GUARANTY OF PERFORMANCE AND COMPLETION
This Guaranty of Performance and Completion ("Guaranty") is entered
into by Bovis, Inc., a New York corporation ("Bovis"), in favor of Las Vegas
Sands, Inc. ("Owner").
We, Bovis, refer to the Construction Management Agreement (as the
same may hereafter be amended or modified, the "Agreement") dated as of February
15, 1997 between our wholly-owned subsidiary, Lehrer McGovern Bovis, Inc. a New
York corporation ("LMB"), and Owner relating to the construction of the Project
and completion of the Work. Capitalized terms used but not defined herein shall
have the meanings ascribed to them in the Agreement.
1. In consideration of Owner entering into the Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Bovis hereby irrevocably and absolutely guarantees to Owner
the due, prompt, full and complete performance and satisfaction of all of the
duties, obligations and liabilities of LMB under the Agreement (including,
without limitation, all liabilities pursuant to clauses (a) and (b) of the last
sentence of Section 11.2 of the Agreement) (collectively, the "Guaranty
Obligations"); provided, however, that the Guaranty Obligations shall not
include LMB's obligation to pay liquidated damages, as required by Section
6.11(a) and Schedule C of the Agreement, with respect to the first one hundred
and twenty (120) days after the expiration of the 2-year time period set forth
in Section 6.10 of the Agreement, as such time period may be adjusted pursuant
to the Agreement.
2. In the event the Agreement is terminated pursuant to Section 11.2
of the Agreement, (a) nothing in this Guaranty shall prevent Owner from electing
to not complete the Project, in which event the Guaranty Obligations shall
include LMB's liability under clause (ii) of the last sentence of Section 11.2
of the Agreement and (b) Bovis (or one of its affiliates other than LMB) shall,
upon Owner's request, execute and deliver to Owner a construction management
agreement with Owner that is substantively identical to the Agreement, except
for appropriate changes necessary to make such agreement consistent with the
proviso clause of Section 1 of this Guaranty, and provided that if such
agreement is executed and delivered by an affiliate of Bovis rather than Bovis,
Bovis and such affiliate shall be jointly and severally liable for all of the
obligations and liabilities of such affiliate thereunder. Such execution and
delivery by Bovis or any such affiliate shall not modify, abrogate or waive any
of the provisions of this Guaranty or any rights Owner has against LMB.
3. It shall not be a defense (and Bovis hereby waives all such
defenses) to Bovis's obligations under this Guaranty that (i) LMB lacked the
power or authority to enter into the Agreement, or (ii) the Agreement is not a
legal, valid and
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binding obligation of LMB or (iii) LMB or any other individual or entity is (a)
insolvent or otherwise subject to any laws relating to bankruptcy, insolvency,
or debtors' rights in any jurisdiction, (b) in any way or manner entitled to any
protection against, or limitation of, claims or damages as a result of any laws
relating to bankruptcy, insolvency or debtor's rights or (c) the subject of any
injunction or other court order (other than an injunction or court order on the
merits of a claim relating to LMB's obligations under the Agreement) which in
any way prevents or limits claims or the recovery of damages against LMB or any
other individual or entity.
4. This Guaranty is only for the benefit of Owner, and may not be
assigned or transferred to any other party, except that Owner may (i) assign
this Guaranty to one or more entities affiliated with Owner so long as Owner's
ownership of the Project and rights under the loan documents with the lender(s)
to the Project are assigned to such entity or entities and (ii) assign, transfer
or pledge this Guaranty and its rights hereunder to any one or more of its (or
its affiliat(es)), lender(s) or any party acting on behalf of any such
lender(s), provided that if there is more than one assignee pursuant to the
foregoing clause (i) or (ii), all of Owner's rights hereunder shall be exercised
by one (and only one) such assignee on behalf of all such assignees, or by one
(and only one) agent appointed by all such assignees to act on their behalf. The
liability of Bovis hereunder shall not be released, diminished or otherwise
affected if Owner assigns, transfers or pledges this Guaranty, and any permitted
assignee of Owner's interest in this Guaranty shall be deemed to be the Owner
hereunder.
5. No claim for performance by Bovis under this Guaranty shall be
made unless a default on the part of LMB has occurred under the Agreement. For
purposes of this Guaranty, LMB shall be deemed to be in default under the
Agreement whenever any of the following shall occur: (a) LMB shall have failed
to complete performance when due of any of its monetary obligations under the
Agreement (including its obligations under Section 6.9(b) and Section 6.11
(subject to the proviso clause of Paragraph 1 of this Guaranty) of the
Agreement), (b) any of the events referred to in Paragraph 3 above involving LMB
shall have occurred or (c) the Agreement is terminated pursuant to Section 11.2
of the Agreement.
6. Subject to the provisions of Paragraph 3 above, Bovis shall have
available to it the same defenses, set-offs and counterclaims as are or would be
available to LMB under the Agreement; provided, however, (a) Bovis shall not
have, and waives the right to raise or assert, any defenses, set-offs or
counterclaims to the extent any such defenses, set-offs and/or counterclaims
have been or are hereafter waived in writing by LMB, all of which waivers are
incorporated herein by this reference as if made by Bovis, and (b) each of Bovis
and Owner shall be bound by those final determinations which are adverse to LMB
or Owner, as applicable, made by (i) any court of competent jurisdiction in any
legal proceeding to which LMB or Owner is a party over which the court has
acquired jurisdiction or (ii) the Independent Expert.
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7. Any claim, notice or demand in connection with this Guaranty
shall be sent to Bovis at 200 Park Avenue, New York, New York 10166 attention:
President with a copy to Mark Melson. Any such claim, notice or demand shall be
deemed validly served upon receipt. Owner agrees to send a copy (by facsimile)
of any such claim, notice or demand given by Owner hereunder to Bovis also to
LMB at the address provided in the Agreement, provided that the failure by Owner
to deliver to LMB a copy of any notice sent to Bovis shall not in any way limit,
restrict or affect the respective rights and remedies of Owner under this
Guaranty.
8. This Guaranty shall be governed by and construed in accordance
with the laws of the State of New York without regard to the conflict of laws
rules thereof (other than Section 5-1401 of the New York General Obligations
Law). All claims hereunder shall be brought in the courts of the State of Nevada
or in the Federal courts of the ninth circuit of the United States of America,
and accordingly, the parties hereto irrevocably submit to the exclusive
jurisdiction of such courts and the appellate courts thereof. In any legal
action by Owner against Bovis to enforce this Guaranty, (a) Owner shall not
object to a third party action by Bovis against LMB nor to any fourth party
action by LMB against other parties, nor shall Owner, in such legal action, take
any position that jurisdiction should not be exercised by the court in respect
of the third party or fourth party action, nor shall Owner in such legal action
seek to dismiss or stay such third party or fourth party action and (b) the
applicable court(s) shall have the right to award interest costs as it deems
appropriate. Bovis agrees to pay all reasonable costs and expenses, including,
without limitation, reasonable attorneys' fees, incurred by Owner in connection
with the enforcement by Owner of Owner's rights under this Guaranty, provided
that Bovis's obligation to pay attorneys' fees for outside law firms shall be
limited to one firm in the United States and one firm in the United Kingdom.
Bovis hereby appoints Mark Melson, Esq., Lehrer McGovern Bovis, Inc., having an
address at 200 Park Avenue, New York, NY 10166, as true and lawful agent for
service of process with respect to all claims, causes of action and disputes
arising out of this Guaranty.
9. Bovis expressly agrees that Owner may, in its sole and absolute
discretion, without notice to or further assent of Bovis and without in any way
releasing, affecting or impairing the obligations and liabilities of Bovis
hereunder: (i) waive compliance with, or any default under, or grant any other
indulgences with respect to, the Agreement, (ii) modify, amend or change any
provisions of the Agreement or any of the loan documents entered into with any
of the lender(s) for the Project and (iii) deal in all respects with LMB as if
this Guaranty were not in effect. Bovis shall remain obligated under this
Guaranty notwithstanding any agreement or document with any other party. In
furtherance of the foregoing, in the event the Agreement is modified, amended or
changed in any respect, Bovis expressly acknowledges and confirms that all
references in this Guaranty to the Agreement shall mean the Agreement, as so
modified, amended or changed.
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10. In addition to, and without limitation of, Bovis's waivers set
forth elsewhere in this Guaranty, Bovis hereby expressly waives (a) diligence,
presentment, demand for payment and protest, (b) the benefit of any compromise,
settlement, agreement or other arrangement between or involving Owner, on the
one hand, and LMB or any successor or assign of Owner or LMB, including any
trustee in bankruptcy, on the other, which results in the discharge of LMB from
any of the Guaranty Obligations (provided that in no event shall Owner be
entitled to receive in the aggregate from Bovis and LMB under this Guaranty and
the Agreement more than full performance and satisfaction of the Guaranty
Obligations plus reimbursement for Owner's enforcement costs as provided in and
limited by Paragraph 7 above), (c) notice and proof of reliance by Owner upon
this Guaranty or acceptance of this Guaranty, (d) trial by jury in any action
brought on or with respect to this Guaranty, and (e) any requirement that Owner
(i) exhaust any right, power or remedy or (ii) proceed against LMB or any other
guarantor of, or any other party liable for, any of the Guaranty Obligations, or
any portion thereof. Bovis specifically agrees that it will not be necessary or
required, and Bovis shall not be entitled to require, that Owner file suit or
proceed to assert or obtain a claim for personal judgment against LMB for the
Guaranty Obligations from LMB or file suit or proceed to obtain or assert a
claim for personal judgment against LMB for the Guaranty Obligations or to make
any effort at collection or enforcement of the Guaranty Obligations from LMB or
file suit or proceed to obtain or assert a claim for personal judgment against
LMB or any other guarantor or other party liable for the Guaranty Obligations or
make any effort at collection of the Guaranty Obligations from any such party or
exercise or assert any other right or remedy to which Owner is or may be
entitled in connection with the Guaranty Obligations thereto or assert or file
any claim against the assets of LMB, before or as a condition of enforcing the
liability of Bovis under this Guaranty.
11. This Guaranty shall continue and remain in full force and effect
and be binding in accordance with and to the extent of its terms upon Bovis
until all of the obligations of Bovis hereunder and of LMB under the Agreement
shall have completely and finally been performed and satisfied in full.
12. Notwithstanding any other provision hereof, to the extent LMB
pays any amount to Owner in satisfaction of any of the Guaranty Obligations
(including payments pursuant to Section 6.11 or the last sentence of Section
11.2 of the Agreement), Owner shall not be entitled to recover from Bovis such
amount.
13. Bovis represents and warrants as follows:
(a) Bovis's head office is located at 200 Park Avenue, New
York, New York .
(b) Bovis (i) is a corporation duly incorporated and validly
existing under the laws of the State of New York and
(ii) has all requisite corporate power and authority to
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execute and deliver this Guaranty and to perform its
obligations hereunder.
(c) The execution, delivery and performance by Bovis of this
Guaranty (i) has been duly authorized by all necessary
action; (ii) does not contravene Bovis's charter
documents or any law or any contractual restriction
binding on Bovis; and (iii) does not require any
authorization, consent or approval by or other action
by, or any notice to or filing with, any governmental
authority or any other person.
(d) This Guaranty has been duly executed and delivered by
Bovis and constitutes a legal, valid and binding
obligation of Bovis enforceable in accordance with its
terms, except (i) as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratoriums or
similar laws affecting the enforcement of creditors'
rights generally and (ii) the remedy of specific
performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding
thereof may be brought.
14. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
only to the extent of such prohibition or unenforceability without invalidating
the remaining provisions of this Guaranty, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. No failure to exercise, nor any delay in exercising on the part
of Owner of, any right, power or privilege under this Guaranty shall operate as
a waiver. A waiver by Owner of any right or remedy under this Guaranty on any
one occasion shall not be construed as a bar to any right or remedy which Owner
otherwise would have on any future occasion. The rights and remedies provided to
Owner are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
16. None of the terms or provisions of this Guaranty may be waived,
amended or supplemented or otherwise modified except by a written instrument
executed by Bovis and Owner.
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17. This Guaranty shall inure to the benefit of, and shall be
enforceable by, Owner and its successors and assigns, and shall be binding upon,
and enforceable against, Bovis and its successors and assigns.
BOVIS, INC.
By: /s/ Luther P. Cochran
Name: Luther P. Cochran
Title: President
Dated: August 19, 1997