Exhibit 10.3
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY (as amended, supplemented, amended and
restated or otherwise modified from time to time, this "GUARANTY"), dated as of
June 4, 2002, is made by each Subsidiary of Las Vegas Sands, Inc., a Nevada
corporation ("LVSI"), required from time to time to become party hereto (each
individually, a "GUARANTOR" and, collectively, the "GUARANTORS"), in favor of
and for the benefit of THE BANK OF NOVA SCOTIA, as administrative agent
(together with its successor(s) thereto in such capacity, the "ADMINISTRATIVE
AGENT") for each of the Secured Parties.
RECITALS
A. LVSI and Venetian Casino Resort, LLC., a Nevada limited liability
company (each a "BORROWER" and collectively the "BORROWERS"), have entered into
the Credit Agreement, dated as of June 4, 2002, among the Lenders, the
Administrative Agent, Xxxxxxx Xxxxx Credit Partners L.P., as Syndication Agent
and Scotia Capital and Xxxxxxx as joint lead arrangers and joint Bookrunners (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT").
B. It is a condition precedent to the making of the Credit
Extensions under the Credit Agreement that the Borrowers' Obligations thereunder
be guarantied by the Guarantors.
C. The Guarantors are willing irrevocably and unconditionally to
guaranty such Obligations.
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce the Secured Parties to make Credit Extensions and to enter
into Rate Protection Agreements, the Guarantors hereby agree as follows.
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS. As used in this Guaranty, the following terms
shall have the following meanings unless the context otherwise requires:
"GUARANTIED OBLIGATIONS" is defined in subsection 2.1.
"GUARANTY" is defined in the preamble.
"PAYMENT IN FULL", "PAID IN FULL" or any similar term means payment in
full of the Guarantied Obligations, including all principal, interest,
costs, fees and expenses (including reasonable legal fees and expenses) of
Secured Parties as required under the Loan Documents and the Rate Protection
Agreements.
1.2 INTERPRETATION.
(a) References to "Sections" and "subsections" shall be to Sections
and subsections, respectively, of this Guaranty unless otherwise
specifically provided.
(b) In the event of any conflict or inconsistency between the terms,
conditions and provisions of this Guaranty and the terms, conditions and
provisions of the Credit Agreement, the terms, conditions and provisions of
this Guaranty shall prevail.
(c) Unless otherwise defined herein or the context otherwise requires,
terms used in this Guaranty, including its preamble and recitals, have the
meanings provided in the Credit Agreement.
(d) The rules of construction set forth in subsection 1.3 of the
Credit Agreement shall be applicable to this Guaranty MUTATIS MUTANDIS.
SECTION 2. THE GUARANTY
2.1 GUARANTY OF THE GUARANTIED OBLIGATIONS. Subject to the provisions of
subsection 2.2(a), the Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty the due and punctual payment in full of all Guarantied
Obligations when the same shall become due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise (including
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)). The term
"GUARANTIED OBLIGATIONS" is used herein in its most comprehensive sense and
includes:
(a) any and all Obligations of the Borrowers, in each case now or
hereafter made, incurred or created, whether absolute or contingent,
liquidated or unliquidated, whether due or not due, and however arising
under or in connection with any Loan Documents, including those arising
under successive borrowing transactions under the Credit Agreement which
shall either continue the Obligations of the Borrowers or from time to time
renew them after they have been satisfied and including interest which, but
for the filing of a petition in bankruptcy with respect to the Borrowers,
would have accrued on any Guarantied Obligations, whether or not a claim is
allowed against the Borrowers for such interest in the related bankruptcy
proceeding; and
(b) those expenses set forth in subsection 2.8 hereof.
2.2 LIMITATION ON AMOUNT GUARANTIED; CONTRIBUTION BY GUARANTORS.
(a) Anything contained in this Guaranty to the contrary
notwithstanding, if any Fraudulent Transfer Law (as hereinafter defined) is
determined by a court of competent jurisdiction to be applicable to the
obligations of any Guarantor under this Guaranty, such
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obligations of such Guarantor hereunder shall be limited to a maximum aggregate
amount equal to the largest amount that would not render its obligations
hereunder subject to avoidance as a fraudulent transfer or conveyance under
Section 548 of Title 11 of the United States Code or any applicable provisions
of comparable state law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each
case after giving effect to all other liabilities of such Guarantor, contingent
or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically
excluding, however, any liabilities of such Guarantor (x) in respect of
intercompany indebtedness to the Borrowers or other affiliates of the Borrowers
to the extent that such indebtedness would be discharged in an amount equal to
the amount paid by such Guarantor hereunder and (y) under any guaranty of Other
Indebtedness which guaranty contains a limitation as to maximum amount similar
to that set forth in this subsection 2.2(a), pursuant to which the liability of
such Guarantor hereunder is included in the liabilities taken into account in
determining such maximum amount) and after giving effect as assets to the value
(as determined under the applicable provisions of the Fraudulent Transfer Laws)
of any rights to subrogation, reimbursement, indemnification or contribution of
such Guarantor pursuant to applicable law or pursuant to the terms of any
agreement (including any such right of contribution under subsection 2.2(b)).
(b) Guarantors under this Guaranty together desire to allocate among
themselves, in a fair and equitable manner, their obligations arising under this
Guaranty. Accordingly, in the event any payment or distribution is made on any
date by any Guarantor under this Guaranty (a "FUNDING GUARANTOR") that exceeds
its Fair Share (as defined below) as of such date, that Funding Guarantor shall
be entitled to a contribution from each of the other Guarantors in the amount of
such other Guarantor's Fair Share Shortfall (as defined below) as of such date,
with the result that all such contributions will cause each Guarantor's
Aggregate Payments (as defined below) to equal its Fair Share as of such date.
"FAIR SHARE" means, with respect to a Guarantor as of any date of determination,
an amount equal to (i) the ratio of (x) the Adjusted Maximum Amount (as defined
below) with respect to such Guarantor to (y) the aggregate of the Adjusted
Maximum Amounts with respect to all Guarantors MULTIPLIED BY (ii) the aggregate
amount paid or distributed on or before such date by all Funding Guarantors
under this Guaranty in respect of the obligations guarantied. "FAIR SHARE
SHORTFALL" means, with respect to a Guarantor as of any date of determination,
the excess, if any, of the Fair Share of such Guarantor over the Aggregate
Payments of such Guarantor. "ADJUSTED MAXIMUM AMOUNT" means, with respect to a
Guarantor as of any date of determination, the maximum aggregate amount of the
obligations of such Guarantor under this Guaranty, determined as of such date,
in accordance with subsection 2.2(a); PROVIDED that, solely for purposes of
calculating the "Adjusted Maximum Amount" with respect to any Guarantor for
purposes of this subsection 2.2(b), any assets or liabilities of such Guarantor
arising by virtue of any rights to subrogation, reimbursement or indemnification
or any rights to or obligations of contribution hereunder shall not be
considered as assets or liabilities of such Guarantor. "AGGREGATE PAYMENTS"
means, with respect to a Guarantor as of any date of determination, an amount
equal to (i) the aggregate amount of all payments and distributions made on or
before such date by such Guarantor in respect of this Guaranty (including in
respect of this subsection 2.2(b)) MINUS (ii) the aggregate amount of all
payments received on or before such date by such Guarantor from the other
Guarantors as contributions under this subsection 2.2(b). The amounts payable as
contributions hereunder shall be determined as of the date on which the related
payment or distribution is made by the applicable Funding Guarantor. The
allocation among Guarantors of their obligations as set forth in this subsection
2.2(b) shall not be construed in any way to limit the liability of any Guarantor
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hereunder. Any other Subsidiary Guarantor is a third party beneficiary to the
contribution agreement set forth in this subsection 2.2(b) shall not be
construed in any way to limit the liability of any Guarantor hereunder.
2.3 PAYMENT BY GUARANTORS; APPLICATION OF PAYMENTS. Subject to the
provisions of subsection 2.2(a), Guarantors hereby jointly and severally agree,
in furtherance of the foregoing and not in limitation of any other right which
any Secured Party may have at law or in equity against any Guarantor by virtue
hereof, that upon the failure of Borrowers to pay any of the Guarantied
Obligations when and as the same shall become due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)),
Guarantors will upon demand pay, or cause to be paid, in cash, to the
Administrative Agent for the ratable benefit of Secured Parties, an amount equal
to the sum of the unpaid principal amount of all Guarantied Obligations then due
as aforesaid, accrued and unpaid interest on such Guarantied Obligations
(including interest which, but for the filing of a petition in bankruptcy with
respect to Borrowers, would have accrued on such Guarantied Obligations, whether
or not a claim is allowed against Borrowers for such interest in the related
bankruptcy proceeding) and all other Guarantied Obligations then owed to Secured
Parties as aforesaid. All such payments shall be applied promptly from time to
time by the Administrative Agent in the following order of priority:
(a) to the payment of the costs and expenses of any collection or
other realization under this Guaranty, including the reasonable costs, fees
and expenses of (i) the Administrative Agent and its agents and counsel, and
all expenses, liabilities and advances made or incurred by the
Administrative Agent in connection therewith, all in accordance with the
terms of this Guaranty and (ii) the Administrative Agent, in accordance with
term of the Credit Agreement
(b) thereafter, to the extent of any excess such payments, to the
payment of all other Guarantied Obligations for the ratable benefit of the
holders thereof; and
(c) thereafter, to the extent of any excess such payments, to the
payment to the applicable Guarantor or to whosoever may be lawfully entitled
to receive the same or as a court of competent jurisdiction may direct.
2.4 LIABILITY OF GUARANTORS ABSOLUTE. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Guarantied Obligations. In furtherance of the foregoing and without limiting the
generality thereof, each Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of
collectibility.
(b) The Administrative Agent may enforce this Guaranty upon the
occurrence and continuance of an Event of Default notwithstanding the
existence of any dispute between Borrowers and any Secured Party with
respect to the existence of such Event of Default.
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(c) The obligations of each Guarantor hereunder are independent of the
obligations of Borrowers under the Loan Documents and the obligations of any
other guarantor (including any other Guarantor) of the obligations of
Borrowers under the Loan Documents, and a separate action or actions may be
brought and prosecuted against such Guarantor whether or not any action is
brought against Borrowers or any of such other guarantors and whether or not
Borrowers is joined in any such action or actions.
(d) Payment by any Guarantor of a portion, but not all, of the
Guarantied Obligations shall in no way limit, affect, modify or abridge any
Guarantor's liability for any portion of the Guarantied Obligations which
has not been paid. Without limiting the generality of the foregoing, if the
Administrative Agent is awarded a judgment in any suit brought to enforce
any Guarantor's covenant to pay a portion of the Guarantied Obligations,
such judgment shall not be deemed to release such Guarantor from its
covenant to pay the portion of the Guarantied Obligations that is not the
subject of such suit, and such judgment shall not, except to the extent
satisfied by such Guarantor, limit, affect, modify or abridge any other
Guarantor's liability hereunder in respect of the Guarantied Obligations.
(e) Any Secured Party, upon such terms as it deems appropriate,
without notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any reduction, limitation,
impairment, discharge or termination of any Guarantor's liability hereunder,
from time to time may (i) renew, extend, accelerate, increase the rate of
interest on, or otherwise change the time, place, manner or terms of payment
of the Guarantied Obligations, (ii) settle, compromise, release or
discharge, or accept or refuse any offer of performance with respect to, or
substitutions for, the Guarantied Obligations or any agreement relating
thereto and/or subordinate the payment of the same to the payment of any
other obligations; (iii) request and accept other guaranties of the
Guarantied Obligations and take and hold security for the payment of this
Guaranty or the Guarantied Obligations; (iv) release, surrender, exchange,
substitute, compromise, settle, rescind, waive, alter, subordinate or
modify, with or without consideration, any security for payment of the
Guarantied Obligations, any other guaranties of the Guarantied Obligations,
or any other obligation of any Person (including any other Guarantor) with
respect to the Guarantied Obligations; (v) enforce and apply any security
now or hereafter held by or for the benefit of such Secured Party in respect
of this Guaranty or the Guarantied Obligations and direct the order or
manner of sale thereof, or exercise any other right or remedy that such
Secured Party may have against any such security, in each case as such
Secured Party in its discretion may determine consistent with the Credit
Agreement or the applicable Rate Protection Agreement and any applicable
security agreement, including foreclosure on any such security pursuant to
one or more judicial or nonjudicial sales, whether or not every aspect of
any such sale is commercially reasonable, and even though such action
operates to impair or extinguish any right of reimbursement or subrogation
or other right or remedy of any Guarantor against Borrowers or any security
for the Guarantied Obligations; and (vi) exercise any other rights available
to it under the Loan Documents or the Rate Protection Agreements.
(f) This Guaranty and the obligations of Guarantors hereunder shall be
valid and enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or
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termination for any reason (other than payment in full of the Guarantied
Obligations), including the occurrence of any of the following, whether or
not any Guarantor shall have had notice or knowledge of any of them: (i) any
failure or omission to assert or enforce or agreement or election not to
assert or enforce, or the stay or enjoining, by order of court, by operation
of law or otherwise, of the exercise or enforcement of, any claim or demand
or any right, power or remedy (whether arising under the Loan Documents, at
law, in equity or otherwise) with respect to the Guarantied Obligations or
any agreement relating thereto, or with respect to any other guaranty of or
security for the payment of the Guarantied Obligations; (ii) any rescission,
waiver, amendment or modification of, or any consent to departure from, any
of the terms or provisions (including provisions relating to events of
default) of any of the Loan Documents or any agreement or instrument
executed pursuant thereto, or of any other guaranty or security for the
Guarantied Obligations, in each case whether or not in accordance with the
terms of such Loan Document or any agreement relating to such other guaranty
or security; (iii) the Guarantied Obligations, or any agreement relating
thereto, at any time being found to be illegal, invalid or unenforceable in
any respect; (iv) the application of payments received from any source
(other than payments received pursuant to the other Loan Documents or from
the proceeds of any security for the Guarantied Obligations, except to the
extent such security also serves as collateral for indebtedness other than
the Guarantied Obligations) to the payment of indebtedness other than the
Guarantied Obligations, even though any Secured Party might have elected to
apply such payment to any part or all of the Guarantied Obligations; (v) any
Secured Party's consent to the change, reorganization or termination of the
corporate structure or existence of Borrowers or any of their Subsidiaries
and to any corresponding restructuring of the Guarantied Obligations; (vi)
any failure to perfect or continue perfection of a security interest in any
collateral which secures any of the Guarantied Obligations; (vii) any
defenses, set-offs or counterclaims which Borrowers may allege or assert
against any Secured Party in respect of the Guarantied Obligations,
including failure of consideration, breach of warranty, payment, statute of
frauds, statute of limitations, accord and satisfaction and usury; and
(viii) any other act or thing or omission, or delay to do any other act or
thing, which may or might in any manner or to any extent vary the risk of
any Guarantor as an obligor in respect of the Guarantied Obligations.
2.5 WAIVERS BY GUARANTORS. Each Guarantor hereby waives, for the benefit
of Secured Parties:
(a) any right to require any Secured Party, as a condition of payment
or performance by such Guarantor, to (i) proceed against Borrowers, any
other guarantor (including any other Guarantor) of the Guarantied
Obligations or any other Person, (ii) proceed against or exhaust any
security held from Borrowers, any such other guarantor or any other Person,
(iii) proceed against or have resort to any balance of any deposit account
or credit on the books of any Secured Party in favor of Borrowers or any
other Person, or (iv) pursue any other remedy in the power of any Secured
Party whatsoever;
(b) any defense arising by reason of the incapacity, lack of authority
or any disability or other defense of Borrowers including any defense based
on or arising out of
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the lack of validity or the unenforceability of the Guarantied Obligations
or any agreement or instrument relating thereto or by reason of the
cessation of the liability of Borrowers from any cause other than payment in
full of the Guarantied Obligations;
(c) any defense based upon any statute or rule of law which provides
that the obligation of a surety must be neither larger in amount nor in
other respects more burdensome than that of the principal;
(d) any defense based upon any Secured Party's errors or omissions in
the administration of the Guarantied Obligations, except behavior which
amounts to bad faith;
(e) (i) any principles or provisions of law, statutory or otherwise,
which are or might be in conflict with the terms of this Guaranty and any
legal or equitable discharge of such Guarantor's obligations hereunder, (ii)
the benefit of any statute of limitations affecting such Guarantor's
liability hereunder or the enforcement hereof, (iii) any rights to set-offs,
recoupments and counterclaims, and (iv) promptness, diligence and any
requirement that any Secured Party protect, secure, perfect or insure any
security interest or lien or any property subject thereto;
(f) notices, demands, presentments, protests, notices of protest,
notices of dishonor and notices of any action or inaction, including
acceptance of this Guaranty, notices of default under the Credit Agreement,
the Rate Protection Agreements or any agreement or instrument related
thereto, notices of any renewal, extension or modification of the Guarantied
Obligations or any agreement related thereto, notices of any extension of
credit to Borrowers and notices of any of the matters referred to in
subsection 2.4 and any right to consent to any thereof;
(g) any defenses or benefits that may be derived from or afforded by
law which limit the liability of or exonerate guarantors or sureties, or
which may conflict with the terms of this Guaranty; and
(h) to the extent permitted under section 40.495 of the Nevada Revised
Statutes, the benefits of the "One Action" rule under 40.430 of the Nevada
Revised Statutes.
2.6 GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC. Each Guarantor
hereby waives any claim, right or remedy, direct or indirect, that such
Guarantor now has or may hereafter have against Borrowers or any of its assets
in connection with this Guaranty or the performance by such Guarantor of its
obligations hereunder, in each case whether such claim, right or remedy arises
in equity, under contract, by statute, under common law or otherwise and
including (a) any right of subrogation, reimbursement or indemnification that
such Guarantor now has or may hereafter have against Borrowers, (b) any right to
enforce, or to participate in, any claim, right or remedy that any Secured Party
now has or may hereafter have against Borrowers, and (c) any benefit of, and any
right to participate in, any collateral or security now or hereafter held by any
Secured Party. In addition, until the Termination Date, each Guarantor shall
withhold exercise of any right of contribution such Guarantor may have against
any other guarantor (including any other Guarantor) of the Guarantied
Obligations (including any such
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right of contribution under subsection 2.2(b)). Each Guarantor further agrees
that, to the extent the waiver or agreement to withhold the exercise of its
rights of subrogation, reimbursement, indemnification and contribution as set
forth herein is found by a court of competent jurisdiction to be void or
voidable for any reason, any rights of subrogation, reimbursement or
indemnification such Guarantor may have against Borrowers or against any
collateral or security, and any rights of contribution such Guarantor may have
against any such other guarantor, shall be junior and subordinate to any rights
any Secured Party may have against Borrowers, to all right, title and interest
any Secured Party may have in any such collateral or security, and to any right
any Secured Party may have against such other guarantor. If any amount shall be
paid to any Guarantor on account of any such subrogation, reimbursement,
indemnification or contribution rights at any time when all Guarantied
Obligations shall not have been paid in full, such amount shall be held in trust
for the Administrative Agent on behalf of Secured Parties and shall forthwith be
paid over to the Administrative Agent for the benefit of Secured Parties to be
credited and applied against the Guarantied Obligations, whether matured or
unmatured, in accordance with the terms hereof.
2.7 SUBORDINATION OF OTHER OBLIGATIONS. Any Indebtedness of Borrowers or
any Guarantor now or hereafter held by any Guarantor (the "OBLIGEE GUARANTOR")
is hereby subordinated in right of payment to the Guarantied Obligations, and
any such Indebtedness collected or received by the Obligee Guarantor after an
Event of Default has occurred and is continuing shall be held in trust for the
Administrative Agent on behalf of Secured Parties and shall forthwith be paid
over to the Administrative Agent for the benefit of Secured Parties to be
credited and applied against the Guarantied Obligations but without affecting,
impairing or limiting in any manner the liability of the Obligee Guarantor under
any other provision of this Guaranty.
2.8 EXPENSES. Guarantors jointly and severally agree to pay, or cause to
be paid, on demand, and to save Secured Parties harmless against liability for,
any and all reasonable costs and expenses (including reasonable fees and
disbursements of counsel and reasonable allocated costs of internal counsel)
incurred or expended by any Secured Party in connection with the enforcement of
or preservation of any rights under this Guaranty.
2.9 CONTINUING GUARANTY. This Guaranty is a continuing guaranty and shall
remain in effect until the Termination Date. Each Guarantor hereby irrevocably
waives any right to revoke this Guaranty as to future transactions giving rise
to any Guarantied Obligations.
2.10 AUTHORITY OF GUARANTORS OR BORROWERS. It is not necessary for any
Secured Party to inquire into the capacity or powers of any Guarantor or
Borrowers or the officers, directors or any agents acting or purporting to act
on behalf of any of them.
2.11 FINANCIAL CONDITION OF BORROWERS. Any Loans or other extensions of
credit may be granted to Borrowers or continued from time to time, and any Rate
Protection Agreements may be entered into from time to time, in each case
without notice to or authorization from any Guarantor regardless of the
financial or other condition of Borrowers at the time of any such grant or
continuation or at the time such Rate Protection Agreement is entered into, as
the case may be. No Secured Party shall have any obligation to disclose or
discuss with any Guarantor its assessment, or any Guarantor's assessment, of the
financial
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condition of Borrowers. Each Guarantor has adequate means to obtain information
from Borrowers on a continuing basis concerning the financial condition of
Borrowers and its ability to perform its obligations under the Loan Documents,
and each Guarantor assumes the responsibility for being and keeping informed of
the financial condition of Borrowers and of all circumstances bearing upon the
risk of nonpayment of the Guarantied Obligations. Each Guarantor hereby waives
and relinquishes any duty on the part of any Secured Party to disclose any
matter, fact or thing relating to the business, operations or conditions of
Borrowers now known or hereafter known by any Secured Party.
2.12 RIGHTS CUMULATIVE. The rights, powers and remedies given to Secured
Parties by this Guaranty are cumulative and shall be in addition to and
independent of all rights, powers and remedies given to Secured Parties by
virtue of any statute or rule of law or in any of the other Loan Documents, or
any agreement between any Guarantor and any Secured Party or Secured Parties or
between Borrowers and any Secured Party or Secured Parties. Any forbearance or
failure to exercise, and any delay by any Secured Party in exercising, any
right, power or remedy hereunder shall not impair any such right, power or
remedy or be construed to be a waiver thereof, nor shall it preclude the further
exercise of any such right, power or remedy.
2.13 BANKRUPTCY; POST-PETITION INTEREST; REINSTATEMENT OF GUARANTY. (a) So
long as any Guarantied Obligations remain outstanding, no Guarantor shall,
without the prior written consent of the Administrative Agent acting pursuant to
the instructions of Requisite Lenders, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency proceedings of or
against Borrowers. The obligations of Guarantors under this Guaranty shall not
be reduced, limited, impaired, discharged, deferred, suspended or terminated by
any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Borrowers or by any
defense which Borrowers may have by reason of the order, decree or decision of
any court or administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any
portion of the Guarantied Obligations which accrues after the commencement of
any proceeding referred to in clause (a) above (or, if interest on any portion
of the Guarantied Obligations ceases to accrue by operation of law by reason of
the commencement of said proceeding, such interest as would have accrued on such
portion of the Guarantied Obligations if said proceedings had not been
commenced) shall be included in the Guarantied Obligations because it is the
intention of Guarantors and Secured Parties that the Guarantied Obligations
which are guarantied by Guarantors pursuant to this Guaranty should be
determined without regard to any rule of law or order which may relieve
Borrowers of any portion of such Guarantied Obligations. Guarantors will permit
any trustee in bankruptcy, receiver, debtor in possession, assignee for the
benefit of creditors or similar person to pay the Administrative Agent, or allow
the claim of the Administrative Agent in respect of, any such interest accruing
after the date on which such proceeding is commenced.
(c) In the event that all or any portion of the Guarantied Obligations
are paid by Borrowers, the obligations of Guarantors hereunder shall continue
and remain in full force and effect or be reinstated, as the case may be, in the
event that all or any part of such payment(s) are rescinded or recovered
directly or indirectly from any Secured Party as a preference, fraudulent
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transfer or otherwise, and any such payments which are so rescinded or recovered
shall constitute Guarantied Obligations for all purposes under this Guaranty.
2.14 NOTICE OF EVENTS. Promptly upon any Guarantor obtaining knowledge
thereof, such Guarantor shall give the Administrative Agent written notice of
any condition or event which has resulted in (a) a material adverse change in
the financial condition of any Guarantor or Borrowers or (b) a breach of or
noncompliance with any term, condition or covenant contained herein or in the
Credit Agreement, any other Loan Document, any Rate Protection Agreement or any
other document delivered pursuant hereto or thereto.
2.15 SET OFF. In addition to any other rights any Secured Party may have
under law or in equity, if any amount shall at any time be due and owing by any
Guarantor to any Secured Party under this Guaranty, such Secured Party is
authorized at any time or from time to time, without notice (any such notice
being hereby expressly waived), to set off and to appropriate and to apply any
and all deposits (general or special, including indebtedness evidenced by
certificates of deposit, whether matured or unmatured) and any other
indebtedness of such Secured Party owing to such Guarantor and any other
property of such Guarantor held by any Secured Party to or for the credit or the
account of such Guarantor against and on account of the Guarantied Obligations
and liabilities of such Guarantor to any Secured Party under this Guaranty.
2.16 DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR. If (i) all of the stock
of any Guarantor or any of its successors in interest under this Guaranty shall
be sold or otherwise disposed of (including by merger or consolidation) in an
Asset Sale consented to by Requisite Lenders, or (ii) any Guarantor shall
otherwise be released from this Guaranty in accordance with any Loan Document or
with the consent of the Requisite Lenders, the Guaranty of such Guarantor or
such successor in interest, as the case may be, hereunder shall automatically be
discharged and released without any further action by any Secured Party or any
other Person effective as of the time of such Asset Sale.
2.17 GENERAL SUBORDINATION OF OBLIGATIONS. No Guarantor shall create any
Indebtedness or Contingent Obligation without the prior written consent of the
Administrative Agent except as may be permitted or contemplated pursuant to this
Guaranty and the Credit Agreement.
2.18 REPRESENTATIONS AND WARRANTIES. The representations and warranties
contained in Section 5 of the Credit Agreement, insofar as the representations
and warranties contained therein are applicable to any Guarantor and its
properties, are true and correct in all material respects, each such
representation and warranty set forth in such Article (insofar as applicable as
aforesaid) and all other terms of the Credit Agreement to which reference is
made therein, together with all related definitions and ancillary provisions,
being hereby incorporated into this Guaranty by this reference as though
specifically set forth in this Section.
2.19 COVENANTS. Each Guarantor covenants and agrees that, at all times
prior to the Termination Date, it will perform, comply with and be bound by all
of the agreements, covenants and obligations contained in Sections 6 and 7 of
the Credit Agreement which are applicable to such Guarantor, each such
agreement, covenant and obligation contained in Sections 6 and 7 of
10
the Credit Agreement, together with all related definitions and ancillary
provisions, being hereby incorporated into this Guaranty by this reference as
though specifically set forth in this Article.
SECTION 3. MISCELLANEOUS
3.1 SURVIVAL OF WARRANTIES. All agreements, representations and warranties
made herein shall survive the execution and delivery of this Guaranty and the
other Loan Documents and any increase in the Commitments under the Credit
Agreement.
3.2 NOTICES. Any communications between the Administrative Agent and any
Guarantor and any notices or requests provided herein to be given may be given
by mailing the same, postage prepaid, or by telex, facsimile transmission or
cable to each such party at its address set forth in the Credit Agreement, on
the signature pages hereof or to such other addresses as each such party may in
writing hereafter indicate. Any notice, request or demand to or upon the
Administrative Agent or any Guarantor shall not be effective until received.
3.3 SEVERABILITY. In case any provision in or obligation under this
Guaranty shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
3.4 AMENDMENTS AND WAIVERS. No amendment, modification, termination or
waiver of any provision of this Guaranty, and no consent to any departure by any
Guarantor therefrom, shall in any event be effective without the written
concurrence of the Administrative Agent and, in the case of any such amendment
or modification, each Guarantor against whom enforcement of such amendment or
modification is sought. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
3.5 HEADINGS. Section and subsection headings in this Guaranty are
included herein for convenience of reference only and shall not constitute a
part of this Guaranty for any other purpose or be given any substantive effect.
3.6 APPLICABLE LAW; RULES OF CONSTRUCTION. THIS GUARANTY AND THE RIGHTS
AND OBLIGATIONS OF GUARANTORS AND SECURED PARTIES HEREUNDER SHALL BE GOVERNED
BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW
OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
3.7 SUCCESSORS AND ASSIGNS. This Guaranty is a continuing guaranty and
shall be binding upon each Guarantor and its respective successors and assigns.
This Guaranty shall inure to the benefit of Secured Parties and their respective
successors and assigns. No Guarantor shall assign this Guaranty or any of the
rights or obligations of such Guarantor hereunder without the prior written
consent of all Lenders. Any Secured Party may, without notice or consent, assign
its interest in this Guaranty in whole or in part, PROVIDED that any assignee
shall be a Secured Party under this Guaranty. The terms and provisions of this
Guaranty shall inure to the benefit of any transferee or assignee of any
Commitments or Loan, and in the event of such
11
transfer or assignment the rights and privileges herein conferred upon such
Secured Party shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions hereof.
3.8 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR ARISING OUT OF OR RELATING TO THIS
GUARANTY, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH GUARANTOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO SUCH GUARANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SUBSECTION 3.2;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH GUARANTOR IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT SECURED PARTIES RETAIN THE RIGHT TO SERVE PROCESS
IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH
GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 3.8 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR
OTHERWISE.
3.9 WAIVER OF TRIAL BY JURY. EACH GUARANTOR AND, BY ITS ACCEPTANCE OF THE
BENEFITS HEREOF, EACH SECURED PARTY EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS GUARANTY. The scope of this waiver is intended to be all encompassing of
any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. Each
Guarantor and, by its acceptance of the benefits hereof, each Secured Party,
each (i) acknowledges that this waiver is a material inducement for such
Guarantor and
12
Secured Parties to enter into a business relationship, that such Guarantor and
Secured Parties have already relied on this waiver in entering into this
Guaranty or accepting the benefits thereof, as the case may be, and that each
will continue to rely on this waiver in their related future dealings and (ii)
further warrants and represents that each has reviewed this waiver with its
legal counsel, and that each knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 3.9 AND EXECUTED
BY THE ADMINISTRATIVE AGENT AND EACH GUARANTOR), AND THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
GUARANTY. In the event of litigation, this Guaranty may be filed as a written
consent to a trial by the court.
3.10 NO OTHER WRITING. This writing is intended by Guarantors and Secured
Parties as the final expression of this Guaranty and is also intended as a
complete and exclusive statement of the terms of their agreement with respect to
the matters covered hereby. No course of dealing, course of performance or trade
usage, and no parol evidence of any nature, shall be used to supplement or
modify any terms of this Guaranty. There are no conditions to the full
effectiveness of this Guaranty.
3.11 FURTHER ASSURANCES. At any time or from time to time, upon the request
of the Administrative Agent, Guarantors shall execute and deliver such further
documents and do such other acts and things as the Administrative Agent may
reasonably request in order to effect fully the purposes of this Guaranty.
3.12 ADDITIONAL GUARANTORS. The initial Guarantors hereunder shall be such
of the Restricted Subsidiaries of Borrowers as are signatories hereto on the
date hereof. From time to time subsequent to the date hereof, additional
Subsidiaries of Borrowers may become parties hereto, as additional Guarantors
(each an "ADDITIONAL GUARANTOR"), by executing a counterpart of this Guaranty.
Upon delivery of any such counterpart to the Administrative Agent, notice of
which is hereby waived by Guarantors, each such Additional Guarantor shall be a
Guarantor and shall be as fully a party hereto as if such Additional Guarantor
were an original signatory hereof. Each Guarantor expressly agrees that its
obligations arising hereunder shall not be affected or diminished by the
addition or release of any other Guarantor hereunder, nor by any election of the
Administrative Agent not to cause any Subsidiary of Borrowers to become an
Additional Guarantor hereunder. This Guaranty shall be fully effective as to any
Guarantor that is or becomes a party hereto regardless of whether any other
Person becomes or fails to become or ceases to be a Guarantor hereunder.
3.13 COUNTERPARTS; EFFECTIVENESS. This Guaranty may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. This Guaranty shall become effective
as to each Guarantor upon the execution of a counterpart hereof by such
Guarantor (whether or not a counterpart hereof shall have been executed by any
other Guarantor)
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and receipt by the Administrative Agent of written or telephonic notification of
such execution and authorization of delivery thereof.
3.14 ADMINISTRATIVE AGENT AS AGENT.
(a) The Administrative Agent has been appointed to act as
Administrative Agent hereunder by the Secured Parties. The Administrative Agent
shall be obligated, and shall have the right hereunder, to make demands, to give
notices, to exercise or refrain from exercising any rights, and to take or
refrain from taking any action, solely in accordance with this Guaranty and the
Credit Agreement; PROVIDED that Administrative Agent shall exercise, or refrain
from exercising, any remedies hereunder in accordance with the instructions of
(i) Requisite Lenders or (ii) after payment in full of all Obligations then due
and payable under the Credit Agreement and the other Loan Documents, the holders
of a majority of the aggregate notional amount (or, with respect to any Rate
Protection Agreement that has been terminated in accordance with its terms, the
amount then due and payable (exclusive of expenses and similar payments but
including any early termination payments then due) under such Rate Protection
Agreement) under all Rate Protection Agreements (Requisite Lenders or, if
applicable, such holders being referred to herein as "REQUISITE OBLIGEES"). In
furtherance of the foregoing provisions of this subsection 3.14, each Interest
Rate Exchanger, by its acceptance of the benefits hereof, agrees that it shall
have no right individually to enforce this Guaranty, it being understood and
agreed by such Interest Rate Exchanger that all rights and remedies hereunder
may be exercised solely by the Administrative Agent for the benefit of Secured
Parties in accordance with the terms of this subsection 3.14.
(b) Administrative Agent shall at all times be the same Person that is
Administrative Agent under the Credit Agreement. Written notice of resignation
by the Administrative Agent pursuant to subsection 10.5 of the Credit Agreement
shall also constitute notice of resignation as Administrative Agent under this
Guaranty; removal of the Administrative Agent pursuant to subsection 9.5 of the
Credit Agreement shall also constitute removal as Administrative Agent under
this Guaranty; and appointment of a successor Administrative Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute appointment of a
successor Administrative Agent under this Guaranty. Upon the acceptance of any
appointment as Administrative Agent under subsection 9.5 of the Credit Agreement
by a successor Agent, that successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed Administrative Agent under this Guaranty, and the
retiring or removed Administrative Agent under this Guaranty shall promptly (i)
transfer to such successor Administrative Agent all sums held hereunder,
together with all records and other documents necessary or appropriate in
connection with the performance of the duties of the successor Administrative
Agent under this Guaranty, and (ii) take such other actions as may be necessary
or appropriate in connection with the assignment to such successor
Administrative Agent of the rights created hereunder, whereupon such retiring or
removed Administrative Agent shall be discharged from its duties and obligations
under this Guaranty. After any retiring or removed Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of this
Guaranty shall inure to its benefit as to any actions taken or omitted to be
taken by it under this Guaranty while it was Administrative Agent hereunder.
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Exhibit 10.3
IN WITNESS WHEREOF, each of the undersigned Guarantors has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
MALL INTERMEDIATE HOLDING COMPANY, LLC
By: Venetian Casino Resort, LLC, its Managing
Member
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
GRAND CANAL SHOPS MALL CONSTRUCTION, LLC
By: Venetian Casino Resort, LLC,
its Managing Member
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
LIDO INTERMEDIATE HOLDING COMPANY, LLC
By: Venetian Casino Resort, LLC,
its Managing Member
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
VENETIAN VENTURE DEVELOPMENT, LLC
By: Venetian Casino Resort, LLC,
its Managing Member
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
VENETIAN OPERATING COMPANY, LLC
By: Venetian Casino Resort, LLC,
its Managing Member
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
VENETIAN MARKETING, INC.
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
VENETIAN CASINO RESORT ATHENS, LLC
By: Las Vegas Sands, Inc., its
Managing Member
By: /s/ Xxxxx Xxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxx
Title: Secretary
Notice Address for Debtors:
0000 Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: General Counsel
Telefax: (000) 000-0000
