COMPLETION GUARANTY LOAN
SUBORDINATED NOTE
Venetian Casino Resort, LLC
3355 Las Vegas Boulevard South
Room 1C
$25,000,000 Las Vegas, NV 89109
November 14, 1997
FOR VALUE RECEIVED, Venetian Casino Resort, LLC, a Nevada limited
liability company (the "Maker"), hereby promises to pay to the order of Sheldon
G. Adelson (the "Holder"), his successors, assigns, heirs or legal
representatives, at the offices of the Holder c/o Las Vegas Sands, Inc., 3355
Las Vegas Boulevard South, Room 1A, Las Vegas, NV 89109, or at such other place
as the holder of this Note shall specify, on November 16, 2005 (or on such later
date as the parties shall mutually agree), in such coin or currency of the
United States of America as at the time shall be legal tender for the payment of
public and private debts, the lesser of (i) Twenty-Five Million Dollars
($25,000,000) and (ii) the aggregate unpaid principal amount of all loans and
advances (each an "Advance") made or deemed made by Holder to or on behalf of
the Maker as provided in Section 2 of this Note and set forth on Schedule I
hereto in accordance with Section 4 hereof, plus, in each case, all interest
added to the outstanding principal amount of the Notes pursuant to the terms
hereof.
The Maker promises to pay interest on the outstanding principal
amount of this Note in accordance with Section 3 of this Note.
1. Definitions. Except as provided herein below, capitalized
terms used herein shall have the meanings ascribed to such terms in the
Indenture, dated as of November 14, 1997 (as amended, supplemented or restated,
the "Subordinated Note Indenture") by and among the Maker, Las Vegas Sands, Inc.
("LVSI"), certain guarantors named therein and First Union National Bank, as
trustee (including any successor trustees, the "Senior Subordinated Note
Trustee") whether or not such Indenture is still in effect. The terms defined in
this Section 1 shall have the following meanings for all purposes in this Note:
1.1 "Adelson Intercreditor Agreement" means that certain
Intercreditor Agreement, dated as of November 14, 1997, by and among the Bank
Agent, the Mortgage Note Trustee, the Subordinated Note Trustee, the Maker,
LVSI, GCCLLC and Sheldon G. Adelson, as amended from time to time in accordance
with its terms.
1.2 "Advance" shall have the meaning ascribed to such term
in the first paragraph of this Note.
1.3 "Advance Date" means any date upon which funds are
withdrawn from the Guaranty Deposit Account in accordance with Section 2(b) of
the Guaranty in order to fund the Company's Obligations, except with respect to
any withdrawal which is not deemed an Advance pursuant to Section 2 of this
Note.
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1.4 "Bank Credit Facility" means that certain Credit
Agreement, dated as of November 14, 1997, among LVSI and the Maker, as
borrowers, the lenders from time to time party thereto (the "Bank Lenders"),
Goldman Sachs Credit Partners L.P., as arranger and syndication agent (the
"Syndication Agent"), and The Bank of Nova Scotia, as administrative agent (the
"Administrative Agent"), as amended from time to time in accordance with its
terms, and any extension, refinancing, renewal, replacement, substitution or
refunding thereof, together with all related documents.
1.5 "Capitalized Interest Date" shall have the meaning
ascribed to such term in Section 3 of this Note.
1.6 "Company" means, collectively, LVSI, the Maker and Grand
Canal Shops Mall Construction, LLC ("GCCLLC").
1.7 "Event of Default" means an Event of Default under
Subordinated Note Indenture.
1.8 "Facilities Agreements" means, collectively, the Bank
Credit Facility, the Mall Construction Loan Facility, the Mortgage Note
Indenture and the Subordinated Notes Indenture.
1.9 "Guaranty" means that certain Completion Guaranty, dated
as of November 14, 1997, made by Holder in favor of the Bank Agent, the Mall
Construction Lender and the Mortgage Note Trustee, as amended from time to time
in accordance with its terms.
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1.10 "Guaranty Deposit Account" shall have the meaning
ascribed to such term in the Guaranty.
1.11 "Intercreditor Agreement" means that certain
Intercreditor Agreement, dated as of November 14, 1997, among Bank Agent,
Mortgage Note Trustee, Mall Construction Lender, Subordinated Note Trustee and
The Bank of Nova Scotia, as Intercreditor Agent ("Intercreditor Agent").
1.12 "Lender Beneficiaries" means (i) the Administrative
Agent, the Syndication Agent and the Bank Lenders under the Bank Credit
Facility, (ii) the Mortgage Note Trustee and the holders of the Mortgage Notes,
(iii) the Mall Construction Lender under the Mall Construction Loan Facility,
(iv) the Subordinated Note Trustee and the holders of the Senior Subordinated
Notes, (v) the Intercreditor Agent under the Intercreditor Agreement and (vi)
the Disbursement Agent under the Disbursement Agreement.
1.13 "Maker" shall have the meaning set forth in the first
paragraph of this Note.
1.14 "Mall Construction Loan Facility" means that certain
Credit Agreement, dated as of November 14, 1997, between the Company and GMAC
Commercial Mortgage Corporation (the "Mall Construction Lender"), as amended
from time to time in accordance with its terms, and any extension, replacement,
renewal, substitution, or refunding thereof, together with all related
documents.
1.15 "Mortgage Note Indenture" means that certain Indenture,
dated as of November 14, 1997, by and among the Maker, LVSI, the Mortgage Note
Guarantors and the Mortgage Note Trustee, as amended from time to time in
accordance with its terms.
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1.16 "Mortgage Note Trustee" means First Trust National
Association, in its capacity as trustee under the Mortgage Note Indenture, and
any successor trustee under such Mortgage Note Indenture.
1.17 "Obligations" shall have the meaning ascribed to such
term in the Guaranty.
1.18 "Senior Debt" means Senior Debt (as defined in the
Subordinated Note Indenture) and all Indebtedness represented by the Senior
Subordinated Notes and the Senior Subordinated Note Guaranties (including,
without limitation, Obligations due to the Intercreditor Agent and the
Disbursement Agent under documents relating to the Mortgage Note Indenture and
the Subordinated Note Indenture).
1.19 "Subordinated Note Indenture Covenants" shall have the
meaning set forth in Section 6 of this Note.
The provisions of this Section 1 to the contrary notwithstanding, to
the extent any term defined in this Note by cross reference to the Subordinated
Note Indenture or the Guaranty is amended, such term shall be deemed likewise
amended herein. Such terms shall continue to have the meanings set forth in the
Subordinated Note Indenture whether or not the Subordinated Note Indenture
remains in effect.
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2. The Note. The Maker hereby acknowledges that the Holder has
entered into the Guaranty in order to induce the Lender Beneficiaries to enter
into their respective Facilities Agreements, pursuant to which Lender
Beneficiaries shall make available to the Maker and certain of its affiliates
funds to construct and develop the Casino Resort. The Maker and the Holder
hereby agree that each withdrawal from the Guaranty Deposit Account in
accordance with the Section 2(b) of the Guaranty in order to pay the Company's
Obligations shall be deemed advances by the Holder under this Note for the
benefit of the Maker, but only to the extent such withdrawals exceed, in the
aggregate, the amount of funds deposited into the Guaranty Deposit Account
pursuant to Section 6.2.1(a) of the Disbursement Agreement.
3. Interest. Interest on the outstanding principal amount, if
any, of each Advance shall accrue from and after the Advance Date with respect
to such Advance, calculated on the basis of a 360-day year for the actual number
of days elapsed, at the rate of fourteen and one-quarter percent (14 1/4%) per
annum until paid in full; provided, that interest on any portion of any Advance
not paid at maturity shall instead accrue at the rate of sixteen and one-quarter
percent (16 1/4%) per annum. On each May 15th and November 15th (each such date
shall be referred to herein as a "Capitalized Interest Date") until the maturity
of this Note (whether at stated maturity, by acceleration or otherwise), the
aggregate amount of interest accrued on the outstanding principal balance of
each Advance through and including such Capitalized Interest Date shall be added
to the outstanding principal amount of such
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Advance on such Capitalized Interest Date. Subject to the provisions in Section
8 hereof and in the Adelson Intercreditor Agreement, all accrued and unpaid
interest shall be payable in cash upon maturity of this Note (whether at stated
maturity, by acceleration or otherwise) and from time to time thereafter upon
demand of the Holder until this Note is paid in full.
4. At the time of the making of each Advance, if any, the Holder
shall make a notation on Schedule I of this Note, specifying the date and the
amount of such Advance; provided, however, that a failure to make a notation
with respect to any Advance shall not limit or otherwise affect the obligation
of the Maker hereunder and recognition of payment of principal or interest on
this Note shall not be affected by the failure to make a notation on said
Schedule I. If necessary to evidence an extension of the payment date or any
other change in the provisions of this Note agreed to in writing by the Maker
and the Holder, the Maker shall furnish a new note in substitution for this
Note. The first notation made by the Holder on the advance schedule attached to
the replacement Note shall be the most recent aggregate outstanding principal
balance appearing on the advance schedule attached to the replaced note.
5. Prepayments. To the extent expressly permitted under the
Facilities Agreements and the Adelson Intercreditor Agreement, the Maker shall
have the right from time to time to prepay this Note, in whole or in part,
together with accrued interest on the amount prepaid to the date of prepayment
without penalty or premium.
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6. Incorporation by Reference. The covenants of the Maker set
forth in Articles 4 and 5 of the Subordinated Note Indenture (the "Subordinated
Note Indenture Covenants") are hereby incorporated in this Note by reference for
the benefit of the Holder, and are made a part hereof as if herein set forth at
length, mutatis mutandis, provided, that where applicable, (i) Note shall be
substituted for "Senior Subordinated Notes", (ii) Maker shall be substituted for
"Issuers" and (iii) Holder shall be substituted for "Paying Agent" and "Senior
Subordinated Note Trustee". The foregoing to the contrary notwithstanding, to
the extent any Subordinated Note Indenture Covenant is amended or waived after
the effective date of such amendment or waiver, such Subordinated Note Indenture
Covenant shall be deemed amended or waived for all purposes of this Note.
7. Unconditional Obligations; Fees; Waivers, Etc.
7.1 The obligations to make the payments provided for in
this Note are absolute and unconditional and not subject to any defense,
set-off, counterclaim, rescission, recoupment or adjustment whatsoever.
7.2 The Holder's rights to institute any action or enforce
any rights under this Note shall, in all cases, be subject to the limitations
set forth in the Adelson Intercreditor Agreement.
7.3 Subject to Section 7.2, if the holder of this Note shall
institute any action to enforce the collection of principal of and/or interest
on this Note, there shall be immediately due and payable from the Maker, in
addition to the then unpaid principal amount of and interest on this Note, all
reasonable costs and
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expenses incurred by the holder of this Note in connection therewith, including
reasonable attorneys' fees and disbursements.
7.4 No forbearance, indulgence, delay or failure to exercise
any right or remedy with respect to this Note shall operate as a waiver, nor as
an acquiescence in any default. No single or partial exercise of any right or
remedy shall preclude any other or further exercise thereof or the exercise of
any other right or remedy.
7.5 This Note may not be modified or discharged orally, but
only in writing duly executed by the holder hereof.
7.6 The Maker hereby waives presentment, demand, notice of
dishonor, protest and notice of protest.
8. Subordination.
8.1 Subordination Agreement. Notwithstanding any provision
to the contrary set forth herein, the Holder and the Maker agree that the
payment of principal of and interest on this Note, and any other amounts payable
with respect thereto, is subordinated to the prior payment in full (whether at
maturity, by prepayment, by acceleration or otherwise) of any and all Senior
Debt, and agree that, except as permitted under Section 5, no payment of, on, or
on account of the indebtedness so subordinated shall be made unless and until
all payments of principal, interest or amounts otherwise payable with respect to
all Senior Debt have been paid in full in cash or cash equivalents. Except as
permitted under Section 5, the Holder
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further agrees not to demand, receive or accept any such payment until all
Senior Debt has been paid in full in cash or cash equivalents.
In the event that, notwithstanding the foregoing provisions, any
payment shall be received by the Holder on account of principal of or interest
on or other amounts payable with respect to this Note in contravention of the
foregoing provisions, such payment shall be held in trust for the benefit of and
shall, to the extent that at such time all Senior Debt has not been paid in full
in cash or cash equivalents, be paid over to the Intercreditor Agent, as agent
for the holders of the Senior Debt, for application to the payment of the Senior
Debt until all such Senior Debt shall have been paid in full; provided that, if
at such time the Holder shall have been advised by the Intercreditor Agent that
all Indebtedness under the Bank Credit Facility, the Mortgage Notes and the Mall
Construction Loan Facility (collectively, the "Senior Secured Debt") has been
paid in full, then such payment shall be held for the benefit of and shall be
paid over to the Subordinated Note Trustee as representative of the holders of
the Senior Subordinated Notes for application to the payment of such Senior
Subordinated Notes until all such Senior Subordinated Notes shall have been paid
in full.
8.2 Dissolution, Etc. In the event of any dissolution,
winding-up, liquidation or reorganization of the Maker (whether voluntary or
involuntary and whether in bankruptcy, insolvency or receivership proceedings or
upon an assignment for the benefit of creditors or any other marshaling of the
assets and liabilities of the Maker or otherwise):
(a) the holders of the Senior Debt shall be entitled
to receive payments in full in cash or cash equivalents of all such Senior Debt
(including interest accruing on such Senior Debt after the commencement of a
bankruptcy case or proceeding at the contract rate whether or not a claim for
such interest is an allowed claim in such case or proceeding) before the Holder
is entitled to receive any payment on account of the principal of or interest on
or any other amounts payable in respect of this Note;
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(b) any payment or distribution of assets of the Maker
of any kind or character, whether in cash, property or securities, to which the
Holder would be entitled, except for the subordination provisions set forth
herein, shall be paid by the Maker, or any receiver, trustee in bankruptcy,
liquidating trustee or agent or other person making such payment or distribution
directly to the Intercreditor Agent, as agent for the holders of the Senior
Debt, to the extent necessary to make payment in full in cash or cash
equivalents of all Senior Debt remaining unpaid; and
(c) in the event that, notwithstanding the foregoing
provisions, any payment or distribution of assets of the Maker of any kind or
character shall be received by the Holder on account of principal of or interest
on or other amounts payable in respect of this Note before all Senior Debt
(including, as applicable, interest accruing on, or original issue discount
accreting with respect to, such Senior Debt after the commencement of a
bankruptcy case or proceeding at the contract rate whether or not such interest
is an allowed claim in such case or proceeding) are paid in full in cash and
cash equivalents, or effective provision is made for their payment, such payment
or distribution shall be received in trust and shall, to the extent that at such
time all Senior Debt has not been paid in full in cash or cash equivalents, be
paid over to the Intercreditor Agent, as collateral agent for the holders of the
Senior Debt, for application to the payment of such Senior Debt until all such
Senior Debt shall have been paid in full; provided that, if at such time the
Holder shall have been advised by the Intercreditor Agent that all Senior
Secured Debt has been paid in full, then such payment or distribution shall be
received and paid over to the Subordinated Note Trustee as representative of the
holders of the Senior Subordinated Notes for application to the payment of such
Senior Subordinated Notes until all such Senior Subordinated Notes shall have
been paid in full in cash or cash equivalents.
The consolidation of the Maker with, or the merger of the Maker
into, another entity in accordance with the provisions of Article 5 of the
Subordinated Note
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Indenture shall not be deemed a dissolution, winding-up, liquidation or
reorganization for purpose of these subordination provisions.
(d) Notwithstanding anything to the contrary set forth
herein, the rights of the Holder under this Note are hereby made expressly
subject to the terms and provisions of the Adelson Intercreditor Agreement. Any
assignee of, or successor to, the interest of the Holder under this Note shall
agree to become bound by the terms of the Adelson Intercreditor Agreement.
8.3 Subrogation. Subject to the payment in full in cash or
cash equivalents of all Senior Debt, the Holder shall be subrogated to the
rights of the holders of the Senior Debt (except that the Holder shall not be
subrogated to the position of a secured creditor until the payment in full of
all Senior Debt), or their respective representatives, to receive payments or
distributions of assets of the Maker applicable to the Senior Debt until all
amounts owing on this Note shall be paid in full, and for the purpose of such
subrogation, no payments or distributions to the holders of the Senior Debt, or
their respective representatives, as the case may be, by or on behalf of the
Maker or by or on behalf of the Holder, which otherwise would have been made to
the Holder shall, as between the Maker and its creditors, be deemed to be
payment by the Maker to or on account of the holders of the Senior Debt, or
their respective representatives, as the case may be, it being understood that
these subordination provisions are intended solely for the purpose of defining
the relative rights of the Holder, on the one hand, and the holders of the
Senior Debt and their respective representatives, on the other hand.
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8.4 Obligation to Pay Unconditional. Except as expressly
provided herein, nothing is intended to or shall impair, as between the Maker
and the Holder, the obligation of the Maker, which is absolute and
unconditional, to pay to the Holder the principal of and interest on this Note
as and when the same shall become due and payable in accordance with its terms.
9. Events of Default.
9.1 Subject to the provisions of Sections 7.2 and 9.2
hereof, upon the happening of an Event of Default, and while such Event of
Default is continuing, the Holder may, by written notice to the Maker and
subject to applicable cures and waivers, declare this Note immediately due and
payable, whereupon the principal of, the interest on, and any other amount owing
under, this Note shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Maker; provided, that the Holder may not accelerate the
obligations under this Note unless the obligations under the Subordinated Note
Indenture have been accelerated. Notwithstanding the foregoing, if an Event of
Default specified in Section 6.01(i) or (j) of the Subordinated Note Indenture
occurs, the principal of, the interest on, and any other amount owing under,
this Note shall be due and payable immediately without further action or notice.
9.2 The provisions of Section 9.1 to the contrary
notwithstanding, in the event an Event of Default under the Subordinated Note
Indenture shall be waived or cured, then the related Event of Default under this
Note
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shall be deemed waived or cured, as the case may be, for all purposes of this
Note. To the extent the maturity of and payments due under this Note shall have
been accelerated as a result of any Event of Default that is deemed waived or
cured, such indebtedness shall cease to be accelerated and all terms of this
Note shall continue to be in effect as if no acceleration occurred.
10. Suits for Enforcement and Remedies. Subject to provisions of
Sections 7.2 and 9.2 hereof, if any one or more Events of Default shall occur
and be continuing, the Holder may proceed to protect and enforce the Holder's
rights either by suit in equity or by action at law, or both, or proceed to
enforce the payment of this Note or to enforce any other legal or equitable
right of the Holder. No right or remedy herein or in any other agreement or
instrument conferred upon the Holder is intended to be exclusive of any other
right or remedy, and each and every such right or remedy shall be cumulative and
shall be in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or by statute or otherwise.
11. Notices. All notices, requests, demands and other
communications required or delivered under this Note shall be in writing (which
shall include notice by facsimile transmission) and shall be deemed to have been
made and received when personally served, or when delivered by overnight courier
service, expenses prepaid, or, if sent by facsimile, deemed delivered on the
date sent if received prior to 5:00 p.m. on such date or deemed to be delivered
the day following
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the date sent if delivered after 5:00 p.m. on the date sent, addressed as set
forth below:
If to Maker: Venetian Casino Resort, LLC
3355 Las Vegas Boulevard South
Room 1C
Las Vegas, Nevada 89109
Attention: General Counsel
Facsimile: (702) 733-5499
If to Holder: Sheldon G. Adelson
c/o Las Vegas Sands, Inc.
3355 Las Vegas Boulevard South
Room 1A
Las Vegas, Nevada 89109
Attention:
Facsimile: (702) 733-5499
12. Miscellaneous.
12.1 The holder of this Note shall have no recourse against
any member of the Maker.
12.2 If any payment hereunder falls due on a Saturday, Sunday
or any other day on which commercial banks in New York City are authorized or
required by law to close, the maturity thereof shall be extended to the next
succeeding business day.
12.3 The headings of the various Sections of this Note are
for convenience of reference only and shall in no way modify any of the terms or
provisions of this Note.
12.4 The holders of Senior Debt shall be express third party
beneficiaries of the provisions of this Note relating to subordination and the
deferral or accrual of interest payments and the maturity date of the Notes. No
such
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provisions may be amended without the consent of a majority in principal amount
of each class of Senior Debt.
12.5 This Note and the obligations of the Maker and the
rights of the holder hereof shall be governed by and construed in accordance
with the laws of the State of New York applicable to instruments made and to be
performed entirely within such State.
VENETIAN CASINO RESORT, LLC
By: Las Vegas Sands, Inc., its managing member
By: /s/ William Weidner
-------------------
Name: William Weidner
Title: President
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Schedule I
ADVANCES AND PAYMENTS OF PRINCIPAL
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| Date | Advance | or Prepaid | Balance | Made by |
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