UNSECURED INDEMNITY AGREEMENT
THIS UNSECURED INDEMNITY AGREEMENT (the "Indemnity") is entered into
as of the 14th day of November, 1997, by LAS VEGAS SANDS, INC., a Nevada
corporation ("LVSI"), VENETIAN CASINO RESORT, LLC, a Nevada limited liability
Indemnitor ("VCR") and GRAND CANAL SHOPS MALL CONSTRUCTION, LLC, a Delaware
limited liability, ("GCCLLC") as joint and several indemnitors (each of LVSI,
VCR and GCCLLC, "an Indemnitor" and collectively, the "Indemnitors"), to and for
the benefit of GMAC Commercial Mortgage Corporation (the "Lender") and, to the
extent not otherwise referenced, the Indemnified Parties (as hereinafter
defined).
W I T N E S S E T H:
A. Pursuant to that certain Credit Agreement, dated as of November 14, 1997,
by and among the Indemnitors and Lender (the "Credit Agreement"), the Lender has
agreed to provide Loans to Indemnitors, jointly and severally, in an aggregate
amount and for purposes specified therein. Capitalized terms used herein, but
not otherwise defined herein, shall have the meaning assigned to such terms in
the Credit Agreement.
B. The Obligations are secured by, among other things, (i) the Deeds of
Trust, (ii) the Leasehold Deed of Trust and (iii) such other deeds of trust that
may be entered into by Indemnitors for the benefit of Lender, (together with the
Deed of Trust and the Leasehold Deed of Trust, the "Deeds of Trust"), which
Deeds of Trust encumber the real property described in Exhibit "A" attached
hereto (the "Real Property"), and the improvements now or hereafter constructed
thereon (which improvements, together with the Real Property, shall hereinafter
be referred to as the "Property"). The Credit Agreement, the Deeds of Trust and
all other documents executed in connection with the Obligations are collectively
referred to as the "Loan Documents."
C. It is a condition of the Lender's entering into the Loan Documents that
this Indemnity be executed and delivered by the Indemnitors, and the Lender is
entering into the Loan Documents in reliance on this Indemnity.
D. The obligations of the Indemnitors hereunder are unsecured obligations
of the Indemnitors.
NOW, THEREFORE, in consideration of the foregoing and other valuable
consideration, the receipt of which is hereby acknowledged, the Indemnitors
covenant and agree to and for the benefit of the Lender as follows:
1. Definitions.
(a) "Claims" means any and all actual out-of-pocket costs incurred
by an Indemnified Party (as defined below) (including, without limitation,
reasonable attorneys' fees and expenses, which fees and expenses shall include,
without limitation, fees and expenses of both outside and staff counsel),
expenses, losses, damages, liabilities, fines, penalties, charges, injury to
person, property, or natural resources, administrative and judicial proceedings
and orders, injunctive relief, judgments, remedial action requirements and
enforcement actions of any kind, arising directly or
indirectly, in whole or in part, out of or attributable to (i) any breach or
default by the Indemnitor in the performance of any of its obligations under
paragraphs 3(a)-(d) hereof, or (ii) any Release (as defined below) or threatened
Release, whether foreseeable or unforeseeable, arising prior to any release,
reconveyance or foreclosure of either Deed of Trust (or following any such
release, conveyance or foreclosure to the extent attributable to pre-existing
conditions), or conveyance in lieu of foreclosure; and in each instance,
regardless of when such Release, inaccuracy or breach is discovered and
regardless of whether or not caused by or in the control of the Indemnitor, any
employees, agents, contractors or subcontractors of the Indemnitor or any third
persons. Without limiting the generality of the foregoing and for purposes of
clarification only, Claims also include:
(i) actual out-of-pocket costs reasonably incurred by an
Indemnified Party in connection with (x) determining whether the Property is in
compliance with all applicable Hazardous Substances Laws (as hereinafter
defined), (y) taking any necessary precautions to protect against any Release or
threatened Release, or (z) any removal, remediation of any kind and disposal of
any Hazardous Substances (as hereinafter defined), and
(ii) any repair of any damage to the Property or any other
property caused by any such precautions, removal, remediation or disposal.
The rights of the Indemnified Parties hereunder shall not be limited
by any investigation or the scope of any investigation undertaken by or on
behalf of the Lender in connection with the Property prior to the date hereof.
Notwithstanding the foregoing, Claims shall exclude any Release caused by or
resulting from the negligence or misconduct of any of the Indemnified Parties.
(b) "Hazardous Substances" means and includes any flammable
explosives, radioactive materials or hazardous, toxic or dangerous wastes,
substances or related materials or any other chemicals, materials or substances,
exposure to which is prohibited, limited or regulated by any federal, state,
county, regional or local authority or which, even if not so regulated, may or
could pose a hazard to the health and safety of the occupants of the Property or
of property adjacent to the Property, including, but not limited to, asbestos,
PCBs, petroleum products and byproducts (including, but not limited to, crude
oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural
gas, or synthetic gas usable for fuel, or any mixture thereof), substances
defined or listed as "hazardous substances," "hazardous materials," "hazardous
wastes" or "toxic substances" or similarly identified in, pursuant to, or for
purposes of, any of the Hazardous Substances Laws, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act, as now or hereafter amended (42 U.S.C. Section 9601, et seq); the
Hazardous Materials Transportation Act, as now or hereafter amended (49 U.S.C.
Section 1801, et seq); the Resource Conservation and Recovery Act, as now or
hereafter amended (42 U.S.C. Section 6901, et seq); any so-called "Superfund" or
"Superlien" law; or any other federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material; or any substances or mixture regulated under the
Toxic Substance Control Act of 1976, as now or hereafter amended (15 U.S.C.
Section 2601 et seq); and any "pollutant" under the Clean Water Act, as now or
hereafter amended (33 U.S.C. Section 1251 et seq); and any hazardous air
pollutant under the Clean Air Act (42 U.S.C. Section 7901 et seq), in each case
as now or hereafter amended.
(c) "Hazardous Substances Laws" means all federal, state and local
environmental, health or safety laws, ordinances, regulations, rules of common
law or policies
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regulating Hazardous Substances, including, without limitation, those governing
the generation, use, refinement, handling, treatment, removal, storage,
production, manufacture, transportation or disposal of Hazardous Substances, as
such laws, ordinances, regulations, rules and policies may be in effect from
time to time and be applicable to the Property.
(d) "Indemnified Parties" means the Lender, and the directors,
officers, shareholders, agents, employees, participants, successors and assigns
of the Lender, and shall also include any purchasers of all or any portion of
the Property at any foreclosure sale and the initial purchaser following the
consummation of any deed in lieu of foreclosure, but not including any other
purchasers of the Property.
(e) "Release" means any presence, use, generating, storing,
spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping or disposing of Hazardous Substances into the
environment, or about, on, from, under, within or affecting the Property, or
transported to or from the Property, including continuing migration of Hazardous
Substances into or through soil, surface water or groundwater.
2. Environmental Indemnification by the Indemnitor.
(a) The Indemnitors hereby agree to defend (with counsel
reasonably approved by the Lender), indemnify and hold the Indemnified Parties
harmless from and against, and shall reimburse the Indemnified Parties for, any
and all Claims.
(b) The Lender shall have the right to employ independent counsel
to represent it in any action or proceeding to which this Indemnity is
applicable if and to the extent that the Lender determines in good faith that
its rights and interests may be compromised or not fully and adequately
represented by legal counsel acting for the Indemnitors, whether on account of
any potential defenses that the Indemnitors may have to its obligations under
this Indemnity or otherwise, and in such event the reasonable fees and expenses
of the Lender's independent counsel shall be paid by the Indemnitors.
(c) The Indemnitors' obligations hereunder shall not be diminished
or affected in any respect as a result of any notice or disclosure, if any, to,
or other knowledge, if any, by, any Indemnified Party of any Release or
threatened Release, or as a result of any other matter related to the
Indemnitor's obligations hereunder, nor shall any Indemnified Party be deemed to
have permitted or acquiesced in any Release or any breach of the Indemnitor's
other obligations hereunder, solely because any Indemnified Party had notice,
disclosure or knowledge thereof, whether at the time this Indemnity is delivered
or at any time thereafter.
(d) This Indemnity shall not be limited by any representation,
warranty or indemnity of the Indemnitors made herein or in connection with any
indebtedness secured by the Deeds of Trust, irrespective of whether the
Indemnitors have knowledge as of the date of each Deed of Trust, or during the
term of each Deed of Trust, of the matters to which such representation,
warranty or indemnity relates.
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3. Environmental Covenants
(a) The Indemnitors shall not, nor shall the Indemnitors permit
any tenants or other occupants of the Property to, at any time in the future,
cause or permit a Release, except in compliance with applicable Hazardous
Substances Laws.
(b) The Indemnitors shall give prompt written notice to the Lender
of any Pending Claims, or of any Proceedings.
(c) The Indemnitors shall give prompt written notice to the Lender
of the Indemnitors' discovery of any occurrence or condition on any real
property adjoining or in the vicinity of the Property that could cause the
Property or any part thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use of the Property under any Hazardous Substances
Laws including, without limitation, the Indemnitors' discovery of any occurrence
or condition on the Property or on any real property adjoining or in the
vicinity of the Property that could cause the Property or any part thereof to be
classified as a hazardous waste property or border-zone property, or to be
otherwise subject to any restrictions on the ownership, occupancy,
transferability or use of the Property under any Hazardous Substances Laws.
(d) In the event that any investigation, site monitoring,
containment, cleanup, removal, restoration, precautionary actions or other
remedial work of any kind or nature (hereinafter, "Remedial Work") is required
under any applicable Hazardous Substances Law as a result of, or in connection
with, any Release, suspected Release, or threatened Release, the Indemnitors
shall within thirty (30) days after receipt of information that such Remedial
Work is or may be required (or such shorter period of time as may be required
under applicable law, regulation, order or agreement), commence the performance
of, or cause to be commenced, and thereafter diligently prosecute to completion,
the performance of all such Remedial Work in compliance with all applicable
Hazardous Substances Laws. All Remedial Work shall be performed by one or more
contractors, approved in advance in writing by the Lender, and under the
supervision of a consulting engineer approved in advance in writing by the
Lender, which consent shall not be unreasonably withheld. All costs and expenses
of such Remedial Work shall be paid by the Indemnitors, including, without
limitation, the charges of such contractor(s) and/or the consulting engineer,
and the Indemnified Parties' reasonable attorneys' fees and costs, including,
without limitation, fees and costs of both outside and staff counsel incurred in
connection with monitoring or review of such Remedial Work. In the event the
Indemnitors shall fail to timely commence, or cause to be commenced, or fail to
diligently prosecute to completion, the performance of such Remedial Work, the
Lender or any other Indemnified Party may, but shall not be required to, cause
such Remedial Work to be performed and all costs and expenses thereof, or
incurred in connection therewith, shall be deemed Claims hereunder.
4. Liability.
(a) Notwithstanding any other provisions of this Indemnity or any
of the Loan Documents, any liability of the Indemnitors hereunder shall be its
personal liability (but such personal liability shall not be deemed to
incorporate personal liability of its directors, officers, employees or agents),
and may be asserted against its interest in the Property as well as against any
and all of its other assets.
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(b) Without limiting the foregoing, the obligations of the
Indemnitor hereunder shall survive the following events, to the maximum extent
permitted by law: (i) repayment of the Obligations and any judicial or
nonjudicial foreclosure under either Deed of Trust or conveyance in lieu of such
foreclosure, notwithstanding that all or any portion of any other obligations
secured by the such Deed of Trust shall have been discharged thereby, (ii) any
election by any Indemnified Party to purchase all or any portion of the Property
at a foreclosure sale by crediting all or any portion of the obligations secured
by either Deed of Trust against the purchase price therefor (except to the
extent and only to the extent that such Indemnified Party has specifically
elected in writing in its sole discretion to credit against the purchase price
any Claims hereunder which were liquidated in amount at the time of such
foreclosure sale, it being presumed for these purposes that the obligations
secured by such Deed of Trust shall be discharged by any such crediting in the
order set forth in paragraph _____ of such Deed of Trust), (iii) any release or
reconveyance of either Deed of Trust, any waiver of the lien of either Deed of
Trust, or any release or waiver of any other security for the Obligations, and
(iv) any termination, cancellation or modification of the Credit Agreement, the
Notes, either Deed of Trust or any other agreement relating to the Obligations.
Upon and following the occurrence of any of the foregoing, the obligations of
the Indemnitors hereunder shall be unsecured obligations, and shall be
enforceable against the Indemnitors to the fullest extent permitted by
applicable law.
(c) The obligations of the Indemnitors hereunder are not intended
to be the obligations of a surety or guarantor. The liability of the Indemnitors
under this Indemnity shall in no way be limited or impaired by (i) any
extensions of time for performance required by the Loan Documents; (ii) the
accuracy or inaccuracy of any representations and warranties made by the
Indemnitors in any of the Loan Documents; or (iii) the release of any person or
entity from performance or observance of any of the agreements, covenants,
terms, or conditions contained in any of the Loan Documents by operation of law
or otherwise.
(d) The rights and remedies of the Indemnified Parties under this
Indemnity (i) shall be in addition to any other rights and remedies of such
Indemnified Parties under any Loan Document or at law or in equity, and (ii) may
be enforced by any of the Indemnified Parties, to the maximum extent permitted
by law, without regard to or affecting any rights and remedies that such
Indemnified Party may have under any Indenture Document or at law or in equity,
and without regard to any limitations on such Indemnified Party's recourse for
recovery of the Obligations as may be provided in any Indenture Document.
5. Site Visits, Observation and Testing. The Lender and any of the
other Indemnified Parties and their respective agents and representatives shall
have the right at any reasonable time, and upon reasonable prior notice, to
enter and visit the Property to make such inspections and inquiries as they
shall deem appropriate, including inspections for violations of any of the terms
of this Indemnity and for determining the existence, nature and magnitude of any
past or present Release or threatened Release, and they shall also have the
right, following any Event of Default as defined in the Credit Agreement, or
where the Lender has a reasonable basis upon which to believe that the Property
may be harmed, unsafe or contaminated, and upon reasonable prior notice, to
enter and visit the Property to make such tests (including, without limitation,
taking and removing soil or groundwater samples) as they shall deem appropriate.
Neither the Lender nor any of the other Indemnified Parties have any duty,
however, to visit or observe the Property or to conduct tests, and no site
visit, observation or testing by the Lender or any other Indemnified Party shall
impose any liability on the Lender or such other Indemnified Party. In no event
shall any site visit, observation or testing by the Lender or any other
Indemnified Party be a representation that Hazardous Substances
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are or are not present in, on or under the Property, or that there has been or
shall be compliance with any Hazardous Substances Laws or any other applicable
governmental law. Neither the Indemnitor nor any other party is entitled to rely
on any site visit, observation or testing by the Lender or any other Indemnified
Party. Neither the Lender nor any of the other Indemnified Parties owe any duty
of care to protect the Indemnitor or any other party against, or to inform the
Indemnitor or any other party of, any Hazardous Substances or any other adverse
condition affecting the Property. The Lender and any other Indemnified Party
shall give the Indemnitors reasonable notice before entering the Property, and
shall make reasonable efforts to avoid interfering with the Indemnitors' use of
the Property in exercising any rights provided in this paragraph 5.
6. Interest Accrued. Any amount claimed hereunder by an Indemnified
Party not paid within thirty (30) days after written demand from such
Indemnified Party with an explanation of the amounts claimed shall bear interest
at a rate equal to the default rate applicable to Loans upon the occurrence and
during the continuation of any Event of Default set forth in Section 2.2c of the
Credit Agreement.
7. Subrogation of Indemnity Rights. If the Indemnitor fails to fully
perform its obligations hereunder, any Indemnified Party shall be entitled to
pursue any rights or claims that the Indemnitor may have against any present,
future or former owners, tenants or other occupants or users of the Property,
any portion thereof or any adjacent or proximate properties, relating to any
Claim or the performance of Remedial Work, and the Indemnitors hereby assign all
of such rights and claims to the Indemnified Parties under such circumstances
and shall take all actions required by the Indemnified Parties to cooperate with
such Indemnified Parties in enforcing such rights and claims under such
circumstances.
8. Reliance. The Indemnitors acknowledge that it is making and giving
the indemnities and representations and covenants contained in this Indemnity
with the knowledge that the Lender is relying on such indemnities and
representations and covenants in making the Loans to the Indemnitors.
9. Successors and Assigns. This Indemnity shall inure to the benefit of
each Indemnified Party's successors and assigns, and shall be binding upon the
heirs, successors, and assigns of the Indemnitor. The Indemnitors shall not
assign any rights or obligations under this Indemnity without first obtaining
the written consent of the Lender, which may be given or withheld in the sole
discretion of the Lender. Notwithstanding any other provision of this Indemnity
to the contrary, the Indemnitors shall not be released from its obligations
hereunder without obtaining the written consent of the Lender, which consent may
be given or withheld in the sole discretion of the Lender. Nothing herein shall
be deemed to be a consent to the transfer of the Property which transfer would
be otherwise prohibited by any Document.
10. Miscellaneous. This Indemnity shall be governed by and construed in
accordance with the laws of the State of Nevada. If this Indemnity is executed
by more than one person or entity, the liability of the undersigned hereunder
shall be joint and several. Separate and successive actions may be brought
hereunder to enforce any of the provisions hereof at any time and from time to
time. No action hereunder shall preclude any subsequent action, and the
Indemnitors hereby waive and covenant not to assert any defense in the nature of
splitting of causes of action or merger of judgments. In no event shall any
provision of this Indemnity be deemed to be a waiver of or to be in lieu of any
right or claim, including, without limitation, any right of contribution or
other right of
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recovery, that any party to this Indemnity might otherwise have against any
other party to this Indemnity under any Hazardous Substances Laws. If any term
of this Indemnity or any application thereof shall be invalid, illegal or
unenforceable, the remainder of this Indemnity and any other application of such
term shall not be affected thereby. No delay or omission in exercising any right
hereunder shall operate as a waiver of such right or any other right.
11. Notices. All notices expressly provided hereunder to be given by the
Indemnitors to the Lender and all notices and demands of any kind or nature
whatsoever which the Indemnitors may be required or may desire to give to or
serve on the Lender shall be in writing and shall be served by certified mail,
return receipt requested, or by a reputable commercial overnight carrier that
provides a receipt, such as Federal Express. Notice shall be addressed as
follows:
Lender: GMAC Commercial Mortgage Corporation
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Altherimer & ▇▇▇▇
▇▇ ▇. ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
The Indemnitor: Las Vegas Sands, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ B Fredius, Esq.
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
12. Attorneys' Fees and Expenses. If the Lender refers this Indemnity or
any of the other Loan Documents to an attorney to enforce, construe or defend
the same, as a consequence of any Event of Default as defined in the Indenture,
with or without the filing of any legal action or proceeding, the Indemnitors
shall pay to the Lender, immediately upon demand, the amount of all attorneys'
fees and costs incurred by the Lender in connection therewith, together with
interest thereon from the date of award at a rate equal to the default rate
applicable to Loans upon the occurrence and during the continuation of any Even
of Default set forth in Section 2.2C of the Credit Agreement.
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IN WITNESS WHEREOF, this Indemnity is executed as of the day and year
first above written.
The Indemnitor:
LAS VEGAS SANDS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
VENETIAN CASINO RESORT, LLC
BY: LAS VEGAS SANDS, INC.,
as managing member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
GRAND CANAL SHOPS MALL CONSTRUCTION, LLC
BY: VENETIAN CASINO RESORT, LLC,
as sole member
BY: LAS VEGAS SANDS, INC.,
as managing member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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