INTERCREDITOR AGREEMENT
(Adelson)
THE BANK OF NOVA SCOTIA
as Bank Agent
FIRST TRUST NATIONAL ASSOCIATION
as Mortgage Notes Indenture Trustee
GMAC COMMERCIAL MORTGAGE CORPORATION
as Interim Mall Lender
FIRST UNION NATIONAL BANK
as Subordinated Notes Trustee
VENETIAN CASINO RESORT, LLC
LAS VEGAS SANDS, INC.
GRAND CANAL SHOPS MALL CONSTRUCTION, LLC
and
SHELDON G. ADELSON
November 14, 1997
INTERCREDITOR AGREEMENT
(Adelson)
THIS AGREEMENT is made as of the November 14, 1997, by and among THE
BANK OF NOVA SCOTIA, a Canadian chartered bank, as the Administrative Agent (the
"Bank Agent") acting on behalf of itself and the Bank Lenders pursuant to the
Bank Credit Agreement, FIRST NATIONAL TRUST ASSOCIATION, a national banking
association, as trustee (the "Mortgage Notes Indenture Trustee") in its capacity
as Trustee under the Mortgage Notes Indenture, GMAC COMMERCIAL MORTGAGE
CORPORATION, a California corporation (the "Interim Mall Lender") with respect
to the Interim Mall Credit Agreement, FIRST UNION NATIONAL BANK, a national
banking association, as trustee (the "Subordinated Notes Indenture Trustee") in
its capacity as Trustee under the Subordinated Notes Indenture, LAS VEGAS SANDS,
INC., a Nevada corporation ("LVSI"), VENETIAN CASINO RESORT, LLC, a Nevada
limited liability company ("Venetian") and GRAND CANAL SHOPS MALL CONSTRUCTION,
LLC, a Delaware limited liability company ("Mall Construction Subsidiary") and
SHELDON G. ADELSON ("Adelson").
RECITALS
A. The Project. LVSI, Venetian and Mall Construction Subsidiary
which is a wholly owned subsidiary of Venetian (LVSI, Venetian and Mall
Construction Subsidiary are collectively referred to herein as the "Company;"
provided, however, that after the Mall Release Date, "Company" shall mean and
refer to LVSI and Venetian only), propose to develop, construct and operate the
Venetian Casino Resort, a large-scale, Venetian-themed hotel/casino/retail and
entertainment complex with related heating, ventilation and air-conditioning
central plant, related common parking facilities and related central electrical
sub-station facilities as part of the redevelopment on the site of the former
Las Vegas Sands Hotel and Casino.
B. The Bank Credit Facility. Concurrently herewith, LVSI, Venetian,
the Bank Agent, Goldman Sachs Credit Partners L.P. 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 the Bank Credit Facility to
LVSI and Venetian.
C. The Interim Mall Facility. Concurrently herewith, the Company and
the Interim Mall Lender have entered into the Interim Mall Credit Agreement
pursuant to which the Interim Mall Lender has agreed, subject to terms thereof,
to provide the Interim Mall Facility to the Company.
D. The Mortgage Notes Indenture. Concurrently herewith, LVSI,
Venetian, certain guarantors named therein and the Mortgage Notes Indenture
Trustee have entered into the Mortgage Notes Indenture pursuant to which LVSI
and Venetian will issue the Mortgage Notes.
E. The Subordinated Notes Indenture. Concurrently herewith, LVSI,
Venetian, certain guarantors named therein and the Subordinated Notes Indenture
Trustee have entered into the Subordinated Notes Indenture pursuant to which
LVSI and Venetian will issue the Subordinated Notes.
F. Disbursement Agreement. The Company, the Bank Agent, the Mortgage
Notes Indenture Trustee, the Interim Mall Lender, Atlantic-Pacific, Las Vegas,
LLC, a Delaware limited liability company (the "HVAC Provider"), and The Bank of
Nova Scotia, as Disbursement Agent thereunder, have entered into that Funding
Agents' Disbursement and Administration Agreement dated as of even date herewith
(such agreement as amended, modified or supplemented from time to time, the
"Disbursement Agreement"), in order to set forth, among other things, (a) the
mechanics for and allocation of the Company's request 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) common Events of Default and
remedies during construction of the Project.
G. Adelson Completion Guaranty. In order to induce the Credit
Parties to enter into their respective Facilities, Adelson has executed and
delivered a Guaranty (the "Adelson Completion Guaranty") of even date herewith,
whereby Adelson guaranties all certain obligations and liabilities of Company
under Section 5.9 of the Disbursement Agreement together with certain costs and
expenses incurred in connection therewith (subject to the limitations contained
therein). In the event that Adelson makes any payments required by the Adelson
Completion Guaranty, such payments shall be deemed to be a loan (the "Completion
Guaranty Loan") by Adelson to Venetian with the terms and conditions set forth
in Exhibit A to the Adelson Completion Guaranty.
H. Substitute Tranche B Guaranty. In order to induce the Interim
Mall Lender to enter into the Interim Mall Credit Agreement, Adelson has
executed and delivered a Guaranty (the "Substitute Tranche B Guaranty") of even
date herewith, whereby Adelson guaranties all obligations and liabilities of the
Company under the Interim Mall Credit Agreement together with certain costs and
expenses incurred in connection therewith (subject to the limitations contained
therein). In the event that Adelson makes any payments required by the
Substitute Tranche B Guaranty, such payments shall be deemed to be a loan (the
"Substitute Tranche B Loan") by Adelson to Venetian with the terms and
conditions set forth in Exhibit A to the Substitute Tranche B Guaranty.
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I. Intercreditor Agreement (Credit Parties). Concurrently herewith,
each of the Credit Parties has entered into a certain Intercreditor Agreement
(the "Intercreditor Agreement (Credit Parties)") pursuant to which the Credit
Parties have set forth certain provisions relating to their respective rights in
the Collateral, the exercise of remedies in the event of default, the
application of proceeds of enforcement and certain other matters.
J. Mall Release Date. Upon the occurrence of the Mall Release Date
this Agreement will no longer apply to the Interim Mall Lender, provided,
however, this Agreement will remain in full force and effect among Bank Agent,
Mortgage Notes Indenture Trustee, Subordinated Notes Indenture Trustee, Adelson,
LVSI and Venetian.
K. The Adelson Intercreditor Agreement. The Credit Parties, the
Company and Adelson desire to enter into this Agreement in order to set forth
the agreement between the Credit Parties, the Company and Adelson with respect
to the Adelson Indebtedness (as hereinafter defined).
NOW, THEREFORE, with reference to the foregoing recitals and in
reliance thereon, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Credit Parties and Adelson
agree as follows:
1. Except as otherwise expressed and provided herein, all
capitalized terms used in this Agreement and its Exhibits shall have the
meanings set forth below:
a. The following terms shall have the meanings set forth in the
Disbursement Agreement:
Affiliate Indirect Construction Guaranty
Available Funds Interim Mall Credit Agreement
Bank Agent Interim Mall Facility
Bank Credit Agreement Lender
Bank Credit Facility Mall I LLC
Bank Lenders Mall Release Date
Banking Day Mall Escrow Agreement
Company's Funds Account Mall Retainage/Punchlist
Completion Account
Completion Date Mortgage Note(s)
Construction Management Mortgage Notes Indenture
Agreement Mortgage Notes Indenture
Contracts Trustee
Deeds of Trust Obligations
Direct Construction Guaranty Operative Document
Final Completion Date Person
Financing Agreements Potential Event of Default
Funding Agents Project
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Project Documents
Project Security
Realized Savings
Sale and Contribution
Agreement
Security Documents
Subsidiaries
Subordinated Notes Indenture
Subordinated Note(s)
b. The following terms shall have the meanings set forth in the
Intercreditor Agreement (Credit Parties):
Bank Agent
Bankruptcy Code
Collateral
Credit Parties
Disbursement Agent
Event of Default
Facilities
Facility Agreements
Intercreditor Agent
Interim Mall Lender
Notice of Default
Protective Advances
Secured Credit Parties
Secured Lenders
Subordinated Notes Indenture Trustee
c. The following terms shall have the meanings set forth below:
"Adelson Indebtedness" means all existing and future obligations of
the Company to repay the Completion Guaranty Loan and the Substitute Tranche B
Loan to Adelson and any other amounts deemed advanced to the Company pursuant to
the Adelson Completion Guaranty or the Substitute Tranche B Guaranty (including
without limitation any rights of subrogation arising under the Adelson
Completion Guaranty or the Substitute Tranche B Guaranty).
"Collateral" means all real and personal property collateral and all
proceeds thereof described in the Security Documents and the Disbursement
Agreement.
"Disbursement Agreement Default" means the occurrence and
continuance of an Event of Default under the Disbursement Agreement.
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"Exercise Remedies" or the "Exercise of Remedies" means the
Recording of a Notice of Default under any deeds of trust or similar security
agreement, the commencement of an action for judicial foreclosure, the
appointment of a receiver, the enforcement of personal property foreclosure
proceedings (whether judicial or non-judicial), the filing of a complaint or
other action to enforce any Adelson Indebtedness, realization on any Collateral,
the exercise of rights of setoff, or any combination of the foregoing, by
Adelson; provided, however that "Exercise Remedies" shall exclude, without
limitation, the following: (i) the giving of notice of default (as distinguished
from recording a notice of default under a deed of trust in the real property
records of Clark County, Nevada), (ii) any declaration of acceleration of the
Adelson Indebtedness (but only if the obligations under the Subordinated Notes
have been accelerated).
"Liquidated Damages" means any proceeds or liquidated damages paid
pursuant to any obligation, default or breach under the Contracts (net of actual
and documented reasonable costs incurred by Company in connection with
adjustment or settlement, thereof, including taxes and any reasonable provisions
made in respect of such costs and expenses (including any such taxes paid or
payable by an owner of either Venetian or any of its Subsidiaries)). For
purposes of this definition, the Construction Guaranty, the Indirect
Construction Guaranty and so-called "liquidated damages" insurance policies
shall be deemed to be Contracts.
d. To the extent that reference is made in this Agreement to any
term defined in, or to any other provision of, the Disbursement Agreement, the
Intercreditor Agreement (Credit Parties) or any other agreement, such term or
provision shall continue to have the original meaning thereof notwithstanding
any termination, expiration or amendment of the Disbursement Agreement or such
other agreement.
e. Adelson is entering into this Agreement solely in his capacity as
a holder of, and only with respect to, the Adelson Indebtedness and nothing
herein shall be construed to waive, limit, impair or enlarge any right, duty or
privilege that Adelson may have in any other capacity or with respect to any
other indebtedness, claim or interest.
2. Adelson agrees that so long as any of the Obligations remain
outstanding or any commitments under the Facility Agreements remain effective,
all Adelson Indebtedness shall be obligations of (i) Venetian only in the case
of any obligations in respect of the Adelson Completion Guaranty and (ii)
Venetian and Mall Construction Subsidiary only in the case of any obligations in
respect of the Substitute Tranche B Guaranty provided that the Substitute
Tranche B Loan may be assumed by Mall Subsidiary and secured by its assets to
the extent permitted by Paragraph 12.2 of the Substitute Tranche B Note. Without
limiting the generality of the foregoing, Adelson further agrees as follows:
a. For so long as any of the Facilities remain outstanding, the
Adelson Indebtedness shall not be secured by, directly or indirectly, any liens
on or security interests in any property or assets owned directly or indirectly
by Venetian or LVSI or any Subsidiary
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of Venetian or LVSI or by any stock, securities, membership interests,
partnership interests or other direct or indirect equity interests in Venetian
or LVSI or any Subsidiary of Venetian or LVSI;
b. For so long as any of the Facilities remain outstanding, all
Adelson Indebtedness is hereby subordinated to all Obligations of the Company to
the Credit Parties to the extent and in the manner set forth herein (including
without limitation Section 8) and, as applicable, in the Completion Guaranty
Note and the Substitute Tranche B Note.
c. Adelson shall not contest the validity or priority of or seek to
enjoin or otherwise delay or interfere with the Exercise of Remedies (as defined
in the Intercreditor Agreement (Credit Parties) in effect as of the date hereof)
by any Credit Party nor shall Adelson institute any suit or assert in any suit,
bankruptcy, insolvency or other proceeding any claim relating to the Adelson
Indebtedness against the Credit Parties seeking damages from any of them or
other relief, by way of specific performance, injunction or otherwise, taken or
omitted by the Credit Parties with respect to the Collateral. Adelson will
execute and deliver to the Credit Parties any other instrument reasonably
requested by the Credit Parties to further assure the subordinated status of the
Adelson Indebtedness.
3. Adelson hereby confirms and agrees that the liens and security
interests held by each Secured Lender in the Collateral shall secure all
Obligations of Company now or hereafter owing to each Secured Lender under each
Facility throughout the term of this Agreement notwithstanding (i) the
availability of any other collateral to any Secured Lender, (ii) the actual date
and time of execution, delivery, recording, filing and perfection of any of the
Security Documents and (iii) the fact that any lien or security interest created
by any of the Security Documents, or any claim with respect thereto, is or may
be subordinated, avoided or disallowed in whole or in part under the Bankruptcy
Code or other applicable federal or state law with respect to Venetian or any
Affiliate of Venetian. In the event of a proceeding, whether voluntary or
involuntary, for insolvency, liquidation, reorganization, dissolution,
bankruptcy or other similar proceedings pursuant to the Bankruptcy Code or other
applicable federal or state law, Adelson further confirms and agrees that the
Obligations due and outstanding under each Facility Agreement shall include all
principal and additional advances permitted by or provided for thereunder,
Protective Advances made pursuant to or as permitted by the Intercreditor
Agreement (Credit Parties), interest, default interest, LIBOR breakage and swap
breakage, post petition interest and all other amounts due thereunder, for
periods before and for periods after the commencement of any such proceedings,
even if the claim for such amounts is disallowed pursuant to applicable law, and
all proceeds from the sale or other disposition of such Collateral shall be paid
to the Secured Lenders notwithstanding the disallowance of any such claim or the
invalidity or subordination of any lien on or security interest in the
Collateral under applicable law.
4. All provisions of this Agreement, including but not limited to,
all matters relating to the creation, validity, perfection, priority and
subordination of the liens on and security interests in the Collateral intended
to be created by the Security Documents and all provisions regarding the
allocation and priority of payments with respect to any
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Facility shall survive the filing of a proceeding under the Bankruptcy Code and
be fully enforceable by each Credit Party against Adelson during such
proceeding. In addition, Adelson hereby waives all rights of subrogation (if
any) against the Company as contemplated by Section 509 of the Bankruptcy Code,
or otherwise, and agrees that the Adelson Completion Guaranty and the Substitute
Tranche B Guaranty shall remain valid, binding and enforceable in accordance
with their terms notwithstanding the provisions of Section 365(c)(2), if
applicable, to the effect that the Completion Guaranty Loan and the Substitute
Tranche B Loan may not be assumed by the debtor in any such proceeding. Adelson
further agrees that so long as any Obligations are outstanding under any of the
Financing Agreements, Adelson shall not be entitled to Exercise Remedies against
Venetian, LVSI or any of their Subsidiaries or file a petition in bankruptcy
against Venetian, LVSI or any of their Subsidiaries.
Adelson shall file in any bankruptcy or other proceeding of or
against Venetian, LVSI and/or Mall Construction Subsidiary in which the filing
of proofs of claims is required or permitted by law, all claims which Adelson
may have against the Company relating to the Adelson Indebtedness, in
furtherance of the subordination contemplated hereunder. If Adelson does not
file any such claim, the Intercreditor Agent as attorney-in-fact for Adelson, is
hereby authorized to do so in the name of Adelson or, in the Intercreditor's
Agent 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. In all such cases, whether in
administration, bankruptcy or otherwise, the person authorized to pay such a
claim shall pay the amounts (i) if such payment is made in respect of the
Completion Guaranty Note, to the holders of Senior Debt (as defined in the
Subordinated Note Indenture) and all other Obligations under the Facilities
until paid in full in cash or cash equivalents and (ii) if such payment is made
in respect of the Substitute Tranche B Note, to the holders of Senior Debt until
paid in full in cash or cash equivalents and then to the holders of the
Subordinated Notes and the holder of the Substitute Tranche B Note pro rata.
5. The Credit Parties shall have the right at any time and without
the consent of Adelson and without affecting the validity and priority of the
liens on and security interests in the Collateral created by the Security
Documents to (i) amend, modify or extend the Facilities or the Obligations
evidenced thereby, (ii) to release any portion of the Collateral from the lien
thereon and security interest therein and (iii) to refinance the Obligations
evidenced thereby, and the provisions of Section 2 hereof with respect to the
validity, priority, perfection, and subordination of all liens on and security
interests in the Collateral held by any Secured Lender to secure Obligations
under its Facility shall continue to apply to such Facility as so amended,
modified, extended or refinanced.
6. The Completion Guaranty Loan and the Substitute Tranche B Loan
shall at all times be evidenced by the Completion Guaranty Note and the
Substitute Tranche B Note, respectively. Adelson shall not amend or modify the
Completion Guaranty Note or the Substitute Tranche B Note in any material
respect without the prior written consent of the Bank Agent and the Interim Mall
Lender except to the extent permitted
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under each of the Facility Agreements. Subject to the restrictions and
conditions of the Facility Agreements, Adelson may assign, transfer or refinance
all or any portion of the Completion Guaranty Loan or the Substitute Tranche B
Loan, provided that any assignee, transferee or holder of any refinanced or
replacement loan shall be bound by and shall assume all obligations of Adelson
under this Agreement. Adelson shall not lend money to, or acquire indebtedness
of, LVSI, Venetian or any of their Subsidiaries, except as permitted by the
Facility Agreements (in effect on the date of incurrence or acquisition of such
indebtedness).
7. Until all Obligations under the Facilities have been paid in
full, Adelson waives any claim, right or remedy which Adelson may now have or
hereafter acquire against the Company that arises hereunder and/or from the
performance by the Credit Parties 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 Credit
Parties, the Disbursement Agent or the Intercreditor Agent against the Company,
or any security which the Credit Parties, the Disbursement Agent or the
Intercreditor 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. A. Until all Obligations under the Facilities have been paid in
full, Company shall not make and Adelson shall not demand or accept any payments
in respect of the Adelson Indebtedness except to the extent permitted under the
Completion Guaranty Note or the Substitute Tranche B Note, as applicable.
B. In addition to the restrictions under clause A above, for so long
as the Bank Credit Agreement and the GMAC Credit Agreement remain in effect, the
Company shall not make and Adelson shall not demand or accept any payments of
interest or principal in respect of the Adelson Indebtedness unless and until
all Obligations have been paid in full unless consented to by Bank Agent and
GMAC, provided that foregoing shall not restrict (i) any capitalization of
interest or any non cash payment of interest with pay-in-kind securities which
are at least as subordinated as the Adelson Indebtedness being paid and (ii) any
deemed payment of the Substitute Tranche B Note upon an assumption thereof by
Mall Subsidiary in accordance with the terms of the Substitute Tranche B Note.
C. Notwithstanding the restrictions of clause B above, so long as no
Potential Event of Default under the Disbursement Agreement or under any
Financing Agreement nor any Event of Default under the Disbursement Agreement or
any Financing Agreement shall then exist and be continuing, Company may (i) make
payments on the Completion Guaranty Loan from amounts which the Company is
required or permitted to fund into the Guaranty Deposit Account pursuant to
Section 5.1.1(h)(i) of the Disbursement Agreement after the making of such
Completion Guaranty Loan, (ii) on or after Final Completion, make payments on
the Completion Guaranty Loan from amounts which are advanced to the Company
pursuant to Section 2.12 of the Disbursement Agreement for the purpose of making
such payments, (iii) after Final Completion, make payments on the
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Completion Guaranty Loan from any amounts Company receives as Liquidated Damages
and (iv) on the Final Completion Date, make payments on the Completion Guaranty
Loan from amounts which are returned to Mall Construction Subsidiary from funds
in the Mall Retainage/Punchlist Account in accordance with the Mall Escrow
Agreement, provided that such payments shall not be greater than all amounts
previously deposited into the Mall Retainage/Punchlist Account from the Guaranty
Deposit Account.
D. Notwithstanding the restrictions of clause B above, Company may
(i) (ii) after the repayment of all Obligations under the GMAC Credit Agreement,
repay the Substitute Tranche B Loan with the cash proceeds received from the
Mall Subsidiary under the Sale and Contribution Agreement, (ii) repay the
Substitute Tranche B Loan with the proceeds received from a refinancing thereof
permitted under the Bank Credit Agreement and the GMAC Credit Agreement and
(iii) on the date of transfer of the Mall Collateral to the Mall Subsidiary, the
Company may prepay the Substitute Tranche B Loan, in part, in an amount up to
the Capitalized Amount; provided, however, that any such prepayment in clause
(iii) shall be permitted only to the extent that after giving effect to such
prepayment (i) Available Funds (as defined in the Disbursement Agreement) equals
or exceed Remaining Costs (as defined in the Disbursement Agreement) and (ii)
the Unallocated Contingency Balance (as defined in the Disbursement Agreement)
equals or exceeds the Required Minimum Contingency (as defined in the
Disbursement Agreement). The "Capitalized Amount" shall mean an amount equal to
the interest on the Substitute Tranche B Note that has been added to the
principal amount thereof pursuant to Section 3.2 of the Substitute Tranche B
Note plus accrued and unpaid interest on the Substitute Tranche B Note to the
date of prepayment. The Mortgage Notes Indenture Trustee and the Subordinated
Note Indenture Trustee confirm that for purposes of Section 4.07 of the Mortgage
Notes Indenture and of Section 4.07 of the Subordinated Notes Indenture, the
payment under clause (iii) above is a scheduled payment of principal and
interest with respect to the Substitute Tranche B Note.
E. To the extent Company makes any payment in contravention of the
foregoing provisions, such payment shall be received by Adelson in trust for the
holders of Senior Debt and other Obligations under the Facilities and Adelson
shall cause the same to be paid over immediately in the form received (i) if
such payment is made in respect of the Completion Guaranty Note, to the holders
of Senior Debt and all other Obligations under the Facilities until paid in full
in cash or cash equivalents and (ii) if such payment is made in respect of the
Substitute Tranche B Note, to the holders of Senior Debt until paid in full in
cash or cash equivalents and then to the holders of the Subordinated Notes and
the holder of the Substitute Tranche B Note pro rata.
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9. Notices; Addresses.
Any communications between the parties hereto or notices
herein to be given may be given to the following addressees:
If to the Bank Agent: The Bank of Nova Scotia
580 California Street, 21st Floor
San Francisco, California 94104
Attn: Alan Pendergast
Phone: (415) 986-1100
Fax: (415) 397-0791
with a copy to: The Bank of Nova Scotia
Loan Administration
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attn: Marianne Velker
Phone: (404) 877-1525
Fax: (404) 888-8998
If to the Mortgage Notes First Trust National Association
Indenture Trustee: 180 East Fifth Street
St. Paul, Minnesota 55164-0111
Attn: Corporate Trust Department
If to the Interim Mall Lender: GMAC Commercial Mortgage Corporation
100 South Wacker Drive
Suite 400
Chicago, IL 60606
Attn: Mr. Vacys Garbonkus
Phone: (312) 845-8520
Fax: (312) 845-8623
If to the Subordinated Notes First Union National Bank
Indenture Trustee: Corporation Trust Division
999 Peachtree Street, N.E. Suite 1100
Atlanta, Georgia 30309
Attn: Corporate Trust Department
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If to the Disbursement Agent: The Bank of Nova Scotia
580 California Street, 21st Floor
San Francisco, California 94104
Attn: Alan Pendergast
Phone: (415) 986-1100
Fax: (415) 397-0791
with a copy to: The Bank of Nova Scotia
Loan Administration
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attn: Marianne Velker
Phone: (404) 877-1525
Fax: (404) 888-8998
If to the Intercreditor Agent:The Bank of Nova Scotia
580 California Street, 21st Floor
San Francisco, California 94104
Attn: Alan Pendergast
Phone: (415) 986-1100
Fax: (415) 397-0791
with a copy to: The Bank of Nova Scotia
Loan Administration
600 Peachtree Street, N.E.
Atlanta, Georgia 30308
Attn: Marianne Velker
Phone: (404) 877-1525
Fax: (404) 888-8998
If to Venetian Casino Resort, LLC: Venetian Casino Resort, LLC
3355 Las Vegas Boulevard South
Room 1C
Las Vegas, Nevada 89109
Attn: General Counsel
Telefax: (702) 733-5499
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If to Las Vegas Sands, Inc. Las Vegas Sands, Inc.
3355 Las Vegas Boulevard South
Room 1A
Las Vegas, Nevada 89109
Attn: General Counsel
Telefax: (702) 733-5499
If to Grand Canal Shops
Mall Construction, LLC: Grand Canal Shops Mall Construction, LLC
3355 Las Vegas Boulevard South
Room 1G
Las Vegas, Nevada 89109
Attn: General Counsel
Telefax: (702) 733-5499
If to Adelson: Sheldon G. Adelson
c/o Venetian Casino Resort, LLC
3355 Las Vegas Boulevard South
Room 1C
Las Vegas, Nevada 89109
Telefax: (702) 733-5499
All notices or other communications required or permitted to be given hereunder
shall be in writing and shall be considered as properly given (a) if delivered
in person, (b) if sent by reputable overnight delivery service, (c) in the event
overnight delivery services are not readily available, if mailed by first class
mail, postage prepaid, registered or certified with return receipt requested or
(d) if sent by prepaid telex, or by telecopy with correct answer back received.
Notice so given shall be effective upon receipt by the addressee, except that
any communication or notice so transmitted by telecopy or other direct written
electronic means shall be deemed to have been validly and effectively given on
the day (if a Banking Day and, if not, on the next following Banking Day) on
which it is validly transmitted if transmitted before 4 p.m., recipient's time,
and if transmitted after that time, on the next following Banking Day; provided,
however, that if any notice is tendered to an addressee and the delivery thereof
is refused by such addressee, such notice shall be effective upon such tender.
Any party shall have the right to change its address for notice hereunder to any
other location by giving of no less than twenty (20) days' notice to the other
parties in the manner set forth hereinabove.
10. Further Assurances. Each party hereto (i) shall deliver to each
Credit Party, the Disbursement Agent and to the Intercreditor Agent any
instruments, agreements, certificates and documents as any such Credit Party,
the Disbursement Agent or the Intercreditor Agent may reasonably request to
perfect and maintain such Person's Liens granted under the Financing Agreements,
(ii) shall fully cooperate with each Credit Party, the Disbursement Agent and
the Intercreditor Agent and (iii) shall perform all additional
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acts reasonably requested by any such Credit Party, the Disbursement Agent or
the Intercreditor Agent to effect the purposes of the Financing Agreements and
this Agreement.
11. Entire Agreement. This Agreement and any agreement, document or
instrument attached hereto or referred to herein integrate all the terms and
conditions mentioned herein or incidental hereto and supersede all oral
negotiations and prior writings in respect to the subject matter hereof, all of
which negotiations and writings are deemed void and of no force and effect.
12. Governing Law. This Agreement shall be governed by the laws of
State of New York of the United States of America and shall for all purposes be
governed by and construed in accordance with the laws of such state without
regard to the conflict of law rules thereof other than Section 5-1401 of the New
York General Obligations Law.
13. Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby, and the parties hereto
shall enter into good faith negotiations to replace the invalid, illegal or
unenforceable provision.
14. Headings. Paragraph headings have been inserted in this
Agreement as a matter of convenience for reference only and it is agreed that
such paragraph headings are not a part of this Agreement and shall not be used
in the interpretation of any provision of this Agreement.
15. Limitations on Liability. No claim shall be made by Adelson
against any Credit Party, the Disbursement Agent or the Intercreditor Agent or
any of their respective Affiliates, directors, employees, attorneys or agents
for any special, indirect, consequential or punitive damages (whether or not the
claim therefor is based on contract, tort or duty imposed by law), in connection
with, arising out of or in any way related to the transactions contemplated by
this Agreement or any act or omission or event occurring in connection
therewith; and Adelson hereby waives, releases and agrees not to sue upon any
such special, indirect, consequential or punitive claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in his
favor.
16. Consent of Jurisdiction. Any legal action or proceeding arising
out of this Agreement may be brought in or removed to the courts of the State of
New York, in and for the County of New York, or of the United States of America
for the Southern District of New York. By execution and delivery of this
Agreement, each party hereto accepts, for its and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts for
legal proceedings arising out of or in connection with this Agreement and
irrevocably consents to the appointment of the Prentice-Hall Corporation System
Inc. as its agent to receive service of process in New York, New York. Each
party hereto hereby waives any right to stay or dismiss any action or proceeding
under or in
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connection with this Agreement brought before the foregoing courts on the basis
of forum non-conveniens.
17. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES ALL RIGHT
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT.
18. Successors and Assigns. The provision of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns provided, however, this Agreement shall terminate upon
the satisfaction of all the Obligations and the termination of each of the
commitments under the Facility Agreements.
19. Counterparts. This Agreement 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. Replacement Subordination Agreement. Adelson hereby agrees to
enter into a replacement subordination agreement in favor of GMAC in the form of
Annex A on the Mall Release Date to the extent GMAC is not repaid in full on
such date.
The remainder of this page has intentionally been left blank.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers or agents thereunto duly authorized or
have personally executed this Agreement, as the case may be, as of the day and
year first above written.
BANK AGENT
The Bank of Nova Scotia, a Canadian
chartered bank
By: /s/ Alan Pendergast
--------------------------------------
Name: Alan Pendergast
Title: Relationship Manager
INTERIM MALL LENDER
GMAC Commercial Mortgage Corporation, a
California corporation
By: /s/ Vacys Garbonkus
--------------------------------------
Name: Vacys Garbonkus
Title: Authorized Signator
MORTGAGE NOTES INDENTURE TRUSTEE
First Trust National Association, a national
banking association
By: /s/ Richard H. Prokosch
--------------------------------------
Name: Richard H. Prokosch
Title: Assistant Vice President
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SUBORDINATED NOTES INDENTURE
TRUSTEE
First Union National Bank, a national
banking association
By: /s/ Emily E. Katt
--------------------------------------
Name: Emily E. Katt
Title: Vice 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
LAS VEGAS SANDS, INC., a Nevada corporation
By: /s/ William P. Weidner
--------------------------------------
Name: William P. Weidner
Title: President
S-2
GRAND CANAL SHOPS MALL
CONSTRUCTION, LLC, a Delaware limited
liability company
By: Venetian Casino Resort, LLC,
its member
By: Las Vegas Sands, Inc.,
its managing member
By: /s/ William P. Weidner
--------------------------------------
Name: William P. Weidner
Title: President
S-3
ADELSON
By: /s/ Sheldon G. Adelson
--------------------------------------
Sheldon G. Adelson
S-4