THIS SALE AND CONTRIBUTION AGREEMENT (this "Agreement") is
made as of the 14th day of November, 1997 (the "Effective Date") by and among
VENETIAN CASINO RESORT, LLC ("VCR"), a Nevada limited liability company having
an address at 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxx 0X, Xxx Xxxxx, Xxxxxx 00000,
GRAND CANAL SHOPS MALL CONSTRUCTION, LLC, a Delaware limited liability company
having an address at 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxx 0X, Xxx Xxxxx, Xxxxxx
00000 ("Seller"), and GRAND CANAL SHOPS MALL, LLC, a Delaware limited liability
company ("Purchaser") having an address at 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxx
0X, Xxx Xxxxx, Xxxxxx 00000.
W I T N E S S E T H :
WHEREAS, VCR is the owner of fee title to that certain real property
described in Exhibit A-1 attached hereto (the "Phase I Land"); and
WHEREAS, pursuant to a lease (the "Mall I Airspace/Ground Lease") of
even date herewith from VCR, as landlord, to Seller, as tenant, Seller owns a
leasehold interest in and to (i) that certain space within the Phase I Land more
particularly described in Exhibit A-2 attached hereto and made a part hereof
(such space, as improved from time to time (including without limitation
improvements therein effected from time to time in accordance with the "FADAA",
as hereinafter defined), and as the boundaries thereof may be adjusted in
accordance with the terms of the Cooperation Agreement (as hereinafter defined),
sometimes referred to herein
2
as the "Mall I Airspace") and (ii) that certain land within the Phase I Land
more particularly described on Exhibit A-3 (said land, as improved from time to
time (including without limitation improvements effected thereon from time to
time in accordance with the FADAA), and as the boundaries thereof may be
adjusted in accordance with the terms of the Cooperation Agreement (as
hereinafter defined), sometimes referred to herein as the "Retail Annex Land";
and the Retail Annex Land, together with the Mall I Airspace, sometimes referred
to herein collectively, the "Mall Parcels") ; and
WHEREAS, pursuant to a lease (the "Master Lease for Additional
Billboard Space") of even date herewith from VCR, as landlord to Seller, as
tenant, Seller owns a leasehold interest in and to that certain space more
particularly described in Exhibit A-4 (said space, as improved from time to time
(including without limitation improvements effected from time to time in
accordance with the FADAA), and as the boundaries thereof may be adjusted in
accordance with the terms of the Cooperation Agreement (as hereinafter defined),
sometimes referred to herein as the "Additional Billboard Space"); and
WHEREAS, VCR has assigned to Seller all of VCR's right, title and
interest in and to that certain restaurant lease (the "Billboard Operating
Lease"), dated June 26, 1997 between VCR, as landlord and X.X. of Las Vegas,
Inc. ("Billboard"), as tenant, pursuant to which VCR has leased to Billboard (i)
a portion of the Mall I Airspace described in the Billboard Operating Lease and
(ii) the Additional Billboard Space; and
3
WHEREAS, Las Vegas Sands, Inc., a Nevada corporation ("LVSI"),
Seller and VCR (sometimes referred to herein collectively as "Borrowers") are
parties to a Funding Agents' Disbursement and Administration Agreement (as such
document is in effect as of the Effective Date hereof, the "FADAA"), dated
November 14, 1997 with GMAC Commercial Mortgage Corporation ("GMAC"), The Bank
of Nova Scotia, as administrative agent under that certain Bank Credit Agreement
(the "Bank Credit Agreement") dated as of November 14, 1997, First Trust
National Association, as trustee for the Borrower's 12.25% Mortgage Notes due
2004 (the "Mortgage Notes"), Atlantic-Pacific Las Vegas, LLC ("APJV") and The
Bank of Nova Scotia, as Disbursement Agent; and
WHEREAS, as contemplated by the FADAA, Borrowers plan to cause (i) a
commercial subdivision of the Phase I Land so that the Mall I Airspace and the
Retail Annex Land become separate legal parcels from the rest of the Phase I
Land (collectively, the "Subdivision") and (ii) prior to the Closing Date (as
hereinafter defined), the substantial completion of the construction of the
"Project" (as such term is used in the FADAA), including without limitation a
Venetian-theme shopping mall and certain other improvements in the Mall Airspace
and the Additional Billboard Space, and a Venetian-theme retail annex to such
shopping mall on the Retail Annex Land (collectively, the "Mall Improvements");
and
WHEREAS, in connection with the FADAA, (a) VCR, Seller and Interface
Group - Nevada, Inc. ("Interface"), have entered into and recorded an Amended
and Restated Reciprocal Easement, Use and Operating Agreement of even
4
date herewith (the "Cooperation Agreement") establishing certain rights and
easements with respect to the Mall Parcels, the remainder of the Phase I Land
and certain real properties adjacent to the Phase I Land, and (b) Seller has
entered into an Energy Services Agreement, dated as of June 1, 1997 with APJV
pertaining to, among other things, the provision of energy services (e.g.,
heating and air conditioning) to the Mall Parcels (the "Mall ESA"); and
WHEREAS, in order to finance the Project, Borrowers have taken
certain steps to arrange and obtain certain sources of funds, including entering
into the Bank Credit Agreement, issuing the Mortgage Notes, and entering into a
certain Loan Agreement (the "GMAC Loan Agreement"), dated November 14, 1997 with
GMAC in connection with a loan in the principal amount of up to $140,000,000 (as
the same may be amended, replaced or refinanced in accordance with any
limitations set forth in the Intercreditor Agreement, the "GMAC Loan"); and
WHEREAS, the GMAC Loan is secured by, among other things, the
following security documents in favor of GMAC:
(a) a deed of trust (the "GMAC Fee Mortgage") upon,
among other things, (i) fee title to the Mall Parcels, (ii) Seller's interests,
as tenant, in the Master Lease for Additional Billboard Space, and (iii)
Seller's interests, as landlord, under any leases (including without limitation
the Billboard Operating Lease) entered into with tenants for use of portions of
the Mall Parcels (each, a "Mall Tenant Lease"); and
5
(b) a deed of trust (the "GMAC Leasehold Mortgage") upon,
among other things, (i) Seller's interests, as tenant, in the Mall I
Airspace/Ground Lease, (ii) Seller's interests, as tenant, in the Master Lease
for Additional Billboard Space, (iii) Seller's interests, as landlord, under any
Mall Tenant Leases; and
WHEREAS, pursuant to the provisions of the Mall I Airspace/Ground
Lease, fee title in and to the Mall Parcels shall be granted by VCR to Seller
upon the implementation of the Subdivision, and at such time the GMAC Leasehold
Mortgage shall be released with respect to the Mall I Airspace/Ground Lease (but
shall continue with respect to the tenant's rights under the Master Lease for
Additional Billboard Space) and the GMAC Fee Mortgage shall become a first lien
upon the Mall Parcel and improvements therein and thereon and upon the other
collateral encumbered by the GMAC Fee Mortgage; and
WHEREAS, Purchaser has entered into (i) a commitment letter (the
"Tranche A Take-Out Commitment"), dated as of November 14, 1997 with Xxxxxxx
Xxxxx Mortgage Company ("GSMC") and Xxxxxxx X. Xxxxxxx ("Xxxxxxx") with respect
to a loan (the "Tranche A Take-Out Loan") in the amount of the lesser of (a)
$105,000,000 and (b) the principal amount of the Tranche A Loan that is
outstanding on the Closing Date (as hereinafter defined) plus accrued and unpaid
interest thereon for the final interest accrual period that is then not yet
delinquent and (ii) the commitment letter (the "Tranche B Take-Out Commitment"),
dated as of November 14, 1997 with either (x) an entity owned and controlled by
Xxxxxxx or (y) Xxxxxxx with respect to a loan in the principal amount of
$35,000,000; and
6
WHEREAS, Seller desires to sell and Purchaser desires to purchase
and accept, in accordance with and subject to the terms and conditions set forth
herein, Seller's interests in the Project as the same shall exist as of the
Closing Date, including, inter alia,:
(a) the following interests (the "Mall Real Property
Interests" consisting of:
(i) if the Subdivision shall not have been implemented
prior to the Closing Date, Seller's interests, as tenant, in the Mall I
Airspace/Groundlease;
(ii) if the Subdivision shall have been implemented
prior to the Closing Date, Seller's fee interest in the Mall Parcels; and (iii)
in either event, (A) Seller's interests, as tenant, in the Master Lease for
Additional Billboard Space, (B) Seller's interests, as landlord, under the Mall
Tenant Leases, (C) Seller's interests under the REA, and (D) Seller's interests
in and to all other easements, fixtures and improvements appurtenant thereto;
(b) Seller's interests under the Mall ESA and any other
"Mall Intangible Property Rights" (as hereinafter defined);
(c) any furnishings, fixtures and equipment owned or leased
by Seller and located in or on the Mall Parcels;
(d) cash in an amount equal to the balances, as of the
Closing Date, of the "Mall Leasing Commission Reserve" line item and the "Tenant
7
Improvements Reserve" line item, as such terms are used in the FADAA
(collectively, the "Mall Reserves Amount"); and
(e) cash in an amount equal to the "Mall Retainage/Punchlist
Amount", as such term is used in the FADAA.
AGREEMENT
NOW, THEREFORE, in consideration of the respective agreements,
covenants, representations, warranties and conditions contained in this
Agreement, and for other good and valuable consideration, the parties hereto
agree as follows:
1. Definitions.
1.1 All capitalized terms used but not defined herein shall
have the respective meanings ascribed to such terms in the FADAA.
1.2 "Deemed Mall Construction Costs" shall mean all amounts
due under the GMAC Loan (and any indebtedness incurred to replace or refinance
any portion thereof in accordance with any limitations set forth in the
documentation pertaining to the GMAC Loan, the Bank Credit Facility or the
Mortgage Notes (including the "Substitute Tranche B Loan," as defined in the
GMAC Loan Agreement as in effect on the date hereof)), after giving effect to
any advances made under the GMAC Loan on the Closing Date in accordance with the
FADAA, provided that the "Deemed Mall Construction Costs" shall in no event
exceed $175,000,000. The following examples illustrate the meaning of this
definition:
(a) If the outstanding balance on the Closing Date under
the loan still held by GMAC or an assignee is $140,000,000 and there are no
8
other outstanding "GMAC Loans" as of such date, then the Deemed Mall
Construction Costs shall be $140,000,000; and
(b) if (i) the outstanding balance on the Closing Date
under the loan still held by GMAC or an assignee (after giving effect to any
advances thereunder on such date in accordance with the terms of the FADAA) is
$105,000,000, (ii) the outstanding balance on a Substitute Tranche B Loan on
such date is $35,000,000, and (iii) there are no other outstanding "GMAC Loans"
as of such date, then the Deemed Mall Construction Costs shall be $140,000,000.
1.3 "Project Intangible Property Rights" shall mean all right,
title and interest, if any, of Seller in and to all contracts, leases,
commitments to lease, brokerage agreements, management agreements, guaranties,
permits, warranties, rights to the trademarks, logos and other intellectual
property rights and rights to phone numbers and the like pertaining to the
construction, operation, improvement, alteration or repair of the Project.
1.4 "Mall Intangible Property Rights" shall mean all right,
title and interest of Seller in and to: (a) the Mall ESA and any other Project
Intangible Property Rights which pertain exclusively to and benefit the Mall
Parcels or the Additional Billboard Space (including without limitation the
following intellectual property rights: the service marks "The Grand Canal" and
"Grand Canal Shops" and a non-exclusive license as to "Grand Venetian" and the
"Grand Venetian" design logo, but in each case only to the extent that the same
may be assigned in accordance with the documentation pertaining thereto and
applicable law, and (b) any Project
9
Intangible Property Rights, including rights to trademarks, logos and other
intellectual property rights, which pertain to and benefit both the Mall Parcels
or the Additional Billboard Space and to other portions of the Project, but (1)
only to the extent of the portion thereof pertaining to and benefitting the Mall
Parcels or the Additional Billboard Space and (2) only to the extent that such
portion may be separately assigned from the balance thereof in accordance with
the documentation pertaining thereto and applicable law.
1.5 "Mall Personal Property" shall have the meaning assigned
to such term in Exhibit B attached hereto.
2. Agreement to Sell and Purchase.
2.1 Subject to the terms and conditions contained in this
Agreement, Seller agrees to sell, convey, assign and contribute to Purchaser,
and Purchaser agrees to purchase and accept from Seller the following
(collectively, the "Mall Assets"): (a) the Mall Real Property Interests; (b)
cash in the amount of the Mall Reserves Amount and the Mall Retainage/Punchlist
Amount; (c) the Mall Intangible Property Rights and (d) the Mall Personal
Property. Notwithstanding anything to the contrary in this Agreement, the term
"Mall Assets" shall not include any permits or approvals issued by any
governmental authorities in order to permit the operation of gaming activities
within the Phase I Land.
2.2 Notwithstanding anything else in this Agreement to the
contrary, Purchaser acknowledges and agrees that the purchase of the Mall Assets
shall be on an "as is," "where is" basis as of the Closing Date, without any
10
representations or warranties of Seller or VCR of any kind other than as set
forth in Section 4 hereof.
2.3 Further, Seller agrees that to the extent that any Project
Intangible Property Rights that benefit the Mall are not assigned to Purchaser
pursuant to this Agreement because of the provisions of Section 1.4 hereof,
Seller nonetheless shall take such steps as Purchaser from time to time
reasonably may request in order to permit Purchaser to receive the benefits
thereof, so long as Purchaser reimburses Seller for all costs associated
therewith and otherwise takes steps reasonably approved by Seller to assure that
Seller shall not be exposed to liability as a consequence of taking the steps
requested by Purchaser for which Purchaser will not agree to reimburse Seller.
The provisions of this Section 2.3 shall survive the closing of the sale of the
Mall Assets and the delivery of a deed relating thereto.
3. Purchase Price and Payment; Purchaser's Pledge.
3.1 Seller has obtained an appraisal by Xxxxxxxx Associates,
Inc., dated September 16, 1997 which appraises the value of the Mall Parcels at
$220,000,000. Seller and Purchaser anticipate that the actual value of the Mall
Assets (including the Mall Parcels) as of the Closing Date will be not less than
$190,000,000 (collectively, the "Transfer Price"). The Transfer Price will be
composed of two (2) components: (i) a portion (the "Cash Portion") payable in
cash and/or by assumption of debt (as provided in Section 3.2) in an amount
equal to the Deemed Mall Construction Costs, and (ii) in respect of the balance
of the Transfer Price, an equity contribution to Purchaser in the form of a
deemed distribution from the Seller to
11
VCR, a capital contribution from VCR to Mall Intermediate Holding Company, LLC
("Mall Holdings"), a capital contribution from Mall Holdings to Grand Canal
Shops Mall Holding Company, LLC ("Mall Direct Holdings") and a capital
contribution from Mall Direct Holdings to Purchaser.
3.2 At Purchaser's option, the Cash Portion shall be paid by
Purchaser to Seller and/or its designee(s) (i) by wire transfer of immediately
available federal funds to an account or accounts designated by Seller by notice
to Purchaser not less than one (1) business day prior to the Closing and, (ii)
to the extent such funds are less than the amount needed to pay off the
indebtedness under the GMAC Loan in full (including, without limitation, any
portion thereof still held by GMAC or an assignee, any portion thereof replaced
or refinanced as of such date, and the Substitute Tranche B Loan, if any) by an
assumption of all remaining indebtedness under the GMAC Loan (pursuant to a
document substantially in the form of the "Mortgage Assumption", as defined in
Section 5.2.1, or, if a portion of the GMAC Loan then is held by a person or
entity other than GMAC, by appropriate alternative documentation containing
terms substantially similar to those in the Mortgage Assumption attached
hereto).
3.3 Notwithstanding the foregoing provisions of this Article
3, the parties acknowledge and agree that the Closing is not conditioned upon
the Mall Parcels or the other Mall Assets possessing a particular minimum or
maximum level of value as of the Closing.
4. Representations and Warranties; Covenants of Seller.
12
4.1 Seller hereby represents and warrants to Purchaser that
as of the date hereof:
4.1.1 Seller is a limited liability company duly
organized and validly existing in good standing under the laws of the State of
Delaware. Seller has full power and authority to enter into this Agreement, and
except as expressly set forth herein, other than consents of GMAC (and any other
lenders from time to time holding any portion of the indebtedness under the GMAC
Loan) in connection with the GMAC Loan, no consents of any third party are
required to execute and deliver the instruments referred to herein and/or to
fully perform its obligations hereunder. All such consents have been obtained as
of the date hereof;
4.1.2 the signatory hereto on behalf of Seller has full
power and authority to bind Seller and all requisite actions necessary to
authorize Seller to execute and deliver this Agreement and perform its
obligations hereunder have been taken;
4.1.3 the execution and delivery of this Agreement, the
consummation of the transactions provided for herein and the fulfillment of the
terms hereof will not result in a breach of any of the terms or provisions of,
or constitute a default or an acceleration under, Seller's organizational
documents, any agreement to which Seller is a party or by which Seller or the
Premises is bound, or any judgment, writ, trust, decree or order of any court or
governmental body, or any applicable law,
13
rule or regulation, which breach, default or acceleration would have a material
adverse effect on the Premises or Seller's ability to perform its obligations
hereunder;
4.1.4 Seller is not a "foreign person" as defined in
Section 1445(f)(3) of the Internal Revenue Code; and
4.1.5 Seller is solvent, has filed no petition in
bankruptcy under any state or Federal bankruptcy laws, has made no assignment
for the benefit of creditors and has no knowledge of any pending filing of a
petition in bankruptcy, whether voluntary or involuntary, against it;
4.1.6 Seller has delivered to Purchaser a true, complete
and correct copy of each of (i) the Mall I Airspace/Ground Lease, (ii) the
Master Lease for the Additional Billboard Space, and (iii) the Billboard
Operating Lease;
4.1.7 The Mall I Airspace/Ground Lease, the Master Lease
for Additional Billboard Space and the Billboard Operating Lease are each in
full force and effect as of the date hereof, and to the knowledge of Seller
there are no existing defaults thereunder or under any of the Mall Intangible
Property Rights; and
4.1.8 This Agreement is enforceable against Seller in
accordance with its terms.
4.2 VCR hereby represents and warrants to Purchaser that as
of the date hereof:
4.2.1 VCR is a limited liability company duly organized
and validly existing in good standing under the laws of the State of Nevada. VCR
has full power and authority to enter into this Agreement, and except as
expressly set
14
forth herein, other than consents of GMAC (and any other lenders from time to
time holding any portion of the indebtedness under the GMAC Loan) in connection
with the GMAC Loan, no consents of any third party are required to execute and
deliver the instruments referred to herein and/or to fully perform its
obligations hereunder. All such consents have been obtained as of the date
hereof;
4.2.2 the signatory hereto on behalf of VCR has full
power and authority to bind VCR and all requisite actions necessary to authorize
VCR to execute and deliver this Agreement and perform its obligations hereunder
have been taken;
4.2.3 the execution and delivery of this Agreement, the
consummation of the transactions provided for herein and the fulfillment of the
terms hereof will not result in a breach of any of the terms or provisions of,
or constitute a default or an acceleration under, VCR's organizational
documents, any agreement to which VCR is a party or by which VCR or the Premises
is bound, or any judgment, writ, trust, decree or order of any court or
governmental body, or any applicable law, rule or regulation, which breach,
default or acceleration would have a material adverse effect on the Premises or
VCR's ability to perform its obligations hereunder;
4.2.4 VCR is not a "foreign person" as defined in
Section 1445(f)(3) of the Internal Revenue Code;
4.2.5 VCR is solvent, has filed no petition in
bankruptcy under any state or Federal bankruptcy laws, has made no assignment
for
15
the benefit of creditors and has no knowledge of any pending filing of a
petition in bankruptcy, whether voluntary or involuntary, against it; and
4.2.6 This Agreement is enforceable against VCR in
accordance with its terms.
4.3 Purchaser hereby represents and warrants to Seller and
VCR that as of the date hereof:
4.3.1 Purchaser is a limited liability company duly
organized and validly existing in good standing under the laws of the State of
Delaware. Purchaser has the full power and authority to enter into this
Agreement and no consents of any third party are required to execute and deliver
the instruments referred to herein and/or to fully perform its obligations
hereunder;
4.3.2 the signatory hereto on behalf of Purchaser has
full power and authority to bind Purchaser and all requisite actions necessary
to authorize Purchaser to execute and deliver this Agreement and perform its
obligations hereunder have been taken;
4.3.3 the execution and delivery of this Agreement, the
consummation of the transactions provided for herein and the fulfillment of the
terms hereof will not result in a breach of any of the terms or provisions of,
or constitute a default or an acceleration under, Purchaser's organizational
documents, any agreement to which Purchaser is a party or by which Purchaser is
bound, or any judgment, writ, trust, decree or order of any court or
governmental body, or any
16
applicable law, rule or regulation, which breach, default or acceleration would
have a material adverse effect on Purchaser's ability to perform its obligations
hereunder;
4.3.4 Purchaser is solvent, has filed no petition in
bankruptcy under any state or federal bankruptcy laws, has made no assignment
for the benefit of creditors and has no knowledge of any pending filing of a
petition in bankruptcy, whether voluntary or involuntary against it;
4.3.5 Purchaser has received and reviewed true, correct
and complete copies of the Mall I Airspace/Ground Lease, the Master Lease for
Additional Billboard Space and the Billboard Operating Lease, and Purchaser is
not aware of any facts which would cause the representations of Seller or VCR
set forth in this Section 4 to be untrue in any material respect; and
4.3.6 This Agreement is enforceable against Purchaser
in accordance with its terms.
4.4 The representations and warranties contained in this
Article 4 shall survive the Closing.
4.5 Seller and VCR covenant and agree that from and after the
date of this Agreement until the Closing Date or earlier termination of this
Agreement:
4.5.1 Seller and VCR shall use their best efforts to
implement the Subdivision; and
4.5.2 Seller and VCR may, at their discretion, by
written notice to Purchaser, change the Plans and Specifications; provided,
however,
17
that Seller and VCR shall not make any changes in the Plans and Specifications
except in accordance with the provisions of the FADAA.
4.6 Seller and VCR covenant to Purchaser that all Leases (as
hereinafter defined) entered into from and after the date hereof through and
including the Closing Date shall be at fair market rental and on commercially
reasonable terms.
5. The Closing; Closing Deliveries.
5.1 Subject to the terms and conditions hereof, the closing
of the transactions provided for herein (the "Closing") will be held at the
location determined by the parties and on the Mall Release Date (the "Closing
Date").
5.2 At the Closing, Seller shall deliver or cause to be
delivered the following to Purchaser:
5.2.1 (a) If the Subdivision shall have been
implemented on or before the Closing Date a limited warranty deed (or such other
form of deed as shall be required in Xxxxx County, Nevada in order for
Purchaser, GMAC and GSMC to obtain the title insurance they require) in proper
statutory form for recording, duly executed and acknowledged by Seller, so as to
convey to Purchaser fee simple title to the Mall Parcels, subject only to GCCLLC
Permitted Encumbrances (as defined in the FADAA) in the form attached hereto and
made a part hereof as Exhibit G (the "Deed").
18
(b) In the alternative to (a) above, if the
Subdivision shall not have been implemented on or before the Closing Date,
assignment and assumption of lease (collectively, the "Mall I Airspace/Ground
Lease Assignment") in proper statutory form for recording, duly executed and
acknowledged by Seller, so as to assign and transfer to Purchaser (subject only
to GCCLLC Permitted Encumbrances) all of Seller's right, title and interest in
and to the Mall I Airspace/Ground Lease, in the form attached hereto and made a
part hereof as Exhibit H and a limited warranty deed (or such other form of deed
as shall be required in Xxxxx County, Nevada in order for Purchaser, GMAC and
GSMC to obtain the title insurance they require) in proper statutory form for
recording, duly executed and acknowledged by Seller, so as to convey to
Purchaser fee simple title to all of the improvements and fixtures located or
constructed on the Mall Parcel, subject only to GCCLLC Permitted Encumbrances
(as defined in the FADAA) in the form attached hereto and made a part hereof as
Exhibit G-1 (the "Deed For Improvements").
(c) Regardless of whether the Subdivision
shall have been implemented on or before the Closing Date, an Assignment and
Assumption of Master Lease for Additional Billboard Space (the "Assignment of
Master Lease for Additional Billboard Space") in proper statutory form for
recording, duly executed and acknowledged by Seller, so as to assign and
transfer to Purchaser (subject only to GCCLLC Permitted Encumbrances) all of
Seller's right, title and
19
interest in and to the Seller's interests under the Master Lease for Additional
Billboard Space, in the form attached hereto and made a part hereof as Exhibit
I.
(d) Notwithstanding anything to the contrary
in this Section 5.2.1, the parties agree that if at Closing Purchaser shall take
title to Seller's Interest subject to the liens in favor of the lender(s) under
the GMAC Loan to secure the GMAC Loan, in accordance with Section 3.2, (i) said
liens shall be, and shall be deemed to be, a GCCLLC Permitted Encumbrance, and
(ii) Seller shall deliver to Purchaser and GMAC at Closing an assumption of
mortgage agreement (the "Mortgage Assumption") in proper statutory form for
recording, duly executed and acknowledged by Seller, (x) if the Subdivision has
occurred, whereby Purchaser assumes all of Seller's obligations under the GMAC
Mortgage, in the form attached hereto and made a part hereof as Exhibit J1, and
(y) whereby Purchaser assumes all of Seller's obligations under the GMAC
Leasehold Mortgage, in the form attached hereto and made a part hereof as
Exhibit J2, if the Subdivision has not occurred.
5.2.2 a xxxx of sale duly executed by Seller evidencing the
Sale of the Mall Personal Property, substantially in the form attached hereto as
Exhibit C;
5.2.3 Cash in the following amounts:
(a) the Mall Reserves Amount; the cash to be delivered
pursuant to this Section 5.2.3(a) shall be transferred by assignment of all of
Seller's right, title and interest in an account pledged to GMAC pursuant to the
GMAC Loan Agreement;
20
(b) the Mall Retainage/Punchlist Amount. The cash to
be delivered pursuant to this Section 5.2.3(b) shall be delivered by Seller
causing the same to be deposited into an escrow account to be maintained at the
Disbursement Agent for the benefit of the Purchaser. In connection with the
delivery of such cash, Seller further shall execute and deliver (and shall cause
the Disbursement Agent to execute and deliver) to Purchaser a Mall
Retainage/Punchlist Escrow Agreement substantially in the form attached hereto
as Exhibit D (the "Mall Retainage/Punchlist Escrow Agreement");
5.2.4 an assignment duly executed by Seller of all of its
right, title and interest in and to all Mall Intangible Property Rights, to the
extent assignable, and all utility deposits then held for Seller's benefit with
respect to the Assets, substantially in the form attached hereto as Exhibit E
(with the exhibits thereto accurately completed to reflect the pertinent facts
as of the Closing Date);
5.2.5 an assignment duly executed and acknowledged by Seller,
pursuant to which Seller shall assign to Purchaser all of Seller's right, title
and interest as landlord, in, to and under all Mall Tenant Leases (including,
without limitation, the Billboard Operating Lease), and the balance of any
security and similar deposits, if any, made by tenants pursuant to the terms of
the Mall Tenant Leases as of the Closing Date, all as more particularly set
forth in the form of Assignment and Assumption of Leases attached hereto as
Exhibit F (with the exhibits thereto accurately completed to reflect the
pertinent facts as of the Closing Date). At Closing, Seller shall deliver
therewith a check to Purchaser's order in the aggregate
21
amount of any cash security deposits maintained by Seller for the benefit of
tenants under Mall Tenant Leases, including accrued interest, if any, which
would be due to tenants if such deposits were withdrawn on the Closing Date or,
at the option of Seller, Seller will allow Purchaser a credit against the
Purchase Price in the amount of such deposits. If any security deposits shall be
maintained in the form of a letter of credit, Seller shall deliver all such
letters of credit at Closing and shall assign to Purchaser all of its right,
title and interest as landlord thereto, and/or shall cooperate with Purchaser to
cause the reissuance or endorsement of each such letter of credit for the
benefit of Purchaser on or following the Closing;
5.2.6 executed originals of all Mall Tenant Leases or copies
thereof to the extent Seller is not in possession of executed originals, and all
related files and records, operating expense records and operating expense
statements, together with supporting documentation with respect to the Mall
Parcels, to the extent in the possession of Seller or its property manager;
5.2.7 estoppel certificates in form and content reasonably
acceptable to Purchaser executed by Seller, with respect to each of the Mall
Tenant Leases, to the extent received;
5.2.8 affidavits executed on behalf of Seller and VCR
providing Seller's and VCR's taxpayer identification numbers and a statement
that neither Seller nor VCR is a foreign person within the meaning of Section
1445(f)(3) of the Internal Revenue Code, as amended;
22
5.2.9 the keys to the improvements within the Mall Parcels to
the extent in the possession of Seller or its property manager;
5.2.10 a letter, addressed to each tenant under a Mall Tenant
Lease and executed by Seller, advising of the sale of the Premises and (as
applicable) of the transfer of security and similar deposits, if any, to
Purchaser, directing it to pay rent and/or deliver notices to a person and at an
address designated by Purchaser and containing such other information as may be
required in accordance with applicable law;
5.2.11 to the extent in the possession of Seller or Seller's
property manager and not already delivered, (a) all original licenses and
permits, authorizations and approvals which are currently in force pertaining to
the Improved Property, (b) the contracts and other documentation pertaining to
or evidencing the Mall Intangible Property Rights, (c) plans and drawings for
the Mall Improvements and all improvements erected on the Improved Property and
(d) all guarantees and warranties which are currently in force in connection
with any work or services performed or equipment installed in and to the Mall
Improvements;
5.2.12 any and all operating expense statements, calculations
of escalations, tenant leasing files and records, marketing materials,
architectural and engineering drawings, utilities layout plans, topographical
plans and the like in Seller's or its managing agent's possession or control
which are used in the operation, construction, improvement, alteration or repair
of the Mall Parcels;
23
5.2.13 such reasonable and customary affidavits and other
instruments and documents, limited to knowledge as appropriate, as Purchaser's
or GSMC's title insurer shall reasonably require (or, if the GMAC Loan is
assumed in whole or in part by Purchaser, as the title insurer or the then
holder of the GMAC Loan reasonably may require) in order to issue owner's and
mortgagee policies of title insurance in respect of the Mall Parcels and/or to
delete the standard pre-printed exceptions for mechanics' liens attributable to
labor, services or materials furnished to the Mall Parcels and parties in
possession other than the tenants under the Mall Tenant Leases; and
5.2.14 all other instruments and documents reasonably
requested by Purchaser to effectuate this Agreement and the transaction
contemplated hereby, each in form and substance reasonably satisfactory to
Seller.
5.3 At the Closing, Purchaser will deliver to Seller the
following:
5.3.1 the Cash Portion as provided in Section 3.2;
5.3.2 if the Subdivision shall not have been implemented
on or before the Closing Date, a counterpart of the Lease Assignment described
in Section 5.2.1(b) hereof in which Purchaser assumes and agrees to observe and
perform all of the obligations of Seller as tenant under the Mall I
Airspace/Ground Lease which arise from and after the Closing Date;
5.3.3 regardless of whether the Subdivision shall have been
implemented on or before the Closing Date, a counterpart of the Assignment of
Master Lease for Additional Billboard Space described in Section 5.2.1(c) hereof
in
24
which Purchaser assumes and agrees to observe and perform all of the obligations
of Seller as tenant under the Master Lease for Additional Billboard Space which
arise from and after the Closing Date;
5.3.4 if at Closing Purchaser shall take title to Mall Real
Property Interests subject to the liens of the GMAC Loan, as contemplated in
Section 3.2(ii), the applicable counterpart of the Assumption Agreement
described in Section 5.2.1(d) hereof in which Purchaser assumes and agrees to be
bound by and to observe and perform all of the obligations of Seller under the
GMAC Loan which arise from and after the Closing Date.
5.3.5 a counterpart of the Mall Retainage/Punchlist Escrow
Agreement duly executed by Purchaser and duly consented to by any lender
receiving a security interest therein;
5.3.6 a counterpart of the assignment described in subsection
5.2.4, duly executed and acknowledged by Purchaser, in which Purchaser assumes
and agrees to be bound by and to observe and perform all of the obligations of
Seller under the contracts included within the Mall Intangible Property Rights
which arise from and after the Closing Date;
5.3.7 a counterpart of the assignment described in subsection
5.2.5 hereof, duly executed and acknowledged by Purchaser, in which Purchaser
assumes and agrees to be bound by and to observe and perform all of the
obligations of Seller under the Mall Tenant Leases which arise from and after
the Closing Date; and
25
5.3.8 all other instruments and documents reasonably requested
by Seller to effectuate this Agreement and the transaction contemplated hereby,
each in form and substance reasonably satisfactory to Purchaser. Purchaser shall
also make any other payments required by this Agreement to be paid by Purchaser.
6. Conditions to Obligations
to Close Title.
The obligations of Seller, VCR and Purchaser to close the
transfer of the Assets under this Agreement is expressly conditioned upon the
Mall Release Date having occurred. Seller, VCR and Purchaser each covenant and
agree to apply their best efforts to cause the Mall Release Date to occur as
contemplated by the FADAA.
7. Damage or Destruction by Fire
or Other Casualty; Condemnation.
If all or any portion of the Mall Parcels is damaged or
destroyed by fire or other casualty or is taken in condemnation or by eminent
domain, such occurrence shall not result in a reduction in the Transfer Price or
modify any of the obligations of the Parties hereto under this Agreement,
including without limitations, the obligations to convey and purchase the Assets
upon satisfaction of the Mall Release Conditions.
8. Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit
of Seller and Purchaser and their respective successors and assigns.
26
9. Notices.
All elections, notices and other communications (collectively,
"Notices") to be given hereunder by any party to any other shall be in writing
and sent in accordance with Section 9.1 of the FADAA to the address first above
written.
10. Payment of Expenses.
Purchaser shall pay at the Closing all costs associated with any
title insurance or surveys required to be delivered in connection with the
Closing and all real property transfer taxes payable by reason of the delivery
of the Deed or the Lease Assignment, as the case may be. Purchaser shall pay at
the Closing all other recording and filing fees and charges, and all title
insurance charges. No part of the Cash Portion hereunder will be allocated to
any of the Mall Intangible Property Rights. If, however, any part of the Cash
Portion is deemed by any governmental or administrative body to have been paid
for such Mall Intangible Property Rights, then Seller will be solely responsible
for the sales tax (if any) payable in connection therewith and will indemnify
Purchaser therefor and against any claim, liability or damage resulting from any
obligations arising from Seller's failure to pay the amount of any such sales
tax. Each party shall pay the fees and disbursements of its own counsel,
provided that in the event of any dispute hereunder, the prevailing party in any
such dispute shall be entitled to an award for its reasonable costs and expenses
incurred in connection therewith. The provisions of this Article shall survive
the Closing.
27
11. Gender and Number.
Wherever the context so requires, references herein to the neuter
gender shall include the masculine and/or feminine gender, and the singular
number shall include the plural.
12. Entire Agreement.
This Agreement and the instruments referred to herein embody the
entire agreement and understanding between the parties relating to the subject
matter hereof and may not be amended, waived or discharged except by an
instrument in writing executed by the party against whom enforcement of such
amendment, waiver or discharge is sought.
13. Captions.
The captions in this Agreement are for convenience only and are not
to be deemed part of this Agreement.
14. Governing Law.
This Agreement is made pursuant to, and shall be governed by, the
laws of the State of Nevada.
15. Counterparts.
This Agreement may be executed and delivered in counterpart copies,
all of which together will constitute one executed original agreement.
16. Binding and Enforceable Agreements.
This Agreement is and is intended to be a fully binding and
enforceable contract between the parties hereto notwithstanding that the parties
are currently
28
indirectly owned by the same shareholder. Each party hereto expressly
acknowledges that certain third parties, including the separate creditors of
each party hereto, are relying upon (i) the binding and enforceable nature
hereof by each party against the others and (ii) the separate assets and
liabilities of each party hereto. Each party hereto therefore agrees that this
Agreement shall not be amended or modified except in accordance with the terms
of the FADAA. Each party hereto further agrees not to challenge or seek to set
aside this Agreement or the transactions contemplated hereby (whether in any
bankruptcy or insolvency proceeding or otherwise) based upon any assertion that
such transactions do not contain arm's-length terms or upon any direct or
indirect common ownership of the parties hereto.
[signature pages follow]
29
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
SELLER:
GRAND CANAL SHOPS MALL
CONSTRUCTION, LLC
By: Venetian Casino Resort, LLC, as sole
member
By: Las Vegas Sands, Inc., as managing member
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
VCR:
VENETIAN CASINO RESORT, LLC
By: Las Vegas Sands, Inc., as managing member
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
PURCHASER:
GRAND CANAL SHOPS MALL, LLC
By: Grand Canal Shops Mall Holding Company, LLC, as managing
member
By: Mall Intermediate Holding Company, LLC, as managing
member
By: Venetian Casino Resort, LLC, as sole member
By: Las Vegas Sands, Inc., as managing
member
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
30
THE UNDERSIGNED CONSENTS
AND AGREES TO THE
PROVISIONS OF SECTION 3.1
MALL INTERMEDIATE HOLDING COMPANY, LLC
By: Venetian Casino Resort, LLC, as sole member
By: Las Vegas Sands, Inc., as managing member
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
GRAND CANAL SHOPS MALL HOLDING COMPANY, LLC
By: Mall Intermediate Holding Company, LLC, as
managing member
By: Venetian Casino Resort, LLC, as sole member
By: Las Vegas Sands, Inc., as managing member
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxxx Xxxxxxx
Title: President
EXHIBIT A-1
THE PHASE I LAND
EXHIBIT A-2
THE MALL I AIRSPACE
EXHIBIT A-3
THE RETAIL ANNEX LAND
EXHIBIT A-4
THE ADDITIONAL BILLBOARD SPACE
EXHIBIT B
MALL PERSONAL PROPERTY
1. All furniture, fixtures and equipment located on or in the Mall Parcels
and owned by Seller.
EXHIBIT C
XXXX OF SALE
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are acknowledged, GRAND CANAL SHOPS MALL CONSTRUCTION, LLC, a Delaware
limited liability company ("Seller") sells, assigns, transfers and delivers to
GRAND CANAL SHOPS MALL, LLC, a Delaware
limited liability company ("Purchaser"), all of Seller's right, title and
interest in and to all personal property owned by Seller and located on or used
in connection with the operation and use of the real property described on
Exhibit 1 attached hereto and the improvements thereon or therein (collectively,
the "Property").
THE PROPERTY IS CONVEYED "AS IS", "WHERE IS" WITHOUT WARRANTY OR
REPRESENTATION OF ANY KIND, AND ALL WARRANTIES OF QUALITY, FITNESS AND
MERCHANTABILITY ARE HEREBY EXCLUDED.
TO HAVE AND TO HOLD all and singular the Property unto Purchaser,
its successors, heirs, executors, administrators and assigns, to their own
proper use and benefit, forever.
IN WITNESS WHEREOF, this Xxxx of Sale has been executed as of
__________, __.
SELLER:
GRAND CANAL SHOPS MALL
CONSTRUCTION, LLC
By: Venetian Casino Resort, LLC, as sole
member
By: Las Vegas Sands, Inc., as
managing member
By:
------------------------------
Name:
Title:
Exhibit 1 to Xxxx of Sale
EXHIBIT D
MALL RETAINAGE/PUNCHLIST ESCROW AGREEMENT
This Mall Retainage/Punchlist Escrow Agreement (the "Agreement") is
made as of ____________________, by and between GRAND CANAL SHOPS MALL
CONSTRUCTION, LLC, a Delaware limited liability company having an address at
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxx 0X, Xxx Xxxxx, Xxxxxx 00000 ("Seller"), and
GRAND CANAL SHOPS MALL, LLC, a Delaware limited liability company ("Purchaser")
having an address at 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxx 0X, Xxx Xxxxx, Xxxxxx
00000.
Recitals
A. Seller and Purchaser are parties to that certain Sale and
Contribution Agreement, dated as of November 14, 1997 (the "Sale and
Contribution Agreement").
B. Seller also is a party to that certain Funding Agents'
Disbursement and Administration Agreement (as in effect as of the date executed,
the "FADAA"), dated November 14, 1997, by and between Seller, Las Vegas Sands,
Inc., Venetian Casino Resort, LLC, GMAC Commercial Mortgage Corporation
("GMAC"), The Bank of Nova Scotia, as administrative agent under that certain
Bank Credit Agreement (the Bank Credit Agreement") dated as of November 14,
1997, First Trust National Association, as trustee for the Borrower's 12.25%
Mortgage Notes due 2004 (the "Mortgage Notes"), Atlantic-Pacific Las Vegas,
L.L.C. and The Bank of Nova Scotia, as "Disbursement Agent".
C. Seller and Purchaser are entering into this Agreement in order to
implement the terms of the Sale and Contribution Agreement and the FADAA.
Agreement
1. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Sale and Contribution Agreement or, if not
defined therein, the meanings assigned to them in the FADAA.
2. Substantially concurrently herewith, Seller has caused to be
deposited with Disbursement Agent, as escrow agent hereunder, cash in the amount
of the Mall Retainage/Punchlist Amount. In accordance with the terms of the Sale
and Contribution Agreement, such funds shall be deemed property of Purchaser and
shall be maintained by Disbursement Agent in an account (the "Mall
Retainage/Punchlist Account") in accordance with the terms of this Agreement.
2
3. Seller agrees that it shall complete, or cause to be completed,
the work required in order to complete all Mall Punchlist Items in accordance
with the terms of the FADAA.
4. Disbursement Agent shall withdraw funds to pay amounts payable
from the Mall Retainage/Punchlist Account in accordance with the terms of the
FADAA and subject to the prior or concurrent satisfaction of any conditions upon
such disbursements set forth therein (including the provision from the other
funding sources contemplated therein of their appropriate respective funding
shares with respect to any such advance, as determined in accordance with the
FADAA). Pending disbursement, all funds in the escrow account shall be invested
only in Permitted Investments at the direction of Purchaser and with maturities
appropriate to cover anticipated costs as and when they are anticipated to
accrue.
5. To the extent that amounts incurred with respect to the Mall
Punchlist Items are not timely paid, or the Mall Punchlist Items are not timely
completed, in either case, in accordance with the terms of the FADAA (including
without limitation Sections 5.3 and 5.4 thereof), Purchaser shall have the right
to withdraw funds from the Mall Retainage/Punchlist Account to pay such amounts
or to complete such items, as applicable by delivering a written request to
Disbursement Agent specifying the amount to be withdrawn. The parties further
agree that in the event that Final Completion has not been achieved by 18 months
after the Mall Release Date, then Purchaser shall have the right to withdraw
funds from the Mall Retainage/Punchlist Account to pay any other costs arising
out of the construction of the Project secured by liens upon the Project by
delivering a written request to Disbursement Agent specifying the amount to be
withdrawn.
6. Upon Final Completion, Purchaser agrees that it shall pay to
Seller, as compensation for Seller's agreement to complete the Mall Punchlist
Items and its work in connection therewith, any remaining balance within the
Mall Retainage/ Punchlist Account. Such amounts shall be released by delivering
a written request to Disbursement Agent specifying that all remaining funds
should be transferred to Seller and certifying that all Mall Punchlist Items are
completed. Purchaser agrees that such funds shall be disbursed to Seller free
and clear of any claims of Purchaser or any persons or entities claiming through
Purchaser.
7. Purchaser agrees that it shall not withdraw any funds from the
Mall Retainage/Punchlist Account except as specifically provided above.
Purchaser further agrees, to the maximum extent permitted under applicable law,
that it waives any right to use such funds in a manner in violation of the
provisions of this Agreement (including any right under the Bankruptcy Code to
assert that such funds can be used in a manner in violation of this Agreement).
Purchaser further agrees that it shall not encumber the Mall Retainage/Punchlist
Account in favor of any person or entity unless such secured party first agrees,
for the benefit of Seller and any lenders
3
holding security interests in any portion of the Phase I Land, that (a) it will
permit disbursements from the Mall Retainage/Punchlist Account as and when
required in accordance with the terms of this Agreement, (b) the loan
documentation in favor of such lender(s) shall not permit the Purchaser to use
such funds for any other purpose, and that the lender(s) will not waive said
requirements except with the consent of any lender then holding a security
interest in those portions of the Phase I Land other than the Mall Parcels, and
(c) in the event of a bankruptcy or other insolvency proceeding involving the
Purchaser as a debtor, said lenders shall apply reasonable efforts to oppose any
use of the funds in a manner in violation of the requirements of this Agreement.
Any encumbrance or other assignment in violation of the provisions of this
paragraph shall have no force or effect.
8. In the event of any dispute hereunder, the prevailing party in
any such dispute shall be entitled to an award for its reasonable costs and
expenses incurred in connection therewith.
9. This Agreement embodies the entire agreement and understanding
between the parties relating to the subject matter hereof and may not be
amended, waived or discharged except by an instrument in writing executed by the
party against whom enforcement of such amendment, waiver or discharge is sought.
10. This Agreement is made pursuant to, and shall be governed by,
the laws of the State of New York.
11. This Agreement may be executed and delivered in counterpart
copies, all of which together will constitute one executed original agreement.
12. This Agreement is and is intended to be a fully binding and
enforceable contract between the parties hereto notwithstanding that the parties
are currently indirectly owned by the same shareholder. Each party hereto
expressly acknowledges that certain third parties, including the separate
creditors of each party hereto, are relying upon (i) the binding and enforceable
nature hereof by each party against the others and (ii) the separate assets and
liabilities of each party hereto. Each party hereto further agrees that this
Agreement shall not be amended or modified except with the consent of each
lender then holding a security interest in any portion of the Mall Real Property
Interests. Each party hereto therefore agrees not to challenge or seek to set
aside this Agreement or the transactions contemplated hereby (whether in any
bankruptcy or insolvency proceeding or otherwise) based upon any assertion that
such transactions do not contain arm's-length terms or upon any direct or
indirect common ownership of the parties hereto.
13. The Disbursement Agent agrees to perform as set forth above and
agrees to exercise commercially reasonable efforts and utilize commercially
prudent practices in the performance of its duties hereunder consistent with
those of
4
similar institutions acting as an escrow agent and otherwise performing the
duties set forth above. The Disbursement Agent shall have no responsibility to
Seller or Purchaser as a consequence of performance by the Disbursement Agent
hereunder except for any bad faith, fraud, gross negligence or willful
misconduct of the Disbursement Agent. The Disbursement Agent is not obligated to
supervise, inspect or inform the Company of any aspect of the construction of
the Project or any other matter referred to above.
The Disbursement Agent may rely, and shall be protected in acting or
refraining from acting, upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval or other paper or
document believed by it on reasonable grounds to be genuine and to have been
signed or presented by the proper party or parties.
The Disbursement Agent is authorized, in its exclusive discretion,
to obey and comply with all writs, orders, judgments or decrees issued by any
court or administrative agency affecting any money, documents or things held by
the Disbursement Agent hereunder. The Disbursement Agent shall not be liable to
any of the parties hereto, their successors, heirs or personal representatives
by reason of the Disbursement Agent's compliance with such writs, orders,
judgments or decrees, notwithstanding such writ, order, judgment or decree is
later reversed, modified, set aside or vacated.
The Disbursement Agent may consult with counsel and any opinion of
counsel shall constitute full and complete authorization and protection in
respect of any action taken or omitted by the Disbursement Agent hereunder in
good faith and in accordance with such opinion of counsel.
The Disbursement Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys appointed with due care, but the Disbursement Agent shall be
responsible for any willful misconduct or gross negligence on the part of any
agent or attorney so appointed.
In the event of any disagreement between Seller and Purchaser and
adverse claims or demands are made in connection with or for any of the
investments or amounts held pursuant to this Agreement, the Disbursement Agent
shall be entitled at its option to refuse to comply with any such claim or
demand for so long as such disagreement shall continue, and in so doing, the
Disbursement Agent shall not be or become liable for damages or interest to
Seller or Purchaser for the Disbursement Agent's failure or refusal to comply
with such conflicting or adverse claims or demands. The Disbursement Agent shall
be entitled to continue to so refrain and refuse to act until:
5
(i) the rights of the adverse claimants have been fully
adjudicated in the court assuming and having jurisdiction of the claimants and
the investments and amounts held pursuant to this Agreement; or
(ii) all differences shall have been adjusted by agreement,
and the Disbursement Agent shall have been notified thereof in writing by all
persons deemed by the Disbursement Agent, in its sole discretion, to have an
interest therein.
In addition, the Disbursement Agent, in its sole discretion, upon
giving thirty (30) days prior written notice to the Funding Agents, may file a
suit in interpleader for the purpose of having the respective rights of all
claimants adjudicated, and may deposit with the court all of the investments and
amounts held pursuant to this Agreement. Seller agrees to pay all costs and
reasonable counsel fees incurred by the Disbursement Agent in such action, said
costs and fees to be included in the judgment in any such action.
Seller and Purchaser covenant and agree to pay to the Disbursement
Agent from time to time, and the Disbursement Agent shall be entitled to
reasonable compensation for its services hereunder, to be paid one-half by each
of Seller and Purchaser.
Seller and Purchaser, acting jointly, shall have the right, should
they reasonably determine that the Disbursement Agent has breached or failed to
perform its obligations hereunder or has engaged in willful misconduct or gross
negligence, upon the expiration of thirty (30) days following delivery of
written notice of substitution to the Disbursement Agent, to cause the
Disbursement Agent to be relieved of its duties hereunder and to select a
substitute disbursement agent to serve hereunder. The Disbursement Agent may
resign at any time upon thirty (30) days written notice to all parties hereto.
Such resignation to be effective on the date specified in such notice. The funds
held by the Disbursement Agent under the terms of this Agreement as of the
effective date of the Disbursement Agent's resignation shall be delivered to a
successor escrow agent designated in writing by the Seller and reasonably
acceptable to Purchaser, but in the event no successor escrow agent is so
designated within thirty days after the effective date of the resignation, the
Disbursement Agent may pay the fund over to the clerk of a court of competent
jurisdiction to hold until a successor escrow agent has been designated. Upon
the effective date of any replacement as removal of the Disbursement Agent under
the Disbursement Agreement, the successor Disbursement Agent shall become
Disbursement Agent hereunder provided that the former Disbursement Agent shall
continue to enjoy the protections hereof with respect to its duties hereunder
prior to such resignation or replacement. Upon selection of such substitute
disbursement agent, Seller, Purchaser and the substitute disbursement agent
shall enter into an agreement substantially identical to this Agreement, and,
thereafter, the Disbursement Agent shall be relieved of its duties and
obligations to perform hereunder, except that
6
the Disbursement Agent shall transfer to the substitute disbursement agent upon
request therefor originals of all books, records, and other documents in the
Disbursement Agent's possession relating to this Agreement.
The Disbursement Agent shall have no duties or obligations hereunder
except as expressly set forth herein, shall be responsible only for the
performance of such duties and obligations and shall not be required to take any
action otherwise than in accordance with the terms hereof. Purchaser agrees to
indemnify and hold the Disbursement Agent harmless from and against any claims,
damages, liabilities, losses, obligations or expenses (including reasonable
attorneys' fees) arising out of its performance or non-performance hereunder,
except to the extent that the same constitutes gross negligence or willful
misconduct.
IN WITNESS WHEREOF, this Agreement has been executed as of the date
first above written.
SELLER:
GRAND CANAL SHOPS MALL
CONSTRUCTION, LLC
By: Venetian Casino Resort, LLC, as sole member
By: Las Vegas Sands, Inc, as managing member
By:
----------------------------------------
Name:
Title:
PURCHASER:
GRAND CANAL SHOPS MALL, LLC
By: Grand Canal Shops Mall Holding Company, LLC, as
managing member
By: Mall Intermediate Holding Company, LLC, as
managing member
By: Venetian Casino Resort, LLC, as sole
member
7
By: Las Vegas Sands, Inc., as
managing member
By:
-------------------------------------
Name:
Title:
The Bank of Nova Scotia hereby consents to act as escrow agent in accordance
with the terms hereof.
THE BANK OF NOVA SCOTIA
By:
------------------------------
Name:
Title:
Date:
EXHIBIT E
ASSIGNMENT OF CONTRACTS, INTANGIBLE
PERSONAL PROPERTY AND UTILITY DEPOSITS
THIS ASSIGNMENT (this "Assignment") is made and entered into as of
___________, by and between GRAND CANAL SHOPS MALL CONSTRUCTION, LLC, a Delaware
limited liability company ("Assignor"), and GRAND CANAL SHOPS MALL, LLC, a
Delaware limited liability company ("Assignee"), with reference to the
following:
A. In accordance with the terms of that certain Sale and
Contribution Agreement among Assignor and Venetian Casino Resort, LLC, as
Seller, and Assignee, as Purchaser dated as of November 14, 1997 (the "Purchase
Agreement"; capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Purchase Agreement), Assignor is
conveying to Assignee concurrently herewith the real property more particularly
described on Exhibit 1 attached hereto and the improvements thereon or therein
(the "Property").
B. In connection with the conveyance of the Property, Assignor and
Assignee intend that all of Assignor's right, title and interest in and under
certain contracts and utility deposits relating to the Property be assigned and
transferred to Assignee.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree that:
1. Assignment. Assignor assigns, conveys, transfers and sets over to
Assignee any and all of Assignor's right, title and interest in and to the
following property:
(a) Contracts. All those certain contracts and agreements listed
on Exhibit 2 attached hereto relating to the Property (the "Contracts").
(b) Intangible Personal Property. To the extent assignable, all
existing intellectual property rights, including U.S. Service Xxxx Application
Serial Nos. 75/136,424 and 75/149,902 for the marks "The Grand Canal" and "Grand
Canal Shops" respectively, guarantees, permits and warranties issued in
connection with the construction, operation, improvement, alteration or repair
of the Property or in connection with the purchase, operation or repair of the
Mall Intangible Property Rights (as defined in the Purchase Agreement).
2
(c) Utility Deposits. Those deposits with utilities which remain
on deposit for the benefit of Assignor with respect to utilities servicing the
Mall Parcels (the "Utility Deposits"), and which are identified on Exhibit 3
attached hereto.
2. As Is.The parties expressly acknowledge and agree that this
assignment is made "as is", "where is" and without any representations or
warranties of Assignor of any kind except as set forth in paragraph 3 below and
as otherwise provided in the Purchase Agreement.
3. Assignor represents that, to its knowledge, Assignor is
transferring to Assignee the entire portion of Assignor's business to which the
marks "The Grand Canal" (U.S. Service Xxxx Application No. 75/156,424) and
"Grand Canal Shops" (U.S. Service Xxxx Application No. 75/149,902) pertain.
4. Assumption. Assignee does hereby accept the foregoing Assignment
and assumes, covenants and agrees to perform, be bound by, discharge and observe
all of the terms, covenants, conditions, duties, obligations, undertakings and
liabilities of Assignor under the Contracts and, to the extent applicable, the
Mall Intangible Property Rights arising from and after the date hereof.
5. Governing Law. This Assignment shall be governed by and construed
in accordance with the laws of the State of Nevada.
6. Successors and Assigns. This Assignment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
7. Modifications. This Assignment may not be modified, altered or
amended, or its terms waived, except by an instrument in writing signed by the
parties hereto.
3
IN WITNESS WHEREOF, this Assignment has been executed by the parties
as of the date first above written.
ASSIGNOR:
GRAND CANAL SHOPS MALL
CONSTRUCTION, LLC
By: Venetian Casino Resort, LLC, as sole member
By: Las Vegas Sands, Inc., as managing
member
By:
----------------------------------------------
Name:
Title:
ASSIGNEE:
GRAND CANAL SHOPS MALL, LLC
By: Grand Canal Shops Mall Holding Company,
LLC, as managing member
By: Mall Intermediate Holding Company,
LLC, as managing member
By: Venetian Casino Resort, LLC, as
sole member
By: Las Vegas Sands, Inc., as
managing member
By:
---------------------------------
Name:
Title:
Exhibit 1 to Assignment of Contracts,
Intangible Personal Property and Utility Deposits
"PROPERTY"
Exhibit 2 to Assignment of Contracts,
Intangible Personal Property and Utility Deposits
"CONTRACTS"
Exhibit 3 to Assignment of Contracts,
Intangible Personal Property and Utility Deposits
"UTILITY DEPOSITS"
EXHIBIT F
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this
"Assignment") is made and entered into as of _____________, by
and between GRAND CANAL SHOPS MALL CONSTRUCTION, LLC, a Delaware limited
liability company ("Assignor"), and GRAND CANAL SHOPS MALL, LLC, a Delaware
limited liability company ("Assignee"), with reference to the following:
A. In accordance with the terms of that certain Sale and
Contribution Agreement among Venetian Casino Resort, LLC and Grand Canal Shops
Mall Construction, LLC, as Seller, and Assignee, as Purchaser dated as of
November 14, 1997 (the "Purchase Agreement"; capitalized terms used herein and
not defined herein shall have the meanings assigned to such terms in the
Purchase Agreement), Assignor is required to convey to Assignee all right, title
and interest of Assignor, as Landlord, in, to and under the tenancies and leases
(the "Leases") described on Exhibit 2 annexed hereto and made a part hereof,
with respect to the premises described on Exhibit 1 annexed hereto and made a
part hereof (the "Premises").
B. In connection with the conveyance of the Leases, Assignor is also
transferring to Assignee all of Assignor's right, title and interest in and to
all of the security deposits listed on Exhibit 3 annexed hereto (the "Security
Deposits").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree that:
1. Assignment. Assignor hereby assigns, conveys, transfers and sets
over to Assignee, its successors and assigns forever, all of Assignor's right,
title and interest, as landlord, in, to and under the Leases and the Security
Deposits. This assignment is made "as is", "where is" and without any
representations or warranties of Assignor of any kind except as otherwise
provided in the Purchase Agreement.
2. Assumption. Assignee does hereby accept the foregoing Assignment,
and assume, covenant and agree to perform, be bound by, discharge and observe
all of the terms, covenants, conditions, duties, obligations, undertakings and
liabilities of Assignor under the Leases arising from and after the date hereof.
3. No Effect on Purchase Agreement. The delivery of this Assignment
by Assignor and the acceptance of this Assignment by Assignee shall not
constitute a waiver, expansion or modification of any representation, covenant
or warranty, which survives the closing of title, contained in the Purchase
Agreement.
2
4. Modification. This Assignment may not be modified, altered or
amended, or its terms waived, except by an instrument in writing signed by the
parties hereto.
5. Governing Law. This Assignment shall be governed by and
construed in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
Assignment as of the date first above written.
ASSIGNOR:
GRAND CANAL SHOPS MALL
CONSTRUCTION, LLC
By: Venetian Casino Resort, LLC, as sole member
By: Las Vegas Sands, Inc., as managing
member
By:
---------------------------------------------
Name:
Title:
ASSIGNEE:
GRAND CANAL SHOPS MALL, LLC
By: Grand Canal Shops Mall Holding Company,
LLC, as managing member
By: Mall Intermediate Holding Company,
LLC, as managing member
By: Venetian Casino Resort, LLC, as
sole member
By: Las Vegas Sands, Inc., as
managing member
By:
--------------------------------
Name:
Title:
Exhibit 1 to Assignment and Assumption of Leases
"PROPERTY"
Exhibit 2 to Assignment and Assumption of Leases
"LEASES"
Exhibit 3 to Assignment and Assumption of Leases
"SECURITY DEPOSITS"
EXHIBIT G
FORM OF THE DEED
EXHIBIT G-1
FORM OF DEED FOR IMPROVEMENTS
EXHIBIT H
ASSIGNMENT AND ASSUMPTION OF
MALL I AIRSPACE/GROUND LEASE
THIS ASSIGNMENT AND ASSUMPTION OF MALL I AIRSPACE/GROUND LEASE (this
"Assignment") is made and entered into as of _____________, 1997 by and between
GRAND CANAL SHOPS MALL CONSTRUCTION, LLC ("Assignor"), and GRAND CANAL SHOPS
MALL, LLC ("Assignee"), with reference to the following:
A. In accordance with the terms of that certain Sale and
Contribution Agreement between Assignor and Venetian Casino Resort, LLC, as
Seller, and Assignee, as Purchaser dated, as of November 14, 1997 (the "Sale and
Contribution Agreement"; capitalized terms used herein and not defined herein
shall have the meanings assigned to such terms in the Sale and Contribution
Agreement), Assignor is required to convey to Assignee all right, title and
interest of Assignor, as tenant in, to and under the ground lease (the "Mall I
Airspace/Ground Lease") described on Exhibit 2 annexed hereto and made a part
hereof, with respect to the premises described on Exhibit 1 annexed hereto and
made a part hereof (the "Premises").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree that:
1. Assignment. Assignor hereby assigns, conveys, transfers and sets
over to Assignee, its successors and assigns forever, all of Assignor's right,
title and interest, as tenant in, to and under the Mall I Airspace/Ground Lease,
including, without limitation, all right, title and interest of Assignor in and
to the easements, rights of way, servitudes, licenses, rights, privileges and
appurtenances at any time belonging or in any way pertaining to the Premises and
in and to all buildings, structures, other improvements and fixtures now
standing or at anytime hereafter erected upon or in the Premises. This
assignment is made "as is" and "where is", without any representation or
warrants of Assignor of any kind whatsoever (except as set forth in the Sale and
Contribution Agreement).
2. Assumption. Assignee does hereby accept the foregoing Assignment,
and assume, covenant and agree to perform, be bound by, discharge and observe
all of the terms, covenants, conditions, duties, obligations, undertakings and
liabilities of Assignor under the Mall I Airspace/Ground Lease from and after
the date hereof.
3. No Effect on Sale and Contribution Agreement. The delivery of
this Assignment by Assignor and the acceptance of this Assignment by Assignee
shall not
constitute a waiver, expansion or modification of any representation,
covenant or warranty, which survives the closing of title, contained in the Sale
and Contribution Agreement.
4. Modification. This Assignment may not be modified, altered or
amended, or its terms waived, except by an instrument in writing signed by the
parties hereto.
5. Governing Law. This Assignment shall be governed by and construed
in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
Assignment as of the date first above written.
ASSIGNOR:
GRAND CANAL SHOPS MALL
CONSTRUCTION, LLC
By: Venetian Casino Resort, LLC, as sole member
By: Las Vegas Sands, Inc., as managing
member
By:
---------------------------------------
Name:
Title:
ASSIGNEE:
GRAND CANAL SHOPS MALL, LLC
By: Grand Canal Shops Mall Holding Company,
LLC, as managing member
By: Mall Intermediate Holding Company,
LLC, as managing member
By: Venetian Casino Resort, LLC, as
sole member
By: Las Vegas Sands, Inc., as
managing member
By:
---------------------------------
Name:
Title:
EXHIBIT I
ASSIGNMENT AND ASSUMPTION OF MASTER LEASE FOR
ADDITIONAL BILLBOARD SPACE
THIS ASSIGNMENT AND ASSUMPTION OF MASTER LEASE FOR ADDITIONAL
BILLBOARD SPACE (this "Assignment") is made and entered into as of
_____________, by and between GRAND CANAL SHOPS MALL CONSTRUCTION, LLC
("Assignor"), and GRAND CANAL SHOPS MALL, LLC ("Assignee"), with reference to
the following:
A. In accordance with the terms of that certain Sale and
Contribution Agreement between Assignor and Venetian Casino Resort, LLC, as
Seller, and Assignee, as Purchaser dated, as of November 14, 1997 (the "Sale and
Contribution Agreement"; capitalized terms used herein and not defined herein
shall have the meanings assigned to such terms in the Sale and Contribution
Agreement), Assignor is required to convey to Assignee all right, title and
interest of Assignor, as tenant in, to and under the Master Lease for Additional
Billboard Space (the "Master Lease for Additional Billboard Space") described on
Exhibit 2 annexed hereto and made a part hereof, with respect to the premises
described on Exhibit 1 annexed hereto and made a part hereof (the "Premises").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are acknowledged, the parties agree that:
1. Assignment. Assignor hereby assigns, conveys, transfers and sets
over to Assignee, its successors and assigns forever, all of Assignor's right,
title and interest, as tenant in, to and under the Master Lease for Additional
Billboard Space, including, without limitation, all right, title and interest of
Assignor in and to the easements, rights of way, servitudes, licenses, rights,
privileges and appurtenances at any time belonging or in any way pertaining to
the Premises and in and to all buildings, structures, other improvements and
fixtures now standing or at anytime hereafter erected upon or in the Premises.
This assignment is made "as is" and "where is," without any representation or
warranty of Assignor of any kind whatsoever (except as set forth in the Sale and
Contribution Agreement).
2. Assumption. Assignee does hereby accept the foregoing Assignment,
and assume, covenant and agree to perform, be bound by, discharge and observe
all of the terms, covenants, conditions, duties, obligations, undertakings and
liabilities of Assignor under the Master Lease for Additional Billboard Space
from and after the date hereof.
3. No Effect on Sale and Contribution Agreement. The delivery of
this Assignment by Assignor and the acceptance of this Assignment by Assignee
shall not constitute a waiver, expansion or modification of any representation,
covenant or warranty, which survives the closing of title, contained in the Sale
and Contribution Agreement.
4. Modification. This Assignment may not be modified, altered or
amended, or its terms waived, except by an instrument in writing signed by the
parties hereto.
5. Governing Law. This Assignment shall be governed by and construed
in accordance with the laws of the State of Nevada.
IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
Assignment as of the date first above written.
ASSIGNOR:
GRAND CANAL SHOPS MALL
CONSTRUCTION, LLC
By: Venetian Casino Resort, LLC, as sole member
By: Las Vegas Sands, Inc., as managing
member
By:
---------------------------------------------
Name:
Title:
ASSIGNEE:
GRAND CANAL SHOPS MALL, LLC
By: Grand Canal Shops Mall Holding Company,
LLC, as managing member
By: Mall Intermediate Holding Company,
LLC, as managing member
By: Venetian Casino Resort, LLC, as
sole member
By: Las Vegas Sands, Inc., as
managing member
By:
---------------------------------
Name:
Title:
Exhibit 1 to Assignment and Assumption of
Mall I Airspace/Ground Lease
"PREMISES"
Exhibit 2 Assignment and Assumption of
Mall I Airspace/Ground Lease
MALL I AIRSPACE/GROUND LEASE
That certain Ground Lease dated as of November 14, 1997 by and between Venetian
Casino Resorts, LLC ("Landlord") and Grand Canal Shops Mall Construction, LLC
("Tenant").
[Post-Subdivision]
IN RECORDABLE FORM
Exhibit J 1
(To Sale and Contribution Agreement)
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT ("Assumption") is made as of this ____ day
of __________, 199_ among GMAC COMMERCIAL MORTGAGE CORPORATION, a California
corporation, whose address is 000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000 ("GMAC"), GRAND CANAL SHOPS MALL CONSTRUCTION, LLC, a Delaware
limited liability company, whose address is 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx
Xxxxx, Xxxxxx 00000 ("Construction LLC"), and GRAND CANAL SHOPS MALL, LLC, a
Delaware limited liability company whose address is 0000 Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxxx, Xxxxxx 00000 ("Mall LLC"), VENETIAN CASINO RESORT, LLC, a
Nevada limited liability company, whose address is 0000 Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxxx, Xxxxxx 00000 ("VCR") and acknowledged by LAWYERS TITLE OF
NEVADA, INC., a Nevada corporation, whose address is 0000 Xxxx Xxxxxxxx, Xxxxx
000, Xxx Xxxxx, Xxxxxx 00000 ("Title Company").
W I T N E S S E T H:
WHEREAS, in accordance with the terms of that certain Sale and
Contribution Agreement among VCR, Construction LLC, as Seller, and Mall LLC, as
Purchaser, dated as of November 14, 1997 (the "Purchase Agreement"; capitalized
terms used herein and not defined herein shall have the meanings assigned to
such terms in the Purchase Agreement), Construction LLC has agreed to convey to
Mall LLC interests in certain real property situated in Xxxxx County, Nevada and
more particularly described on Exhibit A attached hereto and made a part hereof
(the "Property");
WHEREAS, pursuant to the terms of the Credit Agreement dated as of
November 14, 1997 among Las Vegas Sands, Inc., VCR, and Construction LLC,
(individually and collectively, as the context requires, "Borrowers") and GMAC,
as lender ("GMAC Credit Agreement"), and the other Loan Documents (as defined in
the GMAC Credit Agreement), GMAC has provided certain loans in the aggregate
amount of $140,000,000.00, which loans are secured by, among other things, the
Deed of Trust, Assignment of Leases and Rents and Security Agreement, dated as
of November 14, 1997 made by VCR to the Title Company for the benefit of GMAC
and recorded on _________________, 1997 as Document No. ________________in the
Office of the Recorder of Deeds, Clark County, Nevada ("Deed of Trust") and
assumed by Construction LLC pursuant to the terms and provisions of that certain
Mall I Airspace/Ground Lease, dated as of
2
November 14, 1997 by and between VCR, as landlord, and Construction LLC, as
tenant; and
WHEREAS, as a condition to the consummation of the Purchase
Agreement transaction, Mall LLC has agreed to assume all of the obligations of
and liabilities of the Borrowers under the GMAC Credit Agreement, the Deed of
Trust, and the other Loan Documents (collectively, "Secured Obligations").
R E C I T A L S:
NOW, THEREFORE, in consideration of the mutual terms and conditions
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Assumption of the Secured Obligations. Mall LLC hereby assumes
all of the Secured Obligations and covenants, promises and agrees as follows:
(a) To pay the indebtedness under the Secured Obligations at
the time, in the manner, and in all respects as provided
therein;
(b) To perform and discharge each and all of the covenants,
agreements and obligations under the Secured Obligations
to be performed by the Borrowers at the time, in the
manner, and in all respects as therein provided; and
(c) To be bound by each and all of the terms and provisions
of the Secured Obligations as though they had originally
been made, executed and delivered by Mall LLC.
2. Further Assurances. Mall LLC agrees to execute any documents
reasonably required by GMAC in order to evidence Mall LLC's assumption of the
Secured Obligations.
3. Title Update. Mall LLC has concurrently herewith provided GMAC
with a date down endorsement to its title policy, which update shows only
exceptions to title permitted by the Loan Documents or otherwise reasonably
acceptable to GMAC.
4. Representation and Warranty. Mall LLC hereby represents,
covenants, acknowledges, and warrants that the Secured Obligations are valid,
enforceable against it, and free from all defenses.
3
5. Binding Effect. This Assumption shall be binding upon and inure
to the benefit of the parties hereto and their respective beneficiaries, legal
representatives, heirs, successors and assigns.
6. Entire Agreement. This Assumption constitutes the entire
understanding of the parties with respect to the subject matter hereof, and the
terms and conditions of this Assumption may be amended or modified only by a
written instrument signed by the parties hereto.
7. Headings. The headings of paragraphs hereof are for convenience
only and do not modify, limit or define the contents of the paragraphs.
8. Recording. This Assumption shall be recorded with the Office of
the Recorder of Deeds, Clark County, Nevada, at Mall LLC's expense.
9. Release of Seller and Affiliates. GMAC agrees that, effective
upon such recordation, VCR, Construction LLC and all of their respective
Affiliates (other than Mall LLC) shall be released from any further liability
whatsoever under the Secured Obligations.
IN WITNESS WHEREOF, the parties have executed this Assumption as of
the day and year first above written.
GMAC COMMERCIAL MORTGAGE
By:
------------------------------------
Its:
-----------------------------------
GRAND CANAL SHOPS MALL
By: Venetian Casino Resort, LLC, as sole
Member
By: Las Vegas Sands, Inc.,
as managing member
By:
-----------------------------
Name:
Title:
4
GRAND CANAL SHOPS MALL, LLC
By: Grand Canal Shops Mall Holding Company,
Inc., as managing member
By: Venetian Casino Resort, LLC,
as sole Member
By: Las Vegas Sands, Inc.,
as managing member
By:
-----------------------------
Name:
Title:
VENETIAN CASINO RESORT, LLC,
By: Las Vegas Sands, Inc.,
as managing member
By:
---------------------------------
Name:
Title:
Accepted and Agreed to this
_________day of________________________, 19__
LAWYERS TITLE OF NEVADA, INC.
By:
---------------------------
Its:
--------------------------
5
STATE OF ________________)
)
COUNTY OF _______________)
This instrument was acknowledged before me on the ____ day of ___________,
19___, by _____________________________________________, as __________of GMAC
COMMERCIAL MORTGAGE CORPORATION.
Notary Public
STATE OF ________________)
6
