sole discretion, to
defend such Indemnified Part(ies) or (bb) engage its own attorneys and other
professionals to defend or assist it, and, at the option of such Indemnified
Part(ies), its attorneys shall control the resolution of such claim, dispute,
action or proceeding; provided that, in the case of any such conflict of
interest, so long as (x) no Termination Event shall then exist and (y) no
Indemnified Party shall have determined that Indemnitors shall not be so
fulfilling its obligations to defend as aforesaid, then Indemnitors shall be
required to pay for only one additional (i.e. in addition to counsel and other
professionals representing Any Indemnitors and its Affiliates) set of attorneys
and other professionals who will represent all of the Indemnified Parties. If
any Indemnified Part(ies) shall elect the option described in the foregoing
clause (bb), upon demand, but subject to the proviso in the immediately
preceding sentence, the Indemnitors shall pay or, in the sole and absolute
discretion of the Indemnified Part(ies), reimburse, the Indemnified Part(ies)
for the payment of reasonable fees and disbursements of attorneys, engineers,
environmental consultants, laboratories and other professionals in connection
therewith. Furthermore, so long as (x) no Termination Event shall then exist and
(y) an Indemnified Party shall not have reasonably determined that Indemnitors
shall not be so fulfilling their obligations to defend as aforesaid, such
Indemnified Party shall not settle the claim, dispute, action or proceeding in
question without the consent of Indemnitors (unless such Indemnified Party shall
waive its right to be indemnified under this Section 27 with respect to such
claim, dispute, action or proceeding). If a Termination Event shall exist or any
-17-
affected Indemnified Party shall reasonably determine that Indemnitors shall not
be so fulfilling such obligations, then the applicable Indemnified Part(ies) may
settle the claim, dispute, action or proceeding in question without the consent
of Indemnitors.
(e) The obligations of Indemnitors under this Section 27 shall be the
joint and several obligations of Indemnitors. The provisions of and undertakings
and indemnification set forth in this Section 27 shall survive the expiration or
termination of the Commitment and/or of this Agreement. If the TAKE-OUT LENDER
shall fund the Loan under the Take-Out Commitment, then, with respect to claims
that are first made after the funding of the Loan, Borrower (and not
Indemnitors) shall be liable for the Losses resulting therefrom or arising in
connection therewith.
28. Several Obligations. Notwithstanding anything to the contrary
contained herein, except as otherwise expressly provided herein, the
representations, warranties, covenants and agreements by each party hereto that
are contained herein shall constitute the several obligations of that party (and
not the joint or joint and several obligations of that party and any other party
hereto).
29. Modifications, etc. No provision hereof shall be changed, amended,
modified or limited except by a written agreement executed by BORROWER,
VENETIAN, LVSI, INTERIM MALL LLC, PRINCIPAL, CONSTRUCTION LENDER and TAKE-OUT
LENDER; provided, however, that CONSTRUCTION LENDER and TAKE-OUT LENDER may make
such changes, amendments, modifications or limitations hereto as CONSTRUCTION
LENDER and TAKE-OUT LENDER shall approve, without the consent of BORROWER,
VENETIAN, LVSI, INTERIM MALL LLC or the PRINCIPAL, so long as the same do not
adversely affect the rights and obligations of BORROWER, VENETIAN, LVSI, INTERIM
MALL LLC or the PRINCIPAL hereunder.
30. Severability. In case any one or more of the provisions in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or unenforceability shall not affect
any other provision hereof, and this Agreement shall be construed as if such
invalid, illegal or unenforceable provision had never been contained herein.
31. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original hereof, but all of which, when taken together,
shall be deemed a single document.
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IN WITNESS WHEREOF, the parties, have caused this Agreement to be executed
as of the day and year first above written.
BORROWER:
GRAND CANAL SHOPS MALL, LLC,
a Delaware limited liability company
By: Grand Canal Shops Mall Holding Company, LLC, its
Managing Member
By: Mall Intermediate Holding Company, LLC, its
Managing Member
By: Venetian Casino Resort, LLC, its Sole Member
By: Las Vegas Sands, Inc., its Managing Member
By: /s/ William P. Weidner
----------------------
Name: William P. Weidner
Title: President
VENETIAN CASINO RESORT, LLC, a Nevada limited liability
company
By: Las Vegas Sands, Inc., its Managing Member
By: /s/ William P. Weidner
----------------------
Name: William P. Weidner
Title: President
GRAND CANAL SHOPS MALL CONSTRUCTION, LLC, a Delaware limited
liability company
By: Venetian Casino Resort, LLC,
its Sole Member
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ William P. Weidner
----------------------
Name: William P. Weidner
Title: President
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[Signatures continued from prior page]
LAS VEGAS SANDS, INC., a Nevada corporation
By: /s/ William P. Weidner
----------------------
Name: William P. Weidner
Title: President
PRINCIPAL:
/s/ Sheldon G. Adelson
------------------------
SHELDON G. ADELSON
TAKE-OUT LENDER:
GOLDMAN SACHS MORTGAGE COMPANY
By: Goldman Sachs Real Estate
Funding Corp., its general
partner
By: /s/ Steven Mnuchin
----------------------
Name: Steven Mnuchin
Title: President
CONSTRUCTION LENDER:
GMAC COMMERCIAL MORTGAGE
CORPORATION, a California
corporation
By: /s/ Vacys Garbonkus
-------------------
Name: Vacys Garbonkus
Title: Senior Vice President
Exhibits
[Exhibit A-1 Title Insurance Companies]
[Exhibit A-2 Form of Title Insurance Policy]
[Exhibit A-3 UCC and Other Searches]
[Exhibit B Description of Plans and Specifications]
[Exhibit C-1 to -3 Forms of Legal Opinions]
[Exhibit D Form of Closing Date Memorandum]
[Exhibit E-1 to -6 Forms of Organizational Documents]
[Exhibit F-1 to -4 REA, Sale and Contribution Agreement and
Forms of HVAC Agreement and HVAC Ground Lease]
[Exhibit G Form of Management Agreement]
[Exhibit H-1 to -2 Forms of Retail and Restaurant Lease]
[Exhibit I Take-Out Commitment
[Exhibit J-1- to -5 Billboard Master Lease, Memorandum
of Billboard Master Lease,
Subordination of Billboard Operating
Lease to Billboard Master Lease, Mall
Master Lease and Memorandum of Mall
Master Lease]
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