UNITED STATES
SECURITIES & EXCHANGE COMMISSION
Washington, D.C.
20549
Form 10-Q
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þ
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the quarterly period ended
March 31, 2008
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the Transition period
from to
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Commission file number
001-32373
LAS VEGAS SANDS CORP.
(Exact name of registration as
specified in its charter)
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Nevada
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27-0099920
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(State or other jurisdiction
of
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(I.R.S. Employer
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incorporation or
organization)
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Identification No.)
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3355 Las Vegas Boulevard South
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89109
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Las Vegas, Nevada
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(Zip Code)
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(Address of principal executive
offices)
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(702) 414-1000
(Registrants telephone
number, including area code)
Indicate by check mark whether the Registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the Registrant
was required to file such reports), and (2) has been
subject to such filing requirements for the past
90 days. Yes
þ
No
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2
of the
Exchange Act. (Check one):
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Large
accelerated
filer
þ
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Accelerated
filer
o
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Non-accelerated
filer
o
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Smaller
reporting
company
o
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(Do not check if a smaller reporting company)
Indicate by check mark whether the registrant is a shell company
(as defined in
Rule 12b-2
of the Exchange
Act). Yes
o
No
þ
Indicate the number of shares outstanding of each of the
Registrants classes of common stock, as of May 5,
2008.
LAS VEGAS
SANDS CORP.
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Class
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Outstanding at May 5, 2008
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Common Stock ($0.001 par value)
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355,423,196 shares
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LAS VEGAS
SANDS CORP.
Table of
Contents
1
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ITEM 1
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FINANCIAL
STATEMENTS
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LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
(Unaudited)
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March 31,
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December 31,
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2008
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2007
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(In thousands,
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except share data)
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ASSETS
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Current assets:
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Cash and cash equivalents
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$
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855,362
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$
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857,150
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Restricted cash
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304,895
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232,944
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Accounts receivable, net
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253,614
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187,195
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Inventories
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24,035
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19,902
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Deferred income taxes
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16,588
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32,471
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Prepaid expenses and other
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43,567
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49,424
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Total current assets
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1,498,061
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1,379,086
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Property and equipment, net
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9,426,585
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8,574,614
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Deferred financing costs, net
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185,423
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107,338
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Restricted cash
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149,464
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178,824
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Deferred income taxes
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27,340
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Leasehold interests in land, net
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1,103,424
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1,069,609
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Other assets, net
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178,104
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157,046
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Total assets
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$
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12,568,401
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$
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11,466,517
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LIABILITIES AND STOCKHOLDERS EQUITY
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Current liabilities:
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Accounts payable
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$
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99,479
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$
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99,023
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Construction payables
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710,109
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717,541
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Accrued interest payable
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14,967
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11,465
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Other accrued liabilities
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597,170
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610,911
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Current maturities of long-term debt
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78,286
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54,333
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Total current liabilities
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1,500,011
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1,493,273
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Other long-term liabilities
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35,500
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28,674
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Deferred income taxes
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1,553
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Deferred proceeds from sale of The Shoppes at The Palazzo
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240,108
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Deferred gain on sale of The Grand Canal Shoppes
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60,334
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61,200
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Deferred rent from mall transactions
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151,316
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103,546
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Long-term debt
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8,290,332
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7,517,997
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Total liabilities
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10,277,601
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9,206,243
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Commitments and contingencies (Note 10)
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Stockholders equity:
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Common stock, $0.001 par value, 1,000,000,000 shares
authorized, 355,420,946 and 355,271,070 shares issued and
outstanding
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355
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355
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Capital in excess of par value
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1,082,093
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1,064,878
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Accumulated other comprehensive income (loss)
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22,052
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(2,493
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)
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Retained earnings
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1,186,300
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1,197,534
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Total stockholders equity
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2,290,800
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2,260,274
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Total liabilities and stockholders equity
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$
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12,568,401
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$
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11,466,517
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The accompanying notes are an integral part of these condensed
consolidated financial statements.
2
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
Condensed
Consolidated Statements of Operations
(Unaudited)
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Three Months Ended
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March 31,
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2008
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2007
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(In thousands, except share and per share data)
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Revenues:
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Casino
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$
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795,441
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$
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465,734
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Rooms
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190,689
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97,868
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Food and beverage
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83,240
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54,359
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Convention, retail and other
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78,858
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43,046
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1,148,228
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661,007
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Less-promotional allowances
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(69,205
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)
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(32,789
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)
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Net revenues
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1,079,023
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628,218
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Operating expenses:
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Casino
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519,468
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278,697
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Rooms
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40,281
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22,524
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Food and beverage
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41,040
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23,633
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Convention, retail and other
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44,967
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17,431
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Provision for doubtful accounts
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8,132
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15,516
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General and administrative
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142,953
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57,971
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Corporate expense
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25,537
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18,519
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Rental expense
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9,064
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6,708
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Pre-opening expense
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26,590
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22,457
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Development expense
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5,892
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2,346
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Depreciation and amortization
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113,413
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31,232
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Loss on disposal of assets
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5,121
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178
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982,458
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497,212
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Operating income
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96,565
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131,006
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Other income (expense):
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Interest income
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5,465
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12,664
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Interest expense, net of amounts capitalized
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(114,700
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)
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(34,612
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)
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Other income (expense)
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8,099
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(7,033
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)
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Loss on early retirement of debt
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(3,989
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)
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Income (loss) before income taxes
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(8,560
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)
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102,025
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Provision for income taxes
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(2,674
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)
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(11,111
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)
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Net income (loss)
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$
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(11,234
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)
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$
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90,914
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Basic earnings (loss) per share
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$
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(0.03
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)
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$
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0.26
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Diluted earnings (loss) per share
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$
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(0.03
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)
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$
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0.26
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Weighted average shares outstanding:
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Basic
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355,274,537
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354,613,724
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Diluted
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355,274,537
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356,114,292
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The accompanying notes are an integral part of these condensed
consolidated financial statements.
3
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
Condensed
Consolidated Statements of Cash Flows
(Unaudited)
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Three Months Ended
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March 31,
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2008
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2007
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(In thousands)
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Cash flows from operating activities:
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Net income (loss)
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$
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(11,234
|
)
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$
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90,914
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|
Adjustments to reconcile net income to net cash provided by
operating activities:
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|
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|
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Depreciation and amortization
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113,413
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31,232
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Amortization of leasehold interests in land included in rental
expense
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6,595
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4,213
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Amortization of deferred financing costs and original issue
discount
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9,874
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5,054
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Amortization of deferred gain and rent
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(1,173
|
)
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|
|
(1,173
|
)
|
Deferred rent from mall transactions
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|
48,077
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|
|
|
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Loss on early retirement of debt
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|
|
3,989
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|
|
|
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Loss on disposal of assets
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|
5,121
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|
|
|
178
|
|
Stock-based compensation expense
|
|
|
9,821
|
|
|
|
4,448
|
|
Provision for doubtful accounts
|
|
|
8,132
|
|
|
|
15,516
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|
Foreign exchange gain
|
|
|
(8,831
|
)
|
|
|
|
|
Excess tax benefits from stock-based compensation
|
|
|
(1,326
|
)
|
|
|
(2,293
|
)
|
Deferred income taxes
|
|
|
(13,010
|
)
|
|
|
(2,203
|
)
|
Changes in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
Accounts receivable
|
|
|
(74,551
|
)
|
|
|
37,313
|
|
Inventories
|
|
|
(4,133
|
)
|
|
|
(761
|
)
|
Prepaid expenses and other
|
|
|
(13,142
|
)
|
|
|
(32,231
|
)
|
Leasehold interests in land
|
|
|
(933
|
)
|
|
|
(105,934
|
)
|
Accounts payable
|
|
|
456
|
|
|
|
5,154
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|
Accrued interest payable
|
|
|
3,502
|
|
|
|
(4,038
|
)
|
Other accrued liabilities
|
|
|
(8,212
|
)
|
|
|
5,962
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
72,435
|
|
|
|
51,351
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|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
Change in restricted cash
|
|
|
(27,115
|
)
|
|
|
398,571
|
|
Capital expenditures
|
|
|
(943,541
|
)
|
|
|
(764,964
|
)
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities
|
|
|
(970,656
|
)
|
|
|
(366,393
|
)
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|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
Proceeds from exercise of stock options
|
|
|
5,020
|
|
|
|
9,983
|
|
Excess tax benefits from stock-based compensation
|
|
|
1,326
|
|
|
|
2,293
|
|
Proceeds from long-term debt (Note 4)
|
|
|
2,105,196
|
|
|
|
370,859
|
|
Repayments on long-term debt (Note 4)
|
|
|
(1,372,421
|
)
|
|
|
(100,140
|
)
|
Proceeds from the sale of The Shoppes at The Palazzo
(Note 7)
|
|
|
240,108
|
|
|
|
|
|
Payments of deferred financing costs
|
|
|
(89,866
|
)
|
|
|
(1,284
|
)
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing activities
|
|
|
889,363
|
|
|
|
281,711
|
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate on cash
|
|
|
7,070
|
|
|
|
4,790
|
|
|
|
|
|
|
|
|
|
|
Decrease in cash and cash equivalents
|
|
|
(1,788
|
)
|
|
|
(28,541
|
)
|
Cash and cash equivalents at beginning of period
|
|
|
857,150
|
|
|
|
468,066
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
855,362
|
|
|
$
|
439,525
|
|
|
|
|
|
|
|
|
|
|
Supplemental disclosure of cash flow information:
|
|
|
|
|
|
|
|
|
Cash payments for interest
|
|
$
|
131,907
|
|
|
$
|
80,416
|
|
|
|
|
|
|
|
|
|
|
Cash payments for taxes
|
|
$
|
|
|
|
$
|
30,000
|
|
|
|
|
|
|
|
|
|
|
Non-cash investing and financing activities:
|
|
|
|
|
|
|
|
|
Property and equipment asset acquisitions included in
construction payables
|
|
$
|
710,109
|
|
|
$
|
367,109
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of these condensed
consolidated financial statements.
4
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
|
|
NOTE 1
|
ORGANIZATION
AND BUSINESS OF COMPANY
|
The accompanying condensed consolidated financial statements
should be read in conjunction with the consolidated financial
statements and notes thereto included in the Annual Report on
Form 10-K
of Las Vegas Sands Corp., a Nevada corporation
(LVSC), and its subsidiaries (collectively the
Company) for the year ended December 31, 2007.
The year-end balance sheet data was derived from audited
financial statements, but does not include all disclosures
required by generally accepted accounting principles in the
United States of America. In the opinion of management, all
adjustments and normal recurring accruals considered necessary
for a fair statement of the results for the interim period have
been included. The interim results reflected in the unaudited
condensed consolidated financial statements are not necessarily
indicative of expected results for the full year. The
Companys common stock is traded on the New York Stock
Exchange under the symbol LVS.
Operations
The Company owns and operates The Venetian Resort Hotel Casino
(The Venetian Las Vegas), a Renaissance
Venice-themed resort situated on the Las Vegas Strip; The
Palazzo Resort Hotel Casino (The Palazzo), a resort
featuring a modern European ambience and design reminiscent of
Italian affluent living; and an expo and convention center with
approximately 1.2 million square feet (the Sands Expo
Center). With the opening of The Palazzo, these Las Vegas
properties form an integrated resort with 7,093 suites;
approximately 225,000 square feet of gaming space; a
meeting and conference facility of approximately
1.1 million square feet; an enclosed retail, dining and
entertainment complex located within The Venetian Las Vegas of
approximately 440,000 net leasable square feet (The
Grand Canal Shoppes), which was sold to General Growth
Partners (GGP) in 2004; and an enclosed retail and
dining complex located within The Palazzo of approximately
400,000 net leasable square feet (The Shoppes at The
Palazzo), which was sold to GGP on February 29, 2008.
The Company also owns and operates the Sands Macao, the first
Las Vegas-style casino in Macao, China, pursuant to a
20-year
gaming subconcession. The Sands Macao offers over
229,000 square feet of gaming space and a 289-suite hotel
tower, as well as several restaurants, VIP facilities, a
theater, and other high-end services and amenities.
On August 28, 2007, under the same gaming subconcession as
the Sands Macao, the Company opened The Venetian Macao Resort
Hotel (The Venetian Macao), which anchors the Cotai
Strip
tm
,
a master-planned development of resort properties in Macao,
China. With a theme similar to that of The Venetian Las Vegas,
The Venetian Macao includes a 39-floor luxury hotel with over
2,900 suites; a casino floor of approximately
550,000 square feet; an approximately 15,000-seat arena;
retail and dining space of approximately 1.0 million square
feet; and a convention center and meeting room complex of
approximately 1.2 million square feet.
United
States Development Projects
Las Vegas
Condominiums
The Company is constructing a high-rise residential condominium
tower with approximately 1.0 million saleable square feet
that is situated between The Palazzo and The Venetian Las Vegas.
The condominium tower is currently expected to open in late 2009.
Sands
Bethworks
In August 2007, the Companys subsidiary, Sands Bethworks
Gaming LLC (Sands Bethworks Gaming), was issued a
Pennsylvania gaming license by the Pennsylvania Gaming Control
Board. Sands Bethworks Gaming will develop a gaming, hotel,
shopping and dining complex called Sands Bethworks, located on
the site of the Historic Bethlehem Steel Works in Bethlehem,
Pennsylvania, which is approximately 70 miles from midtown
Manhattan, New York. In its first phase, the
124-acre
development is expected to feature a 300-room hotel,
approximately
5
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
200,000 square feet of retail space, up to 5,000 slot
machines, a 50,000-square-foot multipurpose event center and a
variety of dining options. The Company will own the property
through its joint venture with Bethworks Now, LLC, which has yet
to contribute the land to the joint venture. The Company expects
the contribution to take place in 2008; however, no assurances
can be given as to the timing of the contribution. Sands
Bethworks is expected to open in summer 2009.
Macao
Development Projects
The Company has submitted plans to the Macao government for its
Cotai Strip development projects, consisting of six integrated
resort developments, in addition to The Venetian Macao, on an
area of approximately 200 acres (referred to as parcels 2,
3, 5, 6, 7 and 8). The developments are expected to include
hotels, exhibition and conference facilities, casinos,
showrooms, shopping malls, spas, restaurants, entertainment
facilities and other attractions and amenities. The Company has
commenced construction or pre-construction for these six parcels
and plans to own and operate all of the casinos in these
developments under its Macao gaming subconcession.
The Company has received a land concession from the Macao
government to build on parcels 1, 2 and 3, including the site on
which the Company owns and operates The Venetian Macao (parcel
1) and the site on which it is building a Four Seasons
hotel and casino development (the Four Seasons
Macao, located on parcel 2). The Company does not own
these land sites in Macao; however, the land concession, which
has an initial term of 25 years and is renewable at the
Companys option, grants the Company exclusive use of the
land. As specified in the land concession, the Company is
required to pay premiums, which are payable over four years or
upon the completion of the corresponding resort, as well as
annual rent for the term of the land concession.
The Company does not yet have all the necessary Macao government
approvals that it will need in order to develop all of its
planned Cotai Strip developments. The Company has commenced
construction or pre-construction for the projects on parcels 5,
6, 7 and 8 for which it has not yet been granted land
concessions. The Company is in the process of negotiating with
the Macao government to obtain the land concession for parcels 5
and 6, and will subsequently negotiate the land concession for
parcels 7 and 8. Based on historical experience with the Macao
government with respect to the Companys land concessions
for the Sands Macao and parcels 1, 2 and 3, management believes
that the land concessions for parcels 5, 6, 7 and 8 will be
approved; however, if the Company does not obtain these land
concessions, it could forfeit all or a substantial part of its
$893.8 million in capitalized construction costs related to
these Cotai Strip projects as of March 31, 2008.
Hengqin
Island Development Project
The Company has entered into a non-binding letter of intent with
the Zhuhai Municipal Peoples Government of the
Peoples Republic of China to work together to create a
master plan for, and develop, a leisure and convention
destination resort on Hengqin Island, which is located within
mainland China, approximately one mile from the Cotai Strip. In
January 2007, the Company was informed that the Zhuhai
Government established a Project Coordination Committee to act
as a government liaison empowered to work directly with the
Company to advance the development of the project. The Company
has interfaced with this committee and is working actively with
the committee as it continues to advance its plans. The project
remains subject to a number of conditions, including further
governmental approvals.
Singapore
Development Project
In August 2006, the Companys wholly-owned subsidiary,
Marina Bay Sands Pte. Ltd. (MBS), entered into a
development agreement (the Development Agreement)
with the Singapore Tourism Board (the STB) to build
and operate an integrated resort called the Marina Bay Sands in
Singapore. The Marina Bay Sands is expected to include three 50+
story hotel towers (totaling approximately 2,700 rooms), a
casino, an enclosed retail, dining and
6
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
entertainment complex of approximately 850,000 net leasable
square feet, a convention center and meeting room complex of
approximately 1.2 million square feet, theaters and a
landmark iconic structure at the bay-front promenade that will
contain an art/science museum. The Marina Bay Sands is expected
to open in late 2009.
Other
Development Projects
The Company is currently exploring the possibility of developing
and operating additional properties, including integrated
resorts, in other Asian and U.S. jurisdictions, and in
Europe. In December 2007, the Company submitted applications to
the Kansas Lottery Commission for a gaming license, and if
successful, the Company plans to develop a casino resort in the
Kansas City, Kansas, metropolitan area.
Development
Financing Strategy
As previously described, the Company has a number of significant
development projects underway in the United States, Macao and
Singapore for which construction is currently expected to
continue through 2011. In the United States, the estimated costs
to build the Las Vegas condominium tower and the Sands Bethworks
project are each approximately $600.0 million, of which the
Company has capitalized approximately $111.6 million and
$117.9 million, respectively, as of March 31, 2008. In
Macao, the estimated cost to build the Companys Cotai
Strip developments (including The Venetian Macao) is
approximately $12.0 billion, of which the Company has
capitalized approximately $3.37 billion as of
March 31, 2008. In Singapore, although construction has
started on the Marina Bay Sands, the Company is continuing to
work with the Singapore government to finalize various design
aspects of the integrated resort and is in the process of
finalizing its cost estimates for the project. The Company
expects that the cost to build the Marina Bay Sands will be in
excess of $4.5 billion (inclusive of payments made in 2006
for the land premium, taxes and other fees), of which the
Company has capitalized approximately $1.64 billion as of
March 31, 2008.
The Company has principally funded its global development
projects through borrowings under the bank credit facilities of
its operating subsidiaries, operating cash flows and proceeds
from the disposition of non-core assets. In 2007, the Company
began to execute its financing strategy to secure additional
borrowing capacity to fund its existing and future development
projects and operations in Asia, including Macao and Singapore,
and the United States.
In April 2007, the Company increased the size of its Macao
credit facility to fund the Companys Macao development
projects from $2.5 billion to $3.3 billion and
received approval by its lenders to a reduction of the interest
rate margin for all classes of loans by 50 basis points,
thereby reducing the Companys overall interest expense
under the Macao credit facility. As of March 31, 2008, the
Company had approximately $373.7 million available under
the revolving facility of the Macao credit facility. In the
short term, cash balances at the Companys Macao
subsidiaries, operating cash flows from Sands Macao and The
Venetian Macao and borrowing capacity under the Macao credit
facility, together with funds made available under the
Companys U.S. senior secured credit facility, are
being used to fund current development and construction
activities for the remaining Cotai Strip developments. The
Company will need to arrange additional financing in the near
term to continue to fund these activities and is currently
exploring its options with respect to refinancing the Macao
credit facility, the proceeds of which would be used to
refinance the amount currently outstanding under the Macao
credit facility and provide incremental borrowings to continue
funding the Cotai Strip development projects. The Company
expects to complete this refinancing in 2008.
In May 2007, the Company entered into a $5.0 billion senior
secured credit facility in the U.S. A portion of the proceeds
was used to refinance the indebtedness secured by the
Companys Las Vegas integrated resort, including The
Venetian Las Vegas, The Palazzo, The Shoppes at The Palazzo and
Sands Expo Center, and to fund the design, development and
construction costs incurred in connection with the completion of
The Palazzo, The Shoppes at The Palazzo and the Las Vegas
condominiums. As of March 31, 2008, the Company had
approximately $1.55 billion of available borrowing capacity
under the senior secured credit facility. The senior secured
credit facility permits the Company to make investments in
certain of its subsidiaries and certain joint ventures not party
to the senior secured
7
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
credit facility, including its foreign subsidiaries and other
development projects outside of Las Vegas, in an amount not to
exceed $2.1 billion, and also permits the Company to invest
in its Sands Bethworks project so long as no more than 30% of
any such investment is in the form of an equity contribution to
the project, with the balance to be in the form of a secured
intercompany loan. As of March 31, 2008, the Company has
used approximately $997.0 million of the permitted
$2.1 billion to fund a portion of its required equity
contribution to the Marina Bay Sands project and investments
with respect to its other Asian development projects, including
in Macao.
In December 2007, the Company entered into a 5.44 billion
Singapore dollar (SGD) credit facility
(approximately $3.94 billion at exchange rates in effect on
March 31, 2008), which closed and funded in
January 2008, to fund development and construction costs
and expenses at the Marina Bay Sands. A portion of the proceeds,
together with a portion of the Companys initial SGD
800.0 million (approximately $579.2 million at
exchange rates in effect on March 31, 2008) equity
contribution, were used to repay outstanding borrowings of
approximately $1.32 billion under the Companys
Singapore bridge facility. As of March 31, 2008, the
Company had SGD 3.25 billion (approximately
$2.35 billion at exchange rates in effect on March 31,
2008) available for borrowing under the Singapore credit
facility. The remaining funds available for borrowing under the
Singapore credit facility will be used to fund a significant
portion of the design, development and construction costs of the
Marina Bay Sands project. Under the terms of the Singapore
credit facility, the Company is obligated to fund at least 20%
of the total costs and expenses incurred in connection with the
design, development and construction of the Marina Bay Sands
project with equity contributions or subordinated intercompany
loans, with the remaining 80% funded with debt, including debt
under the Singapore credit facility. The Company has funded its
current equity contribution requirement through borrowings under
its U.S. senior secured credit facility and operating cash
flows generated from its Las Vegas operations.
The Company held unrestricted and restricted cash and cash
equivalents of approximately $855.4 million and
$454.4 million, respectively, as of March 31, 2008.
The Company believes that its existing cash balances, operating
cash flows from The Venetian Las Vegas and The Palazzo, future
proceeds from the sale of The Shoppes at The Palazzo to GGP and
the initial deposit proceeds from anticipated sales of the Las
Vegas condominium units, which the Company expects to commence
in the second half of 2008, together with its available
borrowing capacity under the U.S. senior secured credit
facility, will be sufficient to fund the estimated development
and construction costs for the Las Vegas condominiums and the
Sands Bethworks projects during 2008. In addition, the Company
believes that these funds will also enable it to fund the
Companys equity contribution requirement for the Marina
Bay Sands project and provide additional capital to its Macao
subsidiaries to fund a portion of the Cotai Strip development
projects during this same time period.
In the near term, the Company will continue to borrow
significant amounts under its existing and potential future bank
credit facilities as it funds its global construction and
development projects. In connection with such borrowing needs,
the Company regularly evaluates conditions in the global credit
markets. However, the Company may not be able to obtain
additional borrowings when necessary or on terms acceptable to
the Company. If the Company is not able to obtain the requisite
financing or the terms are not as favorable as it anticipates,
the Company may be required to slow or suspend its global
development activities, including its Cotai Strip developments,
until such financing or other sources of funds become available.
Recent
Accounting Pronouncements
In September 2006, the Financial Accounting Standards Board
(FASB) issued Statement of Financial Accounting
Standards (SFAS) No. 157, Fair Value
Measurements, which defines fair value, establishes a
framework for measuring fair value and expands disclosures about
fair value measurements. SFAS No. 157 applies under
other accounting pronouncements that require or permit fair
value measurement. SFAS No. 157 does not require any
new fair value measurements. The provisions of
SFAS No. 157 are effective for financial statements
issued for fiscal years beginning after November 15, 2007,
and interim periods within those fiscal years. In January 2008,
the FASB deferred the effective date for one year for certain
non-financial assets and non-financial liabilities,
8
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
except those that are recognized or disclosed at fair value in
the financial statements on a recurring basis (at least
annually). The Company has adopted the provisions of this
standard and such application did not have a material effect on
its financial condition, results of operations or cash flows.
See Note 9 Fair Value
Measurements for disclosures required by this standard.
In February 2007, the FASB issued SFAS No. 159,
The Fair Value Option for Financial Assets and Liabilities
Including an Amendment of FASB Statement No. 115.
Under SFAS No. 159, the Company may elect to measure
many financial instruments and certain other items at fair
value, which are not otherwise currently required to be measured
at fair value. The decision to measure items at fair value is
made at specific election dates on an irrevocable
instrument-by-instrument
basis and requires recognition of the changes in fair value in
earnings and expensing upfront costs and fees associated with
the item for which the fair value option is elected. Fair value
instruments for which the fair value option has been elected and
similar instruments measured using another measurement attribute
are to be distinguished on the face of the statement of
financial position. SFAS No. 159 is effective for
financial statements beginning after November 15, 2007. The
Company has adopted the provisions of this standard and did not
elect the fair value option for eligible items that existed at
January 1, 2008.
In December 2007, the FASB issued SFAS No. 141R,
Business Combinations, which requires an acquirer to
recognize the identifiable assets acquired, the liabilities
assumed, any noncontrolling interest in the acquiree at the
acquisition date, measured at their fair values as of that date,
with limited exceptions specified in the statement.
SFAS No. 141R applies prospectively to business
combinations for which the acquisition date is on or after the
beginning of an entitys fiscal year that begins after
December 15, 2008. The Company is in the process of
evaluating the impact of this standard; however, the Company
does not expect the adoption of SFAS No. 141R will
have a material effect on its financial condition, results of
operations or cash flows.
In December 2007, the FASB issued SFAS No. 160,
Noncontrolling Interests in Consolidated Financial
Statements An Amendment of ARB No. 51,
which establishes accounting and reporting standards for the
noncontrolling interest in a subsidiary and for the
deconsolidation of a subsidiary. Specifically, this statement
requires the recognition of a noncontrolling interest (minority
interest) as equity in the consolidated financial statements and
separate from the parents equity. The amount of net income
attributable to the noncontrolling interest will be included in
consolidated net income on the face of the income statement.
SFAS No. 160 clarifies that changes in a parents
ownership interest in a subsidiary that do not result in
deconsolidation are equity transactions if the parent retains
its controlling financial interest. In addition, this statement
requires that a parent recognize a gain or loss in net income
when a subsidiary is deconsolidated and also requires expanded
disclosures regarding the interests of the parent and the
interests of the noncontrolling owners. SFAS No. 160
is effective for fiscal years, and interim periods within those
fiscal years, beginning on or after December 15, 2008. The
Company is in the process of evaluating the impact of this
standard; however, the Company does not expect the adoption of
SFAS No. 160 will have a material effect on its
financial condition, results of operations or cash flows.
In March 2008, the FASB issued SFAS No. 161,
Disclosures about Derivative Instruments and Hedging
Activities, which requires enhanced disclosures about an
entitys derivative and hedging activities and thereby
improves the transparency of financial reporting. The objective
of the guidance is to provide users of financial statements
with: an enhanced understanding of how and why an entity uses
derivative instruments; how derivative instruments and related
hedged items are accounted for; and how derivative instruments
and related hedged items affect an entitys financial
position, financial performance, and cash flows.
SFAS No. 161 also requires several added quantitative
disclosures in financial statements. SFAS No. 161 is
effective for fiscal years beginning after November 15,
2008. The Company is in the process of evaluating the impact of
this standard; however, the Company does not expect the adoption
of SFAS No. 161 will have a material effect on its
disclosures.
In April 2008, FASB issued Staff Position (FSP)
No. 142-3,
Determination of the Useful Life of Intangible
Assets, which amends the factors that should be considered
in developing renewal or extension assumptions used to determine
the useful life of a recognized intangible asset under
SFAS No. 142, Goodwill and Other Intangible
Assets. The intent of this FSP is to improve the
consistency between the useful life of a recognized intangible
asset
9
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
under SFAS No. 142 and the period of expected cash
flows used to measure the fair value of the asset under
SFAS No. 141R. FSP
No. 142-3
is effective for fiscal years, and interim periods within those
fiscal years, beginning on or after December 15, 2008. The
Company is in the process of evaluating the impact of this
standard; however, the Company does not expect the adoption of
FSP
No. 142-3
will have a material effect on its financial condition, results
of operations or cash flows.
Other
First Quarter Charges
During the three months ended March 31, 2008, the Company
recorded a net charge of $3.3 million to properly account
for $3.9 million of convention, retail and other,
pre-opening and general and administrative expenses that had not
been accrued, offset by $0.6 million of convention, retail
and other revenues that had not been recorded as of
December 31, 2007. Because the amounts involved were not
material to the Companys financial statements in any
individual prior period, and the cumulative amount is not
material to the estimated results of operations for the year
ending December 31, 2008, the Company recorded the
cumulative effect of correcting these items during the three
months ended March 31, 2008.
|
|
NOTE 2
|
STOCKHOLDERS
EQUITY AND EARNINGS PER SHARE
|
Changes in stockholders equity for the three months ended
March 31, 2008, were as follows (in thousands):
|
|
|
|
|
Balance at December 31, 2007
|
|
$
|
2,260,274
|
|
Net loss
|
|
|
(11,234
|
)
|
Stock-based compensation
|
|
|
10,867
|
|
Proceeds from exercise of stock options
|
|
|
5,020
|
|
Tax benefit from stock-based compensation
|
|
|
1,328
|
|
Change in accumulated other comprehensive income
|
|
|
24,545
|
|
|
|
|
|
|
Balance at March 31, 2008
|
|
$
|
2,290,800
|
|
|
|
|
|
|
At March 31, 2008 and December 31, 2007, the
accumulated other comprehensive income balance consisted solely
of foreign currency translation adjustments. For the three
months ended March 31, 2008 and 2007, comprehensive income
amounted to $13.3 million and $86.1 million,
respectively.
The weighted average number of common and common equivalent
shares used in the calculation of basic and diluted earnings
(loss) per share consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
March 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Weighted-average common shares outstanding (used in the
calculation of basic earnings (loss) per share)
|
|
|
355,274,537
|
|
|
|
354,613,724
|
|
Potential dilution from stock options and restricted stock
|
|
|
|
|
|
|
1,500,568
|
|
|
|
|
|
|
|
|
|
|
Weighted-average common and common equivalent shares (used in
the calculations of diluted earnings (loss) per share)
|
|
|
355,274,537
|
|
|
|
356,114,292
|
|
|
|
|
|
|
|
|
|
|
Antidilutive stock options and restricted stock excluded from
calculation of diluted earnings (loss) per share
|
|
|
8,340,013
|
|
|
|
859,973
|
|
|
|
|
|
|
|
|
|
|
10
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
NOTE 3
|
PROPERTY
AND EQUIPMENT
|
Property and equipment consists of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
March 31,
|
|
|
December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Land and improvements
|
|
$
|
298,272
|
|
|
$
|
297,678
|
|
Building and improvements
|
|
|
5,668,314
|
|
|
|
4,435,934
|
|
Furniture, fixtures, equipment and leasehold improvements
|
|
|
1,260,280
|
|
|
|
1,013,138
|
|
Transportation
|
|
|
215,642
|
|
|
|
176,897
|
|
Construction in progress
|
|
|
2,700,896
|
|
|
|
3,258,750
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,143,404
|
|
|
|
9,182,397
|
|
Less accumulated depreciation and amortization
|
|
|
(716,819
|
)
|
|
|
(607,783
|
)
|
|
|
|
|
|
|
|
|
|
|
|
$
|
9,426,585
|
|
|
$
|
8,574,614
|
|
|
|
|
|
|
|
|
|
|
Construction in progress consists of the following (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
March 31,
|
|
|
December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
The Venetian Macao
|
|
$
|
107,078
|
|
|
$
|
110,759
|
|
Four Seasons Macao
|
|
|
502,083
|
|
|
|
359,889
|
|
Other Macao Development Projects (principally Cotai Strip
parcels 5 and 6)
|
|
|
933,308
|
|
|
|
714,701
|
|
Marina Bay Sands
|
|
|
764,148
|
|
|
|
552,850
|
|
The Palazzo and The Shoppes at The Palazzo
|
|
|
97,096
|
|
|
|
1,297,390
|
|
Sands Bethworks
|
|
|
117,645
|
|
|
|
66,898
|
|
Las Vegas Condominiums
|
|
|
95,912
|
|
|
|
71,091
|
|
Other
|
|
|
83,626
|
|
|
|
85,172
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
2,700,896
|
|
|
$
|
3,258,750
|
|
|
|
|
|
|
|
|
|
|
As of March 31, 2008, portions of The Venetian Macao, The
Palazzo and The Shoppes at The Palazzo remain under construction
and are scheduled to be completed during 2008. Approximately
$404.0 million in building and improvements,
$10.5 million in leasehold improvements and
$95.0 million in construction in progress as of
March 31, 2008, related to The Shoppes at The Palazzo,
which was sold to GGP (see
Note 7 Mall Sale). The
$83.6 million in other construction in progress consists
primarily of airplane and other related refurbishment costs at
corporate and other projects in Las Vegas.
As of March 31, 2008, the cost of property and equipment
that the Company is leasing to tenants as part of its Macao mall
operations was $224.6 million with accumulated depreciation
of $7.3 million.
During the three months ended March 31, 2008 and 2007, the
Company capitalized interest expense of $30.6 million and
$46.8 million, respectively.
11
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Long-term debt consists of the following (in thousands):
|
|
|
|
|
|
|
|
|
|
|
March 31,
|
|
|
December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Corporate and U.S. Related:
|
|
|
|
|
|
|
|
|
New Senior Secured Credit Facility Term B
|
|
$
|
2,977,500
|
|
|
$
|
2,985,000
|
|
New Senior Secured Credit Facility Revolver
|
|
|
450,000
|
|
|
|
|
|
6.375% Senior Notes
|
|
|
248,437
|
|
|
|
248,380
|
|
Airplane Financings
|
|
|
88,562
|
|
|
|
89,484
|
|
FF&E Financings
|
|
|
61,416
|
|
|
|
61,416
|
|
Other
|
|
|
6,409
|
|
|
|
6,857
|
|
Macao Related:
|
|
|
|
|
|
|
|
|
Macao Credit Facility Term B and Local Term
|
|
|
1,900,000
|
|
|
|
1,900,000
|
|
Macao Credit Facility Term B Delayed
|
|
|
700,000
|
|
|
|
700,000
|
|
Macao Credit Facility Revolving Facility
|
|
|
326,300
|
|
|
|
251,000
|
|
Ferry Financing
|
|
|
147,262
|
|
|
|
|
|
Other
|
|
|
14,821
|
|
|
|
6,434
|
|
Singapore Related:
|
|
|
|
|
|
|
|
|
Singapore Permanent Facility A
|
|
|
1,447,911
|
|
|
|
|
|
Singapore Bridge Facility Term Loan
|
|
|
|
|
|
|
594,404
|
|
Singapore Bridge Facility Floating Rate Notes
|
|
|
|
|
|
|
729,355
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,368,618
|
|
|
|
7,572,330
|
|
Less current maturities
|
|
|
(78,286
|
)
|
|
|
(54,333
|
)
|
|
|
|
|
|
|
|
|
|
Total long-term debt
|
|
$
|
8,290,332
|
|
|
$
|
7,517,997
|
|
|
|
|
|
|
|
|
|
|
Corporate
and U.S. Related Debt
New
Senior Secured Credit Facility
During the three months ended March 31, 2008, the Company
has drawn $450.0 million under the Revolving Facility,
which matures in May 2013 and has no interim amortization. As of
March 31, 2008, $550.0 million is available for
borrowing under the Revolving Facility and no amounts have been
drawn under either the $600.0 million Delayed Draw I
Facility, available until May 2008, or the $400.0 million
Delayed Draw II Facility, available until November 2008.
Macao
Related Debt
Ferry
Financing
In January 2008, in order to finance the purchase of ten
ferries, the Company entered into a 1.21 billion
Hong Kong dollar (approximately $155.3 million at
exchange rates in effect on March 31, 2008) secured
credit facility, which is available for borrowing for up to
18 months after closing. The proceeds from the secured
credit facility will be used to reimburse the Company for cash
spent to date on the construction of the ferries and to finance
the remaining progress payments on those ferries not yet
delivered by the manufacturer. The facility is collateralized by
the ferries and guaranteed by Venetian Macau Limited. The
facility matures in January 2018 and is subject to 34 quarterly
payments commencing at the end of the
18-month
availability period. Borrowings under the facility bear interest
at the Hong Kong Interbank Offer Rate (HIBOR) plus
2.0% if borrowings are made in
12
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Hong Kong Dollars or the London Interbank Offer Rate
(LIBOR) plus 2.0% if borrowings are made in
US Dollars (4.0% as of March 31, 2008). All borrowings
under the facility are currently made in Hong Kong Dollars. As
of March 31, 2008, 63.0 million Hong Kong dollars
(approximately $8.1 million at exchange rates in effect on
March 31, 2008) is available for borrowing under the
facility.
Singapore
Related Debt
MBS entered into the Singapore bridge facility in August 2006 to
pay the land premium to the STB under the Development Agreement
and to commence construction of the Marina Bay Sands. As the
facility was to mature in August 2008, the Company entered into
the Singapore permanent facility agreement in December 2007.
Upon closing in January 2008, a portion of the borrowings under
the Singapore permanent facilities, as well as equity
contributions made by the Company to MBS, were used to repay the
outstanding balances on the Singapore bridge facility, and to
pay fees, costs and expenses related to entering into the
Singapore permanent facility agreement. The Company incurred a
charge of approximately $4.0 million for loss on early
retirement of debt in January 2008 as a result of refinancing
the Singapore bridge facility.
Singapore
Permanent Facilities
In December 2007, MBS signed a facility agreement (the
Singapore Permanent Facility Agreement) providing
for a SGD 2.0 billion (approximately $1.45 billion at
exchange rates in effect on March 31, 2008) term loan
(Singapore Permanent Facility A) that was funded in
January 2008, a SGD 2.75 billion (approximately
$1.99 billion at exchange rates in effect on March 31,
2008) term loan (Singapore Permanent Facility
B) that is available on a delayed draw basis until
December 31, 2010, a SGD 192.6 million (approximately
$139.4 million at exchange rates in effect on
March 31, 2008) bankers guarantee facility
(Singapore Permanent Facility C) to provide the
bankers guarantees in favor of the STB required under the
Development Agreement that was fully drawn in January 2008, and
a SGD 500.0 million (approximately $362.0 million at
exchange rates in effect on March 31, 2008) revolving
credit facility (Singapore Permanent Facility D and
collectively, the Singapore Permanent Facilities)
that is available until February 28, 2015.
The indebtedness under the Singapore Permanent Facility
Agreement is collateralized by a first-priority security
interest in substantially all of MBSs assets, other than
capital stock and similar ownership interests, certain
furniture, fixtures, fittings and equipment and certain other
excluded assets.
The Singapore Permanent Facilities mature on March 31,
2015, with MBS required to repay or prepay the Singapore
Permanent Facilities under certain circumstances. Commencing
March 31, 2011, and at the end of each quarter thereafter,
MBS is required to repay the outstanding Singapore Permanent
Facility A and Facility B loans on a pro rata basis in an
aggregate amount equal to SGD 125.0 million (approximately
$90.5 million at exchange rates in effect on March 31,
2008) per quarter. In addition, commencing at the end of
the third full quarter of operations of the Marina Bay Sands,
MBS is required to further prepay the outstanding Singapore
Permanent Facility A and Facility B loans on a pro rata basis
with a percentage of excess free cash flow (as defined by the
Singapore Permanent Facility Agreement).
Borrowings under the Singapore Permanent Facilities bear
interest at the Singapore SWAP Offer Rate plus a spread of 2.25%
per annum (3.9% as of March 31, 2008). MBS is required to
pay standby interest fees of 1.125% per annum and 0.90% per
annum on the undrawn amounts under Singapore Permanent Facility
B and Facility D, respectively. MBS is required to pay a
commission of 2.25% per annum on the bankers guarantees
outstanding under the Singapore Permanent Facilities for the
period during which any bankers guarantees are outstanding.
The Singapore Permanent Facility Agreement contains affirmative
and negative covenants customary for such financings, including,
but not limited to, limitations on liens, annual capital
expenditures other than project costs, indebtedness, loans and
guarantees, investments, acquisitions and asset sales,
restricted payments, affiliate transactions and use of proceeds
from the Singapore Permanent Facilities. The Singapore Permanent
Facility
13
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Agreement also requires MBS to comply with financial covenants
as of the end of the first full quarter beginning not less than
183 days after the commencement of operations of the Marina
Bay Sands, including maximum ratios of total indebtedness to
EBITDA, minimum ratios of EBITDA to interest expense, minimum
EBITDA requirements and maintaining a positive net worth. The
Singapore Permanent Facility Agreement also contains events of
default customary for such financings.
Cash
Flows from Financing Activities
Cash flows from financing activities related to long-term debt
are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
March 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Proceeds from Singapore Permanent Facility
|
|
$
|
1,417,936
|
|
|
$
|
|
|
Proceeds from New Senior Secured Credit Facility
Revolver
|
|
|
450,000
|
|
|
|
|
|
Proceeds from Macao Credit Facility
|
|
|
75,300
|
|
|
|
85,000
|
|
Proceeds from Ferry Financing
|
|
|
147,262
|
|
|
|
|
|
Proceeds from FF&E Financings and Other Long-Term Debt
|
|
|
14,698
|
|
|
|
6,082
|
|
Proceeds from Singapore Bridge Facility
|
|
|
|
|
|
|
110,777
|
|
Proceeds from Airplane Financings
|
|
|
|
|
|
|
72,000
|
|
Proceeds from Senior Secured Credit Facility Revolver
|
|
|
|
|
|
|
62,000
|
|
Proceeds from The Shoppes at The Palazzo Construction Loan
|
|
|
|
|
|
|
35,000
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
2,105,196
|
|
|
$
|
370,859
|
|
|
|
|
|
|
|
|
|
|
Repayments on Singapore Bridge Facility
|
|
$
|
(1,356,807
|
)
|
|
$
|
|
|
Repayments on New Senior Secured Credit Facility
Term B
|
|
|
(7,500
|
)
|
|
|
|
|
Repayments on FF&E Financings and Other Long-Term Debt
|
|
|
(7,192
|
)
|
|
|
(605
|
)
|
Repayments on Airplane Financings
|
|
|
(922
|
)
|
|
|
|
|
Repayment on Senior Secured Credit Facility Revolver
|
|
|
|
|
|
|
(99,000
|
)
|
Repayments on Sands Expo Center Mortgage Loan
|
|
|
|
|
|
|
(535
|
)
|
|
|
|
|
|
|
|
|
|
|
|
$
|
(1,372,421
|
)
|
|
$
|
(100,140
|
)
|
|
|
|
|
|
|
|
|
|
The Company files income tax returns in the U.S. and
various state and foreign jurisdictions. The Company is subject
to federal, state and local, or foreign income tax examinations
by tax authorities for years after 2002. The Company is
presently not under examination by any major tax jurisdiction.
The Company recognizes interest and penalties, if any, related
to unrecognized tax positions in the provision for income taxes
on the statement of operations. At March 31, 2008 and
December 31, 2007, the Company had approximately
$0.7 million and $0.6 million, respectively, of
interest accrued. No penalties were accrued for at
March 31, 2008 or December 31, 2007.
14
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
NOTE 6
|
STOCK-BASED
EMPLOYEE COMPENSATION
|
Stock-based compensation activity is as follows for the three
months ended March 31, 2008 and 2007 (in thousands, except
weighted average grant date fair values):
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Compensation expense:
|
|
|
|
|
|
|
|
|
Stock options
|
|
$
|
9,138
|
|
|
$
|
4,104
|
|
Restricted shares
|
|
|
683
|
|
|
|
344
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
9,821
|
|
|
$
|
4,448
|
|
|
|
|
|
|
|
|
|
|
Compensation cost capitalized as part of property and equipment
|
|
$
|
1,046
|
|
|
$
|
437
|
|
|
|
|
|
|
|
|
|
|
Stock options granted
|
|
|
1,773
|
|
|
|
409
|
|
|
|
|
|
|
|
|
|
|
Weighted average grant date fair value
|
|
$
|
32.90
|
|
|
$
|
37.56
|
|
|
|
|
|
|
|
|
|
|
Restricted shares granted
|
|
|
21
|
|
|
|
46
|
|
|
|
|
|
|
|
|
|
|
Weighted average grant date fair value
|
|
$
|
73.59
|
|
|
$
|
87.32
|
|
|
|
|
|
|
|
|
|
|
The fair value of each option grant was estimated on the grant
date using the Black-Scholes option-pricing model with the
following weighted average assumptions:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
March 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Weighted average volatility
|
|
|
35.85
|
%
|
|
|
31.41
|
%
|
Expected term (in years)
|
|
|
6.0
|
|
|
|
6.0
|
|
Risk-free rate
|
|
|
2.96
|
%
|
|
|
4.63
|
%
|
Expected dividends
|
|
|
|
|
|
|
|
|
The Shoppes at The Palazzo opened on January 18, 2008, with
some tenants not yet open and with construction of certain
portions of the mall not yet completed. The Company contracted
to sell The Shoppes at The Palazzo to GGP pursuant to a purchase
and sale agreement dated as of April 12, 2004, as amended
(the Amended Agreement). The total purchase price to
be paid by GGP for The Shoppes at The Palazzo is determined by
taking The Shoppes at The Palazzos net operating income,
as defined in the Amended Agreement, for months 19 through 30 of
its operations (assuming that the rent and other periodic
payments due from all tenants in month 30 was actually due in
each of months 19 through 30) divided by a capitalization
rate. The capitalization rate is 0.06 for every dollar of net
operating income up to $38.0 million and 0.08 for every
dollar of net operating income above $38.0 million. On the
closing date of the sale, February 29, 2008, GGP made its
initial purchase price payment of $290.8 million based on
projected net operating income for the first 12 months of
operations (only taking into account tenants open for business
or paying rent as of the closing date). Pursuant to the Amended
Agreement, at the fourth, eighth, 12th, 18th, and
24th month after closing, the required purchase price will
be adjusted (up or down, but will never be less than
$250.0 million) based on projected net operating income for
the upcoming 12 months. Subject to adjustments for certain
audit and other issues, the final adjustment to the purchase
price will be made on the
30-month
anniversary of the closing date and will be based on the formula
described above. For all purchase price and purchase price
adjustment calculations, net operating income will
be calculated by using the accrual method of
accounting.
15
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
In the Amended Agreement, the Company agreed to lease certain
restaurant and retail space on the casino level of The Palazzo
to GGP pursuant to a master lease agreement (the Master
Lease). Under the Master Lease, which was executed
concurrently with the closing on the sale of The Shoppes at The
Palazzo to GGP on February 29, 2008, The Palazzo leased
nine restaurant and retail spaces on the casino level of The
Palazzo, currently occupied by various tenants, to GGP for
89 years with annual rent of one dollar per year, and GGP
assumed the various tenant operating leases for those spaces.
Under generally accepted accounting principles, the Master Lease
does not qualify as a sale of the real property covered by the
Master Lease which space was not separately legally demised.
Accordingly, $41.8 million of the mall sale transaction has
been deferred as prepaid operating lease payments to The
Palazzo, which will amortize into income on a straight-line
basis over the
89-year
lease term. An additional $6.3 million of the initial
proceeds from the mall sale transaction has been deferred as
unearned revenues as of March 31, 2008. This balance will
increase as additional purchase price proceeds are received.
In addition, the Company agreed with GGP to lease certain spaces
located within The Shoppes at The Palazzo for a period of
10 years with total fixed minimum rents of
$0.7 million per year, subject to extension options for a
period of up to 10 years and automatic increases beginning
on the second lease year. Under generally accepted accounting
principles, a gain on the sale has not been recorded as the
Company has continuing involvement in the transaction related to
the completion of construction on the remainder of The Shoppes
at The Palazzo, certain activities to be performed on behalf of
GGP and the uncertainty of the final sales price, which will be
determined in 2010 as described above. Therefore,
$240.1 million of the mall sale transaction has been
recorded as deferred proceeds from the sale, which will accrue
interest at an imputed interest rate offset by (i) imputed
rental income and (ii) rent payments made to GGP related to
those spaces leased back from GGP. The property sold to GGP will
remain as assets of the Company with depreciation continuing to
be recorded until the final sales price determination has been
made.
|
|
NOTE 8
|
LAS VEGAS
RESTAURANT JOINT VENTURES
|
The Company has entered into various joint venture agreements
with independent third parties whereby these third parties will
own and operate a variety of restaurants in The Venetian Las
Vegas and The Palazzo. The operations of these restaurants have
been consolidated by the Company in accordance with FASB
Interpretation (FIN) No. 46R,
Consolidation of Variable Interest Entities. The
Company evaluates its investments in joint ventures to assess
the appropriateness of their consolidation into the Company when
events have occurred that would trigger such an analysis.
The joint ventures had total current assets of $3.2 million
and fixed assets of $55.3 million as of March 31,
2008. The following is summarized income statement data for our
consolidated joint ventures for the three months ended
March 31, 2008 (in thousands):
|
|
|
|
|
Net revenues
|
|
$
|
7,145
|
|
Operating expenses
|
|
|
6,929
|
|
Pre-opening expense
|
|
|
2,590
|
|
Depreciation and amortization
|
|
|
588
|
|
|
|
|
|
|
Operating loss
|
|
|
(2,962
|
)
|
Interest expense, net
|
|
|
(315
|
)
|
|
|
|
|
|
Net loss
|
|
$
|
(3,277
|
)
|
|
|
|
|
|
|
|
NOTE 9
|
FAIR
VALUE MEASUREMENTS
|
As discussed in Note 1
Organization and Business of Company, the Company adopted
the provisions of SFAS No. 157 with respect to fair
value measurements of (a) nonfinancial assets and
liabilities that are recognized or disclosed at fair value in
the Companys financial statements on a recurring basis (at
least annually)
16
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
and (b) all financial assets and liabilities. Under
SFAS No. 157, fair value is defined as the exit price,
or the amount that would be received to sell an asset or paid to
transfer a liability in an orderly transaction between market
participants as of the measurement date. SFAS No. 157
also establishes a valuation hierarchy for inputs in measuring
fair value that maximizes the use of observable inputs (inputs
market participants would use based on market data obtained from
sources independent of the Company) and minimizes the use of
unobservable inputs (inputs that reflect the Companys
assumptions based upon the best information available in the
circumstances) by requiring that the most observable inputs be
used when available. Level 1 inputs are quoted prices
(unadjusted) in active markets for identical assets or
liabilities. Level 2 inputs are quoted prices for similar
assets or liabilities in active markets, quoted prices for
identical or similar assets or liabilities in markets that are
not active, and inputs (other than quoted prices) that are
observable for the assets or liabilities, either directly or
indirectly. Level 3 inputs are unobservable inputs for the
assets or liabilities. Categorization within the hierarchy is
based upon the lowest level of input that is significant to the
fair value measurement.
The following table provides the assets carried at fair value
measured on a recurring basis as of March 31, 2008 (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Carrying
|
|
Fair Value Measurements at March 31, 2008 Using:
|
|
|
Value at
|
|
Quoted Market
|
|
Significant Other
|
|
Significant
|
|
|
March 31,
|
|
Prices in Active
|
|
Observable Inputs
|
|
Unobservable Inputs
|
|
|
2008
|
|
Markets (Level 1)
|
|
(Level 2)
|
|
(Level 3)
|
|
Cash and cash equivalents(1)
|
|
$
|
75,211
|
|
|
$
|
75,211
|
|
|
$
|
|
|
|
$
|
|
|
Interest rate caps
|
|
$
|
4
|
|
|
$
|
|
|
|
$
|
4
|
|
|
$
|
|
|
|
|
|
(1)
|
|
The Company has short-term investments classified as cash and
cash equivalents as the original maturities are less than
90 days.
|
|
|
NOTE 10
|
COMMITMENTS
AND CONTINGENCIES
|
The Company is involved in other litigation in addition to those
noted below, arising in the normal course of business.
Management has made certain estimates for potential litigation
costs based upon consultation with legal counsel. Actual results
could differ from these estimates; however, in the opinion of
management, such litigation and claims will not have a material
effect on the Companys financial condition, results of
operations or cash flows.
The
Palazzo Construction Litigation
Lido Casino Resort, LLC (Lido), formerly a
wholly-owned subsidiary of the Company and now merged into
Venetian Casino Resort, LLC (VCR), and its
construction manager, Taylor International Corp.
(Taylor), filed suit in March 2006 in the United
States District Court for the District of Nevada (the
District Court) against Malcolm Drilling Company,
Inc. (Malcolm), the contractor on The Palazzo
project responsible for completing certain foundation work (the
District Court Case). Lido and Taylor claim in the
District Court Case that Malcolm was in default of its contract
for performing defective work, failing to correct defective
work, failing to complete its work and causing delay to the
project. Malcolm responded by filing a Notice of a Lien with the
Clerk of Clark County, Nevada in March 2006 in the amount of
approximately $19.0 million (the Lien). In
April 2006, Lido and Taylor moved in the District Court Case to
strike or, in the alternative, to reduce the amount of, the
Lien, claiming, among other things, that the Lien was excessive
for including claims for disruption and delay, which Lido and
Taylor claim are not lienable under Nevada law (the Lien
Motion). Malcolm responded in April 2006 by filing a
complaint against Lido and Taylor in District Court of Clark
County, Nevada seeking to foreclose on the Lien against Taylor,
claiming breach of contract, a cardinal change in the underlying
contract, unjust enrichment against Lido and Taylor and bad
faith and fraud against Taylor (the State Court
Case), and simultaneously filed a motion in the District
Court Case, seeking to dismiss the District Court Case on
abstention grounds (the Abstention Motion). In
response, in June 2006, Lido filed a motion to dismiss the State
Court Case based on the principle of
17
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
the prior pending District Court Case (the
Motion to Dismiss). In June 2006, the Abstention
Motion was granted in part by the United States District Court,
the District Court Case was stayed pending the outcome of the
Motion to Dismiss in the State Court Case and the Lien Motion
was denied without prejudice. In January 2008, the parties
agreed to the dismissal of the District Court Case without
prejudice. Prior to agreeing on that dismissal, Lido and Malcolm
entered into a stipulation under which Lido withdrew the Motion
to Dismiss, and in July 2006 filed a replacement lien motion in
the State Court Case. The lien motion in the State Court Case
was denied in August 2006 and Lido and Taylor filed a permitted
interlocutory notice of appeal to the Supreme Court of Nevada in
September 2006. In April 2007, Malcolm filed an Amended
Notice of Lien with the Clerk of Clark County, Nevada in the
amount of approximately $16.7 million plus interest, costs
and attorneys fees. In August 2007, Malcolm filed a motion
for partial summary judgment, seeking the dismissal of the
counterclaim filed in the State Court Case by Lido to the extent
the claim sought lost profits. After argument, the motion for
partial summary judgment was denied without prejudice on
October 23, 2007, and a conforming order was entered in
December 2007. Argument on the appeal of the denial of the lien
motion in the State Court was heard by the Supreme Court in
March 2008, but a decision has not yet been issued. Trial is
currently scheduled for June 2, 2008. In January 2008,
Malcolm filed a series of three motions and again sought summary
judgment on the counterclaim filed in the State Court Case and
VCR, as successor in interest to Lido, and Taylor sought summary
judgment on certain of Malcolms claims. The motions for
summary judgment were all denied without prejudice except that
claims of Malcolm totaling approximately $675,000 were
dismissed. Management has determined that based on proceedings
to date, an adverse outcome is not probable. VCR, as successor
in interest to Lido, intends to defend itself against the claims
pending in the State Court Case.
Litigation
Relating to Macao Operations
On October 15, 2004, Richard Suen and Round Square Company
Limited filed an action against LVSC, Las Vegas Sands, Inc.
(LVSI), Sheldon G. Adelson and William P. Weidner in
the District Court of Clark County, Nevada, asserting a breach
of an alleged agreement to pay a success fee of
$5.0 million and 2.0% of the net profit from the
Companys Macao resort operations to the plaintiffs as well
as other related claims. In March 2005, LVSC was dismissed as a
party without prejudice based on a stipulation to do so between
the parties. On May 17, 2005, the plaintiffs filed their
first amended complaint. On February 2, 2006, defendants
filed a motion for partial summary judgment with respect to
plaintiffs fraud claims against all the defendants. On
March 16, 2006, an order was filed by the court granting
defendants motion for partial summary judgment. Pursuant
to the order filed March 16, 2006, plaintiffs fraud
claims set forth in the first amended complaint were dismissed
with prejudice as against all defendants. The order also
dismissed with prejudice the first amended complaint against
defendants Sheldon G. Adelson and William P. Weidner. The trial
on this action began on April 15, 2008. Management believes
that the plaintiffs case against the Company is without
merit. The Company intends to defend this matter vigorously.
On January 26, 2006, Clive Basset Jones, Darryl Steven
Turok (a/k/a Dax Turok) and Cheong Jose Vai Chi
(a/k/a
Cliff
Cheong), filed an action against LVSC, Las Vegas Sands, LLC
(LVSLLC), Venetian Venture Development, LLC
(Venetian Venture Development) and various
unspecified individuals and companies in the District Court of
Clark County, Nevada. The plaintiffs assert breach of an
agreement to pay a success fee in an amount equal to 5% of the
ownership interest in the entity that owns and operates the
Macao gaming subconcession as well as other related claims. In
April 2006, LVSC was dismissed as a party without prejudice
based on a stipulation to do so between the parties. Discovery
has begun in this matter and the case is currently set for trial
in December 2008. Management believes that the plaintiffs
case against the Company is without merit. The Company intends
to defend this matter vigorously.
On February 5, 2007, Asian American Entertainment
Corporation, Limited (AAEC) filed an action against
LVSI, VCR, Venetian Venture Development, William P. Weidner and
David Friedman in the United States District Court for the
District of Nevada. The plaintiffs assert breach of contract by
LVSI, VCR and Venetian Venture Development of an agreement under
which AAEC would work to obtain a gaming license in Macao and,
if successful, AAEC would jointly operate a casino, hotel and
related facilities in Macao with Venetian Venture
18
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Development and Venetian Venture Development would receive fees
and a minority equity interest in the venture and breach of
fiduciary duties by all of the defendants. The plaintiffs have
requested an unspecified amount of actual, compensatory and
punitive damages, and disgorgement of profits related to our
Macao gaming license. The Company filed a motion to dismiss on
July 11, 2007. On August 1, 2007, the Court granted
defendants motion to dismiss the complaint against all
defendants without prejudice. The plaintiffs have appealed this
decision. Management believes that the plaintiffs case
against the Company is without merit. The Company intends to
defend this matter vigorously.
Singapore
Development Project
On August 23, 2006, the Company entered into the
Development Agreement with the STB, which requires the Company
to construct and operate the Marina Bay Sands in accordance with
the Companys proposal for the integrated resort and in
accordance with the agreement. Although construction has
started, the Company is continuing to work with the Singapore
government to finalize various design aspects of the integrated
resort and is in the process of finalizing its cost estimates
for the project. The cost to build the Marina Bay Sands is
expected to be in excess of $4.5 billion, which is
inclusive of the land premium, taxes and other fees previously
paid. As discussed in Note 4
Long-Term Debt Singapore Related Debt
Singapore Permanent Facilities, the Company entered into
the SGD 5.44 billion (approximately $3.94 billion at
exchange rates in effect on March 31, 2008) Singapore
Permanent Facility Agreement to fund a significant portion of
the construction, operating and other development costs of the
Marina Bay Sands.
Other
Commitments
In January 2008, the Company entered into agreements to purchase
an additional four ferries at an aggregate cost of approximately
$72.0 million to be built for the Companys Macao
operations. As of March 31, 2008, the Company was obligated
to make future payments of $63.1 million. The Company is
currently in the process of negotiating third-party financing
for these additional ferries.
|
|
NOTE 11
|
SEGMENT
INFORMATION
|
The Companys principal operating and developmental
activities occur in three geographic areas: Las Vegas, Macao and
Singapore. The Company reviews the results of operations for
each of its key operating segments: The Venetian Las Vegas,
which includes the Sands Expo Center; The Palazzo; Sands Macao;
The Venetian Macao; and Other Asia (comprised primarily of the
ferry operations). The Company also reviews its construction and
development activities for each of its primary projects: The
Venetian Las Vegas; The Palazzo; Sands Macao; The Venetian
Macao; Four Seasons Macao; Other Asia (comprised of various
other operations that are ancillary to our properties in Macao);
Marina Bay Sands in Singapore; Other Development Projects (on
Parcels 3, 5, 6, 7 and 8 of the Cotai Strip); and Corporate and
Other (comprised of the airplanes and the Sands Bethworks and
Las Vegas condominium projects). The Venetian Las Vegas and The
Palazzo operating segments are managed as a single integrated
resort and have been aggregated as one reportable segment, the
Las Vegas Operating Properties, considering their similar
economic characteristics, types of customers, types of service
and products, the regulatory business environment of the
operations within each segment and the Companys
organizational and management reporting structure. The
information for the three months ended March 31, 2007, has
been reclassified to conform to
19
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
the current presentation. The Companys segment information
is as follows for the three months ended March 31, 2008 and
2007 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Net Revenues
|
|
|
|
|
|
|
|
|
Las Vegas Operating Properties
|
|
$
|
351,573
|
|
|
$
|
277,844
|
|
Macao:
|
|
|
|
|
|
|
|
|
Sands Macao
|
|
|
268,250
|
|
|
|
350,374
|
|
The Venetian Macao
|
|
|
455,741
|
|
|
|
|
|
Other Asia
|
|
|
3,459
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
$
|
1,079,023
|
|
|
$
|
628,218
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDAR(1)
|
|
|
|
|
|
|
|
|
Las Vegas Operating Properties
|
|
$
|
122,561
|
|
|
$
|
112,102
|
|
Macao:
|
|
|
|
|
|
|
|
|
Sands Macao
|
|
|
65,618
|
|
|
|
102,296
|
|
The Venetian Macao
|
|
|
110,335
|
|
|
|
|
|
Other Asia
|
|
|
(10,262
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total adjusted EBITDAR
|
|
|
288,252
|
|
|
|
214,398
|
|
Other Operating Costs and Expenses
|
|
|
|
|
|
|
|
|
Corporate expense
|
|
|
(25,537
|
)
|
|
|
(18,519
|
)
|
Rental expense
|
|
|
(9,064
|
)
|
|
|
(6,708
|
)
|
Stock-based compensation expense
|
|
|
(6,070
|
)
|
|
|
(1,952
|
)
|
Depreciation and amortization
|
|
|
(113,413
|
)
|
|
|
(31,232
|
)
|
Loss on disposal of assets
|
|
|
(5,121
|
)
|
|
|
(178
|
)
|
Pre-opening expense
|
|
|
(26,590
|
)
|
|
|
(22,457
|
)
|
Development expense
|
|
|
(5,892
|
)
|
|
|
(2,346
|
)
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
96,565
|
|
|
|
131,006
|
|
Other Non-Operating Costs and Expenses
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
5,465
|
|
|
|
12,664
|
|
Interest expense, net of amounts capitalized
|
|
|
(114,700
|
)
|
|
|
(34,612
|
)
|
Other income (expense)
|
|
|
8,099
|
|
|
|
(7,033
|
)
|
Loss on early retirement of debt
|
|
|
(3,989
|
)
|
|
|
|
|
Provision for income taxes
|
|
|
(2,674
|
)
|
|
|
(11,111
|
)
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
(11,234
|
)
|
|
$
|
90,914
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Adjusted EBITDAR is net income (loss) before interest, income
taxes, depreciation and amortization, pre-opening expense,
development expense, other income (expense), loss on early
retirement of debt, loss on disposal of assets, rental expense,
corporate expense and stock-based compensation expense included
in general and administrative expense. Adjusted EBITDAR is used
by management as the primary measure of operating performance of
the Companys properties and to compare the operating
performance of the Companys properties with those of its
competitors.
|
20
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended,
|
|
|
|
March 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Capital Expenditures
|
|
|
|
|
|
|
|
|
Las Vegas Sands Corp. and Other
|
|
$
|
65,694
|
|
|
$
|
46,421
|
|
Las Vegas Operating Properties
|
|
|
233,068
|
|
|
|
217,317
|
|
Macao:
|
|
|
|
|
|
|
|
|
Sands Macao
|
|
|
15,188
|
|
|
|
18,479
|
|
The Venetian Macao
|
|
|
30,332
|
|
|
|
272,214
|
|
Four Seasons Macao
|
|
|
161,193
|
|
|
|
105,005
|
|
Other Asia
|
|
|
22,875
|
|
|
|
12,418
|
|
Other Development Projects
|
|
|
241,856
|
|
|
|
49,718
|
|
Singapore
|
|
|
173,335
|
|
|
|
43,392
|
|
|
|
|
|
|
|
|
|
|
Total capital expenditures
|
|
$
|
943,541
|
|
|
$
|
764,964
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
March 31,
|
|
|
December 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Total Assets
|
|
|
|
|
|
|
|
|
Las Vegas Sands Corp. and Other
|
|
$
|
437,989
|
|
|
$
|
380,646
|
|
Las Vegas Operating Properties
|
|
|
4,566,169
|
|
|
|
4,205,950
|
|
Macao:
|
|
|
|
|
|
|
|
|
Sands Macao
|
|
|
631,810
|
|
|
|
550,479
|
|
The Venetian Macao
|
|
|
3,148,776
|
|
|
|
3,158,091
|
|
Four Seasons Macao
|
|
|
540,190
|
|
|
|
391,506
|
|
Other Asia
|
|
|
179,126
|
|
|
|
85,817
|
|
Other Development Projects
|
|
|
1,006,229
|
|
|
|
777,740
|
|
Singapore
|
|
|
2,058,112
|
|
|
|
1,916,288
|
|
|
|
|
|
|
|
|
|
|
Total consolidated assets
|
|
$
|
12,568,401
|
|
|
$
|
11,466,517
|
|
|
|
|
|
|
|
|
|
|
|
|
NOTE 12
|
CONDENSED
CONSOLIDATING FINANCIAL INFORMATION
|
LVSC is the obligor of the 6.375% Senior Notes (the
Senior Notes) due 2015 issued on February 10,
2005. LVSLLC, VCR, Mall Intermediate Holding Company, LLC,
Venetian Venture Development, Venetian Transport, LLC, Venetian
Marketing, Inc., Lido Intermediate Holding Company, LLC and Lido
Casino Resort Holding Company, LLC (collectively, the
Original Guarantors), have jointly and severally
guaranteed the Senior Notes on a full and unconditional basis.
Effective May 23, 2007, in conjunction with entering into
the New Senior Secured Credit Facility, LVSC, the Original
Guarantors and the trustee entered into a supplemental indenture
related to the Senior Notes, whereby the following subsidiaries
were added as full and unconditional guarantors on a joint and
several basis: Interface Group-Nevada Inc., Palazzo Condo Tower,
LLC, Sands Pennsylvania, Inc., Phase II Mall Holding, LLC
and Phase II Mall Subsidiary, LLC (collectively with the
Original Guarantors, the Guarantor Subsidiaries). On
February 29, 2008, all of the capital stock of
Phase II Mall Subsidiary, LLC was sold to GGP and in
connection therewith, it was released as a guarantor under the
Senior Notes. As described in
Note 7 Mall Sale, the
sale of The Shoppes at The Palazzo is not complete from an
accounting perspective due to the Companys continuing
involvement in the transaction related to the completion of
construction on the remainder of The Shoppes at The Palazzo,
certain activities to be performed on behalf of GGP and the
uncertainty of the final sales price. Certain of the assets,
liabilities, operating results and cash flows related to the
ownership and operation of the mall by Phase II Subsidiary,
LLC subsequent to the sale to GGP will continue to be accounted
for by the Guarantor Subsidiaries until the final sales price
has been determined, and therefore are included in the
Guarantor
21
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Subsidiaries columns in the following condensed
consolidating financial information. As a result, net assets of
$267.0 million (consisting of $509.5 million of fixed
assets, offset by $242.5 million of liabilities consisting
primarily of deferred proceeds from the sale), a net loss of
$1.1 million (consisting primarily of depreciation expense)
and capital expenditures of $8.9 million related to the
mall are being accounted for by the Guarantor Subsidiaries as of
and for the three months ended March 31, 2008; however,
these balances and amounts are not collateral for the Senior
Notes and should not be considered as credit support for the
guarantees of the Senior Notes.
As a result of the supplemental indenture related to the Senior
Notes and the sale of the Phase II Mall Subsidiary, LLC,
there has been a change in the group of subsidiaries that are
the Guarantor Subsidiaries. Accordingly, the Company has
reclassified prior periods to conform to the current
presentation of the Guarantor Subsidiaries.
The condensed consolidating financial information of the
Company, the Guarantor Subsidiaries and the non-guarantor
subsidiaries on a combined basis as of March 31, 2008 and
December 31, 2007, and for the three months ended
March 31, 2008 and 2007, is as follows (in thousands).
22
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Balance Sheets
March 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Non-Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Cash and cash equivalents
|
|
$
|
75,973
|
|
|
$
|
299,666
|
|
|
$
|
479,723
|
|
|
$
|
|
|
|
$
|
855,362
|
|
Restricted cash
|
|
|
|
|
|
|
4,784
|
|
|
|
300,111
|
|
|
|
|
|
|
|
304,895
|
|
Intercompany receivables
|
|
|
129,851
|
|
|
|
4,532
|
|
|
|
|
|
|
|
(134,383
|
)
|
|
|
|
|
Accounts receivable, net
|
|
|
3,952
|
|
|
|
135,754
|
|
|
|
117,155
|
|
|
|
(3,247
|
)
|
|
|
253,614
|
|
Inventories
|
|
|
512
|
|
|
|
11,287
|
|
|
|
12,236
|
|
|
|
|
|
|
|
24,035
|
|
Deferred income taxes
|
|
|
973
|
|
|
|
15,398
|
|
|
|
217
|
|
|
|
|
|
|
|
16,588
|
|
Prepaid expenses and other
|
|
|
10,811
|
|
|
|
9,257
|
|
|
|
24,121
|
|
|
|
(622
|
)
|
|
|
43,567
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
222,072
|
|
|
|
480,678
|
|
|
|
933,563
|
|
|
|
(138,252
|
)
|
|
|
1,498,061
|
|
Property and equipment, net
|
|
|
165,860
|
|
|
|
3,916,708
|
|
|
|
5,344,017
|
|
|
|
|
|
|
|
9,426,585
|
|
Investment in subsidiaries
|
|
|
2,156,966
|
|
|
|
1,547,724
|
|
|
|
|
|
|
|
(3,704,690
|
)
|
|
|
|
|
Deferred financing costs, net
|
|
|
1,509
|
|
|
|
55,818
|
|
|
|
128,096
|
|
|
|
|
|
|
|
185,423
|
|
Restricted cash
|
|
|
|
|
|
|
|
|
|
|
149,464
|
|
|
|
|
|
|
|
149,464
|
|
Intercompany receivables
|
|
|
35,049
|
|
|
|
445,466
|
|
|
|
|
|
|
|
(480,515
|
)
|
|
|
|
|
Intercompany notes receivable
|
|
|
73,747
|
|
|
|
83,443
|
|
|
|
|
|
|
|
(157,190
|
)
|
|
|
|
|
Deferred income taxes
|
|
|
4,127
|
|
|
|
20,249
|
|
|
|
2,964
|
|
|
|
|
|
|
|
27,340
|
|
Leasehold interests in land, net
|
|
|
|
|
|
|
|
|
|
|
1,103,424
|
|
|
|
|
|
|
|
1,103,424
|
|
Other assets, net
|
|
|
115
|
|
|
|
34,685
|
|
|
|
143,304
|
|
|
|
|
|
|
|
178,104
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
2,659,445
|
|
|
$
|
6,584,771
|
|
|
$
|
7,804,832
|
|
|
$
|
(4,480,647
|
)
|
|
$
|
12,568,401
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
5,223
|
|
|
$
|
47,457
|
|
|
$
|
50,046
|
|
|
$
|
(3,247
|
)
|
|
$
|
99,479
|
|
Construction payables
|
|
|
|
|
|
|
154,190
|
|
|
|
555,919
|
|
|
|
|
|
|
|
710,109
|
|
Intercompany payables
|
|
|
|
|
|
|
94,448
|
|
|
|
39,935
|
|
|
|
(134,383
|
)
|
|
|
|
|
Accrued interest payable
|
|
|
2,252
|
|
|
|
2,862
|
|
|
|
9,853
|
|
|
|
|
|
|
|
14,967
|
|
Other accrued liabilities
|
|
|
5,833
|
|
|
|
181,785
|
|
|
|
409,552
|
|
|
|
|
|
|
|
597,170
|
|
Income taxes payable
|
|
|
|
|
|
|
|
|
|
|
622
|
|
|
|
(622
|
)
|
|
|
|
|
Current maturities of long-term debt
|
|
|
3,688
|
|
|
|
39,212
|
|
|
|
35,386
|
|
|
|
|
|
|
|
78,286
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
16,996
|
|
|
|
519,954
|
|
|
|
1,101,313
|
|
|
|
(138,252
|
)
|
|
|
1,500,011
|
|
Other long-term liabilities
|
|
|
18,337
|
|
|
|
6,390
|
|
|
|
10,773
|
|
|
|
|
|
|
|
35,500
|
|
Deferred amounts related to mall transactions
|
|
|
|
|
|
|
451,758
|
|
|
|
|
|
|
|
|
|
|
|
451,758
|
|
Intercompany payables
|
|
|
|
|
|
|
|
|
|
|
480,515
|
|
|
|
(480,515
|
)
|
|
|
|
|
Intercompany notes payable
|
|
|
|
|
|
|
|
|
|
|
157,190
|
|
|
|
(157,190
|
)
|
|
|
|
|
Long-term debt
|
|
|
333,312
|
|
|
|
3,449,703
|
|
|
|
4,507,317
|
|
|
|
|
|
|
|
8,290,332
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
368,645
|
|
|
|
4,427,805
|
|
|
|
6,257,108
|
|
|
|
(775,957
|
)
|
|
|
10,277,601
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity
|
|
|
2,290,800
|
|
|
|
2,156,966
|
|
|
|
1,547,724
|
|
|
|
(3,704,690
|
)
|
|
|
2,290,800
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity
|
|
$
|
2,659,445
|
|
|
$
|
6,584,771
|
|
|
$
|
7,804,832
|
|
|
$
|
(4,480,647
|
)
|
|
$
|
12,568,401
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Balance Sheets
December 31, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Non-Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Cash and cash equivalents
|
|
$
|
73,489
|
|
|
$
|
129,684
|
|
|
$
|
653,977
|
|
|
$
|
|
|
|
$
|
857,150
|
|
Restricted cash
|
|
|
|
|
|
|
5,088
|
|
|
|
227,856
|
|
|
|
|
|
|
|
232,944
|
|
Intercompany receivables
|
|
|
195,675
|
|
|
|
520,761
|
|
|
|
|
|
|
|
(716,436
|
)
|
|
|
|
|
Accounts receivable, net
|
|
|
1,995
|
|
|
|
113,638
|
|
|
|
71,562
|
|
|
|
|
|
|
|
187,195
|
|
Inventories
|
|
|
132
|
|
|
|
10,086
|
|
|
|
9,684
|
|
|
|
|
|
|
|
19,902
|
|
Deferred income taxes
|
|
|
1,368
|
|
|
|
11,879
|
|
|
|
19,224
|
|
|
|
|
|
|
|
32,471
|
|
Prepaid expenses and other
|
|
|
19,960
|
|
|
|
15,792
|
|
|
|
14,004
|
|
|
|
(332
|
)
|
|
|
49,424
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
292,619
|
|
|
|
806,928
|
|
|
|
996,307
|
|
|
|
(716,768
|
)
|
|
|
1,379,086
|
|
Property and equipment, net
|
|
|
160,524
|
|
|
|
3,360,340
|
|
|
|
5,053,750
|
|
|
|
|
|
|
|
8,574,614
|
|
Investment in subsidiaries
|
|
|
2,105,436
|
|
|
|
1,516,585
|
|
|
|
|
|
|
|
(3,622,021
|
)
|
|
|
|
|
Deferred financing costs, net
|
|
|
1,556
|
|
|
|
58,584
|
|
|
|
47,198
|
|
|
|
|
|
|
|
107,338
|
|
Restricted cash
|
|
|
|
|
|
|
|
|
|
|
178,824
|
|
|
|
|
|
|
|
178,824
|
|
Intercompany notes receivable
|
|
|
73,562
|
|
|
|
55,992
|
|
|
|
|
|
|
|
(129,554
|
)
|
|
|
|
|
Deferred income taxes
|
|
|
|
|
|
|
|
|
|
|
1,581
|
|
|
|
(1,581
|
)
|
|
|
|
|
Leasehold interests in land, net
|
|
|
|
|
|
|
|
|
|
|
1,069,609
|
|
|
|
|
|
|
|
1,069,609
|
|
Other assets, net
|
|
|
116
|
|
|
|
26,885
|
|
|
|
130,045
|
|
|
|
|
|
|
|
157,046
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
2,633,813
|
|
|
$
|
5,825,314
|
|
|
$
|
7,477,314
|
|
|
$
|
(4,469,924
|
)
|
|
$
|
11,466,517
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts payable
|
|
$
|
4,881
|
|
|
$
|
49,020
|
|
|
$
|
45,122
|
|
|
$
|
|
|
|
$
|
99,023
|
|
Construction payables
|
|
|
|
|
|
|
151,238
|
|
|
|
566,303
|
|
|
|
|
|
|
|
717,541
|
|
Intercompany payables
|
|
|
|
|
|
|
108,707
|
|
|
|
607,729
|
|
|
|
(716,436
|
)
|
|
|
|
|
Accrued interest payable
|
|
|
6,350
|
|
|
|
3,289
|
|
|
|
1,826
|
|
|
|
|
|
|
|
11,465
|
|
Other accrued liabilities
|
|
|
8,141
|
|
|
|
186,985
|
|
|
|
415,785
|
|
|
|
|
|
|
|
610,911
|
|
Income taxes payable
|
|
|
|
|
|
|
|
|
|
|
332
|
|
|
|
(332
|
)
|
|
|
|
|
Current maturities of long-term debt
|
|
|
3,688
|
|
|
|
36,141
|
|
|
|
14,504
|
|
|
|
|
|
|
|
54,333
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
23,060
|
|
|
|
535,380
|
|
|
|
1,651,601
|
|
|
|
(716,768
|
)
|
|
|
1,493,273
|
|
Other long-term liabilities
|
|
|
15,532
|
|
|
|
7,114
|
|
|
|
6,028
|
|
|
|
|
|
|
|
28,674
|
|
Deferred income taxes
|
|
|
770
|
|
|
|
2,364
|
|
|
|
|
|
|
|
(1,581
|
)
|
|
|
1,553
|
|
Deferred amounts related to mall transactions
|
|
|
|
|
|
|
164,746
|
|
|
|
|
|
|
|
|
|
|
|
164,746
|
|
Intercompany notes payable
|
|
|
|
|
|
|
|
|
|
|
129,554
|
|
|
|
(129,554
|
)
|
|
|
|
|
Long-term debt
|
|
|
334,177
|
|
|
|
3,010,274
|
|
|
|
4,173,546
|
|
|
|
|
|
|
|
7,517,997
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
373,539
|
|
|
|
3,719,878
|
|
|
|
5,960,729
|
|
|
|
(847,903
|
)
|
|
|
9,206,243
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders equity
|
|
|
2,260,274
|
|
|
|
2,105,436
|
|
|
|
1,516,585
|
|
|
|
(3,622,021
|
)
|
|
|
2,260,274
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity
|
|
$
|
2,633,813
|
|
|
$
|
5,825,314
|
|
|
$
|
7,477,314
|
|
|
$
|
(4,469,924
|
)
|
|
$
|
11,466,517
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Statements of Operations
For the Three Months Ended March 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Non-Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Casino
|
|
$
|
|
|
|
$
|
147,832
|
|
|
$
|
647,609
|
|
|
$
|
|
|
|
$
|
795,441
|
|
Rooms
|
|
|
|
|
|
|
136,241
|
|
|
|
54,448
|
|
|
|
|
|
|
|
190,689
|
|
Food and beverage
|
|
|
|
|
|
|
48,204
|
|
|
|
35,036
|
|
|
|
|
|
|
|
83,240
|
|
Convention, retail and other
|
|
|
|
|
|
|
43,018
|
|
|
|
38,374
|
|
|
|
(2,534
|
)
|
|
|
78,858
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
375,295
|
|
|
|
775,467
|
|
|
|
(2,534
|
)
|
|
|
1,148,228
|
|
Less-promotional allowances
|
|
|
(669
|
)
|
|
|
(28,407
|
)
|
|
|
(39,650
|
)
|
|
|
(479
|
)
|
|
|
(69,205
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
|
(669
|
)
|
|
|
346,888
|
|
|
|
735,817
|
|
|
|
(3,013
|
)
|
|
|
1,079,023
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Casino
|
|
|
|
|
|
|
78,491
|
|
|
|
441,428
|
|
|
|
(451
|
)
|
|
|
519,468
|
|
Rooms
|
|
|
|
|
|
|
32,797
|
|
|
|
7,484
|
|
|
|
|
|
|
|
40,281
|
|
Food and beverage
|
|
|
|
|
|
|
22,935
|
|
|
|
18,878
|
|
|
|
(773
|
)
|
|
|
41,040
|
|
Convention, retail and other
|
|
|
|
|
|
|
22,493
|
|
|
|
24,143
|
|
|
|
(1,669
|
)
|
|
|
44,967
|
|
Provision for doubtful accounts
|
|
|
|
|
|
|
7,703
|
|
|
|
429
|
|
|
|
|
|
|
|
8,132
|
|
General and administrative
|
|
|
|
|
|
|
63,354
|
|
|
|
79,719
|
|
|
|
(120
|
)
|
|
|
142,953
|
|
Corporate expense
|
|
|
23,959
|
|
|
|
297
|
|
|
|
1,281
|
|
|
|
|
|
|
|
25,537
|
|
Rental expense
|
|
|
|
|
|
|
2,469
|
|
|
|
6,595
|
|
|
|
|
|
|
|
9,064
|
|
Pre-opening expense
|
|
|
745
|
|
|
|
4,470
|
|
|
|
21,375
|
|
|
|
|
|
|
|
26,590
|
|
Development expense
|
|
|
4,918
|
|
|
|
|
|
|
|
974
|
|
|
|
|
|
|
|
5,892
|
|
Depreciation and amortization
|
|
|
2,167
|
|
|
|
48,871
|
|
|
|
62,375
|
|
|
|
|
|
|
|
113,413
|
|
Loss on disposal of assets
|
|
|
|
|
|
|
4,184
|
|
|
|
937
|
|
|
|
|
|
|
|
5,121
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31,789
|
|
|
|
288,064
|
|
|
|
665,618
|
|
|
|
(3,013
|
)
|
|
|
982,458
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
(32,458
|
)
|
|
|
58,824
|
|
|
|
70,199
|
|
|
|
|
|
|
|
96,565
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
1,412
|
|
|
|
2,807
|
|
|
|
3,030
|
|
|
|
(1,784
|
)
|
|
|
5,465
|
|
Interest expense, net of amounts capitalized
|
|
|
(4,229
|
)
|
|
|
(55,900
|
)
|
|
|
(56,355
|
)
|
|
|
1,784
|
|
|
|
(114,700
|
)
|
Other income (expense)
|
|
|
|
|
|
|
(168
|
)
|
|
|
8,267
|
|
|
|
|
|
|
|
8,099
|
|
Loss on early retirement of debt
|
|
|
|
|
|
|
|
|
|
|
(3,989
|
)
|
|
|
|
|
|
|
(3,989
|
)
|
Income from equity investment in subsidiaries
|
|
|
26,503
|
|
|
|
22,733
|
|
|
|
|
|
|
|
(49,236
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income (loss) before income taxes
|
|
|
(8,772
|
)
|
|
|
28,296
|
|
|
|
21,152
|
|
|
|
(49,236
|
)
|
|
|
(8,560
|
)
|
Benefit (provision) for income taxes
|
|
|
(2,462
|
)
|
|
|
(1,793
|
)
|
|
|
1,581
|
|
|
|
|
|
|
|
(2,674
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income (loss)
|
|
$
|
(11,234
|
)
|
|
$
|
26,503
|
|
|
$
|
22,733
|
|
|
$
|
(49,236
|
)
|
|
$
|
(11,234
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Statements of Operations
For the Three Months Ended March 31, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Casino
|
|
$
|
|
|
|
$
|
119,639
|
|
|
$
|
346,095
|
|
|
$
|
|
|
|
$
|
465,734
|
|
Rooms
|
|
|
|
|
|
|
96,086
|
|
|
|
1,782
|
|
|
|
|
|
|
|
97,868
|
|
Food and beverage
|
|
|
|
|
|
|
36,451
|
|
|
|
18,024
|
|
|
|
(116
|
)
|
|
|
54,359
|
|
Convention, retail and other
|
|
|
11,175
|
|
|
|
41,567
|
|
|
|
1,754
|
|
|
|
(11,450
|
)
|
|
|
43,046
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11,175
|
|
|
|
293,743
|
|
|
|
367,655
|
|
|
|
(11,566
|
)
|
|
|
661,007
|
|
Less-promotional allowances
|
|
|
(212
|
)
|
|
|
(18,749
|
)
|
|
|
(13,828
|
)
|
|
|
|
|
|
|
(32,789
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenues
|
|
|
10,963
|
|
|
|
274,994
|
|
|
|
353,827
|
|
|
|
(11,566
|
)
|
|
|
628,218
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Casino
|
|
|
|
|
|
|
52,080
|
|
|
|
226,704
|
|
|
|
(87
|
)
|
|
|
278,697
|
|
Rooms
|
|
|
|
|
|
|
22,428
|
|
|
|
96
|
|
|
|
|
|
|
|
22,524
|
|
Food and beverage
|
|
|
|
|
|
|
17,257
|
|
|
|
6,651
|
|
|
|
(275
|
)
|
|
|
23,633
|
|
Convention, retail and other
|
|
|
|
|
|
|
16,702
|
|
|
|
729
|
|
|
|
|
|
|
|
17,431
|
|
Provision for doubtful accounts
|
|
|
|
|
|
|
15,611
|
|
|
|
(95
|
)
|
|
|
|
|
|
|
15,516
|
|
General and administrative
|
|
|
|
|
|
|
51,434
|
|
|
|
17,741
|
|
|
|
(11,204
|
)
|
|
|
57,971
|
|
Corporate expense
|
|
|
18,365
|
|
|
|
68
|
|
|
|
86
|
|
|
|
|
|
|
|
18,519
|
|
Rental expense
|
|
|
|
|
|
|
2,140
|
|
|
|
4,568
|
|
|
|
|
|
|
|
6,708
|
|
Pre-opening expense
|
|
|
|
|
|
|
1,102
|
|
|
|
21,355
|
|
|
|
|
|
|
|
22,457
|
|
Development expense
|
|
|
828
|
|
|
|
|
|
|
|
1,518
|
|
|
|
|
|
|
|
2,346
|
|
Depreciation and amortization
|
|
|
727
|
|
|
|
19,208
|
|
|
|
11,297
|
|
|
|
|
|
|
|
31,232
|
|
Loss on disposal of assets
|
|
|
|
|
|
|
168
|
|
|
|
10
|
|
|
|
|
|
|
|
178
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
19,920
|
|
|
|
198,198
|
|
|
|
290,660
|
|
|
|
(11,566
|
)
|
|
|
497,212
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income (loss)
|
|
|
(8,957
|
)
|
|
|
76,796
|
|
|
|
63,167
|
|
|
|
|
|
|
|
131,006
|
|
Other income (expense):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest income
|
|
|
2,213
|
|
|
|
6,739
|
|
|
|
5,420
|
|
|
|
(1,708
|
)
|
|
|
12,664
|
|
Interest expense, net of amounts capitalized
|
|
|
(3,222
|
)
|
|
|
(18,681
|
)
|
|
|
(14,417
|
)
|
|
|
1,708
|
|
|
|
(34,612
|
)
|
Other expense
|
|
|
(6
|
)
|
|
|
(27
|
)
|
|
|
(7,000
|
)
|
|
|
|
|
|
|
(7,033
|
)
|
Income from equity investment in subsidiaries
|
|
|
89,836
|
|
|
|
47,781
|
|
|
|
|
|
|
|
(137,617
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
79,864
|
|
|
|
112,608
|
|
|
|
47,170
|
|
|
|
(137,617
|
)
|
|
|
102,025
|
|
Benefit (provision) for income taxes
|
|
|
11,050
|
|
|
|
(22,772
|
)
|
|
|
611
|
|
|
|
|
|
|
|
(11,111
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
90,914
|
|
|
$
|
89,836
|
|
|
$
|
47,781
|
|
|
$
|
(137,617
|
)
|
|
$
|
90,914
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Statements of Cash Flows
For the Three Months Ended March 31, 2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Non-Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Net cash provided by (used in) operating activities
|
|
$
|
(40,795
|
)
|
|
$
|
60,617
|
|
|
$
|
52,613
|
|
|
$
|
|
|
|
$
|
72,435
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in restricted cash
|
|
|
|
|
|
|
304
|
|
|
|
(27,419
|
)
|
|
|
|
|
|
|
(27,115
|
)
|
Capital expenditures
|
|
|
(7,503
|
)
|
|
|
(209,091
|
)
|
|
|
(726,947
|
)
|
|
|
|
|
|
|
(943,541
|
)
|
Repayments of receivable from Guarantor Subsidiaries
|
|
|
80,362
|
|
|
|
|
|
|
|
|
|
|
|
(80,362
|
)
|
|
|
|
|
Intercompany receivables to Guarantor Subsidiaries
|
|
|
(35,000
|
)
|
|
|
|
|
|
|
|
|
|
|
35,000
|
|
|
|
|
|
Intercompany receivables to Non-Guarantor Subsidiaries
|
|
|
|
|
|
|
(308,820
|
)
|
|
|
|
|
|
|
308,820
|
|
|
|
|
|
Capital contributions to subsidiaries
|
|
|
|
|
|
|
(10,265
|
)
|
|
|
|
|
|
|
10,265
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) investing activities
|
|
|
37,859
|
|
|
|
(527,872
|
)
|
|
|
(754,366
|
)
|
|
|
273,723
|
|
|
|
(970,656
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from exercise of stock options
|
|
|
5,020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,020
|
|
Excess tax benefits from stock-based compensation
|
|
|
1,326
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,326
|
|
Capital contributions received
|
|
|
|
|
|
|
|
|
|
|
10,265
|
|
|
|
(10,265
|
)
|
|
|
|
|
Borrowings from Las Vegas Sands Corp.
|
|
|
|
|
|
|
35,000
|
|
|
|
|
|
|
|
(35,000
|
)
|
|
|
|
|
Borrowings from Guarantor Subsidiaries
|
|
|
|
|
|
|
|
|
|
|
308,820
|
|
|
|
(308,820
|
)
|
|
|
|
|
Repayments on borrowings from Las Vegas Sands Corp.
|
|
|
|
|
|
|
(80,362
|
)
|
|
|
|
|
|
|
80,362
|
|
|
|
|
|
Proceeds from Singapore permanent facility
|
|
|
|
|
|
|
|
|
|
|
1,417,936
|
|
|
|
|
|
|
|
1,417,936
|
|
Proceeds from new senior secured credit facility
|
|
|
|
|
|
|
450,000
|
|
|
|
|
|
|
|
|
|
|
|
450,000
|
|
Proceeds from Macao credit facility
|
|
|
|
|
|
|
|
|
|
|
75,300
|
|
|
|
|
|
|
|
75,300
|
|
Proceeds from ferry financing
|
|
|
|
|
|
|
|
|
|
|
147,262
|
|
|
|
|
|
|
|
147,262
|
|
Proceeds from FF&E financings and other long-term debt
|
|
|
|
|
|
|
|
|
|
|
14,698
|
|
|
|
|
|
|
|
14,698
|
|
Repayments on Singapore bridge facility
|
|
|
|
|
|
|
|
|
|
|
(1,356,807
|
)
|
|
|
|
|
|
|
(1,356,807
|
)
|
Repayments on new senior secured credit facility-term B
|
|
|
|
|
|
|
(7,500
|
)
|
|
|
|
|
|
|
|
|
|
|
(7,500
|
)
|
Repayments on FF&E financings and other long-term debt
|
|
|
|
|
|
|
|
|
|
|
(7,192
|
)
|
|
|
|
|
|
|
(7,192
|
)
|
Repayments on airplane financings
|
|
|
(922
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(922
|
)
|
Proceeds from the sale of The Shoppes at The Palazzo
|
|
|
|
|
|
|
240,108
|
|
|
|
|
|
|
|
|
|
|
|
240,108
|
|
Payments of deferred financing costs
|
|
|
(4
|
)
|
|
|
(9
|
)
|
|
|
(89,853
|
)
|
|
|
|
|
|
|
(89,866
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing activities
|
|
|
5,420
|
|
|
|
637,237
|
|
|
|
520,429
|
|
|
|
(273,723
|
)
|
|
|
889,363
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate on cash
|
|
|
|
|
|
|
|
|
|
|
7,070
|
|
|
|
|
|
|
|
7,070
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase (decrease) in cash and cash equivalents
|
|
|
2,484
|
|
|
|
169,982
|
|
|
|
(174,254
|
)
|
|
|
|
|
|
|
(1,788
|
)
|
Cash and cash equivalents at beginning of period
|
|
|
73,489
|
|
|
|
129,684
|
|
|
|
653,977
|
|
|
|
|
|
|
|
857,150
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
75,973
|
|
|
$
|
299,666
|
|
|
$
|
479,723
|
|
|
$
|
|
|
|
$
|
855,362
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
27
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
NOTES TO
CONDENSED CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Condensed
Consolidating Statements of Cash Flows
For the Three Months Ended March 31, 2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-
|
|
|
Consolidating/
|
|
|
|
|
|
|
Las Vegas
|
|
|
Guarantor
|
|
|
Guarantor
|
|
|
Eliminating
|
|
|
|
|
|
|
Sands Corp.
|
|
|
Subsidiaries
|
|
|
Subsidiaries
|
|
|
Entries
|
|
|
Total
|
|
|
Net cash provided by (used in) operating activities
|
|
$
|
(34,188
|
)
|
|
$
|
79,139
|
|
|
$
|
6,400
|
|
|
$
|
|
|
|
$
|
51,351
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change in restricted cash
|
|
|
(407
|
)
|
|
|
114,452
|
|
|
|
284,526
|
|
|
|
|
|
|
|
398,571
|
|
Capital expenditures
|
|
|
(46,455
|
)
|
|
|
(185,229
|
)
|
|
|
(533,280
|
)
|
|
|
|
|
|
|
(764,964
|
)
|
Intercompany receivables from Non-Guarantor Subsidiaries
|
|
|
(11,069
|
)
|
|
|
(21,364
|
)
|
|
|
|
|
|
|
32,433
|
|
|
|
|
|
Intercompany receivables from Guarantor Subsidiaries
|
|
|
(37,000
|
)
|
|
|
|
|
|
|
|
|
|
|
37,000
|
|
|
|
|
|
Repayments of receivable from Non-Guarantor Subsidiaries
|
|
|
104,464
|
|
|
|
|
|
|
|
|
|
|
|
(104,464
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) investing activities
|
|
|
9,533
|
|
|
|
(92,141
|
)
|
|
|
(248,754
|
)
|
|
|
(35,031
|
)
|
|
|
(366,393
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from exercise of stock options
|
|
|
9,983
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,983
|
|
Excess tax benefits from stock-based compensation
|
|
|
2,293
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,293
|
|
Borrowings from Las Vegas Sands Corp.
|
|
|
|
|
|
|
37,000
|
|
|
|
11,069
|
|
|
|
(48,069
|
)
|
|
|
|
|
Borrowings from Guarantor Subsidiaries
|
|
|
|
|
|
|
|
|
|
|
21,364
|
|
|
|
(21,364
|
)
|
|
|
|
|
Repayments on borrowings from Las Vegas Sands Corp.
|
|
|
|
|
|
|
|
|
|
|
(104,464
|
)
|
|
|
104,464
|
|
|
|
|
|
Proceeds from Macao credit facility
|
|
|
|
|
|
|
|
|
|
|
85,000
|
|
|
|
|
|
|
|
85,000
|
|
Proceeds from Singapore bridge facility
|
|
|
|
|
|
|
|
|
|
|
110,777
|
|
|
|
|
|
|
|
110,777
|
|
Proceeds from airplane financings
|
|
|
72,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
72,000
|
|
Proceeds from senior secured credit facility-revolver
|
|
|
|
|
|
|
62,000
|
|
|
|
|
|
|
|
|
|
|
|
62,000
|
|
Proceeds from The Shoppes at The Palazzo construction loan
|
|
|
|
|
|
|
|
|
|
|
35,000
|
|
|
|
|
|
|
|
35,000
|
|
Proceeds on FF&E financings and other long-term debt
|
|
|
|
|
|
|
|
|
|
|
6,082
|
|
|
|
|
|
|
|
6,082
|
|
Repayment on senior secured credit facility-revolver
|
|
|
|
|
|
|
(99,000
|
)
|
|
|
|
|
|
|
|
|
|
|
(99,000
|
)
|
Repayments on Sands Expo Center mortgage loan
|
|
|
|
|
|
|
(535
|
)
|
|
|
|
|
|
|
|
|
|
|
(535
|
)
|
Repayments on FF&E financings and other long-term debt
|
|
|
|
|
|
|
(600
|
)
|
|
|
(5
|
)
|
|
|
|
|
|
|
(605
|
)
|
Payments of deferred financing costs
|
|
|
(375
|
)
|
|
|
|
|
|
|
(909
|
)
|
|
|
|
|
|
|
(1,284
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by (used in) financing activities
|
|
|
83,901
|
|
|
|
(1,135
|
)
|
|
|
163,914
|
|
|
|
35,031
|
|
|
|
281,711
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of foreign exchange rate on cash
|
|
|
|
|
|
|
|
|
|
|
4,790
|
|
|
|
|
|
|
|
4,790
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase (decrease) in cash and cash equivalents
|
|
|
59,246
|
|
|
|
(14,137
|
)
|
|
|
(73,650
|
)
|
|
|
|
|
|
|
(28,541
|
)
|
Cash and cash equivalents at beginning of period
|
|
|
69,100
|
|
|
|
94,146
|
|
|
|
304,820
|
|
|
|
|
|
|
|
468,066
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
128,346
|
|
|
$
|
80,009
|
|
|
$
|
231,170
|
|
|
$
|
|
|
|
$
|
439,525
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28
LAS VEGAS
SANDS CORP. AND SUBSIDIARIES
|
|
ITEM 2
|
MANAGEMENTS
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
|
The following discussion should be read in conjunction with, and
is qualified in its entirety by, the condensed consolidated
financial statements, and the notes thereto and other financial
information included in this
Form 10-Q.
Certain statements in this Managements Discussion
and Analysis of Financial Condition and Results of
Operations are forward-looking statements. See
Special Note Regarding Forward-Looking
Statements.
Operations
We view each of our casino properties as an operating segment.
The Venetian Resort Hotel Casino (The Venetian Las
Vegas) and The Palazzo Resort Hotel Casino (The
Palazzo) operating segments are managed as a single
integrated resort and have been aggregated into our Las Vegas
Operating Properties, considering their similar economic
characteristics, types of customers, types of service and
products, the regulatory business environment of the operations
within each segment and the Companys organizational and
management reporting structure. Our Macao operating segments
consist of the Sands Macao, The Venetian Macao Resort Hotel
(The Venetian Macao) and other ancillary operations
in that region (Other Asia).
Las
Vegas
Our Las Vegas Operating Properties consist of The Venetian Las
Vegas, a Renaissance Venice-themed resort situated on the Las
Vegas Strip; The Palazzo, a resort featuring a modern European
ambience and design reminiscent of Italian affluent living; and
an expo and convention center with approximately
1.2 million square feet (the Sands Expo
Center). With the opening of The Palazzo, our Las Vegas
Operating Properties represent the worlds largest
integrated resort with 7,093 suites and approximately
225,000 square feet of gaming space, which includes
approximately 260 table games and 3,100 slot machines. Our Las
Vegas Operating Properties also feature a meeting and conference
facility of approximately 1.1 million square feet; Canyon
Ranch SpaClub facilities; Paiza
Club
TM
offering services and amenities to premium customers, luxurious
VIP suites and spa facilities, private VIP gaming room
facilities; an entertainment center; an enclosed retail, dining
and entertainment complex located within The Venetian Las Vegas
of approximately 440,000 net leasable square feet
(The Grand Canal Shoppes), which was sold to General
Growth Partners (GGP) in 2004; and an enclosed
retail and dining complex located within The Palazzo of
approximately 400,000 net leasable square feet (The
Shoppes at The Palazzo), which was sold to GGP on
February 29, 2008.
We have received initial proceeds of $290.8 million from
the sale of The Shoppes at The Palazzo. This purchase price will
be adjusted at the fourth, eighth, 12th, 18th, and
24th month after closing with a final adjustment made at
the 30th month (see Item 1 Financial
Statements Notes to Condensed Consolidated Financial
Statements Note 7 Mall Sale).
Based on our continuing relationship with GGP related to its
ownership of The Grand Canal Shoppes, knowledge of local market
conditions and discussions with tenants, we currently believe
the total purchase price to be paid by GGP will be in excess of
$700.0 million.
Approximately 61.2% and 59.7% of gross revenue at our Las Vegas
Operating Properties for the three months ended March 31,
2008 and 2007, respectively, was derived from hotel rooms, food
and beverage services, and other non-gaming sources, and 38.8%
and 40.3%, respectively, was derived from gaming. The percentage
of non-gaming revenue reflects the integrated resorts
emphasis on the group convention and trade show business and the
resulting high occupancy and room rates throughout the week,
including during mid-week periods.
Macao
We own and operate the Sands Macao, the first Las Vegas-style
casino in Macao, pursuant to a
20-year
gaming subconcession. The Sands Macao includes approximately
229,000 square feet of gaming space; a 289-suite hotel
tower, a several restaurants; a spacious Paiza Club; a theater;
and other high-end services and amenities. Approximately 92.7%
and 95.0% of the Sands Macaos gross revenue for the three
months ended March 31,
29
2008 and 2007, respectively, was derived from gaming activities,
with the remainder primarily derived from room revenues and food
and beverage services.
On August 28, 2007, under the same gaming subconcession, we
opened The Venetian Macao, the anchor property of our
master-planned development of integrated resort properties that
we refer to as the Cotai
Strip
tm
in Macao. The Venetian Macao, with a theme similar to that of
The Venetian Las Vegas, features a 39-floor luxury hotel tower
with over 2,900 suites; a casino floor of approximately
550,000 square feet; approximately 1.0 million square
feet of retail and dining offerings; a convention center and
meeting room complex of approximately 1.2 million square
feet; and an approximately 15,000-seat arena that has hosted a
wide range of entertainment and sporting events. An 1,800-seat
theater is currently scheduled to open this summer and will
feature an original production from Cirque du Soleil.
Approximately 80.1% of The Venetian Macaos gross revenue
for the three months ended March 31, 2008, was derived from
gaming activities, with the remainder derived from room
revenues, food and beverage services, and other non-gaming
sources.
United
States Development Projects
Las
Vegas Condominiums
We are constructing a high-rise residential condominium tower
with approximately 1.0 million saleable square feet that is
situated between The Palazzo and The Venetian Las Vegas. The
condominium tower is currently expected to open in late 2009 and
will be built at an estimated cost of approximately
$600.0 million.
Sands
Bethworks
In August 2007, our indirect majority-owned subsidiary, Sands
Bethworks Gaming LLC (Sands Bethworks Gaming), was
issued a Pennsylvania gaming license by the Pennsylvania Gaming
Control Board. We are in the process of developing a gaming,
hotel, shopping and dining complex called Sands Bethworks,
located on the site of the Historic Bethlehem Steel Works in
Bethlehem, Pennsylvania, which is approximately 70 miles
from midtown Manhattan, New York. The
124-acre
development is expected to feature a 300-room hotel,
approximately 200,000 square feet of retail space, up to
5,000 slot machines, a 50,000-square-foot multipurpose event
center and a variety of dining options. Sands Bethworks is also
expected to be home to the National Museum of Industrial
History, an arts and cultural center, and the broadcast home of
the local PBS affiliate. We will effectively own 86% of the
economic interest of the gaming, hotel and entertainment portion
of the property and more than 50% of the economic interest of
the retail portion of the property through our joint venture
with Bethworks Now, LLC, which has yet to contribute the land to
the joint venture. We expect the contribution to take place in
2008; however, no assurances can be given as to the timing of
the contribution. Sands Bethworks is currently expected to open
in summer 2009 and will be built at an estimated cost of
approximately $600.0 million.
Macao
Development Projects
We have submitted plans to the Macao government for our Cotai
Strip developments, which represent six integrated resort
developments, in addition to The Venetian Macao, on an area of
approximately 200 acres (which we refer to as parcels 2, 3,
5, 6, 7 and 8). The developments are expected to include hotels,
exhibition and conference facilities, casinos, showrooms,
shopping malls, spas, restaurants, entertainment facilities and
other attractions and amenities. We have commenced construction
or pre-construction for these six parcels and we plan to own and
operate all of the casinos in these developments under our Macao
gaming subconcession. In addition, we are completing the
development of some public areas surrounding our Cotai Strip
properties on behalf of the Macao government. We intend to
develop our other Cotai Strip properties as follows:
|
|
|
|
|
Parcel 2 is intended to be the Four Seasons Macao, which will be
adjacent to The Venetian Macao and is expected to be a boutique
hotel under the Four Seasons brand with approximately 400 luxury
hotel rooms (including 19 Paiza mansions), distinctive dining
experiences, a full service spa and other amenities,
approximately 70,000 square feet of gaming space,
approximately 220,000 square feet of upscale retail
offerings and approximately 1.0 million square feet of Four
Seasons-serviced and -branded luxury apartment hotel units. We
will own the entire development. We have entered into an
exclusive non-binding letter of intent and are currently
negotiating definitive agreements under which Four Seasons
Hotels Inc. will manage
|
30
|
|
|
|
|
the hotel and the serviced luxury apartment hotel under its Four
Seasons brand. The Four Seasons Macao is expected to open in
summer 2008, with the Paiza mansions coming on line in spring
2009 and the serviced luxury apartment hotel being completed in
summer 2009.
|
|
|
|
|
|
Parcel 5 is intended to include a three-hotel complex with
approximately 2,300 luxury and mid-scale hotel rooms, a casino,
a retail shopping mall and approximately 320 serviced luxury
apartment hotel units. We will own the entire development and
have entered into management agreements with
Shangri-La Hotels and Resorts to manage two hotels under
its Shangri-La and Traders brands and Starwood
Hotels & Resorts Worldwide to manage a hotel and
serviced luxury apartment hotel under its St. Regis brand.
|
|
|
|
Parcel 6 is intended to include a two-hotel complex with
approximately 4,100 luxury and mid-scale hotel rooms, a casino
and a retail shopping mall physically connected to the mall in
the Shangri-La/Traders hotel podium. We will own the entire
development and have entered into a management agreement with
Starwood Hotels & Resorts Worldwide to manage the
hotels under its Sheraton brand.
|
|
|
|
Parcels 7 and 8 are intended to include multi-hotel complexes
with a total of approximately 6,150 luxury and mid-scale hotel
rooms, a casino, retail shopping malls and approximately 450
serviced luxury apartment hotel units that are physically
connected to the hotel complexes. We will own the entire
development and have entered into non-binding agreements with
Hilton Hotels to manage Hilton and Conrad brand hotels and
serviced luxury apartment hotels on parcel 7 and Fairmont
Raffles Holdings to manage Fairmont and Raffles brand hotels and
serviced luxury apartment hotels on parcel 8. We are currently
negotiating definitive agreements with Hilton Hotels and
Fairmont Raffles Holdings.
|
|
|
|
For parcel 3, we have signed a non-binding memorandum of
agreement with an independent developer. We are currently
negotiating the definitive agreement pursuant to which we will
partner with the developer to build a multi-hotel complex, which
may include a Cosmopolitan hotel. In addition, we have signed a
non-binding letter of intent with Intercontinental Hotels Group
to manage hotels under the Intercontinental and Holiday Inn
International brands, and approximately 205 serviced luxury
apartment hotel units under the Intercontinental brand, on this
site. We are currently negotiating definitive agreements with
Intercontinental Hotels Group. In total, the multi-hotel complex
is intended to include approximately 3,940 hotel rooms, a
casino, a retail shopping mall and serviced luxury apartment
hotels.
|
The Four Seasons Macao is currently planned to feature
approximately 130 table games and 225 slot machines. The casinos
on parcels 3, 5, 6, 7 and 8 are currently planned to include a
total of approximately 2,025 table games and 9,250 slot
machines. Upon completion, our Cotai Strip developments
(including The Venetian Macao) are currently planned to feature
approximately 19,750 hotel suites/rooms and 1.6 million
square feet of gaming space with a capacity of approximately
3,300 table games and 16,470 slot machines.
Currently, we expect the cost to build our Cotai Strip
developments to be approximately $12.0 billion, which
includes the cost of constructing The Venetian Macao. As of
March 31, 2008, we have capitalized $3.37 billion in
costs on the Cotai Strip. We will need to arrange additional
financing to fund the balance of those costs and there is no
assurance that we will be able to obtain all the additional
financing required.
We have received a land concession from the Macao government to
build on parcels 1, 2 and 3, including the site on which we own
and operate The Venetian Macao (parcel 1) and the site on
which we are building the Four Seasons Macao (parcel 2). We do
not own these land sites in Macao; however, the land concession,
which has an initial term of 25 years and is renewable at
our option, grants us exclusive use of the land. As specified in
the land concession, we are required to pay premiums, which are
payable over four years or are due upon the completion of the
corresponding resort, as well as annual rent for the term of the
land concession.
We do not yet have all the necessary Macao government approvals
that we will need in order to develop all of our planned Cotai
Strip developments. We have commenced construction or
pre-construction for the projects on parcels 5, 6, 7 and 8 for
which we have not yet been granted land concessions. We are in
the process of negotiating with the Macao government to obtain
the land concession for parcels 5 and 6, and will subsequently
negotiate the land concessions for parcels 7 and 8. Based on
historical experience with the Macao government with respect to
our land concessions for the Sands Macao and parcels 1, 2 and 3,
management believes that the land concessions for parcels 5, 6,
7 and 8 will be approved; however, if we do not obtain these
land concessions, we could forfeit all or a
31
substantial part of our $893.8 million in capitalized
construction costs related to these developments as of
March 31, 2008.
Hengqin
Island Development Project
We have entered into a non-binding letter of intent with the
Zhuhai Municipal Peoples Government of the Peoples
Republic of China to work together to create a master plan for,
and develop, a leisure and convention destination resort on
Hengqin Island, which is located within mainland China,
approximately one mile from the Cotai Strip. In January 2007, we
were informed that the Zhuhai Government established a Project
Coordination Committee to act as a government liaison empowered
to work directly with us to advance the development of the
project. We have interfaced with this committee and are working
actively with the committee as we continue to advance our plans.
The project remains subject to a number of conditions, including
further governmental approvals.
Singapore
Development Project
In August 2006, our wholly-owned subsidiary, Marina Bay Sands
Pte. Ltd. (MBS), entered into a development
agreement (the Development Agreement) with the
Singapore Tourism Board (the STB) to build and
operate an integrated resort called the Marina Bay Sands in
Singapore. The Marina Bay Sands is expected to include three 50+
story hotel towers (totaling approximately 2,700 rooms), a
casino, an enclosed retail, dining and entertainment complex of
approximately 850,000 net leasable square feet, a
convention center and meeting room complex of approximately
1.2 million square feet, theaters and a landmark iconic
structure at the bay-front promenade that will contain an
art/science museum. Although construction has started on the
Marina Bay Sands, we are continuing to work with the Singapore
government to finalize various design aspects of the integrated
resort and are in the process of finalizing our cost estimates
for the project. We expect the cost to build the Marina Bay
Sands will be in excess of $4.5 billion, inclusive of
payments made in 2006 for land premium, taxes and other fees.
The Marina Bay Sands is expected to open in late 2009.
Other
Development Projects
We are currently exploring the possibility of developing and
operating additional properties, including integrated resorts,
in additional Asian and U.S. jurisdictions, and in Europe.
In December 2007, we submitted applications to the Kansas
Lottery Commission for a gaming license, and if we are
successful, we plan to develop a casino resort in the Kansas
City, Kansas, metropolitan area.
Critical
Accounting Policies and Estimates
The preparation of our condensed consolidated financial
statements in conformity with accounting principles generally
accepted in the United States of America requires our management
to make estimates and judgments that affect the reported amounts
of assets and liabilities, revenues and expenses, and related
disclosures of contingent assets and liabilities. These
estimates are based on historical information, information that
is currently available to us and on various other assumptions
that management believes to be reasonable under the
circumstances. Actual results could vary from those estimates
and we may change our estimates and assumptions in future
evaluations. Changes in these estimates and assumptions may have
a material effect on our results of operations and financial
condition. We believe that these critical accounting policies
affect our more significant judgments and estimates used in the
preparation of our condensed consolidated financial statements.
For a discussion of our significant accounting policies and
estimates, please refer to Managements Discussion
and Analysis of Financial Condition and Results of
Operations and Notes to Consolidated Financial
Statements presented in our 2007 Annual Report on
Form 10-K
filed on February 29, 2008.
There were no newly identified significant accounting estimates
in the three months ended March 31, 2008, nor were there
any material changes to the critical accounting policies and
estimates discussed in our 2007 Annual Report.
32
Recent
Accounting Pronouncements
See related disclosure at Item 1
Financial Statements Notes to Condensed Consolidated
Financial Statements Note 1
Organization and Business of Company.
Summary
Financial Results
The following table summarizes our results of operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
|
|
|
|
|
|
Percent
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Net revenues
|
|
$
|
1,079,023
|
|
|
$
|
628,218
|
|
|
|
71.8
|
%
|
Operating expenses
|
|
|
982,458
|
|
|
|
497,212
|
|
|
|
97.6
|
%
|
Operating income
|
|
|
96,565
|
|
|
|
131,006
|
|
|
|
(26.3
|
)%
|
Income (loss) before income taxes
|
|
|
(8,560
|
)
|
|
|
102,025
|
|
|
|
(108.4
|
)%
|
Net income (loss)
|
|
|
(11,234
|
)
|
|
|
90,914
|
|
|
|
(112.4
|
)%
|
|
|
|
|
|
|
|
|
|
|
|
Percent of Net Revenues
|
|
|
|
Three Months Ended March 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Operating expenses
|
|
|
91.1
|
%
|
|
|
79.1
|
%
|
Operating income
|
|
|
8.9
|
%
|
|
|
20.9
|
%
|
Income (loss) before income taxes
|
|
|
(0.8
|
)%
|
|
|
16.2
|
%
|
Net income (loss)
|
|
|
(1.0
|
)%
|
|
|
14.5
|
%
|
Operating
Results
Key
operating revenue measurements
Operating revenues at our Las Vegas properties and The Venetian
Macao are dependent upon the volume of customers who stay at the
hotel, which affects the price that can be charged for hotel
rooms and the volume of table games and slot machine play. Hotel
revenues are not material for the Sands Macao as its revenues
are principally driven by casino customers who visit the casino
on a daily basis. Visitors to our Macao properties arrive by
ferry, automobile, bus, airplane or helicopter from Hong Kong,
cities in China, and other Southeast Asian cities in close
proximity to Macao and elsewhere.
The following are the key measurements we use to evaluate
operating revenue:
Casino revenue measurements for Las
Vegas:
Table games drop and slot handle are
volume measurements. Win or hold percentage represents the
percentage of drop or handle that is won by the casino and
recorded as casino revenue. Table games drop represents the sum
of markers issued (credit instruments) less markers paid at the
table, plus cash deposited in the table drop box. Slot handle is
the gross amount wagered or coin placed into slot machines in
aggregate for the period cited. Drop and handle are
abbreviations for table games drop and slot handle. Based upon
our mix of table games, our table games produce a statistical
average win percentage (calculated before discounts) as measured
as a percentage of table game drop of 20.0% to 22.0% and slot
machines produce a statistical average win percentage
(calculated before slot club cash incentives) as measured as a
percentage of slot machine handle generally between 6.0% and
7.0%.
Casino revenue measurements for Macao:
Macao
table games are segregated into two groups, consistent with the
Macao markets convention: Rolling Chip play (all VIP play)
and Non-Rolling Chip play (mostly non-VIP players). The volume
measurement for Rolling Chip play is non-negotiable gaming chips
wagered. The volume measurement for Non-Rolling Chip play is
table games drop as described above. Rolling Chip volume and
Non-Rolling Chip volume are not equivalent as Rolling Chip
volume is a measure of amounts wagered versus dropped.
33
Rolling Chip volume is substantially higher than table games
drop. Slot handle is the gross amount wagered or coins placed
into slot machines in aggregate for the period cited.
We view Rolling Chip table games win as a percentage of Rolling
Chip volume and Non-Rolling Chip table games win as a percentage
of drop. Win or hold percentage represents the percentage of
Rolling Chip volume, Non-Rolling Chip drop or slot handle that
is won by the casino and recorded as casino revenue. Based upon
our mix of table games in Macao, our Rolling Chip table games
win percentage (calculated before discounts and commissions) as
measured as a percentage of Rolling Chip volume is expected to
be 3.0% and our Non-Rolling Chip table games are expected to
produce a statistical average win percentage as measured as a
percentage of table game drop of 18.0% to 20.0%. Similar to Las
Vegas, our Macao slot machines produce a statistical average win
percentage as measured as a percentage of slot machine handle of
generally between 6.0% and 7.0%.
Actual win may vary from the statistical
average. Generally, slot machine play is conducted on a
cash basis. Credit-based wagering for our Las Vegas properties
was approximately 58.1% of table games revenues for the three
months ended March 31, 2008. Table games play at our Macao
properties are conducted primarily on a cash basis with only
15.6% credit-based wagering for the three months ended
March 31, 2008.
Hotel revenue measurements:
Hotel occupancy
rate, which is the average percentage of available hotel rooms
occupied during a period, and average daily room rate, which is
the average price of occupied rooms per day, are used as
performance indicators. Revenue per available room represents a
summary of hotel average daily room rates and occupancy. Because
not all available rooms are occupied, average daily room rates
are normally higher than revenue per available room. Reserved
rooms where the guests do not show up for their stay and lose
their deposit may be re-sold to walk-in guests. These rooms are
considered to be occupied twice for statistical purposes due to
obtaining the original deposit and the walk-in guest revenue. In
cases where a significant number of rooms are resold, occupancy
rates may be in excess of 100% and revenue per available room
may be higher than the average daily room rate.
Three
Months Ended March 31, 2008 compared to the Three Months
Ended March 31, 2007
Operating
Revenues
Our net revenues consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
|
|
|
|
|
|
Percent
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Casino
|
|
$
|
795,441
|
|
|
$
|
465,734
|
|
|
|
70.8
|
%
|
Rooms
|
|
|
190,689
|
|
|
|
97,868
|
|
|
|
94.8
|
%
|
Food and beverage
|
|
|
83,240
|
|
|
|
54,359
|
|
|
|
53.1
|
%
|
Convention, retail and other
|
|
|
78,858
|
|
|
|
43,046
|
|
|
|
83.2
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,148,228
|
|
|
|
661,007
|
|
|
|
73.7
|
%
|
Less promotional allowances
|
|
|
(69,205
|
)
|
|
|
(32,789
|
)
|
|
|
111.1
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net revenues
|
|
$
|
1,079,023
|
|
|
$
|
628,218
|
|
|
|
71.8
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consolidated net revenues were $1.08 billion for the three
months ended March 31, 2008, an increase of
$450.8 million compared to $628.2 million for the
three months ended March 31, 2007. The increase in net
revenues was due primarily to an increase in casino revenues of
$329.7 million.
34
Casino revenues for the three months ended March 31, 2008
increased $329.7 million as compared to the three months
ended March 31, 2007. Of the increase, $383.2 million
and $28.2 million were attributable to The Venetian Macao
and our Las Vegas Operating Properties due primarily to the
opening of The Palazzo, respectively, offset by a decrease of
$81.7 million at Sands Macao due primarily to increased
competition, as compared to the three months ended
March 31, 2007. The following table summarizes the results
of our casino revenue activity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Sands Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total casino revenues
|
|
$
|
264,360
|
|
|
$
|
346,095
|
|
|
|
(23.6
|
)%
|
Non-Rolling Chip table games drop
|
|
$
|
723,555
|
|
|
$
|
1,037,012
|
|
|
|
(30.2
|
)%
|
Non-Rolling Chip table games win percentage
|
|
|
20.1
|
%
|
|
|
18.6
|
%
|
|
|
1.5
|
pts
|
Rolling Chip volume
|
|
$
|
5,608,398
|
|
|
$
|
6,856,990
|
|
|
|
(18.2
|
)%
|
Rolling Chip win percentage
|
|
|
2.54
|
%
|
|
|
2.78
|
%
|
|
|
(0.24
|
)pts
|
Slot handle
|
|
$
|
253,498
|
|
|
$
|
297,095
|
|
|
|
(14.7
|
)%
|
Slot hold percentage
|
|
|
8.4
|
%
|
|
|
7.3
|
%
|
|
|
1.1
|
pts
|
The Venetian Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total casino revenues
|
|
$
|
383,250
|
|
|
$
|
|
|
|
|
|
%
|
Non-Rolling Chip table games drop
|
|
$
|
880,070
|
|
|
$
|
|
|
|
|
|
%
|
Non-Rolling Chip table games win percentage
|
|
|
19.5
|
%
|
|
|
|
%
|
|
|
|
pts
|
Rolling Chip volume
|
|
$
|
8,707,010
|
|
|
$
|
|
|
|
|
|
%
|
Rolling Chip win percentage
|
|
|
2.96
|
%
|
|
|
|
%
|
|
|
|
pts
|
Slot handle
|
|
$
|
372,918
|
|
|
$
|
|
|
|
|
|
%
|
Slot hold percentage
|
|
|
8.5
|
%
|
|
|
|
%
|
|
|
|
pts
|
Las Vegas Operating Properties
|
|
|
|
|
|
|
|
|
|
|
|
|
Total casino revenues
|
|
$
|
147,831
|
|
|
$
|
119,639
|
|
|
|
23.6
|
%
|
Table games drop
|
|
$
|
456,579
|
|
|
$
|
353,128
|
|
|
|
29.3
|
%
|
Table games win percentage
|
|
|
25.3
|
%
|
|
|
29.1
|
%
|
|
|
(3.8
|
)pts
|
Slot handle
|
|
$
|
816,219
|
|
|
$
|
588,444
|
|
|
|
38.7
|
%
|
Slot hold percentage
|
|
|
6.0
|
%
|
|
|
6.0
|
%
|
|
|
|
pts
|
In our experience, average win percentages remain steady when
measured over extended periods of time, but can vary
considerably within shorter time periods as a result of the
statistical variances that are associated with games of chance
in which large amounts are wagered.
Room revenues for the three months ended March 31, 2008,
increased $92.8 million as compared to the three months
ended March 31, 2007. The increase at our Las Vegas
Operating Properties was due primarily to the opening of The
Palazzo; however, the ADR and occupancy rate were negatively
impacted by a reduction of room rates to increase visitation to
The Palazzo and excess suite inventory as the new resort ramps
up its operations, respectively. The suites at Sands Macao are
primarily provided to casino patrons on a complimentary basis
and therefore revenues of $6.8 million and related
statistics have not been included in the following table, which
summarizes the results of our room revenue activity.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
Las Vegas Operating Properties
|
|
|
|
|
|
|
|
|
|
|
|
|
Total room revenues
|
|
$
|
136,241
|
|
|
$
|
96,086
|
|
|
|
41.8
|
%
|
Average daily room rate
|
|
$
|
264
|
|
|
$
|
276
|
|
|
|
(4.3
|
)%
|
Occupancy rate
|
|
|
86.4
|
%
|
|
|
98.8
|
%
|
|
|
(12.4
|
)pts
|
Revenue per available room
|
|
$
|
228
|
|
|
$
|
273
|
|
|
|
(16.5
|
)%
|
The Venetian Macao
|
|
|
|
|
|
|
|
|
|
|
|
|
Total room revenues
|
|
$
|
47,690
|
|
|
$
|
|
|
|
|
|
%
|
Average daily room rate
|
|
$
|
232
|
|
|
$
|
|
|
|
|
|
%
|
Occupancy rate
|
|
|
78.6
|
%
|
|
|
|
%
|
|
|
|
pts
|
Revenue per available room
|
|
$
|
183
|
|
|
$
|
|
|
|
|
|
%
|
35
Food and beverage revenues for the three months ended
March 31, 2008, increased $28.9 million as compared to
the three months ended March 31, 2007. The increase was
primarily attributable to $14.6 million generated by The
Venetian Macao and an increase of $16.2 million at the Las
Vegas Operating Properties driven primarily by the opening of
The Palazzo and two of our joint venture restaurants that opened
in summer 2007.
Convention, retail and other revenues for the three months ended
March 31, 2008, increased $35.8 million as compared to
the three months ended March 31, 2007. The increase is
primarily attributable to $32.9 million associated with The
Venetian Macao, which consisted primarily of rental revenues
from the mall.
Operating
Expenses
The breakdown of operating expenses is as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
|
|
|
|
|
|
Percent
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Casino
|
|
$
|
519,468
|
|
|
$
|
278,697
|
|
|
|
86.4
|
%
|
Rooms
|
|
|
40,281
|
|
|
|
22,524
|
|
|
|
78.8
|
%
|
Food and beverage
|
|
|
41,040
|
|
|
|
23,633
|
|
|
|
73.7
|
%
|
Convention, retail and other
|
|
|
44,967
|
|
|
|
17,431
|
|
|
|
158.0
|
%
|
Provision for doubtful accounts
|
|
|
8,132
|
|
|
|
15,516
|
|
|
|
(47.6
|
)%
|
General and administrative
|
|
|
142,953
|
|
|
|
57,971
|
|
|
|
146.6
|
%
|
Corporate expense
|
|
|
25,537
|
|
|
|
18,519
|
|
|
|
37.9
|
%
|
Rental expense
|
|
|
9,064
|
|
|
|
6,708
|
|
|
|
35.1
|
%
|
Pre-opening expense
|
|
|
26,590
|
|
|
|
22,457
|
|
|
|
18.4
|
%
|
Development expense
|
|
|
5,892
|
|
|
|
2,346
|
|
|
|
151.2
|
%
|
Depreciation and amortization
|
|
|
113,413
|
|
|
|
31,232
|
|
|
|
263.1
|
%
|
Loss on disposal of assets
|
|
|
5,121
|
|
|
|
178
|
|
|
|
2,777.0
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
$
|
982,458
|
|
|
$
|
497,212
|
|
|
|
97.6
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating expenses were $982.5 million for the three months
ended March 31, 2008, an increase of $485.2 million as
compared to $497.2 million for the three months ended
March 31, 2007. The increase in operating expenses was
primarily attributable to the higher operating revenues as we
opened The Venetian Macao and The Palazzo, growth of our
operating businesses in Las Vegas, and depreciation and
amortization costs, as more fully described below.
Casino expenses for the three months ended March 31, 2008,
increased $240.8 million as compared to the three months
ended March 31, 2007. Of the increase, $184.8 million
was due to the 39.0% gross win tax on casino revenues of The
Venetian Macao offset by a decrease in gross win tax at the
Sands Macao of $38.6 million due to the decrease in casino
revenues as noted above. An additional $75.7 million in
casino-related expenses (exclusive of the aforementioned 39.0%
gross win tax) were attributable to The Venetian Macao,
primarily related to payroll-related expenses and commissions
paid under the Rolling Chip program. Casino expenses at our Las
Vegas Operating Properties increased $22.7 million
primarily due to the opening of The Palazzo, consisting
primarily of payroll-related expenses, gaming-related taxes and
an increase in costs of providing promotional allowances.
Rooms expense increased $17.8 million and food and beverage
expense increased $17.4 million, as compared to the three
months ended March 31, 2007. These increases were primarily
due to opening of The Venetian Macao and The Palazzo and the
associated increases in the related revenue categories described
above.
Convention, retail and other expense increased
$27.5 million, as compared to the three months ended
March 31, 2007, of which $22.4 million was
attributable to The Venetian Macao.
The provision for doubtful accounts was $8.1 million for
the three months ended March 31, 2008, compared to
$15.5 million for the three months ended March 31,
2007. The amount of this provision can vary over short periods
36
of time because of factors specific to the customers who owe us
money from gaming activities at any given time. We believe that
the amount of our provision for doubtful accounts in the future
will depend upon the state of the economy, our credit standards,
our risk assessments and the judgment of our employees
responsible for granting credit.
General and administrative expenses for the three months ended
March 31, 2008, increased $85.0 million as compared to
the three months ended March 31, 2007. The increase was
attributable to the growth of our operating businesses in Las
Vegas and Macao, with $51.9 million of the increase being
incurred at The Venetian Macao and $22.7 million being
incurred at our Las Vegas Operating Properties.
Corporate expense for the three months ended March 31,
2008, increased $7.0 million as compared to the three
months ended March 31, 2007. The increase was attributable
to increases of $4.5 million in payroll-related expenses,
$1.3 million in travel-related expenses and
$1.2 million of other corporate general and administrative
costs as we continue to build our corporate infrastructure to
support our current and planned growth.
Pre-opening and development expenses were $26.6 million and
$5.9 million, respectively, for the three months ended
March 31, 2008, as compared to $22.5 million and
$2.3 million, respectively, for the three months ended
March 31, 2007. Pre-opening expense represents personnel
and other costs incurred prior to the opening of new ventures,
which are expensed as incurred. Pre-opening expenses for the
three months ended March 31, 2008, were primarily related
to activities at our other Cotai Strip properties, Marina Bay
Sands, Sands Bethworks, The Palazzo and our joint venture
restaurants. Development expenses include the costs associated
with the Companys evaluation and pursuit of new business
opportunities, which are also expensed as incurred. Development
expenses for the three months ended March 31, 2008, were
primarily related to our activities in Hengqin Island, Asia,
Europe and the U.S.
Depreciation and amortization expense for the three months ended
March 31, 2008, increased $82.2 million as compared to
the three months ended March 31, 2007. The increase was
primarily the result of the opening of The Venetian Macao
(totaling $45.6 million) and The Palazzo (totaling
$27.9 million).
Adjusted
EBITDAR
Adjusted EBITDAR is used by management as the primary measure of
the operating performance of our segments. Adjusted EBITDAR is
net income (loss) before interest, income taxes, depreciation
and amortization, pre-opening expense, development expense,
other income (expense), loss on early retirement of debt, loss
on disposal of assets, rental expense, corporate expense and
stock-based compensation expense included in general and
administrative expense. The following table summarizes
information related to our segments (see
Item 1 Financial Statements
Notes to Condensed Consolidated Financial Statements
Note 11 Segment Information for
discussion of our operating segments and a reconciliation of
adjusted EBITDAR to net income (loss)):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
|
|
|
|
|
|
Percent
|
|
|
|
2008
|
|
|
2007
|
|
|
Change
|
|
|
|
(In thousands, except for percentages)
|
|
|
Las Vegas Operating Properties
|
|
$
|
122,561
|
|
|
$
|
112,102
|
|
|
|
9.3
|
%
|
Macao:
|
|
|
|
|
|
|
|
|
|
|
|
|
Sands Macao
|
|
|
65,618
|
|
|
|
102,296
|
|
|
|
(35.9
|
)%
|
The Venetian Macao
|
|
|
110,335
|
|
|
|
|
|
|
|
|
%
|
Other Asia
|
|
|
(10,262
|
)
|
|
|
|
|
|
|
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total adjusted EBITDAR
|
|
$
|
288,252
|
|
|
$
|
214,398
|
|
|
|
34.4
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted EBITDAR at our Las Vegas Operating Properties increased
$10.5 million, or 9.3%, as compared to the three months
ended March 31, 2007, due primarily to the opening of The
Palazzo in December 2007. This increase was primarily
attributable to a net revenue increase of $73.7 million,
offset by an increase of $35.3 million in payroll-related
expenses, increases in operating expenses associated with the
increase in the related revenue categories and an increase in
general and administrative expenses to support the growth of the
Las Vegas Operating Properties.
37
Adjusted EBITDAR at Sands Macao decreased $36.7 million, or
35.9%, as compared to the three months ended March 31,
2007. As previously described, the decrease was primarily
attributable to the decrease in casino revenues of
$81.7 million, offset by an increase in room revenues of
$5.0 million and a $38.6 million decrease in gross win
tax on reduced casino revenues.
Adjusted EBITDAR at The Venetian Macao and our Other Asia
segments do not have comparable prior-year periods. Results of
the operations of The Venetian Macao are as previously
described. Our Other Asia segment is composed primarily of our
passenger ferry service between Macao and Hong Kong. Operations
have been negatively impacted as we are waiting on approval for
night sailing and additional berthing slots from the Hong Kong
Transportation Bureau to accommodate more frequent service.
Interest
Expense
The following table summarizes information related to interest
expense on long-term debt:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
|
(In thousands, except for percentages)
|
|
|
Interest cost (which includes the amortization of deferred
financing costs and original issue discount)
|
|
$
|
145,283
|
|
|
$
|
81,432
|
|
Less capitalized interest
|
|
|
(30,583
|
)
|
|
|
(46,820
|
)
|
|
|
|
|
|
|
|
|
|
Interest expense, net
|
|
$
|
114,700
|
|
|
$
|
34,612
|
|
|
|
|
|
|
|
|
|
|
Cash paid for interest
|
|
$
|
131,907
|
|
|
$
|
80,416
|
|
Average total debt balance
|
|
$
|
8,080,723
|
|
|
$
|
4,179,138
|
|
Weighted average interest rate
|
|
|
7.2
|
%
|
|
|
7.8
|
%
|
Interest cost increased $63.9 million as compared to the
three months ended March 31, 2007, resulting from the
substantial increase in our average long-term debt balances, the
proceeds from which were primarily used to fund our various
development projects. See Liquidity and
Capital Resources for further detail of our financing
activities. The increase in interest cost was offset by the
capitalization of $30.6 million of interest during the
three months ended March 31, 2008, as compared to
$46.8 million of capitalized interest during the three
months ended March 31, 2007. The decrease in capitalized
interest is due primarily to the opening of The Venetian Macao
and The Palazzo in 2007. We expect our interest cost will
continue to increase as our long-term debt balances increase.
Leasehold interest in land payments made in Macao and Singapore
are not considered qualifying assets and as such, are not
included in the base amount used to determine capitalized
interest.
Other
Factors Effecting Earnings
Interest income for the three months ended March 31, 2008,
was $5.5 million, a decrease of $7.2 million as
compared to $12.7 million for the three months ended
March 31, 2007. The decrease was attributable to a
reduction in invested cash balances, primarily from our
borrowings under the U.S. senior secured credit facility
and the Macao credit facility, which was spent on
construction-related activities.
Other income for the three months ended March 31, 2008, was
$8.1 million as compared to other expense of
$7.0 million for the three months ended March 31,
2007. The income and expense were primarily attributable to
foreign exchange gains/losses associated with
U.S. denominated debt held in Macao.
Our reported income tax rate for the three months ended
March 31, 2008, was 31.2% as compared to 10.9% for the
three months ended March 31, 2007. The reported income tax
rate for the three months ended March 31, 2008, was higher
than the three months ended March 31, 2007, due to no tax
benefit being recorded or recognized on certain losses in some
foreign jurisdictions and our geographic income mix, offset by a
zero effective tax rate on our Macao net income as a result of
an income tax exemption in Macao on gaming operations, which is
set to expire at the end of 2008. Based on the application of
Macanese law to other gaming operators, we believe the income
tax exemption will be extended for an additional five-year term.
38
Liquidity
and Capital Resources
Cash
Flows Summary
Our cash flows consisted of the following:
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended March 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
|
(In thousands)
|
|
|
Net cash provided by operations
|
|
$
|
72,435
|
|
|
$
|
51,351
|
|
|
|
|
|
|
|
|
|
|
Investing cash flows:
|
|
|
|
|
|
|
|
|
Capital expenditures
|
|
|
(943,541
|
)
|
|
|
(764,964
|
)
|
Change in restricted cash
|
|
|
(27,115
|
)
|
|
|
398,571
|
|
|
|
|
|
|
|
|
|
|
Net cash used in investing activities
|
|
|
(970,656
|
)
|
|
|
(366,393
|
)
|
|
|
|
|
|
|
|
|
|
Financing cash flows:
|
|
|
|
|
|
|
|
|
Proceeds from long term-debt
|
|
|
2,105,196
|
|
|
|
370,859
|
|
Repayments of long-term debt
|
|
|
(1,372,421
|
)
|
|
|
(100,140
|
)
|
Other
|
|
|
156,588
|
|
|
|
10,992
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by financing activities
|
|
|
889,363
|
|
|
|
281,711
|
|
|
|
|
|
|
|
|
|
|
Effect of exchange rate on cash
|
|
|
7,070
|
|
|
|
4,790
|
|
|
|
|
|
|
|
|
|
|
Net decrease in cash and cash equivalents
|
|
$
|
(1,788
|
)
|
|
$
|
(28,541
|
)
|
|
|
|
|
|
|
|
|
|
Cash
Flows Operating Activities
Table games play at our Las Vegas properties is conducted on a
cash and credit basis while table games play at our Macao
properties is conducted primarily on a cash basis. Slot machine
play is primarily conducted on a cash basis. The retail hotel
rooms business is generally conducted on a cash basis, the group
hotel rooms business is conducted on a cash and credit basis,
and banquet business is conducted primarily on a credit basis
resulting in operating cash flows being generally affected by
changes in operating income and accounts receivable. Net cash
provided by operating activities for the three months ended
March 31, 2008, was $72.4 million, an increase of
$21.0 million as compared with $51.4 million for the
three months ended March 31, 2007. The primary factors
contributing to the net increase in cash flow provided by
operating activities were the $105.9 million land
concession payment made for our Cotai Strip parcels 1, 2 and 3
made during the three months ended March 31, 2007, and the
$41.8 million in deferred rent related to the sale of The
Shoppes at The Palazzo received during the three months ended
March 31, 2008. This increase was offset by a significant
increase in our accounts receivable (due to the gaming activity
at our Las Vegas Operations and an increase in our lending
activities at our Macao properties) and a decrease in operating
income (as previously described) during the three months ended
March 31, 2008, as compared to the three months ended
March 31, 2007.
Cash
Flows Investing Activities
Capital expenditures for the three months ended March 31,
2008, totaled $943.5 million, including $448.6 million
for construction and development activities in Macao (including
the Sands Macao, The Venetian Macao and our other Cotai Strip
developments); $223.1 million for construction and
development activities at our Las Vegas Operating Properties;
$173.3 million for construction and development activities
in Singapore; and $65.7 million for corporate and other
activities, primarily for the construction of Sands Bethworks
and the Las Vegas condominium tower.
Restricted cash increased $27.1 million due primarily to an
increase in restricted cash in Macao as we made
construction-related draws on our Macao credit facility.
39
Cash
Flows Financing Activities
For the three months ended March 31, 2008, net cash flows
provided from financing activities were $889.4 million. The
net increase was primarily attributable to the net borrowings of
$442.5 million under the new U.S. senior secured
credit facility and $61.1 million under the Singapore
facilities, and $240.1 million in proceeds received from
the sale of The Shoppes at The Palazzo. Refer to
Item 1 Financial Statements
Notes to Condensed Consolidated Financial Statements
Note 7 Mall Sale.
Capital
and Liquidity
As previously described, we have a number of significant
development projects underway in the United States, Macao and
Singapore for which we currently expect construction to continue
through 2011. In the United States, the estimated costs to build
the Las Vegas condominium tower and the Sands Bethworks project
are each approximately $600.0 million, of which we have
capitalized approximately $111.6 million and
$117.9 million, respectively, as of March 31, 2008. In
Macao, the estimated cost to build our Cotai Strip developments
(including The Venetian Macao) is approximately
$12.0 billion, of which we have capitalized approximately
$3.37 billion as of March 31, 2008. In Singapore,
although construction has started on the Marina Bay Sands, we
are continuing to work with the Singapore government to finalize
various design aspects of the integrated resort and are in the
process of finalizing our cost estimates for the project. We
expect that the cost to build the Marina Bay Sands will be in
excess of $4.5 billion (inclusive of payments made in 2006
for the land premium, taxes and other fees) of which we have
incurred approximately $1.64 billion as of March 31,
2008.
We have principally funded our global development projects
through borrowings under the bank credit facilities of our
operating subsidiaries, operating cash flows and proceeds from
the disposition of non-core assets. In 2007, we began to execute
our financing strategy to secure additional borrowing capacity
to fund our existing and future development projects and
operations in Asia, including Macao and Singapore, and the
United States.
In April 2007, we increased the size of our Macao credit
facility to fund our Macao development projects from
$2.5 billion to $3.3 billion and received approval by
our lenders for a reduction of the interest rate margin for all
classes of loans by 50 basis points, thereby reducing our
overall interest expense under the Macao credit facility. As of
March 31, 2008, we had approximately $373.7 million
available for borrowing under the revolving facility of the
Macao credit facility. In the short term, cash balances at our
Macao subsidiaries, operating cash flows from Sands Macao and
The Venetian Macao and borrowing capacity under the Macao credit
facility, together with funds made available under our
U.S. senior secured credit facility, are being used to fund
current development and construction activities for the
remaining Cotai Strip developments. We will need to arrange
additional financing in the near term to continue to fund these
activities and are currently exploring our options with respect
to refinancing the Macao credit facility, the proceeds of which
would be used to refinance the amount currently outstanding
under the Macao credit facility and provide incremental
borrowings to continue funding our Cotai Strip development
projects. We expect to complete this refinancing in 2008.
In May 2007, we entered into a $5.0 billion senior secured
credit facility in the U.S. A portion of the proceeds of this
facility was used to refinance the indebtedness collateralized
by our Las Vegas integrated resort, including The Venetian Las
Vegas, The Palazzo, The Shoppes at The Palazzo and Sands Expo
Center, and to fund the design, development and construction
costs incurred in connection with the completion of The Palazzo,
The Shoppes at The Palazzo and the Las Vegas condominiums. As of
March 31, 2008, we had approximately $1.55 billion of
available borrowing capacity under the senior secured credit
facility. The senior secured credit facility permits us to make
investments in certain of our subsidiaries and certain joint
ventures not party to the senior secured credit facility,
including our foreign subsidiaries and our other development
projects outside of Las Vegas, in an amount not to exceed
$2.1 billion, and also permits us to invest in our Sands
Bethworks project so long as no more than 30% of any such
investment is in the form of an equity contribution to the
project, with the balance to be in the form of a secured
intercompany loan. As of March 31, 2008, we have used
approximately $997.0 million of the permitted
$2.1 billion to fund a portion of our required equity
contribution to the Marina Bay Sands project and investments
with respect to our other Asian development projects, including
in Macao.
In December 2007, we entered into a 5.44 billion Singapore
dollar (SGD) credit facility (approximately
$3.94 billion at exchange rates in effect on March 31,
2008) to fund development and construction costs and
40
expenses at the Marina Bay Sands, which closed and funded in
January 2008. A portion of the proceeds of this facility,
together with a portion of our initial SGD 800.0 million
(approximately $579.2 million at exchange rates in effect
on March 31, 2008) equity contribution, were used to
repay outstanding borrowings of $1.32 billion under our
Singapore bridge facility. As of March 31, 2008, we had
SGD 3.25 billion (approximately $2.35 billion at
exchange rates in effect on March 31, 2008) available for
borrowing under the Singapore credit facility. The remaining
funds available for borrowing under the Singapore credit
facility will be used to fund a significant portion of the
design, development and construction costs of the Marina Bay
Sands project. Under the terms of the Singapore credit facility,
we are obligated to fund at least 20% of the total costs and
expenses incurred in connection with the design, development and
construction of the Marina Bay Sands project with equity
contributions or subordinated intercompany loans, with the
remaining 80% funded with debt, including debt under the
Singapore credit facility. We have funded our current equity
contribution requirement through borrowings under our
U.S. senior secured credit facility and operating cash
flows generated from our Las Vegas operations.
We held unrestricted and restricted cash and cash equivalents of
approximately $855.4 million and $454.4 million,
respectively, as of March 31, 2008. We believe that our
existing cash balances, operating cash flows from The Venetian
Las Vegas and The Palazzo, future proceeds from the sale of The
Shoppes at The Palazzo to GGP and the initial deposit proceeds
from anticipated sales of our Las Vegas condominium units, which
we expect to commence in the second half of 2008, together with
our available borrowing capacity under the U.S. senior
secured credit facility, will be sufficient to fund the
estimated development and construction costs for the Las Vegas
condominiums and the Sands Bethworks projects during 2008. In
addition, we believe that these funds will also enable us to
fund our equity contribution requirement for the Marina Bay
Sands project and provide additional capital to our Macao
subsidiaries to fund a portion of our Cotai Strip development
projects during this same time period.
In the near term, we will continue to borrow significant amounts
under our existing and potential future bank credit facilities
as we fund our global construction and development projects. In
connection with such borrowing needs, we regularly evaluate
conditions in the global credit markets. However, we may not be
able to obtain additional borrowings when necessary or on terms
acceptable to us. If we are not able to obtain the requisite
financing or the terms are not as favorable as we anticipate, we
may be required to slow or suspend our global development
activities, including our Cotai Strip development, until such
financing or other sources of funds become available.
Aggregate
Indebtedness and Other Known Contractual Obligations
As of March 31, 2008, there had been no material changes to
our aggregated indebtedness and other known contractual
obligations, which are set forth in the table included in our
Annual Report on
Form 10-K
for the year ended December 31, 2007, with the exception of
the following changes:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments Due by Period Ending March 31, 2008(8)
|
|
|
|
Less than
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1 Year
|
|
|
1-3 Years
|
|
|
3-5 Years
|
|
|
Thereafter
|
|
|
Total
|
|
|
|
(In thousands)
|
|
|
Singapore bridge facility(1)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
(691,229
|
)
|
|
$
|
(632,530
|
)
|
|
$
|
(1,323,759
|
)
|
Singapore permanent facility(2)
|
|
|
|
|
|
|
90,494
|
|
|
|
723,956
|
|
|
|
633,461
|
|
|
|
1,447,911
|
|
New senior secured credit facility-revolver(3)
|
|
|
|
|
|
|
|
|
|
|
450,000
|
|
|
|
|
|
|
|
450,000
|
|
Macao credit facility(4)
|
|
|
|
|
|
|
|
|
|
|
75,300
|
|
|
|
|
|
|
|
75,300
|
|
Ferry financing(5)
|
|
|
|
|
|
|
30,319
|
|
|
|
34,650
|
|
|
|
82,293
|
|
|
|
147,262
|
|
Variable interest payments(6)
|
|
|
15,686
|
|
|
|
30,456
|
|
|
|
4,158
|
|
|
|
(5,583
|
)
|
|
|
44,717
|
|
Ferries purchase commitment(7)
|
|
|
61,323
|
|
|
|
1,803
|
|
|
|
|
|
|
|
|
|
|
|
63,126
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
77,009
|
|
|
$
|
153,072
|
|
|
$
|
596,835
|
|
|
$
|
77,641
|
|
|
$
|
904,557
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Amount represents the payment of $1.32 billion during 2008.
|
|
(2)
|
|
Amount represents the fully drawn Singapore Permanent Facility
A. The Singapore Permanent Facility A matures on March 31,
2015, with MBS required to repay or prepay the Singapore
Permanent A Facility under
|
41
|
|
|
|
|
certain circumstances. Commencing March 31, 2011, and at
the end of each quarter thereafter, MBS is required to repay the
outstanding Singapore Permanent Facility A on a pro rata basis
with any amounts outstanding under the Singapore Permanent
Facility B at such time in an aggregate amount equal to SGD
125.0 million (approximately $90.5 million at exchange
rates in effect on March 31, 2008) per quarter. In
addition, commencing at the end of the third full quarter of
operations of the Marina Bay Sands, MBS is required to further
prepay the outstanding Singapore Permanent Facility A on a pro
rata basis with any amounts outstanding under the Singapore
Permanent Facility B at such time with a percentage of excess
free cash flow (as defined by the Singapore Permanent Facility
Agreement).
|
|
(3)
|
|
Amount represents the additional $450.0 million borrowed
during 2008 under the Revolving Facility of the New Senior
Secured Credit Facility. The Revolving Facility matures on
May 23, 2012, and has no interim amortization.
|
|
(4)
|
|
Amount represents the additional $75.3 million borrowed
during 2008 under the Term B Delayed Draw Facility. The Macao
Term B Delayed Draw Facility matures on May 25, 2012, and
is subject to nominal amortization for the first five years with
the remainder of the loan payable in four equal installments in
the last year immediately preceding its maturity date.
|
|
(5)
|
|
Amount represents the ferry financing borrowed during 2008,
which matures in January 2018.
|
|
(6)
|
|
Amount represents the incremental increase (decrease) in
estimated variable interest payments based on the changes in
long-term debt obligations noted above. Based on March 31,
2008, London Interbank Offer Rate (LIBOR), Hong Kong
Interbank Offer Rate (HIBOR) and Singapore SWAP
Offer Rate of 2.7%, 2.0% and 1.4%, respectively, plus the
applicable interest rate margin in accordance with the
respective debt agreements.
|
|
(7)
|
|
In January 2008, we entered into agreements to purchase an
additional four ferries at an aggregate cost of approximately
$72.0 million to be built for our Macao operations.
|
|
(8)
|
|
As of March 31, 2008, we had an $18.3 million
liability related to unrecognized tax benefits and related
interest expense. We are unable to reasonably estimate the
timing of the Financial Accounting Standards Board
Interpretation No. 48, Accounting for Uncertainty in
Income Taxes an interpretation of FASB Statement
No. 109, liability and interest payments in
individual years beyond 12 months due to uncertainties in
the timing of the effective settlement of tax positions.
|
Restrictions
on Distributions
We are a parent company with limited business operations. Our
main assets are the stock and membership interests of our
subsidiaries. The debt instruments of our U.S., Macao and
Singapore subsidiaries contain certain restrictions that, among
other things, limit the ability of certain subsidiaries to incur
additional indebtedness, issue disqualified stock or equity
interests, pay dividends or make other distributions, repurchase
equity interests or certain indebtedness, create certain liens,
enter into certain transactions with affiliates, enter into
certain mergers or consolidations or sell our assets of our
company without prior approval of the lenders or noteholders.
Inflation
We believe that inflation and changing prices have not had a
material impact on our net sales, revenues or income from
continuing operations during the past year.
Special
Note Regarding Forward-Looking Statements
This report contains forward-looking statements that are made
pursuant to the Safe Harbor Provisions of the Private Securities
Litigation Reform Act of 1995. These forward-looking statements
include the discussions of our business strategies and
expectations concerning future operations, margins,
profitability, liquidity, and capital resources. In addition, in
certain portions included in this report, the words:
anticipates, believes,
estimates, seeks, expects,
plans, intends and similar expressions,
as they relate to our company or its management, are intended to
identify forward-looking statements. Although we believe that
these forward-looking statements are reasonable, we cannot
assure you that any forward-looking statements will prove to be
correct. These forward-looking statements involve known and
unknown risks, uncertainties and other factors, which may cause
our actual results, performance or achievements to be materially
different from any future results, performance or
42
achievements expressed or implied by these forward-looking
statements. These factors include, among others, the risks
associated with:
|
|
|
|
|
general economic and business conditions which may impact levels
of disposable income, consumer spending and pricing of hotel
rooms;
|
|
|
|
the uncertainty of tourist behavior related to spending and
vacationing at casino-resorts in Las Vegas, Macao and Singapore;
|
|
|
|
disruptions or reductions in travel due to conflicts in Iraq and
any future terrorist incidents;
|
|
|
|
outbreaks of infectious diseases, such as severe acute
respiratory syndrome or avian flu, in our market areas;
|
|
|
|
our dependence upon properties in Las Vegas and Macao for all of
our cash flow;
|
|
|
|
new developments, construction and ventures, including The
Venetian Macao and other Cotai Strip developments, Marina Bay
Sands, Sands Bethworks and the Las Vegas condominiums;
|
|
|
|
our ability to obtain sufficient funding for our current and
future developments, including our Cotai Strip developments;
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|
|
the passage of new legislation and receipt of governmental
approvals for our proposed developments in Macao, Singapore and
other jurisdictions where we are planning to operate;
|
|
|
|
our substantial leverage and debt service (including sensitivity
to fluctuations in interest rates and other capital markets
trends);
|
|
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|
our insurance coverage, including the risk that we have not
obtained sufficient coverage against acts of terrorism or will
only be able to obtain additional coverage at significantly
increased rates;
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|
government regulation of the casino industry, including gaming
license regulation, the legalization of gaming in certain
domestic jurisdictions, including Native American reservations,
and regulation of gaming on the Internet;
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|
increased competition and additional construction in Las Vegas,
including recent and upcoming increases in hotel rooms, meeting
and convention space and retail space;
|
|
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|
fluctuations in the demand for all-suites rooms, occupancy rates
and average daily room rates in Las Vegas;
|
|
|
|
the popularity of Las Vegas and Macao as convention and trade
show destinations;
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|
new taxes or changes to existing tax rates;
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|
our ability to meet certain development deadlines in Macao and
Singapore;
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|
our ability to maintain our gaming subconcession in Macao;
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|
|
the completion of infrastructure projects in Macao and Singapore;
|
|
|
|
increased competition and other planned construction projects in
Macao and Singapore; and
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|
any future litigation.
|
All future written and verbal forward-looking statements
attributable to us or any person acting on our behalf are
expressly qualified in their entirety by the cautionary
statements contained or referred to in this section. New risks
and uncertainties arise from time to time, and it is impossible
for us to predict these events or how they may affect us.
Readers are cautioned not to place undue reliance on these
forward-looking statements. We assume no obligation to update
any forward-looking statements after the date of this report as
a result of new information, future events or developments,
except as required by federal securities laws.
|
|
ITEM 3
|
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
|
Market risk is the risk of loss arising from adverse changes in
market rates and prices, such as interest rates, foreign
currency exchange rates and commodity prices. Our primary
exposure to market risk is interest rate risk
43
associated with our long-term debt. We attempt to manage our
interest rate risk by managing the mix of our long-term
fixed-rate borrowings and variable-rate borrowings, and by use
of interest rate cap agreements. The ability to enter into
interest rate cap agreements allows us to manage our interest
rate risk associated with our variable-rate debt. We do not hold
or issue financial instruments for trading purposes and do not
enter into derivative transactions that would be considered
speculative positions. Our derivative financial instruments
consist exclusively of interest rate cap agreements, which do
not qualify for hedge accounting. Interest differentials
resulting from these agreements are recorded on an accrual basis
as an adjustment to interest expense.
To manage exposure to counterparty credit risk in interest rate
cap agreements, we enter into agreements with highly-rated
institutions that can be expected to fully perform under the
terms of such agreements. Frequently, these institutions are
also members of the bank group providing our credit facilities,
which management believes further minimizes the risk of
nonperformance.
The table below provides information about our financial
instruments that are sensitive to changes in interest rates. For
debt obligations, the table presents notional amounts and
weighted average interest rates by contractual maturity dates.
Notional amounts are used to calculate the contractual payments
to be exchanged under the contract. Weighted average variable
rates are based on March 31, 2008, LIBOR, HIBOR and
Singapore SWAP Offer Rate plus the applicable interest rate
spread in accordance with the respective debt agreements. The
information is presented in U.S. dollar equivalents, which
is the Companys reporting currency, for the years ending
March 31:
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|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair
|
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|
2013
|
|
|
Thereafter
|
|
|
Total
|
|
|
Value(1)
|
|
|
|
(In millions, except for percentages)
|
|
|
LIABILITIES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed rate
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
250.0
|
|
|
$
|
250.0
|
|
|
$
|
220.6
|
|
Average interest rate(2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6.4
|
%
|
|
|
6.4
|
%
|
|
|
8.7
|
%
|
Variable rate
|
|
$
|
78.3
|
|
|
$
|
110.7
|
|
|
$
|
231.9
|
|
|
$
|
1,315.7
|
|
|
$
|
2,337.1
|
|
|
$
|
4,046.5
|
|
|
$
|
8,120.2
|
|
|
$
|
8,120.2
|
|
Average interest rate(2)
|
|
|
3.7
|
%
|
|
|
4.0
|
%
|
|
|
3.8
|
%
|
|
|
4.5
|
%
|
|
|
3.7
|
%
|
|
|
4.0
|
%
|
|
|
4.0
|
%
|
|
|
4.0
|
%
|
ASSETS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cap Agreements(3)
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
|
|
(1)
|
|
The fair values are based on the borrowing rates currently
available for debt instruments with similar terms and maturities
and market quotes of our publicly traded debt.
|
|
(2)
|
|
Based upon contractual interest rates for fixed rate
indebtedness or current LIBOR, HIBOR and Singapore SWAP Offer
Rate for variable-rate indebtedness. Based on variable-rate debt
levels as of March 31, 2008, an assumed 100 basis
point change in LIBOR, HIBOR and Singapore SWAP Offer Rate would
cause our annual interest cost to change approximately
$81.5 million.
|
|
(3)
|
|
As of March 31, 2008, we have five interest rate cap
agreements with an aggregate fair value of approximately $4,000,
which mature during the year ending March 31, 2010, based
on quoted market values from the institutions holding the
agreements.
|
Borrowings under the $5.0 billion senior secured credit
facility bear interest at our election, at either an adjusted
Eurodollar rate or at an alternative base rate plus a credit
spread. The revolving facility and term loans bear interest at
the alternative base rate plus 0.5% or 0.75% per annum,
respectively, or at the adjusted Eurodollar rate plus 1.5% per
annum or 1.75% per annum, respectively, subject to downward
adjustments based upon our credit rating. Borrowings under the
Macao credit facility bear interest at our election, at either
an adjusted Eurodollar rate (or in the case of the Local Term
Loan, adjusted HIBOR) plus 2.25% per annum or at an alternative
base rate plus 1.25% per annum, and is subject to a downward
adjustment of 0.25% per annum from the beginning of the first
interest period following the substantial completion of The
Venetian Macao. Borrowings under the Singapore permanent
facilities bear interest at the Singapore SWAP Offer Rate plus a
spread of 2.25% per annum. $69.1 million and
$19.4 million of the borrowings under the airplane
financings bear interest at LIBOR plus
44
1.5% and 1.25% per annum, respectively. Borrowings under the
ferry financing bear interest at HIBOR plus 2.0% if borrowings
are made in Hong Kong Dollars or LIBOR plus 2.0% if borrowings
are made in U.S. Dollars. All current borrowings under the
Ferry Financing were made in Hong Kong Dollars.
Foreign currency transaction gains for the three months ended
March 31, 2008, were $8.3 million primarily due to
U.S. denominated debt held in Macao. We may be vulnerable
to changes in the U.S. dollar/pataca exchange rate. Based
on balances as of March 31, 2008, an assumed 1% change in
the U.S. dollar/pataca exchange rate would cause a foreign
currency transaction gain/loss of approximately
$32.2 million. We do not hedge our exposure to foreign
currencies; however, we maintain a significant amount of our
operating funds in the same currencies in which we have
obligations thereby reducing our exposure to currency
fluctuations.
See also Liquidity and Capital Resources.
|
|
ITEM 4
|
CONTROLS
AND PROCEDURES
|
Evaluation
of Disclosure Controls and Procedures
Disclosure controls and procedures are designed to ensure that
information required to be disclosed in the reports that the
Company files or submits under the Securities Exchange Act of
1934 is recorded, processed, summarized, and reported within the
time periods specified in the Securities and Exchange
Commissions rules and forms and that such information is
accumulated and communicated to our management, including our
principal executive officer and principal financial officer, as
appropriate, to allow for timely decisions regarding required
disclosure. The Companys Chief Executive Officer and its
Chief Financial Officer have evaluated the disclosure controls
and procedures (as defined in the Securities Exchange Act of
1934
Rules 13a-15(e)
and
15d-15(e))
of the Company as of March 31, 2008, and have concluded
that they are effective to provide reasonable assurance that the
desired control objectives were achieved.
It should be noted that any system of controls, however well
designed and operated, can provide only reasonable, and not
absolute, assurance that the objectives of the system are met.
In addition, the design of any control system is based in part
upon certain assumptions about the likelihood of future events.
Because of these and other inherent limitations of control
systems, there can be no assurance that any design will succeed
in achieving its stated goals under all potential future
conditions, regardless of how remote.
Changes
in Internal Control over Financial Reporting
There were no changes in the Companys internal control
over financial reporting that occurred during the fiscal quarter
covered by this Quarterly Report on
Form 10-Q
that have materially affected, or are reasonably likely to
materially affect, the Companys internal control over
financial reporting.
Part II
OTHER INFORMATION
|
|
ITEM 1
|
LEGAL
PROCEEDINGS
|
The Company is party to litigation matters and claims related to
its operations. For more information, see the Companys
Annual Report on
Form 10-K
for the year ended December 31, 2007, and
Part I Item 1 Financial
Statements Notes to Condensed Consolidated Financial
Statements Note 10 Commitments and
Contingencies of this Quarterly Report on
Form 10-Q.
There have been no material changes from the risk factors
previously disclosed in the Companys Annual Report on
Form 10-K
for the year ended December 31, 2007.
|
|
ITEM 1B
|
UNRESOLVED
STAFF COMMENTS
|
The Company has received a comment letter from the Staff dated
April 28, 2008, in regards to the Staffs review of
the Companys Annual Report on
Form 10-K
for the year ended December 31, 2007.
45
LAS VEGAS
SANDS CORP.
List of
Exhibits
|
|
|
|
|
Exhibit No.
|
|
Description of Document
|
|
|
10
|
.1
|
|
Fourth Amended and Restated Reciprocal Easement, Use and
Operating Agreement, dated as of February 29, 2008, among
Interface Group Nevada, Inc., Grand Canal Shops II,
LLC, Phase II Mall Subsidiary, LLC, Venetian Casino Resort,
LLC, and Palazzo Condo Tower LLC.
|
|
10
|
.2
|
|
Second Amendment, dated as of January 31, 2008, to
Agreement, dated as of April 12, 2004 and amended as of
September 30, 2004, by and among Venetian Casino Resort,
LLC, as
successor-by-merger
to Lido Casino Resort, LLC, Phase II Mall Holding, LLC, ,
as
successor-in-interest
to Lido Casino Resort, LLC, and GGP Limited Partnership.
|
|
10
|
.3
|
|
Amendment, published on April 22, 2008, to Land Concession
Agreement by Lease, dated as of December 10, 2003, relating
to the Sands Macao between the Macau Special Administrative
Region and Venetian Macau Limited.
|
|
31
|
.1
|
|
Certification of the Chief Executive Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
31
|
.2
|
|
Certification of the Chief Financial Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
32
|
.1
|
|
Certification of Chief Executive Officer of Las Vegas Sands
Corp. pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
|
32
|
.2
|
|
Certification of Chief Financial Officer of Las Vegas Sands
Corp. pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
46
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this quarterly report on
Form 10-Q
to be signed on its behalf by the undersigned thereunto duly
authorized.
LAS VEGAS SANDS CORP.
|
|
|
|
By:
|
/s/ Sheldon
G. Adelson
|
Sheldon G. Adelson
Chairman of the Board and
Chief Executive Officer
May 9, 2008
Robert P. Rozek
Senior Vice President and
Chief Financial Officer
May 9, 2008
47
LAS VEGAS
SANDS CORP.
EXHIBIT INDEX
|
|
|
|
|
Exhibit No.
|
|
Description of Document
|
|
|
10
|
.1
|
|
Fourth Amended and Restated Reciprocal Easement, Use and
Operating Agreement, dated as of February 29, 2008, among
Interface Group Nevada, Inc., Grand Canal Shops II,
LLC, Phase II Mall Subsidiary, LLC, Venetian Casino Resort,
LLC, and Palazzo Condo Tower LLC.
|
|
10
|
.2
|
|
Second Amendment, dated as of January 31, 2008, to
Agreement, dated as of April 12, 2004 and amended as of
September 30, 2004, by and among Venetian Casino Resort,
LLC, as
successor-by-merger
to Lido Casino Resort, LLC, Phase II Mall Holding, LLC, as
successor-in-interest
to Lido Casino Resort, LLC, and GGP Limited Partnership.
|
|
10
|
.3
|
|
Amendment, published on April 22, 2008, to Land Concession
Agreement by Lease, dated as of December 10, 2003, relating
to the Sands Macao between the Macau Special Administrative
Region and Venetian Macau Limited.
|
|
31
|
.1
|
|
Certification of the Chief Executive Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
31
|
.2
|
|
Certification of the Chief Financial Officer pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002.
|
|
32
|
.1
|
|
Certification of Chief Executive Officer of Las Vegas Sands
Corp. pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
|
32
|
.2
|
|
Certification of Chief Financial Officer of Las Vegas Sands
Corp. pursuant to 18 U.S.C. Section 1350, as adopted
pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
Exhibit
10.1
ASSESSOR PARCEL NUMBERS:
162-16-213-001, 162-16-213-002, 162-16-213-003,
162-16-213-004,162-16-213-005, 162-16-213-006,
162-16-311-001, 162-16-311-002, 162-16-311-003,
162-16-311-004, 162-16-311-005, 162-16-311-006,
162-16-311-007, 162-16-301-011
Prepared By and Recorded At The
Request Of:
Paul, Weiss, Rifkind,
Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Harris B. Freidus, Esq.
When Recorded Return To:
Paul, Weiss, Rifkind,
Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Harris B. Freidus, Esq.
FOURTH AMENDED AND RESTATED RECIPROCAL
EASEMENT, USE AND OPERATING AGREEMENT
among
INTERFACE GROUP NEVADA, INC.,
GRAND CANAL SHOPS II, LLC,
PHASE II MALL SUBSIDIARY, LLC,
VENETIAN CASINO RESORT, LLC,
and
PALAZZO CONDO TOWER, LLC
Dated as of February 29, 2008
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
ARTICLE 1 CONSTRUCTION OF THE VENETIAN AND THE PALAZZO
|
|
|
9
|
|
|
|
|
|
|
Section 1.1 Third Party Warranties/Liquidated Damages
|
|
|
9
|
|
Section 1.2 Intentionally Omitted
|
|
|
10
|
|
Section 1.3 Phase I Encroachments
|
|
|
10
|
|
Section 1.4 Phase II Encroachments
|
|
|
10
|
|
|
|
|
|
|
ARTICLE 2 HVAC; ACCESS/UTILITY EASEMENTS; COMMON AREAS
|
|
|
12
|
|
|
|
|
|
|
Section 2.1 Central Utility Plants and Electric Substation
|
|
|
12
|
|
Section 2.2 HVAC
|
|
|
18
|
|
Section 2.3 Other Reciprocal Easements
|
|
|
29
|
|
Section 2.4 Common Areas; Access Rights to Effect Maintenance and Repair;
Parking Access; Emergency Access; Vertical and Lateral Support; Miscellaneous
|
|
|
37
|
|
|
|
|
|
|
ARTICLE 3 COVENANTS REGARDING SECC AND ADDITIONAL RETAIL SPACE
|
|
|
59
|
|
|
|
|
|
|
Section 3.1 SECC Operation
|
|
|
59
|
|
Section 3.2 Other Convention Centers
|
|
|
60
|
|
Section 3.3 Additional Retail Space
|
|
|
60
|
|
|
|
|
|
|
ARTICLE 4 OPERATION OF PHASE I HOTEL/CASINO AND PHASE I MALL; OPERATION OF PHASE II HOTEL/CASINO AND PHASE II MALL; TENANT NON-COMPETITION
|
|
|
61
|
|
|
|
|
|
|
Section 4.1 Operating Covenants of H/C I Owner and H/C II Owner
|
|
|
61
|
|
Section 4.2 Operating Covenants of Mall I Owner
|
|
|
64
|
|
Section 4.3 Operating Covenants of Mall II Owner
|
|
|
79
|
|
Section 4.4 Exterior Signs, Boards and Banners
|
|
|
93
|
|
|
|
|
|
|
ARTICLE 5 COVENANTS REGARDING PHASE I LAND OPERATIONS AND PHASE II LAND OPERATIONS
|
|
|
94
|
|
|
|
|
|
|
Section 5.1 Covenants Regarding Phase I Land Operations
|
|
|
94
|
|
Section 5.2 Covenants Regarding Phase II Land Operations
|
|
|
116
|
|
|
|
|
|
|
ARTICLE 6 TAXES
|
|
|
133
|
|
|
|
|
|
|
ARTICLE 7 PERMANENT PARKING
|
|
|
135
|
|
|
|
|
|
|
Section 7.1 Automobile Parking Areas
|
|
|
135
|
|
Section 7.2 Valet Parking
|
|
|
135
|
|
Section 7.3 Parking Spaces
|
|
|
136
|
|
Section 7.4 Employee Parking
|
|
|
137
|
|
Section 7.5 Capital Improvements/Maintenance
|
|
|
137
|
|
Section 7.6 Rights of Others to Use Parking Spaces
|
|
|
138
|
|
i
|
|
|
|
|
|
|
Page
|
|
Section 7.7 Parking Rules and Regulations
|
|
|
138
|
|
Section 7.8 Parking Fees; Maintenance Charges
|
|
|
139
|
|
|
|
|
|
|
ARTICLE 8 THE VENETIAN AND THE PALAZZO
|
|
|
140
|
|
|
|
|
|
|
Section 8.1 Predevelopment Agreement
|
|
|
140
|
|
Section 8.2 Mechanics Liens
|
|
|
140
|
|
|
|
|
|
|
ARTICLE 9 RESTRICTIVE COVENANTS
|
|
|
145
|
|
|
|
|
|
|
Section 9.1 Convention Center Non-Competition
|
|
|
145
|
|
Section 9.2 Tenant Non-Competition
|
|
|
145
|
|
Section 9.3 Savings
|
|
|
146
|
|
|
|
|
|
|
ARTICLE 10 INSURANCE
|
|
|
146
|
|
|
|
|
|
|
Section 10.1 Insurance to be Carried by the Owners
|
|
|
146
|
|
Section 10.2 General Conditions Covering Insurance
|
|
|
152
|
|
Section 10.3 Non-Shared Insurance Premiums, Limit and Deductible Sharing
and Loss Adjustment Process
|
|
|
162
|
|
Section 10.4 Shared Insurance Premiums, Limit and Deductible Sharing and
Loss Adjustment Process
|
|
|
163
|
|
Section 10.5 Insurance Requirements Review
|
|
|
169
|
|
Section 10.6 Insurance to Be Carried By Tenants
|
|
|
169
|
|
Section 10.7 Disputes
|
|
|
171
|
|
|
|
|
|
|
ARTICLE 11 DAMAGE OR DESTRUCTION BY FIRE OR OTHER CASUALTY
|
|
|
171
|
|
|
|
|
|
|
Section 11.1 Casualty
|
|
|
171
|
|
Section 11.2 Cost of Restoration; Uninsured Losses
|
|
|
175
|
|
Section 11.3 Default Under Mortgagees Loan Documents
|
|
|
176
|
|
|
|
|
|
|
ARTICLE 12 CONDEMNATION
|
|
|
176
|
|
|
|
|
|
|
Section 12.1 Taking of Mall I Space or Mall II Space
|
|
|
176
|
|
Section 12.2 Taking of H/C I Space or H/C II Space
|
|
|
177
|
|
Section 12.3 Taking of More than One Property
|
|
|
178
|
|
Section 12.4 Taking of SECC
|
|
|
179
|
|
Section 12.5 Division of Proceeds
|
|
|
179
|
|
Section 12.6 Temporary Use or Occupancy
|
|
|
180
|
|
Section 12.7 Disputes Between H/C I Owner and Mall I Owner or Between
H/C II Owner and Mall II Owner
|
|
|
181
|
|
Section 12.8 Rights of Trustee to Participate in Proceedings, Jointly
Settle or Compromise
|
|
|
181
|
|
Section 12.9 Mortgagee Consent to Release of Condemnation Award Proceeds
|
|
|
181
|
|
|
|
|
|
|
ARTICLE 13 COMPLIANCE WITH LAWS AND OTHER AGREEMENTS
|
|
|
182
|
|
|
|
|
|
|
Section 13.1 Legal Requirements
|
|
|
182
|
|
Section 13.2 Gaming Laws
|
|
|
184
|
|
ii
|
|
|
|
|
|
|
Page
|
|
Section 13.3 Other Agreements
|
|
|
185
|
|
|
|
|
|
|
ARTICLE 14 MISCELLANEOUS
|
|
|
185
|
|
|
|
|
|
|
Section 14.1 Rights and Obligations Run With the Land
|
|
|
185
|
|
Section 14.2 No Merger
|
|
|
186
|
|
Section 14.3 Transfers
|
|
|
186
|
|
Section 14.4 Identity of Mall I Owner and its Officers and Directors;
Identity of Mall II Owner and its Officers and Directors
|
|
|
210
|
|
Section 14.5 Mortgages
|
|
|
213
|
|
Section 14.6 Transferee Liability
|
|
|
214
|
|
Section 14.7 As-Built Survey
|
|
|
216
|
|
Section 14.8 Estoppel Certificates
|
|
|
216
|
|
Section 14.9 Indemnification
|
|
|
217
|
|
Section 14.10 Rights to Cure Default; Payment of Default and Lien
|
|
|
219
|
|
Section 14.11 Rights Perpetual
|
|
|
222
|
|
Section 14.12 Further Assurances
|
|
|
223
|
|
Section 14.13 Rights Irrevocable
|
|
|
223
|
|
Section 14.14 No Joint Venture
|
|
|
223
|
|
Section 14.15 Notices
|
|
|
224
|
|
Section 14.16 Disputes/Independent Expert
|
|
|
228
|
|
Section 14.17 Savings
|
|
|
230
|
|
Section 14.18 No Shared Ownership
|
|
|
230
|
|
Section 14.19 Headings
|
|
|
230
|
|
Section 14.20 Counterparts
|
|
|
230
|
|
Section 14.21 Right to Injunction and Other Remedies
|
|
|
230
|
|
Section 14.22 Waiver of Jury Trial
|
|
|
231
|
|
Section 14.23 No Waiver
|
|
|
232
|
|
Section 14.24 Pronouns
|
|
|
232
|
|
Section 14.25 Construction
|
|
|
232
|
|
Section 14.26 Governing Law
|
|
|
232
|
|
Section 14.27 Entire Agreement
|
|
|
232
|
|
Section 14.28 Recordation
|
|
|
232
|
|
Section 14.29 Successors and Assigns
|
|
|
233
|
|
Section 14.30 Binding and Enforceable Agreements; Independent Obligations
|
|
|
233
|
|
Section 14.31 Shared Costs
|
|
|
234
|
|
Section 14.32 No Duplication of Charges
|
|
|
234
|
|
Section 14.33 Section References
|
|
|
234
|
|
Section 14.34 Modifications Requested by Mortgagees
|
|
|
234
|
|
Section 14.35 Notice to Clark County Building Department
|
|
|
235
|
|
Section 14.36 Other Agreements
|
|
|
235
|
|
|
|
|
|
|
ARTICLE 15 ARBITRATION
|
|
|
236
|
|
|
|
|
|
|
Section 15.1 Disputes Covered
|
|
|
236
|
|
Section 15.2 Arbitration Procedures
|
|
|
236
|
|
iii
|
|
|
|
|
|
|
Page
|
|
ARTICLE 16 CONDOMINIUM
|
|
|
238
|
|
|
|
|
|
|
Section 16.1 Preliminary Matters
|
|
|
238
|
|
Section 16.2 Easement
|
|
|
239
|
|
Section 16.3 Electric Substation
|
|
|
240
|
|
Section 16.4 Other Agreements
|
|
|
240
|
|
|
|
|
|
|
Schedules
|
|
|
|
|
Schedule I
|
|
-
|
|
Definitions
|
Schedule II
|
|
-
|
|
Hotel/Casino/Mall/SECC Common Area Charges
|
Schedule III
|
|
-
|
|
Parking Rules and Regulations
|
Exhibits
|
|
|
|
|
Exhibit A-1
|
|
-
|
|
The Phase I Land
|
Exhibit A-2-1
|
|
-
|
|
Land Included in the Phase II Land
|
Exhibit A-2-2
|
|
-
|
|
Additional Land Included in the Phase II Land
|
Exhibit A-2-3
|
|
-
|
|
Land Excluded from the Phase II Land
|
Exhibit B
|
|
-
|
|
The SECC Land
|
Exhibit C
|
|
-
|
|
Phase IA Airspace
|
Exhibit D
|
|
-
|
|
The Mall I Airspace
|
Exhibit E
|
|
-
|
|
Retail Annex Land
|
Exhibit F
|
|
-
|
|
Mall II Airspace
|
Exhibit G
|
|
-
|
|
Walgreens Airspace
|
Exhibit H
|
|
-
|
|
Venetian Performers
|
Exhibit I-1
|
|
-
|
|
Venetian Logo
|
Exhibit I-2
|
|
-
|
|
Palazzo Logo
|
Exhibit J
|
|
-
|
|
HVAC Plant
|
Exhibit K
|
|
-
|
|
The HVAC Space
|
Exhibit L
|
|
-
|
|
Existing Utility Equipment
|
Exhibit M
|
|
-
|
|
H/C I Pass-through Areas, H/C-Mall I Common Areas, Mall I Pass-through Areas, SECC
Pass-through Areas, H/C I Limited Common Areas, Mall I Limited Common Areas, Mall I H/C
Exclusive Areas, H/C II Pass-through Areas, H/C-Mall II Common Areas, Mall II Pass-through
Areas, H/C II Limited Common Areas, Mall II Limited Common Areas, Mall II H/C Exclusive Areas
|
Exhibit N
|
|
-
|
|
Residential Portion
|
Exhibit O
|
|
-
|
|
SECC Insurance Obligations
|
Exhibit P
|
|
-
|
|
Contractor Safety Permit Process
|
Exhibit Q
|
|
-
|
|
Compliance with Other Agreements
|
Exhibit R-1
|
|
-
|
|
Venetian Logo Style Guide
|
Exhibit R-2
|
|
-
|
|
Phase II Mall Logo Style Guide
|
Exhibit S
|
|
-
|
|
Parking Access Easements
|
Exhibit T
|
|
-
|
|
Phase II Mall Restaurant Tenant Locations
|
Exhibit U-1
|
|
-
|
|
Grand Canal Shoppes Logo
|
Exhibit U-2
|
|
-
|
|
Phase II Mall Logo
|
Exhibit V
|
|
-
|
|
Predevelopment Agreement
|
Exhibit W
|
|
-
|
|
Phase I and Phase II Automobile Parking Areas
|
iv
|
|
|
|
|
Exhibit X
|
|
-
|
|
Directional Signage and Duratran Units
|
Exhibit Y
|
|
-
|
|
Certain Lease Provisions
|
Exhibit Z
|
|
-
|
|
Gaming Authority Lease Provision
|
v
FOURTH AMENDED AND RESTATED RECIPROCAL EASEMENT,
USE AND OPERATING AGREEMENT
This FOURTH AMENDED AND RESTATED RECIPROCAL EASEMENT, USE AND OPERATING AGREEMENT (as the same
may be amended from time to time in accordance with the provisions hereof, this
Agreement
) is dated as of this 29th day of February, 2008, by and among (i) VENETIAN
CASINO RESORT, LLC, a Nevada limited liability company having an address at 3355 Las Vegas
Boulevard South, Room 1C Las Vegas, Nevada 89109 (hereinafter referred to as
Phase I LLC
in its capacity as H/C I Owner (as hereinafter defined), as successor-in-interest to Las Vegas
Sands, LLC (formerly Las Vegas Sands, Inc.) (
LVSI
) in its capacity as the owner of the
Phase I Land (as hereinafter defined), and hereinafter referred to as
Phase II LLC
in its
capacity as H/C II Owner (as hereinafter defined), as successor-in-interest to Lido Casino
Resort, LLC (
Lido
) (successor-in-interest to Phase I LLC (successor-in-interest to LVSI))
in its capacity as the owner of the Phase II Land (as hereinafter defined)), (ii) PHASE II MALL
SUBSIDIARY, LLC, a Delaware limited liability company having an address at c/o GGP Limited
Partnership, 110 North Wacker Drive, Chicago, Illinois 60606 (
Mall II LLC
), in its
capacity as the Mall II Owner (as hereinafter defined), (iii) GRAND CANAL SHOPS II, LLC, a
Delaware limited liability company having an address at c/o GGP Limited Partnership, 110 North
Wacker Drive, Chicago, Illinois 60606 (
Mall I LLC
), in its capacity as Mall I Owner (as
hereinafter defined), as successor-in-interest to Grand Canal Shops Mall Subsidiary, LLC (
Mall
Subsidiary LLC
), as successor-in-interest to Grand Canal Shops Mall, LLC, as
successor-in-interest to Grand Canal Shops Mall Construction, LLC, in its capacity as the owner of
the Mall I Airspace (as hereinafter defined), (iv) INTERFACE GROUP NEVADA, INC., a Nevada
2
corporation having an address at 3355 Las Vegas Boulevard South, Room 1B, Las Vegas, Nevada
89109 (
Interface
), in its capacity as SECC Owner (as hereinafter defined, and
(v) PALAZZO CONDO TOWER, LLC (
Palazzo Condo
), a Nevada limited liability company having
an address at 3355 Las Vegas Boulevard South, Room 1C, Las Vegas, Nevada 89109.
R E C I T A L S
A. WHEREAS, LVSI and Interface previously entered into that certain Reciprocal Easement, Use
and Operating Agreement, dated as of June 26, 1997 which was recorded on July 3, 1997 as document
number 01056 of Book 970703 and re-recorded on July 28, 1997 as document number 00576 in Book
970728 in the Recorders Office; and
B. WHEREAS, Phase I LLC, Grand Canal Shops Mall Construction, LLC (
Interim Mall I
LLC
) and Interface previously entered into that certain Amended and Restated Reciprocal
Easement, Use and Operating Agreement, dated as of November 14, 1997 (the
Original REA
),
which was recorded on November 21, 1997 as Document Number 00731 in Book 971121 in the official
records, Clark County; which Original REA has been amended by (i) that certain First Amendment to
Amended and Restated Reciprocal Easement, Use and Operating Agreement, dated as of December 20,
1999, by and among Phase I LLC, Lido, Mall Subsidiary LLC and Interface, which was recorded on
December 23, 1999, as Document Number 01043 in Book 991223 in the official records, Clark County;
3
(ii) that certain Second Amendment to Amended and Restated Reciprocal Easement, Use and Operating
Agreement, dated as of June 4, 2002, by and among Phase I LLC, Lido, Mall I LLC and Interface,
which was recorded on June 7, 2002 as Document Number 00722 in Book 20020607 in the official
records, Clark County;
and (iii) that certain Third Amendment to Amended and Restated Reciprocal Easement, Use and
Operating Agreement, dated as of June 28, 2002, by and among Phase I LLC, Lido, Mall I LLC and
Interface; and
C. WHEREAS, Phase I LLC, Lido, Mall I LLC and Interface subsequently entered into that certain
Second Amended and Restated Reciprocal Easement, Use and Operating Agreement, dated as of May 17,
2004 (the
Second REA
), which was recorded on June 14, 2004 as Document Number 0002783 in
Book 20040614 in the official records, Clark County; which Second REA has been amended by (i) that
certain First Amendment to Second Amended and Restated Reciprocal Easement, Use and Operating
Agreement, dated as of July 30, 2004, by and among Phase I LLC, Lido, Mall I LLC and Interface,
which was recorded on August 11, 2004 as Document Number 03279 in Book 20040811 in the official
records, Clark County; (ii) that certain Second Amendment to Second Amended and Restated Reciprocal
Easement, Use and Operating Agreement, dated as of May 19, 2005, by and among Phase I LLC, Lido,
Mall I LLC and Interface, which was recorded on May 24, 2005 as Document Number 0003709 in Book
20050524 in the official records, Clark County; and (iii) that certain Third Amendment to Second
Amended and Restated Reciprocal Easement, Use and Operating Agreement, dated as of June ___, 2005,
by and among Phase I LLC, Lido, Mall I LLC and Interface, which was recorded on August 26, 2005 as
Document Number 0005221 in Book 20050826 in the official records, Clark County; and
D. WHEREAS, Phase I LLC, Lido, Mall I LLC and Interface subsequently entered into that certain
Third Amended and Restated Reciprocal Easement, Use and Operating Agreement, dated as of July 26,
2006 (the
Third REA
), which was
4
recorded on July 27, 2006 as Document Number 20060727-0006395 in the official records, Clark
County, which Third REA has been amended by that certain First Amendment to Third Amended and
Restated Reciprocal Easement, Use and Operating Agreement, dated as of January 12, 2007 (the
First Amendment to Third REA
), by and among Phase I LLC, Lido, Mall I LLC and Interface,
which was recorded on April 20, 2007 as Document Number 20070420-0002874 in the official records,
Clark County (the Third REA, as amended by the First Amendment to Third REA, the
Third Amended
and Restated REA
); and
E. WHEREAS, (i) Phase I LLC is now the owner in fee simple of that certain parcel of land
located in the County of Clark, State of Nevada, as the same is more particularly described on
Exhibit A-1
annexed hereto and made a part hereof (the
Phase I Land
), excluding
the Retail Annex Land (as hereinafter defined), and (ii) Phase II LLC is now the owner in fee
simple of that certain parcel of land located in the County of Clark, State of Nevada, and
comprised of the land more particularly described in
Exhibit A-2-1
and
Exhibit A-2-2
annexed hereto and made a part hereof but excluding the land more
particularly described in
Exhibit A-2-3
annexed hereto and made a part hereof (the
Phase II Land
); and
F. WHEREAS, LVSI, Phase I LLC and Interim Mall I LLC caused to be constructed a complex on the
Phase I Land (such complex, which includes a Phase I Hotel/Casino, the Congress Facility, the HVAC
Plant, the Electric Substation, the Phase I Automobile Parking Area and the Phase I Mall (as such
terms are hereinafter defined), the
Venetian
); and
5
G. WHEREAS, Phase I LLC is the owner of (i) all of the airspace above the Phase I Land, other
than the Mall I Airspace (as defined below) (such airspace, the
H/C I Space
) and
(ii) certain airspace above the Phase II Land, as more particularly described in
Exhibit C
annexed hereto and made a part hereof (the
Phase IA Airspace
); and
H. WHEREAS, (i) pursuant to that certain Commercial Lease dated as of March 1, 2004, by and
between CAP II Buccaneer, LLC, as landlord (
Cap II
), and Phase II LLC, as tenant, as
amended by that certain Amendment to Commercial Lease dated as of September 30, 2004, that certain
Second Amendment to Commercial Lease dated as of January 12, 2007 and that certain Third Amendment
to Commercial Lease dated as of February 29, 2008 (the
Third Amendment
), Mall II LLC has
acquired (by assignment from Phase II LLC) and currently holds a leasehold interest in and to that
certain airspace described on
Exhibit G
attached hereto and made a part hereof (such
leasehold interest, the
Walgreens Airspace Leasehold
) (such airspace, the
Walgreens Airspace
) and (ii) prior to the date hereof Cap II conveyed to Palazzo Condo
that certain airspace described on
Exhibit N
attached hereto and made a part hereof (such
airspace, the
Residential Portion
); and
I. WHEREAS, Interface is the owner in fee simple of that certain parcel of land located in the
County of Clark, State of Nevada, as the same is more particularly described on
Exhibit B
annexed hereto and made a part hereof (the
SECC Land
); and Interface owns a certain
building (i) that is used as, among other things, a convention, trade show and exposition center,
(ii) that is presently commonly known as the
6
Sands Exposition and Convention Center and (iii) which is located on the SECC Land (such
building, the
SECC
); and
J. WHEREAS, the Phase I Hotel/Casino adjoins the SECC; and
K. WHEREAS, for purposes of this Agreement, (a) the term
Mall I Space
shall mean,
collectively, (i) airspace owned by Mall I Owner within which are certain portions of the second
and mezzanine floors of the Phase I Base Building (as hereinafter defined), as more particularly
described in
Exhibit D
attached hereto and made a part hereof (the
Mall I
Airspace
), and (ii) the portion of the Phase I Land upon which a retail annex has been
constructed, as more particularly described in
Exhibit E
attached hereto and made a part
hereof (the
Retail Annex Land
) and (iii) all of the airspace above the Retail Annex Land;
(b) the term
Phase I Mall
shall mean, collectively, any buildings or other improvements
constructed in or within the Mall I Space from time to time; and (c) the term
Mall I
Owner
shall mean, at any given time, the Person or Persons who then hold fee title in and to
the Mall I Space or any portion thereof; and
L. WHEREAS, Phase II LLC has caused to be constructed and intends to operate (except for the
Phase II Mall (as hereinafter defined)) a complex on the Phase II Land and within the Walgreens
Airspace (such complex, which includes the Phase II Hotel/Casino, the Phase II Mall and the
Phase II Automobile Parking Area (as such terms are hereinafter defined), but excluding the
Phase IA Airspace, the Phase IA Conference Center and any other buildings and improvements located
within the Phase IA Airspace, the
Palazzo
; the Palazzo, together with the Venetian, the
SECC, the Phase IA Conference Center and all other buildings and improvements located within the
Phase IA Airspace, the
Integrated Resort
); and
7
M. WHEREAS, for purposes of this Agreement, (a) the term
Mall II Space
shall mean,
collectively, (i) certain airspace above the Phase II Land, which airspace contains a retail and
restaurant facility and is comprised of certain airspace which was owned by Phase II LLC and
transferred to Mall II LLC together with certain airspace that had been part of the Mall I Airspace
but has been transferred from (or in which easement rights have been granted by) Mall I Owner to
Mall II LLC, as more particularly described in
Exhibit F
attached hereto and made a part
hereof (the
Mall II Airspace
), and (ii) the Walgreens Airspace; (b) the term
Phase II Mall
shall mean, collectively, any buildings or other improvements constructed
in or within the Mall II Space from time to time; and (c) the term
Mall II Owner
shall
mean, (i) at any given time, the Person or Persons who then hold the Walgreens Airspace Leasehold,
and (ii) at any given time, the Person or Persons who then hold fee title (or, with respect to a
portion of the Mall II Airspace as described above, an easement right) to the Mall II Airspace,
which Person as of the date hereof is, with respect to each of clauses (i) and (ii), Mall II LLC;
and
N. WHEREAS, for purposes of this Agreement, the
H/C II Space
shall mean the Phase II
Land and any buildings and other improvements located thereon, less and except (x) the Phase IA
Airspace, the Phase IA Conference Center and any other improvements located within the Phase IA
Airspace, and (y) the Mall II Space and the Phase II Mall and any other improvements located within
the Mall II Space; and
O. WHEREAS, for purposes of this Agreement (a) the term
SECC Owner
shall mean, at
any given time, the Person who then holds fee title to the SECC Land, (b) the term
H/C I
Owner
shall mean, (i) at any given time, the Person or Persons who then hold fee title to the
Phase I Land and the H/C I Space, and (ii) at any given time,
8
the Person or Persons who hold fee title to the Phase IA Airspace and the Phase IA Conference
Center, and (c) the term
H/C II Owner
shall mean, at any given time, the Person or
Persons who then hold fee title to the H/C II Space; and
P. WHEREAS, Phase I LLC (as owner of the Phase I Land), Phase II LLC (as owner of the Phase II
Land), Mall II LLC (as Mall II Owner), Interface (as owner of the SECC Land), Mall I LLC (as Mall I
Owner) and Palazzo Condo (as owner of the Residential Portion) desire to amend and restate the
Third Amended and Restated REA and to grant to each other and their respective assignees certain
rights and easements in connection with the use and operation of the Phase I Land, the Phase II
Land, the Walgreens Airspace, the Residential Portion, the Mall I Space, the Mall II Space, the
SECC Land, and any buildings and improvements constructed on or in any of the foregoing from time
to time, and to make certain other covenants and agreements, all as hereinafter more particularly
set forth; and
Q. WHEREAS, all capitalized terms used and not defined in this Agreement shall have the
respective meanings ascribed thereto in Schedule I annexed hereto and made a part hereof.
W
I
T
N
E
S
S
E
T
H
:
NOW THEREFORE, in consideration of the covenants and easements herein made and granted, and
other good and valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, the parties hereto agree that the Third Amended and Restated REA is amended and
restated in its entirety to read as follows:
9
ARTICLE 1
CONSTRUCTION OF THE VENETIAN AND THE PALAZZO
Section 1.1
Third Party Warranties/Liquidated Damages
.
1.1.1 Subject to the last sentence of this Section 1.1.1, the Owners acknowledge and agree
that all Third Party Warranties shall, to the extent separately enforceable by a particular Owner
with respect to improvements within its Lot, belong to such Owner and shall be enforceable by that
Owner. To the extent that a particular Third Party Warranty pertains to improvements in more than
one Lot, and cannot be separately assigned, the Owner possessing rights to enforce such Third Party
Warranty (the
Third Party Warranty Owner
) shall take such steps as any other Owner whose
property is benefited by such Third Party Warranty (a
Requesting Warranty Owner
) from
time to time reasonably may request in order to permit the Requesting Warranty Owner to receive the
benefits thereof, so long as the Requesting Warranty Owner reimburses the Third Party Warranty
Owner for all reasonable costs associated therewith (to the extent fairly allocable to the requests
made by the Requesting Warranty Owner) and otherwise takes steps reasonably requested by the Third
Party Warranty Owner to assure that the Third Party Warranty Owner shall not be exposed to
unreimbursed liability as a consequence of taking the steps requested by the Requesting Warranty
Owner.
1.1.2 All Liquidated Damages shall be apportioned between the applicable Owners in an
equitable manner. If such Owner shall be unable to agree on the equitable apportionment of any
Liquidated Damages, such Owners shall engage an Independent Expert to determine such apportionment
pursuant to the provisions of Section 14.16.
10
Section 1.2
Intentionally Omitted
.
Section 1.3
Phase I Encroachments
. Notwithstanding the description of the Mall I
Space set forth in the definition thereof, H/C I Owner and Mall I Owner acknowledge that: (i) the
H/C I Space may encroach to some extent into a portion of the Mall I Space (any such encroachment
referred to herein as the
H/C I Encroachment
); and (ii) the Mall I Space may encroach to
some extent into a portion of the H/C I Space (any such encroachment referred to herein as the
Mall I Encroachment
, and together with the H/C I Encroachment, the
Phase I
Encroachments
). H/C I Owner and Mall I Owner agree and consent to the Phase I Encroachments
and grant to each other easements (
Phase I Encroachment Easements
) over those portions of
the H/C I Space and the Mall I Space for which such Phase I Encroachments exist.
Section 1.4
Phase II Encroachments
.
1.4.1 Notwithstanding the description of the Mall II Space set forth in the definition
thereof, H/C II Owner, Mall II Owner and Palazzo Condo acknowledge that: (i) the H/C II Space may
encroach to some extent into a portion of the Mall II Space (any such encroachment referred to
herein as the
H/C II Encroachment
); (ii) the Mall II Space may encroach to some extent
into a portion of the H/C II Space (any such encroachment referred to herein as the
Mall II
Encroachment
); and (iii) the Residential Portion may encroach to some extent into a portion of
the Mall II Space or the Mall II Space may encroach to some extent into a portion of the
Residential Portion (in either case, any such
encroachment referred to herein as the
Residential Portion Encroachment
, and
together with the H/C II Encroachment and the Mall II Encroachment, the
Phase II
Encroachments
) and together with the H/C II Encroachment, the
Phase II
11
Encroachments
). H/C II Owner, Mall II Owner and Palazzo Condo agree and consent to the
Phase II Encroachments and grant to the appropriate other Party easements (
Phase II
Encroachment Easements
) over those portions of the H/C II Space, the Mall II Space and the
Residential Portion for which such Phase II Encroachments exist.
1.4.2 Within ninety (90) days following the completion of construction of the Palazzo, H/C II
Owner shall obtain an as-built ALTA survey confirming the lot lines for the H/C II Space and the
Mall II Space. Upon receipt of such survey, H/C II Owner and Mall II Owner shall, as appropriate,
either (i) elect, if said survey shows no actual encroachments, to terminate this Section 1.4 with
respect to the H/C II Encroachment and the Mall II Encroachment and the corresponding Phase II
Encroachment Easements by joint written notice to the Parties, (ii) as necessary, modify the legal
descriptions of the H/C II Space and the Mall II Space in order to reflect the correct lot lines
for the H/C II Space and the Mall II Space as depicted by such survey and immediately thereafter
terminate this Section 1.4 with respect to the H/C II Encroachment and the Mall II Encroachment and
the corresponding Phase II Encroachment Easements by joint written notice to the Parties or
(iii) continue to keep in effect, and modify as appropriate, the applicable Phase II Encroachments
and the corresponding Phase II Encroachment Easements; provided, that in the event such survey
shows an encroachment, either H/C II Owner or Mall II Owner may elect to proceed pursuant to
clause (ii) above, which election shall be binding on the other. In the event H/C II Owner and
Mall II Owner
elect (or is deemed to elect) to terminate this Section 1.4 with respect to the H/C II
Encroachment and the Mall II Encroachment and the corresponding Phase II Encroachment Easements
pursuant to clauses (i) or (ii) of the preceding sentence,
12
promptly after this Section 1.4 has
been so partially terminated, the Parties hereto shall execute and deliver to each other, and
record in the Recorders Office, an amendment to this Agreement reflecting such partial termination
of the Phase II Encroachment Easements and the other rights, interests, agreements and obligations
created or imposed by or under this Section 1.4.
1.4.3 Palazzo Condo and Mall II Owner acknowledge and confirm that the legal descriptions of
the Mall II Space and Residential Portion may change in accordance with and pursuant to the Third
Lease Amendment. In the event of such change or in the event it is determined no such change is to
be made, the Residential Portion Encroachments and corresponding Phase II Encroachment Easements
shall be deemed appropriately modified or terminated, as applicable, and (a) if terminated, the
Parties hereto shall execute and deliver to each other, and record in the Recorders Office, an
amendment to this Agreement reflecting such termination and (b) if modified, the Parties hereto
shall execute and deliver to each other, and record in the Recorders Office, an amendment to this
Agreement specifying the size and location of the Residential Portion Encroachments and the
corresponding Phase II Encroachment Easements.
ARTICLE 2
HVAC; ACCESS/UTILITY EASEMENTS; COMMON AREAS
Section 2.1
Central Utility Plants and Electric Substation.
2.1.1
Intentionally Omitted.
2.1.2
Electric Substation.
2.1.2.1 The electric substation located on the Phase I Land (the
Electric
Substation
) distributes electric service to the Venetian (including the Phase I Mall), the
Palazzo (including the Phase II Mall) and the SECC.
13
2.1.2.2 H/C I Owner hereby grants to SECC Owner, H/C II Owner, Mall I Owner and Mall II Owner
such easements in, on, over, under, across and through the Phase I Land and any improvements
constructed or to be constructed thereon as are necessary or commercially appropriate for the SECC,
the Palazzo, the Phase I Mall and the Phase II Mall to receive electricity from the Electric
Substation and all of its related ducts, conduits, pipes, cables, utility lines and other
equipment. In utilizing such easement rights, SECC Owner, H/C II Owner, Mall I Owner and Mall II
Owner shall not interfere (other than to a
de
minimis
extent) with the use and/or
operation of the H/C I Space and any improvements constructed thereon or therein. H/C I Owner
hereby grants to Mall I Owner, H/C II Owner, Mall II Owner and/or SECC Owner such easements in, on,
over, under, across and through the Phase I Land and any improvements constructed or to be
constructed thereon as shall be necessary or commercially appropriate from time to time to allow
any public utility or any reasonably experienced and competent electricity provider to distribute
electricity to such Owner.
2.1.2.3 SECC Owner hereby grants to H/C I Owner, H/C II Owner, Mall I Owner and Mall II Owner
such easements in, on, over, under, across and through the SECC Land and any improvements
constructed or to be constructed thereon as are necessary or commercially appropriate to (i) in the
case of H/C I Owner, maintain, repair, service and operate and (ii) in the case of Mall I Owner,
Mall II Owner and H/C II
Owner, to receive electricity from, the Electric Substation and all of its related ducts,
conduits, pipes, cables, utility lines and other equipment. H/C I Owner, H/C II Owner, Mall I
Owner and Mall II Owner shall utilize their easement rights in such a manner as not to interfere
(other than to a
de
minimis
extent) with the use and/or operation of the SECC
14
Land
and any improvements constructed therein or thereon. SECC Owner hereby grants to H/C I Owner,
H/C II Owner, Mall I Owner and Mall II Owner such easements in, on, over, under, across and through
the SECC Land and any improvements constructed or to be constructed thereon as shall be necessary
or commercially appropriate from time to time to allow any public utility or any reasonably
experienced and competent electricity provider to distribute electricity to such Owner.
2.1.2.4 Mall I Owner hereby grants to H/C I Owner, H/C II Owner, Mall II Owner and SECC Owner
such easements in, on, across and through the Mall I Space and any improvements constructed or to
be constructed thereon as are necessary or commercially appropriate to (i) in the case of H/C I
Owner, operate, maintain, repair and service and (ii) in the case of H/C II Owner and Mall II
Owner, receive electricity from the Electric Substation and all of its related ducts, conduits,
pipes, cables, utility lines and other equipment. H/C I Owner, H/C II Owner, Mall II Owner and
SECC Owner shall utilize their easement rights in such a manner as not to interfere (other than to
a
de
minimis
extent) with the use and/or operation of the Mall I Space and any
improvements constructed therein or thereon. Mall I Owner hereby grants to H/C I Owner, H/C II
Owner, Mall II Owner and SECC Owner such easements in, on, over, under, across and through the
Mall I Space and any improvements to be constructed thereon as shall be necessary or commercially
appropriate from time to time to allow any public utility or any
reasonably experienced and competent electricity provider to distribute electricity to such
Owner.
2.1.2.5 H/C II Owner hereby grants to H/C I Owner, SECC Owner, Mall I Owner and Mall II Owner
such easements in, on, over, under, across and
15
through the Phase II Land and any improvements
constructed or to be constructed thereon as are necessary or commercially appropriate to (i) in the
case of H/C I Owner, maintain, repair, service and operate and (ii) in the case of SECC Owner,
Mall I Owner and Mall II Owner, to receive electricity from the Electric Substation and all of its
related ducts, conduits, pipes, cables, utility lines and other equipment. H/C I Owner, SECC
Owner, Mall I Owner and Mall II Owner shall utilize their easement rights in such a manner as not
to interfere (other than to a
de
minimis
extent) with the use and/or operation of
the Phase II Land and any improvements constructed therein or thereon. H/C II Owner hereby grants
to H/C I Owner, Mall I Owner, Mall II Owner and SECC Owner such easements in, on, over, under,
across and through the Phase II Land and any improvements to be constructed thereon as shall be
necessary or commercially appropriate from time to time to allow any public utility or any
reasonably experienced and competent electricity provider to distribute electricity to such Owner.
2.1.2.6 Mall II Owner hereby grants to H/C I Owner, H/C II Owner, SECC Owner and Mall I Owner
such easements in, on, over, under, across and through the Mall II Space and any improvements
constructed or to be constructed thereon as are necessary or commercially appropriate to, (i) in
the case of H/C I Owner, repair, operate, maintain and service and (ii) in the case of SECC Owner,
Mall I Owner and H/C II Owner, to receive electricity from the Electric Substation and all of its
related ducts,
conduits, pipes, cables, utility lines and other equipment. H/C I Owner, H/C II Owner, SECC
Owner and Mall I Owner shall utilize their easement rights in such a manner as not to interfere
(other than to a
de
minimis
extent) with the use and/or operation of the Mall II
Space and any improvements constructed therein or thereon. Mall II Owner hereby grants
16
to H/C I
Owner, H/C II Owner, Mall I Owner and SECC Owner such easements in, on, over, under, across and
through the Mall II Space and any improvements to be constructed thereon as shall be necessary or
commercially appropriate from time to time to allow any public utility or any reasonably
experienced and competent electricity provider to distribute electricity to such Owner.
2.1.2.7 H/C I Owner agrees for the benefit of Mall I Owner, SECC Owner, H/C II Owner and
Mall II Owner to cause the maintenance, repair, operation and restoration of the Electric
Substation;
provided
,
however
, that H/C I Owner can satisfy its obligations under
this Section 2.1.2.7 by (i) engaging an appropriately experienced and competent third party
operator to operate, maintain, repair and restore the Electric Substation and (ii) using
commercially reasonable efforts to enforce such operators obligations so to operate, maintain,
repair and restore the Electric Substation (and replacing such operator with another appropriately
experienced and competent third party operator if any such operator fails to perform its
obligations) in which event H/C I Owner shall not be liable to H/C II Owner, Mall I Owner, Mall II
Owner or to SECC Owner for consequential damages arising out of such third partys operation,
service, repair, maintenance and/or restoration of the Electric Substation except to the extent
such damages result from H/C I Owners negligence or willful misconduct.
2.1.2.8 The cost of operating, maintaining, repairing and restoring the Electric Substation,
and of purchasing electricity, shall be shared by each Owner in accordance with the provisions of
Section 5.1.3.
2.1.2.9 H/C I Owner agrees for the benefit of Mall I Owner, Mall II Owner, H/C II Owner and
SECC Owner that, if H/C I Owner shall fail to perform
17
its obligations under the preceding
Section 2.1.2.7, each of Mall I Owner, Mall II Owner, H/C II Owner and SECC Owner shall have the
right to enter the Phase I Land and any improvements constructed thereon and perform or cause to be
performed H/C I Owners obligations under Section 2.1.2.7.
2.1.2.10 Each Owner of a servient tenement may relocate any of the easements granted in the
preceding Sections 2.1.2.2 through 2.1.2.6 at its sole cost and expense;
provided
that such
relocation: (1) does not cause any interruption in the utilization of the easement by the Owner of
the dominant tenement for the affected easement (except de minimis interruptions, as to degree or
time, which shall be scheduled by agreement with the Owner of the dominant tenement for the
affected easement); (2) does not diminish the capacity or efficiency of such utility easement
(excepting de minimis effects); and (3) will not make it more difficult or more expensive for the
Owner of the dominant tenement with respect to the easement to use, maintain, repair, or replace
the utility lines or equipment in question, unless, in the case of increased expense, the Owner of
a servient tenement, at the time of such adverse relocation, agrees to bear any future additional
costs arising from such relocation.
2.1.2.11 Intentionally Omitted.
2.1.2.12 H/C I Owner hereby agrees, for the benefit of Mall I Owner and SECC Owner, to ensure
that the capacity and equipping of the Electric Substation is such that the exercise by H/C II
Owner and Mall II Owner of the easement rights granted in the preceding Sections 2.1.2.2 through
2.1.2.6 shall not adversely affect (except to a de minimis extent) the electricity service that is
provided to Mall I Owner or SECC Owner or increase (except to a de minimis extent) the cost of the
same. In all
18
events, the easement rights granted to H/C II Owner and Mall II Owner in the
preceding Sections 2.1.2.2 through 2.1.2.6 shall not apply from and after the date, if any, that
such Owners acknowledge in writing that they do not intend to obtain electricity from the Electric
Substation.
2.1.2.13 Each of H/C I Owner, H/C II Owner, Mall I Owner, Mall II Owner and SECC Owner shall
have the right to cause the others to (a) enter into commercially reasonable and appropriate
agreements to memorialize by a recorded agreement the exact location of the easements granted in
the preceding Sections 2.1.2.2 through 2.1.2.6 in good-faith (
provided
that, in any event,
each such easement shall be located in such a commercially appropriate location on the burdened
property as to minimize, to the extent reasonably possible, interference with the construction, use
and operation of such burdened property and the buildings and other improvements from time to time
located thereon) and (b) grant necessary and appropriate easements to the Electricity Provider in
order to implement the provisions of this Section 2.1.2.
2.1.2.14 H/C I Owner shall, in its sole discretion, determine the electricity supplier or
public utility company from whom the Owners shall purchase electricity.
Section 2.2
HVAC
.
2.2.1
HVAC Ground Lease
. H/C I Owner has entered into a ground lease (the
HVAC
Ground Lease
) whereby H/C I Owner, as lessor, has leased to Sempra, as lessee, the real
property more particularly described on
Exhibit K
attached hereto and made a part hereof
(the
HVAC Space
), together with any buildings and improvements constructed thereon more
particularly described on
Exhibit K
for the Sempra Term to be
19
used exclusively for the
operation, maintenance and repair by Sempra of the HVAC Plant and the HVAC Facilities;
provided
,
however
, that:
2.2.1.1 H/C I Owner shall have the right to relocate the HVAC Plant, subject to the
requirement that, without a Serviced Owners consent, the relocation shall not interfere with or
affect the heating, ventilating and air conditioning service required to be provided to such
Serviced Owner pursuant to its ESA (except to a de minimis extent) or result in any additional cost
or expense to such Serviced Owner; and
2.2.1.2 During the Sempra Term, Sempra shall operate, maintain, repair and restore the HVAC
Plant in accordance with the provisions of the Initial ESAs. From and after the expiration of the
Sempra Term, the Substitute HVAC Operator shall (i) operate, maintain, repair and restore the HVAC
Plant and the HVAC Facilities, and (ii) to the extent not covered pursuant to the property damage
insurance required to be carried in accordance with the provisions of Article 10, shall procure
replacement cost property damage insurance covering the HVAC Plant and the HVAC Facilities and any
other insurance equivalent to that which Sempra was required to maintain under the Initial ESAs.
2.2.2
Intentionally Omitted
.
2.2.3
Extension/Termination of HVAC Operator
.
2.2.3.1
Extension/Termination on Scheduled Termination Date Prior to Material Amortization
Date
. Prior to any Scheduled Termination Date prior to the Material Amortization Date, H/C I
Owner, H/C II Owner and SECC Owner shall jointly determine, after good-faith consultation with the
other Serviced Owners, whether the Serviced Owners that are parties to Qualifying ESAs (the
Relevant Serviced Owners
)
20
should (a) extend the Qualifying ESAs with the then-existing
HVAC Operator or (b) terminate the Qualifying ESAs in accordance with their terms (i.e., in
accordance with either clause (i) or clause (iii) of Section 2.5(a) of each Qualifying ESA) and
enter into new ESAs with a Substitute HVAC Operator;
provided
,
however
, that if
such new ESAs would be reasonably likely to result in Mall I Owner or Mall II Owner making payments
to the Substitute HVAC Operator or H/C I Owner in excess of the sum of (x) the payments that would
be owed by Mall I Owner or Mall II Owner, as applicable, to H/C I Owner pursuant to clause (b) of
the first sentence of Section 2.2.9 or the proviso clause of the first sentence of Section 2.2.10,
as applicable, if the Qualifying ESAs were not terminated and (y) the payments that would be owed
by Mall I Owner or Mall II Owner, as applicable, to the then-existing HVAC Operator or H/C I Owner
due to Mall I Owners or Mall II Owners, as applicable, default under its Qualifying ESA not
resulting from a default by H/C I Owner of its obligations under said Section 2.2.9 or
Section 2.2.10, as applicable, if the Qualifying ESAs were not terminated or due to ESA Amendments
executed on or after the date hereof that were initiated by Mall I Owners or Mall II Owners, as
applicable, desire to enter into an ESA Amendment, H/C I Owner and SECC Owner shall not so
determine to terminate the Qualifying ESAs unless either (1) Mall I Owner or Mall II Owner, as
applicable, consents to such determination or (2) H/C I Owner agrees to be responsible for such
excess. If H/C I Owner, H/C II Owner and SECC Owner do not jointly notify the other Serviced
Owners of their determination to extend or terminate the then-existing Qualifying ESAs as of two
(2) Business Days prior to the last day that the Relevant Serviced Owners have the right, under the
Qualifying ESAs, to elect to extend the Qualifying ESAs, or if, pursuant to the preceding sentence,
they do not have the right
21
to determine to terminate the then-existing ESAs, then they shall be
deemed to have determined pursuant to the preceding sentence that each Relevant Serviced Owner
should extend its Qualified ESA with the then-existing HVAC Operator. If H/C I Owner, H/C II Owner
and SECC Owner determine, or are deemed to have determined, that the Qualifying ESAs should be
extended in accordance with their terms, then each Relevant Serviced Owner shall be obligated to
extend its Qualifying ESA (and the Scheduled Termination Date applying thereunder) in accordance
with Section 2.5 of such Qualifying ESA. Conversely, if H/C I Owner, H/C II Owner and SECC Owner
determine that the Relevant Serviced Owners should terminate the Qualifying ESAs in accordance with
their terms and enter into new ESAs with a Substitute HVAC Operator, then:
2.2.3.1.1 Each Qualifying ESA with the existing HVAC Operator shall terminate as of the
Scheduled Termination Date set forth therein. Unless otherwise agreed by each of the Serviced
Owners:
2.2.3.1.1.1 (i) each Relevant Serviced Owner shall be responsible for payment of any
termination payment due to the existing HVAC Operator under such Owners Qualifying ESA
(i.e., the payment
due under clause (iii) of Section 2.5(a) of each Qualifying ESA, if applicable), (ii)
Mall II Owner shall reimburse H/C I Owner for a portion of H/C I Owners termination
payment, with such portion being an amount equal to seventy-three and ninety-five
hundredths percent (73.95%) of Mall I Owners termination payment, and (iii) each Serviced
Owner shall indemnify, protect, defend and hold harmless the other Serviced Owners against
any losses, claims, actions, liabilities, costs or
22
expenses (including attorneys fees)
arising out of any failure to comply with this Section 2.2.3.1.1.1; and
2.2.3.1.1.2 H/C I Owner shall succeed to the ownership of all of the HVAC Facilities,
except for (a) those HVAC Facilities already owned by another Serviced Owner and (b) any
other HVAC Facilities installed for the benefit of a particular Serviced Owner alone,
ownership of which shall be transferred to the particular Serviced Owner benefited.
2.2.3.1.2 Each Relevant Serviced Owner shall enter into a new ESA with a Substitute HVAC
Operator selected by H/C I Owner, H/C II Owner and SECC Owner after good-faith consultation with
the other Serviced Owners, provided that any Substitute HVAC Operator must, in H/C I Owners,
H/C II Owners and SECC Owners good-faith judgment, be capable of providing substantially the
same quality of service to all Serviced Owners as the HVAC Operator being replaced. So long as the
proviso clause of the preceding sentence is complied with, the Substitute HVAC Operator selected by
H/C I Owner, H/C II Owner and SECC Owner may be H/C I Owner itself. The new ESA shall be
substantially in the form of the Qualifying ESA which the Serviced Owner had with the prior HVAC
Operator except that:
2.2.3.1.2.1 The required periodic payments to be made by each Relevant Serviced Owner
shall be calculated so as to cover only the incremental expense of procuring the energy
services and otherwise shall be equitably allocated among the Serviced Owners taking into
account,
inter
alia
, each Serviced Owners HVAC Plant Percentage (and
provided that if the
23
Serviced Owners cannot agree on such equitable allocation, the matter
shall be resolved by the Independent Expert); and
2.2.3.1.2.2 Each Owner shall grant appropriate access and other rights to the
Substitute HVAC Operator so as to permit the Substitute HVAC Operator to utilize the
utility easements granted pursuant to the further provisions of this Agreement and
otherwise provide heating, ventilating and air conditioning service to the Serviced Owners
in accordance with the provisions of their respective ESAs.
2.2.3.1.3 H/C I Owner shall provide appropriate and commercially reasonable possessory and use
rights to permit the Substitute HVAC Operator to use and occupy the HVAC Space together with any
buildings and improvements constructed thereon.
2.2.3.2
Termination in the Event of Major Default
. As more particularly set forth
in the Qualifying ESAs, each Relevant Serviced Owner has the right to terminate its Qualifying ESA
in the event of certain HVAC Operator defaults (and subject to certain notice and cure periods).
In the event of any such termination, the terminating Serviced Owner shall provide prior written
notice of such termination to each
of the other Serviced Owners. The Owners further agree as follows with respect to any such
termination:
2.2.3.2.1 Within fifteen (15) days after the other Serviced Owners receipt of any such
termination notice from a terminating Serviced Owner (or, if the termination is contested by the
HVAC Operator, from the date that the other Serviced Owners receive confirmation that any such
contest has been resolved and
24
that the termination shall be effective as of a date stated (the
Material Default Termination Date
)), the Serviced Owners shall confer in good-faith to
agree on a Substitute HVAC Operator reasonably acceptable to each of the Serviced Owners. If the
Serviced Owners shall be unable to agree on a Substitute HVAC Operator within thirty (30) days,
then H/C I Owner and SECC Owner shall jointly select the Substitute HVAC Operator in accordance
with the preceding Section 2.2.3.1.2, which Substitute HVAC Operator shall be responsible for
providing heating, ventilating and air conditioning service that is comparable in all material
respects to the service required to be provided by the existing HVAC Operator under the existing
ESAs. Any increase in the cost of providing such level of service in excess of the cost of
providing such level of service by the existing HVAC Operator shall (subject to Section 2.2.10) be
borne by the Serviced Owner(s) initially electing to terminate the existing HVAC Operator
pro
rata
based upon their respective Serviced Owners HVAC Plant Percentages.
2.2.3.2.2 Effective upon the Material Default Termination Date, each of the Qualifying ESAs
shall terminate. Each Relevant Serviced Owner shall be responsible for payment of any termination
payments due to the terminated HVAC Operator under its ESA, Mall II Owner shall reimburse H/C I
Owner for a portion
of H/C I Owners termination payment, with such portion being an amount equal to seventy-three
and ninety-five hundredths percent (73.95%) of Mall I Owners termination payment, and each
Serviced Owner shall indemnify, protect, defend and hold harmless the other Serviced Owners against
any losses, claims, actions, liabilities, costs or expenses (including attorneys fees) arising out
of any failure to comply with this Section 2.2.3.2.2.
25
2.2.3.2.3 Effective upon the Material Default Termination Date, each of the Relevant Serviced
Owners shall enter into a new ESA with the Substitute HVAC Operator selected in accordance with
this Section 2.2.3.2 substantially in the form of its Qualifying ESA with the prior HVAC Operator,
except that:
2.2.3.2.3.1 The required periodic payments to be made by each Relevant Serviced Owner
shall be calculated so as to cover only the incremental expense of procuring the energy
services and otherwise shall be equitably allocated among the Relevant Serviced Owners
taking into account,
inter
alia
, each Serviced Owners HVAC Plant
Percentage (and provided that if the Serviced Owners cannot agree on such equitable
allocation, the matter shall be resolved by the Independent Expert); and
2.2.3.2.3.2 Each Owner shall grant appropriate access and other rights to the
Substitute HVAC Operator so as to permit the Substitute HVAC Operator to utilize the
utility easements granted pursuant to the further provisions of this Agreement and
otherwise provide heating, ventilating and air conditioning service to the Serviced Owners
in accordance with the provisions of the ESAs.
2.2.3.2.4 If the ESA with Sempra or any Substitute HVAC Operator is terminated and the
Relevant Serviced Owners enter into new ESAs with a Substitute HVAC Operator (unless the Substitute
HVAC Operator is H/C I Owner) in accordance with the terms of this Section 2.2.3, then H/C I Owner
shall provide appropriate and commercially reasonable possessory and use rights to permit the
Substitute HVAC Operator to use and occupy the HVAC Space together with any buildings and
26
improvements constructed thereon so long as such Substitute HVAC Operator (a) enters into
agreements reasonably satisfactory to H/C I Owner indemnifying H/C I Owner against all losses,
claims, actions, liabilities, costs or expenses (including attorneys fees) arising out of the
actions or inactions of such Substitute HVAC Operator, and (b) obtains insurance coverage
substantially similar to that required to be obtained by Sempra under the Initial ESAs.
2.2.4
Extension/Termination on or after the Material Amortization Date
. On or before
the date which shall be eighteen (18) months prior to the Material Amortization Date, H/C I Owner
shall submit in writing to the other Serviced Owners a proposed plan (a
Replacement HVAC Plant
Plan
) for the refurbishment or replacement of the HVAC Plant. The Replacement HVAC Plant Plan
shall provide for the furnishing of heating, ventilating and air conditioning services for a
commercially reasonable time period from and after the Material Amortization Date which are at
least equivalent in all material respects (including, without limitation, quantity and quality) to
those services required to be provided by Sempra or any Substitute HVAC Operator, as applicable,
immediately prior to such date on financing and payment terms reasonably acceptable to the Serviced
Owners, the cost of which each Serviced Owner shall share in proportion to
its HVAC Plant Percentage. The Replacement HVAC Plant Plan must be approved by the other
Serviced Owners, which approval shall not be unreasonably withheld; if the parties cannot agree on
whether such approval is being properly withheld (taking into account the next sentence), the
dispute shall be submitted to arbitration in accordance with the provisions hereof. In all events,
a Serviced Owner shall have the right to withhold its approval to a
27
proposed Replacement HVAC Plant
Plan if the implementation of the proposed Replacement HVAC Plant Plan will not permit such
Serviced Owner to operate its business for its Permitted Use or would unfairly burden such Owner as
compared to the other Owners or unfairly benefit any other Owner. The Serviced Owners shall
commence the implementation of such Replacement HVAC Plant Plan within thirty (30) days of approval
thereof by the Serviced Owners other than H/C I Owner.
2.2.5
Termination Other than by an Owner
. If the Qualifying ESAs shall terminate for
any reason other than those described in Sections 2.2.3 or 2.2.4, as expeditiously as possible
after the termination of the Qualifying ESAs, H/C I Owner shall submit in writing to the other
Serviced Owners a proposed Replacement HVAC Plant Plan, and all of the provisions of Section 2.2.4
shall apply with respect hereto.
2.2.6
Termination of HVAC Ground Lease
. H/C I Owner agrees for the benefit of each of
the other Serviced Owners that it shall not terminate the HVAC Ground Lease or any other possessory
interest granted to the HVAC Operator in accordance with the provisions of this Section 2.2 other
than in connection with an election to terminate all of the Qualifying ESAs in accordance with the
provisions hereof.
2.2.7
Amendment of ESAs
. No Relevant Serviced Owner shall enter into any amendment,
modification, restatement, substitution or replacement (each, a
ESA
Amendment
) of its ESA with the HVAC Operator which ESA Amendment could reasonably be
expected to have a material adverse effect on the rights and/or obligations of any other Serviced
Owner.
2.2.8
Obligations of Substitute HVAC Operator
. The Substitute HVAC Operator shall
cause the maintenance, repair and restoration of the HVAC Plant;
provided
,
however
,
that any such HVAC Operator that is an Owner can satisfy its obligations under
28
this Section 2.2.8
by (i) engaging an appropriately experienced and competent third party operator to operate,
maintain, repair and restore the HVAC Plant and (ii) using commercially reasonable efforts to
enforce such operators obligations so to operate, maintain, repair and restore (and replacing such
operator with another appropriately experienced and competent third party operator if any such
operator fails to perform its obligations) in which event such HVAC Operator shall not be liable to
any Owner for consequential damages arising out of such third partys repair, maintenance and/or
restoration of the HVAC Plant except to the extent such damages result from such HVAC Operators
negligence or willful misconduct.
2.2.9
Payments Under Mall I Owners ESA
. Notwithstanding any of the foregoing
provisions of this Section 2.2, during the Sempra Term, (a) H/C I Owner shall be responsible for
making all payments under Sections 4.1 and 4.2, and clauses (i)-(iii) of Section 4.5, of Mall I
Owners ESA, excluding payments due to Mall I Owners default thereunder not resulting from a
default by H/C I Owner of its obligations under this Section 2.2.9 and also excluding payments due
under or pursuant to ESA Amendments executed on or after the date hereof that were initiated by
Mall I Owners desire to enter into an ESA Amendment; (b) Mall I Owner shall be obligated to make
certain payments to
H/C I Owner on account of the HVAC Plant and HVAC Facilities, pursuant to and as set forth in
more detail in Section 5.1.3 hereof and Schedule II attached hereto and made a part hereof and
(c) H/C I Owner and Mall I Owner shall each use commercially reasonable efforts to cause Sempra to
send all invoices for amounts covered by clause (a) of this sentence, or copies thereof, to H/C I
Owner. In the event that, notwithstanding such
29
efforts, Sempra sends any such invoices to Mall I
Owner only, Mall I Owner shall promptly deliver them to H/C I Owner.
2.2.10
Extension of HVAC Service to Mall II Owner
. Notwithstanding any of the
foregoing provisions of this Section 2.2, the parties acknowledge and agree that H/C I Owners ESA
has been amended to provide for the extension of HVAC service to H/C II Owner, Mall II Owner and
Residential Portion Owner (and therefore each of H/C II Owner, Mall II Owner and Residential
Portion Owner will not be party to an ESA) and H/C I Owner shall be responsible for making all
payments under its ESA; provided that Mall II Owner shall be obligated to make certain payments to
H/C I Owner on account of the HVAC Plant and HVAC Facilities, pursuant to and as set forth in more
detail in Section 5.1.3 hereof and Schedule II attached hereto and made a part hereof. H/C I Owner
shall use commercially reasonable efforts to diligently enforce, for the benefit of H/C II Owner,
Mall II Owner and Residential Portion Owner, the obligations of Sempra to provide the HVAC services
required under H/C I Owners ESA to H/C II Owner, Mall II Owner and Residential Portion Owner.
Section 2.3
Other Reciprocal Easements
.
2.3.1
Utility Equipment
. The Parties acknowledge that there are utilities installed
on or within the Phase I Land, the Phase II Land, the Mall I Space, the Mall II Space and SECC
Land.
2.3.2
Grant of H/C I Owner
.
2.3.2.1 In addition to the easements granted above but subject to the other terms and
conditions of this Article 2, H/C I Owner hereby grants to Mall I Owner, Mall II Owner, H/C II
Owner, and SECC Owner a non-exclusive easement in the
30
H/C I Space and the Phase I Hotel/Casino for
the installation, operation, flow and passage, use, maintenance, repair, replacement, relocation
and removal (collectively,
Utility Activity
) of any of the following which lie, or, in
accordance with the provisions of this Article 2, shall, in the future, lie, in, on, over, through,
upon, across or under the H/C I Space and/or the Phase I Hotel/Casino: sewers (including, without
limitation, storm and sanitary sewer systems), domestic water systems, natural gas systems,
electrical systems, telephone systems, fire protection water systems, cable television systems, if
any, wireless telecommunication systems in connection with the use and/or blocking of portable
gaming devices and other business uses (provided that any such blocking systems shall be
configured so as not to block any wireless devices other than portable gaming devices) and all
other utility systems and facilities now or in the future reasonably necessary for the service of
the Venetian (including without limitation the Phase I Mall), the Palazzo (including without
limitation the Phase II Mall) and/or the SECC (collectively,
Utility Equipment
, or to the
extent that such Utility Equipment currently exists in, on,
over, through, upon, across or under the Phase I Land, the Mall I Space, the Phase II Land or
the SECC Land and/or the improvements located thereon as depicted on
Exhibit L
attached
hereto and made a part hereof, as applicable, the
Existing Utility Equipment
).
Notwithstanding anything to the contrary in the preceding sentence, Utility Equipment shall not
include the Electric Substation.
2.3.2.2 The location (and relocation) of all easements for Utility Equipment that is to be
installed in the H/C I Space and the Phase I Hotel/Casino after the date hereof (and the relocation
of all easements for Existing Utility Equipment) shall be subject to the prior written approval of
H/C I Owner;
provided
that H/C I Owner shall not
31
unreasonably withhold, delay or condition
any such approval to the extent that the desired location or relocation of the easement in question
does not (1) interfere with the use or operation of the H/C I Space and the Phase I Hotel/Casino
(other than to a de minimis extent), (2) adversely affect the value of such land and/or
improvements (other than to a de minimis extent) and/or (3) impose any material obligation on H/C I
Owner and/or the Phase I Hotel/Casino (other than the granting of the easement in question); in
each case, assuming that the space and/or improvements, as applicable, in question are being used
by H/C I Owner for their Permitted Use.
2.3.3
Grant of Mall I Owner
.
2.3.3.1 In addition to the easements granted above but subject to the other terms and
conditions of this Article 2, Mall I Owner hereby grants to H/C I Owner, H/C II Owner, Mall II
Owner and SECC Owner a non-exclusive easement in the Mall I Space for Utility Activity in
connection with any Utility Equipment which lies, or,
in accordance with the provisions of this Article 2, shall, in the future, lie, in, on,
through, upon or across the Mall I Space, or over or under the Retail Annex Land.
2.3.3.2 The location (and relocation) of all easements for Utility Equipment that is to be
installed in the Mall I Space after the date hereof (and the relocation of all easements for
Existing Utility Equipment) shall be subject to the prior written approval of Mall I Owner;
provided
that Mall I Owner shall not unreasonably withhold, delay or condition any such
approval to the extent that the desired location or relocation of the easement in question does not
(1) interfere with the use or operation of the Mall I Space and/or the improvements therein (other
than to a
de
minimis
extent), (2) adversely affect the value of such space and/or improvements
(other than to a
de
32
minimis
extent) and/or (3) impose any material obligation on Mall I Owner
and/or the improvements located in the Mall I Space (other than the granting of the easement in
question); in each case, assuming that the space and/or improvements, as applicable, in question
are being used by Mall I Owner for their Permitted Use.
2.3.4
Grant of H/C II Owner
.
2.3.4.1 In addition to the easements granted above but subject to the other terms and
conditions of this Article 2, H/C II Owner hereby grants to Mall I Owner, Mall II Owner, H/C I
Owner and SECC Owner a non-exclusive easement in the Phase II Land for Utility Activity in
connection with any Utility Equipment which lies, or, in accordance with the provisions of this
Article 2, shall, in the future, lie, in, on, over, through, upon, across or under the Phase II
Land.
2.3.4.2 The location (and relocation) of all easements for Utility Equipment that is to be
installed on the Phase II Land after the date hereof (and the
relocation of all easements for Existing Utility Equipment) shall be subject to the prior
written approval of H/C II Owner;
provided
that H/C II Owner shall not unreasonably
withhold, delay or condition any such approval to the extent that the desired location or
relocation of the easement in question does not (1) interfere with the use or operation of the
Phase II Land and/or
the improvements therein (other than to a de minimis extent), (2) adversely
affect the value of such space and/or improvements (other than to a de minimis extent) and/or
(3) impose any material obligation on H/C II Owner and/or the improvements located on the Phase II
Land, or on such land and/or improvements (other than the granting of the easement in question); in
each case, assuming that the land and/or
33
improvements, as applicable, in question are being used by
H/C II Owner for their Permitted Use.
2.3.5
Grant of SECC Owner
.
2.3.5.1 In addition to the easements granted above but subject to the other terms and
conditions of this Article 2, SECC Owner hereby grants to H/C I Owner, H/C II Owner, Mall I Owner
and Mall II Owner a non-exclusive easement in the SECC Land for Utility Activity in connection with
any Utility Equipment which lie, or, in accordance with the provisions of this Article 2, shall, in
the future, lie, in, on, over, through, upon, across or under the SECC Land.
2.3.5.2 The location (and relocation) of all easements for Utility Equipment that is to be
installed on the SECC Land after the date hereof (and the relocation of all easements for Existing
Utility Equipment) shall be subject to the prior written approval of SECC Owner;
provided
that SECC Owner shall not unreasonably withhold, delay or condition any such approval to the extent
that the desired location or
relocation of the easement in question does not (1) interfere with the use or operation of the
SECC Land and/or the improvements therein (other than to a de minimis extent), (2) adversely affect
the value of such space and/or improvements (other than to a de minimis extent) and/or (3) impose
any material obligation on SECC Owner and/or the improvements located on the SECC Land (other than
the granting of the easement in question); in each case, assuming that the land and/or
improvements, as applicable, in question are being used by SECC Owner for their Permitted Use.
34
2.3.6
Grant of Mall II Owner
.
2.3.6.1 In addition to the easements granted above but subject to the other terms and
conditions of this Article 2, Mall II Owner hereby grants to H/C I Owner,
H/C II Owner, Mall I Owner and SECC Owner a non-exclusive easement in the Mall II Space for Utility
Activity in connection with any Utility Equipment which lies, or, in accordance with the provisions
of this Article 2, shall, in the future, lie, in, on, through, upon or
across the Mall II Space.
2.3.6.2 The location (and relocation) of all easements for Utility Equipment that is to be
installed in the Mall II Space after the date hereof (and the relocation of all easements for
Existing Utility Equipment) shall be subject to the prior written approval of Mall II Owner;
provided
that Mall II Owner shall not unreasonably withhold, delay or condition any such
approval to the extent that the desired location or relocation of the easement in question does not
(1) interfere with the use or operation of the Mall II Space and/or the improvements therein (other
than to a de minimis extent), (2) adversely affect the value of such space and/or improvements
(other than to a de minimis extent) and/or (3) impose any material obligation on Mall II Owner
and/or the improvements located in the Mall II Space (other than the granting of the easement in
question); in each case, assuming that the space and/or improvements, as applicable, in question
are being used by Mall II Owner for their Permitted Use.
2.3.7
Rights of Burdened Parties; Obligations of Benefited Parties
.
2.3.7.1 Each Owner of a servient tenement may relocate any utility easement on its parcel at
its sole cost and expense
provided
that such relocation: (1)
does not cause any interruption in the utilization of the utility easement by the Owner
35
of the
dominant tenement for the affected easement (except de minimis interruptions, as to degree or time,
which shall be scheduled by agreement with the Owner of the dominant tenement for the affected
easement); (2) does not diminish the capacity or efficiency of such utility easement (excepting de
minimis effects); and (3) will not make it more difficult or more expensive for the Owner of the
dominant tenement with respect to the utility easement to use, maintain, repair, or replace the
utility lines, unless, in the case of increased expense, the Owner of a servient tenement, at the
time of such adverse relocation, agrees to bear any future additional costs arising from such
relocation.
2.3.7.2 The cost and expense of Utility Activity in connection with Utility Equipment (to the
extent not borne by a public or private utility company) shall be borne entirely by the Party whose
parcel benefits thereby or, if more than one Partys parcel benefits thereby, such cost and expense
shall be allocated between the Parties so benefited in such manner as at the time shall be
equitable in the circumstances. Any costs borne by the burdened Party with respect to any Utility
Activity shall be reimbursed by the benefited Party. Before any such Utility Activity (other than
Utility Activity which is operation, flow, passage or use) in connection with any Utility Equipment
is effectuated, the Party conducting the same shall give reasonable prior notice to the other
affected Parties, except in any case where the giving of reasonable prior notice is not practicable
under the circumstances (but notice shall nevertheless be given as soon as practicable), and the
Party conducting the same shall have received the consent of such affected Parties (except in any
case where the giving of reasonable prior notice was not practicable under the circumstances (but
consent shall nevertheless be confirmed as soon
as practicable)). The Party conducting the same shall, in performing any such work, use
36
commercially reasonable efforts to minimize interference with the Utility Equipment of the other
Parties and the use, enjoyment and operations of such other Parties land and the improvements
thereon;
provided
that the failure to give any such notice or receive any such consent
shall not constitute a default hereunder or require the aforesaid Party to demolish or remove any
portion of its Utility Equipment.
2.3.7.3 The Party whose parcel is benefited by a utility easement shall maintain, repair,
restore and replace all Utility Equipment related to the easement that is located on the burdened
Partys parcel.
2.3.7.4 In the event a Party whose parcel is benefited by a utility easement shall fail to
maintain, repair, restore or replace any utility lines located on a burdened Partys parcel in
accordance with the provisions of this Section 2.3.7, such burdened Party may, after reasonable notice
to the defaulting benefited Party, except in any case where the giving of reasonable prior notice
is not practicable under the circumstances (but notice shall nevertheless be given as soon as
practicable), cure such default at the defaulting Partys expense, in which event the provisions of
Sections 14.10.1 and 14.10.2 shall apply.
2.3.7.5 The Parties shall cooperate with each other with respect to all Utility Activity in
connection with Utility Equipment including, without limitation, the granting of easements in their
respective parcels to public or private utilities in order to permit such utilities to bring their
services to such parcels.
37
Section 2.4
Common Areas; Access Rights to Effect Maintenance and Repair; Parking Access; Emergency
Access; Vertical and Lateral Support; Miscellaneous
.
2.4.1
Easements for Pass-through Areas and Common Areas
.
2.4.1.1 As part of the construction of the Venetian, H/C I Owner and Mall I Owner constructed
certain H/C I Pass-through Areas and H/C-Mall I Common Areas, each of which shall (notwithstanding
its location) be operated and maintained solely by H/C I Owner as it determines, subject, however,
to the further provisions of this Section 2.4 and any other applicable provisions of this Agreement.
As part of the construction of the Palazzo, H/C II Owner constructed certain H/C II Pass-through
Areas and H/C-Mall II Common Areas, each of which shall (notwithstanding its location) be operated
and maintained solely by H/C II Owner as it determines, subject, however, to the further provisions
of this Section 2.4 and any other applicable provisions of this Agreement.
2.4.1.2 H/C I Owner hereby grants to each other Party a non-exclusive right to use and
easement in, on, over, upon, through and across the H/C I Pass-through Areas and the H/C-Mall I
Common Areas for passage, ingress and egress and otherwise for the intended use thereof and for
access to and from its respective Destination Areas. Such use of the H/C I Pass-through Areas and
the H/C-Mall I Common Areas shall be subject to reasonable rules and regulations established by H/C
I Owner from time to time;
provided
that no such rules or regulations shall adversely
affect (except to a de minimis extent) the conduct of any Owners business in accordance with its
Permitted Use. Without limiting the generality of the foregoing, each Party may use the H/C I
Pass-through Areas for the purposes for which they were intended, and each of H/C I Owner
38
and Mall I Owner shall have the right to use the H/C-Mall I Common Areas and the Venetian
Building Shell and Core for the purposes for which they were intended.
2.4.1.3 Mall I Owner hereby grants to each other Party a non-exclusive right to use and
easement in, on, over, upon, through and across the Mall I Pass-through Areas for passage, ingress
and egress and otherwise for the intended use thereof and for access to and from its respective
Destination Areas. Such use of the Mall I Pass-through Areas shall be subject to reasonable rules
and regulations established by Mall I Owner from time to time;
provided
that no such rules
or regulations shall adversely affect (except to a de minimis extent) the conduct of any Owners
business in accordance with its Permitted Use. Without limiting the generality of the foregoing,
each Party may use the Mall I Pass-through Areas for the purposes for which they were intended, and
each of H/C I Owner and Mall I Owner shall have the right to use the Venetian Building Shell and
Core for the purposes for which they were intended.
2.4.1.4 H/C II Owner hereby grants to each other Party a non-exclusive right to use and
easement in, on, over, upon, through and across the H/C II Pass-through Areas and the H/C-Mall II
Common Areas for passage, ingress and egress and otherwise for the intended use thereof and for
access to and from its respective Destination Areas. Such use of the H/C II Pass-through Areas and
the H/C-Mall II Common Areas shall be subject to reasonable rules and regulations established by
H/C II Owner from time to time;
provided
that no such rules or regulations shall adversely
affect (except to a de minimis extent) the conduct of any Owners business in accordance with its
Permitted Use. Without limiting the generality of the foregoing, each Party may use the H/C II
Pass-through Areas for the purposes for which they were intended, and each of H/C II Owner
39
and Mall II Owner shall have the right to use the H/C-Mall II Common Areas and the Palazzo
Building Shell and Core for the purposes for which they were intended.
2.4.1.5 Mall II Owner hereby grants to each other Party a non-exclusive right to use and
easement in, on, over, upon, through and across the Mall II Pass-through Areas for passage, ingress
and egress and otherwise for the intended use thereof and for access to and from its respective
Destination Areas. Such use of the Mall II Pass-through Areas shall be subject to reasonable rules
and regulations established by Mall II Owner from time to time;
provided
that no such rules
or regulations shall adversely affect (except to a de minimis extent) the conduct of any Owners
business in accordance with its Permitted Use. Without limiting the generality of the foregoing,
each Party may use the Mall II Pass-through Areas for the purposes for which they were intended,
and each of H/C II Owner and Mall II Owner shall have the right to use the Palazzo Building Shell
and Core for the purposes for which they were intended.
2.4.1.6 SECC Owner hereby grants to each other Party a non-exclusive right to use and easement
in, on, over, upon, above, under, through and across the SECC Pass-through Areas for passage,
ingress and egress and otherwise for the intended use thereof and for access to and from its
respective Destination Areas. Such use of the SECC Pass-through Areas shall be subject to
reasonable rules and regulations established by SECC Owner from time to time;
provided
that
no such rules or regulations shall adversely affect (except to a de minimis extent) the conduct of
any Owners business in accordance with its Permitted Use. Without limiting the generality of the
foregoing, each Party may use the SECC Pass-through Areas for the purposes for which they were
intended.
40
2.4.1.7 H/C I Owner hereby grants to Mall I Owner, Mall II Owner and Residential Portion Owner
for their use and the use of their respective Tenants and their respective employees, agents,
contractors and subcontractors only, and not for the use of the general public (except in emergency
situations, in which case the general public may access the H/C I Limited Common Areas as a means
of exit from any Lot pursuant to emergency evacuation procedures in place at the time), a
non-exclusive right to use and easement over, upon, above, under, through and across all H/C I
Limited Common Areas for, among other things, pedestrian passage, ingress and egress and other
necessary or desirable uses in connection with the business and operations of Mall I Owner or Mall
II Owner. Such use of the H/C I Limited Common Areas shall be subject to rules and regulations
established by H/C I Owner from time to time;
provided
that no such rule or regulation
shall adversely affect (except to a
de
minimis
extent) the conduct of Mall I Owners or Mall II
Owners business in accordance with its Permitted Use.
2.4.1.8 Mall I Owner hereby grants to H/C I Owner, H/C II Owner, Mall II Owner and Residential
Portion Owner for their use and the use of their respective Tenants and their respective employees,
agents, contractors and subcontractors only, and not for the use of the general public (except in
emergency situations, in which case the general public may access the Mall I Limited Common Areas
as a means of exit from any Lot pursuant to emergency evacuation procedures in place at the time),
a non-exclusive right to use and easement over, upon, above, under, through and across all Mall I
Limited Common Areas for, among other things, pedestrian passage, ingress and egress and other
necessary or desirable uses in connection with the business and operations of H/C I Owner, H/C II
Owner or Mall II Owner. Such use of the Mall I Limited Common
41
Areas shall be subject to rules and regulations established by Mall I Owner from time to time,
provided
that no such rule or regulation shall adversely
affect (except to a
de
minimis
extent) the conduct of H/C I Owners, H/C II Owners or Mall II Owners business in accordance with
its Permitted Use.
2.4.1.9 H/C II Owner hereby grants to Mall II Owner, Mall I Owner and Residential Portion
Owner for their use and the use of their respective Tenants and their respective employees, agents,
contractors and subcontractors only, and not for the use of the general public (except in emergency
situations, in which case the general public may access the H/C II Limited Common Areas as a means
of exit from any Lot pursuant to emergency evacuation procedures in place at the time), a
non-exclusive right to use and easement over, upon, above, under, through and across all H/C II
Limited Common Areas for, among other things, pedestrian passage, ingress and egress and other
necessary or desirable uses in connection with the business and operations of Mall II Owner or Mall
II Owner. Such use of the H/C II Limited Common Areas shall be subject to rules and regulations
established by H/C II Owner from time to time;
provided
that no such rule or regulation
shall adversely affect (except to a
de
minimis
extent) the conduct of Mall II Owners or Mall I
Owners business in accordance with its Permitted Use.
2.4.1.10 Mall II Owner hereby grants to Mall I Owner, H/C II Owner, H/C I Owner and
Residential Portion Owner, for their use and the use of their respective Tenants and their
respective employees, agents, contractors and subcontractors only, and not for the use of the
general public (except in emergency situations, in which case the general public may access the
Mall II Limited Common Areas as a means of exit from any Lot pursuant to emergency evacuation
procedures in place at the time), a non-
42
exclusive right to use and easement over, upon, above, under, through and across all Mall II
Limited Common Areas for, among other things, pedestrian passage, ingress and egress and other
necessary or desirable uses in connection with the business and operations of H/C II Owner, H/C I
Owner or Mall I Owner. Such use of the Mall II Limited Common Areas shall be subject to rules and
regulations established by Mall II Owner from time to time,
provided
that no such rule or
regulation shall adversely affect (except to a
de
minimis
extent) the conduct of H/C II Owners,
H/C I Owners or Mall I Owners business in accordance with its Permitted Use.
2.4.2
Right to Relocate, Increase or Decrease Pass-through Areas, Limited Common Areas,
H/C-Mall I Common Areas and H/C-Mall II Common Areas; Owner Cooperation re: Expansion of
Pass-through Areas
.
2.4.2.1 H/C I Owner may relocate, increase or decrease all or any part of the H/C I
Pass-through Areas and/or the H/C I Limited Common Areas at its sole cost and expense;
provided
that such relocation, increase or decrease does not adversely affect (other than
to a
de
minimis
extent) any Partys (and its invitees) reasonable access to its Destination Areas.
2.4.2.2 Mall I Owner may relocate, increase or decrease all or any part of the Mall I
Pass-through Areas at its sole cost and expense;
provided
that such relocation, increase or
decrease does not adversely affect (other than to a
de
minimis
extent) any Partys (and its
invitees) reasonable access to its Destination Areas or any areas leased by another Party from
Mall I Owner and located in the Mall I Space.
2.4.2.3 H/C I Owner and/or Mall I Owner, subject to the others reasonable consent may
relocate, increase or decrease (or, in the case of Mall I Owner,
43
cause H/C I Owner to relocate, increase or decrease) all or any part of the H/C-Mall I Common
Areas, which expense shall be borne by the Party requesting such relocation, or, if both Parties
desire such relocation, such expense shall be shared equally;
provided
that such
relocation, increase or decrease: (1) does not cause any interruption in the utilization of the
easement to use the H/C-Mall I Common Areas by the Owner of the dominant tenement for the affected
easement (except
de
minimis
interruptions, as to degree or time, which shall be scheduled by
agreement with the Owner of the dominant tenement for the affected easement); (2) does not diminish
the capacity or efficiency of such easement (excepting
de
minimis
effects); (3) will not make it
more difficult or more expensive for the Owner of the dominant tenement to use the H/C-Mall I
Common Areas, unless, in the case of greater expense, the Owner requesting such relocation,
increase or decrease, at the time of such adverse relocation, increase or decrease, agrees to bear
any future additional costs arising from such relocation, increase or decrease; and (4) will not
interfere with or adversely affect the maintenance, use or operation of the dominant tenement or
the conduct of its Owners business thereat in accordance with its Permitted Use.
2.4.2.4 H/C II Owner may relocate, increase or decrease all or any part of the H/C II
Pass-through Areas and/or the H/C II Limited Common Areas at its sole cost and expense;
provided
that such relocation, increase or decrease does not adversely affect (other than
to a
de
minimis
extent) any Partys (and its invitees) reasonable access to its Destination Areas.
2.4.2.5 Mall II Owner may relocate, increase or decrease all or any part of the Mall II
Pass-through Areas at its sole cost and expense;
provided
that such relocation, increase or
decrease does not adversely affect (other than to a
de
minimis
44
extent) any Partys (and its invitees) reasonable access to its Destination Areas or any
areas leased by another Party from Mall II Owner and located in the Mall II Space.
2.4.2.6 H/C II Owner and/or Mall II Owner, subject to the others reasonable consent may
relocate, increase or decrease (or, in the case of Mall II Owner, cause H/C II Owner to relocate,
increase or decrease) all or any part of the H/C-Mall II Common Areas, which expense shall be borne
by the Party requesting such relocation, or, if both Parties desire such relocation, such expense
shall be shared equally;
provided
that such relocation, increase or decrease: (1) does not
cause any interruption in the utilization of the easement to use the H/C-Mall II Common Areas by
the Owner of the dominant tenement for the affected easement (except
de
minimis
interruptions, as
to degree or time, which shall be scheduled by agreement with the Owner of the dominant tenement
for the affected easement); (2) does not diminish the capacity or efficiency of such easement
(excepting
de
minimis
effects); (3) will not make it more difficult or more expensive for the Owner
of the dominant tenement to use the H/C-Mall II Common Areas, unless, in the case of greater
expense, the Owner requesting such relocation, increase or decrease, at the time of such adverse
relocation, increase or decrease, agrees to bear any future additional costs arising from such
relocation, increase or decrease; and (4) will not interfere with or adversely affect the
maintenance, use or operation of the dominant tenement or the conduct of its Owners business
thereat in accordance with its Permitted Use.
2.4.2.7 SECC Owner may relocate, increase or decrease all or any part of the SECC Pass-through
Areas at its sole cost and expense;
provided
that such
45
relocation, increase or decrease
does not adversely affect (other than to a
de
minimis
extent) any Partys reasonable access to its
Destination Areas.
2.4.2.8 H/C I Owner and Mall I Owner shall cooperate in good-faith as reasonably requested by
the other from time to time to effect changes to the Phase I Common Areas and other Owners
Pass-through Areas.
2.4.2.9 H/C II Owner and Mall II Owner shall cooperate in good-faith as reasonably requested
by the other from time to time to effect changes to the Phase II Common Areas and other Owners
Pass-through Areas.
2.4.3
Access Rights to Effect Maintenance and Repair
.
2.4.3.1 H/C II Owner, Mall II Owner, SECC Owner and H/C I Owner each hereby grant to Mall I
Owner an easement to enter on or into as applicable (i) the Phase II Hotel/Casino and the H/C II
Space, (ii) the Phase II Mall and the Mall II Space, (iii) the SECC and the SECC Land and (iv) the
Phase I Hotel/Casino and the H/C I Space, in each instance to the extent reasonably necessary (A)
to gain access to the Mall I Space, the Phase I Mall and any and all fixtures, fittings, equipment
and building systems from time to time located therein for the maintenance, repair or restoration
of or to the same or to any other fixtures, fittings, equipment or building systems that serve the
Phase I Mall and (B) to perform any maintenance, repair, restoration or other obligations imposed
upon Mall I Owner under this Agreement or which Mall I Owner shall otherwise desire to perform in
the Mall I Space in accordance with this Agreement, but for no other reason or purpose, except as
otherwise provided in this Agreement. Mall I Owner, in exercising its
rights under this Section 2.4.3.1,
shall use commercially reasonable efforts to minimize interference with the maintenance, use and
operation of (w) the H/C II Space and H/C II
46
Owners business at the same, (x) the Mall II Space
and Mall II Owners business at the same, (y) the SECC and SECC Owners business at the same and
(z) the H/C I Space and
H/C I Owners business at the same. Before any maintenance, repairs or restoration
contemplated by this Section 2.4.3.1 that requires Mall I Owner to enter upon any material portion of
(aa) the H/C II Space and/or the Phase II Hotel/Casino, (bb) the Mall II Space and/or the Phase II
Mall, (cc) the SECC Land and/or the SECC and/or (dd) the H/C I Space and/or the Phase I
Hotel/Casino are effectuated, Mall I Owner shall give reasonable prior notice to H/C II Owner, Mall
II Owner, SECC Owner and/or H/C I Owner, as the case may be, except in any case where the giving of
reasonable prior notice is not practicable under the circumstances (but notice shall nevertheless
be given as soon as practicable);
provided
that failure to give any such notice shall not
constitute a default hereunder.
2.4.3.2 H/C II Owner, Mall II Owner, SECC Owner and Mall I Owner each hereby grant to H/C I
Owner an easement to enter on or into as applicable (i) the Phase II Hotel/Casino and the H/C II
Space, (ii) the Phase II Mall and the Mall II Space, (iii) the SECC and the SECC Land and (iv) the
Phase I Mall and the Mall I Space, in each instance to the extent reasonably necessary (A) to gain
access to the H/C I Space and/or the Phase I Hotel/Casino and any and all fixtures, fittings,
equipment and building systems from time to time located therein or to any other fixtures,
fittings, equipment or building systems that serve the Phase I Hotel/Casino (including the Electric
Substation and any improvements related thereto) for the maintenance, repair or restoration of or
to the same and (B) to perform any maintenance, repair, restoration or other obligations imposed
upon H/C I Owner under this Agreement or which H/C I Owner shall otherwise desire to
47
perform in the
H/C I Space or on the Phase I Land as applicable in accordance with this Agreement, but for no
other reason or purpose, except as otherwise provided in this
Agreement. H/C I Owner, in exercising its rights under this
Section 2.4.3.2, shall use commercially
reasonable efforts to minimize interference with the maintenance, use and operation of (w) the H/C
II Space and H/C II Owners business at the same, (x) the Mall II Space and Mall II Owners
business at the same, (y) the SECC and SECC Owners business at the same and (z) the Mall I Space
and Mall I Owners business at the same. Before any maintenance, repairs or restoration
contemplated by this Section 2.4.3.2 that requires H/C I Owner to enter upon any material portion of (aa)
the H/C II Space and/or the Phase II Hotel/Casino, (bb) the Mall II Space and/or the Phase II Mall,
(cc) the SECC Land and/or the SECC and/or (dd) the Mall I Space and/or the Phase I Mall are
effectuated, H/C I Owner shall give reasonable prior notice to H/C II Owner, Mall II Owner, SECC
Owner and/or Mall I Owner, as the case may be, except in any case where the giving of reasonable
prior notice is not practicable under the circumstances (but notice shall nevertheless be given as
soon as practicable);
provided
that the failure to give any such notice shall not
constitute a default hereunder.
2.4.3.3 Mall II Owner, H/C II Owner, Mall I Owner and H/C I Owner each hereby grant to SECC
Owner an easement to enter on or into as applicable (i) the Phase II Mall and the Mall II Space,
(ii) the Phase II Hotel/Casino and the H/C II Space, (iii) the Phase I Mall and the Mall I Space
and (iv) the Phase I Hotel/Casino and the H/C I Space, in each instance to the extent reasonably
necessary (A) to gain access to the SECC Land, the SECC and any and all fixtures, fittings,
equipment and building systems from time to time located therein or thereon or to any other
fixtures, fittings, equipment or
48
building systems that serve the SECC for the maintenance, repair
or restoration of or to the same, and (B) to perform any maintenance, repair, restoration or other
obligations imposed
upon SECC Owner under this Agreement or which SECC Owner shall otherwise desire to perform on
the SECC Land or the SECC in accordance with this Agreement, but for no other reason or purpose,
except as otherwise provided in this Agreement. SECC Owner, in exercising its rights under this
Section 2.4.3.3, shall use commercially reasonable efforts to minimize interference with the maintenance,
use and operation of (w) the Mall II Space and Mall II Owners business at the same, (x) the H/C II
Space and H/C II Owners business at the same, (y) the Mall I Space and Mall I Owners business at
the same and (z) the H/C I Space and H/C I Owners business at the same. Before any maintenance,
repairs or restoration contemplated by this Section 2.4.3.3 that requires SECC Owner to enter upon any
material portion of (aa) the Mall II Space and/or the Phase II Mall, (bb) the H/C II Space and/or
the Phase II Hotel/Casino, (cc) the Mall I Space and/or the Phase I Mall and/or (dd) the H/C I
Space and/or the Phase I Hotel/Casino are effectuated, SECC Owner shall give reasonable prior
notice to Mall II Owner, H/C II Owner, Mall I Owner and/or H/C I Owner, as the case may be, except
in any case where the giving of reasonable prior notice is not practicable under the circumstances
(but notice shall nevertheless be given as soon as practicable);
provided
that failure to
give any such notice shall not constitute a default hereunder.
2.4.3.4 H/C I Owner, Mall I Owner, SECC Owner and H/C II Owner each hereby grant to Mall II
Owner an easement to enter on or into as applicable (i) the Phase I Hotel/Casino and the H/C I
Space, (ii) the Phase I Mall and the Mall I Space, (iii) the SECC and the SECC Land and (iv) the
Phase II Hotel/Casino and the
49
H/C II Space, in each instance to the extent reasonably necessary (A)
to gain access to the Mall II Space, the Phase II Mall and any and all fixtures, fittings,
equipment and building systems
from time to time located therein or to any other fixtures, fittings, equipment or building
systems that serve the Phase II Mall for the maintenance, repair or restoration of or to the same
and (B) to perform any maintenance, repair, restoration or other obligations imposed upon Mall II
Owner under this Agreement or which Mall II Owner shall otherwise desire to perform in the Mall II
Space in accordance with this Agreement, but for no other reason or purpose, except as otherwise
provided in this Agreement. Mall II Owner, in exercising its rights
under this Section 2.4.3.4, shall
use commercially reasonable efforts to minimize interference with the maintenance, use and
operation of (w) the H/C I Space and H/C I Owners business at the same, (x) the Mall I Space and
Mall I Owners business at the same, (y) the SECC and SECC Owners business at the same and (z) the
H/C II Space and H/C II Owners business at the same. Before any maintenance, repairs or
restoration contemplated by this Section 2.4.3.4 that requires Mall II Owner to enter upon any material
portion of (aa) the H/C I Space and/or the Phase I Hotel/Casino, (bb) the Mall I Space and/or the
Phase I Mall, (cc) the SECC Land and/or the SECC and/or (dd) the H/C II Space and/or the Phase II
Hotel/Casino are effectuated, Mall II Owner shall give reasonable prior notice to H/C I Owner, Mall
I Owner, SECC Owner and/or H/C II Owner, as the case may be, except in any case where the giving of
reasonable prior notice is not practicable under the circumstances (but notice shall nevertheless
be given as soon as practicable);
provided
that failure to give any such notice shall not
constitute a default hereunder.
50
2.4.3.5 H/C I Owner, Mall I Owner, SECC Owner and Mall II Owner each hereby grant to H/C II
Owner an easement to enter on or into as applicable (i) the Phase I Hotel/Casino and the H/C I
Space, (ii) the Phase I Mall and the Mall I Space, (iii) the SECC and the SECC Land and (iv) the Phase II Mall and the Mall II Space, in each
instance to the extent reasonably necessary (A) to gain access to the H/C II Space and/or the Phase
II Hotel/Casino and any and all fixtures, fittings, equipment and building systems from time to
time located therein or to any other fixtures, fittings, equipment or building systems that serve
the Phase II Hotel/Casino for the maintenance, repair or restoration of or to the same and (B) to
perform any maintenance, repair, restoration or other obligations imposed upon H/C II Owner under
this Agreement or which H/C II Owner shall otherwise desire to perform in the H/C II Space or on
the Phase II Land as applicable in accordance with this Agreement, but for no other reason or
purpose, except as otherwise provided in this Agreement. H/C II Owner, in exercising its rights
under this Section 2.4.3.5, shall use commercially reasonable efforts to minimize interference with the
maintenance, use and operation of (w) the H/C I Space and H/C I Owners business at the same, (x)
the Mall I Space and Mall I Owners business at the same, (y) the SECC and SECC Owners business at
the same and (z) the Mall II Space and Mall II Owners business at the same. Before any
maintenance, repairs or restoration contemplated by this
Section 2.4.3.5 that requires H/C II Owner to
enter upon any material portion of (aa) the H/C I Space and/or the Phase I Hotel/Casino, (bb) the
Mall I Space and/or the Phase I Mall, (cc) the SECC Land and/or the SECC and/or (dd) the Mall II
Space and/or the Phase II Mall are effectuated, H/C II Owner shall give reasonable prior notice to
H/C I Owner, Mall I Owner, SECC Owner and/or Mall II Owner, as the case may be, except in
51
any case
where the giving of reasonable prior notice is not practicable under the circumstances (but notice
shall nevertheless be given as soon as practicable);
provided
that the failure to give any
such notice shall not constitute a default hereunder.
2.4.3.6 Mall II Owner, H/C II Owner, Mall I Owner, H/C I Owner and SECC Owner each hereby
grant to Residential Portion Owner an easement to enter on or into as applicable (i) the Phase II
Mall and the Mall II Space, (ii) the Phase II Hotel/Casino and the H/C II Space, (iii) the Phase I
Mall and the Mall I Space, (iv) the Phase I Hotel/Casino and the H/C I Space and (v) the SECC and
the SECC Land, in each instance to the extent reasonably necessary (A) to gain access to the
Condominium Space, the Condominium and any and all fixtures, fittings, equipment and building
systems from time to time located therein or thereon or to any other fixtures, fittings, equipment
or building systems that serve the Condominium for the maintenance, repair or restoration of or to
the same, and (B) to perform any maintenance, repair, restoration or other obligations imposed upon
Residential Portion Owner under this Agreement or which Residential Portion Owner shall otherwise
desire to perform on the Condominium Space or the Condominium in accordance with this Agreement,
but for no other reason or purpose, except as otherwise provided in this Agreement. Residential
Portion Owner, in exercising its rights under this Section
2.4.3.6, shall use commercially reasonable
efforts to minimize interference with the maintenance, use and operation of (v) the Mall II Space
and Mall II Owners business at the same, (w) the H/C II Space and H/C II Owners business at the
same, (x) the Mall I Space and Mall I Owners business at the same, (y) the H/C I Space and H/C I
Owners business at the same, and (z) the SECC and SECC Owners business at the same. Before any
maintenance, repairs or restoration contemplated by this
52
Section 2.4.3.6 that requires Residential
Portion Owner to enter upon any material portion of (aa) the Mall II Space and/or the Phase II
Mall, (bb) the H/C II Space and/or the Phase II Hotel/Casino, (cc) the Mall I Space and/or the
Phase I Mall, (dd) the H/C I Space and/or the Phase I
Hotel/Casino and/or (ee) the SECC Land and/or the SECC are effectuated, Residential Portion
Owner shall give reasonable prior notice to Mall II Owner, H/C II Owner, Mall I Owner, H/C I Owner
and/or SECC Owner, as the case may be, except in any case where the giving of reasonable prior
notice is not practicable under the circumstances (but notice shall nevertheless be given as soon
as practicable);
provided
that failure to give any such notice shall not constitute a
default hereunder.
2.4.4
Parking Access Easements
.
2.4.4.1 Each of SECC Owner and H/C I Owner hereby grants to each other and to Mall I Owner,
Mall II Owner, H/C II Owner and Residential Portion Owner a non-exclusive easement (each, a
Parking Access Easement
) and right to use, for vehicular and pedestrian access to (and
from) the Phase I Automobile Parking Area, the roadways and walkways leading thereto, including,
without limitation, the road designated as the Koval Access Road and the sidewalks adjacent
thereto, if any, all as depicted on
Exhibit S
annexed hereto and made a part hereof. H/C I
Owner hereby grants to SECC Owner, Mall I Owner, Mall II Owner and Residential Portion Owner a
non-exclusive easement and right to use, for pedestrian ingress and egress and access to (and from)
the Phase I Automobile Parking Area from (and to) such other Owners Lot and the public areas of
the Venetian.
2.4.4.2 H/C II Owner hereby grants to Mall I Owner, Mall II Owner, H/C I Owner, SECC Owner and
Residential Portion Owner a Parking Access
53
Easement and right to use, for vehicular and pedestrian
access to (and from) the Phase II Automobile Parking Area, the roadways and walkways leading
thereto, all as depicted on
Exhibit S
annexed hereto and made a part hereof. H/C II Owner
hereby grants to Mall I
Owner, Mall II Owner, H/C I Owner, SECC Owner and Residential Portion Owner a non-exclusive
easement and right to use, for pedestrian ingress and egress and access to (and from) the Phase II
Automobile Parking Area from (and to) such other Owners Lot and the public areas of the Palazzo.
2.4.4.3 Notwithstanding any provision herein to the contrary, each of H/C I Owner, SECC Owner
and H/C II Owner, as applicable, shall have the right to relocate each of the Parking Access
Easements located on their respective Lots;
provided
that, other than temporary reasonable
interference during relocation, such relocation does not impair other Owners rights to utilize
Parking Access Easements (other than to a
de
minimis
extent), or interfere (other than to a
de
minimis
extent) with any other Owners business at its Lot, or impose additional obligations on any
other Owner under this Agreement.
2.4.5
Emergency Access Rights
.
2.4.5.1 Each of H/C I Owner, H/C II Owner, Mall I Owner, Mall II Owner and SECC Owner hereby
grants to the other Owners such easements in, on, across and through (i) the H/C I Space and/or any
improvements constructed upon the H/C I Space, (ii) the Mall I Space and/or any improvements
constructed in the Mall I Space, (iii) the Mall II Space and/or any improvements constructed in the
Mall II Space, (iv) the SECC Land and/or any improvements constructed upon the SECC Land or (v) the
H/C II Space and/or any improvements constructed upon the H/C II Space, as each of them
54
may
reasonably require, and in such location as the grantor thereof shall approve (which approval shall
not be unreasonably withheld), in order to provide access to emergency fire exit or service
corridors or stairs (to the extent required in order to comply with applicable
building codes and in accordance with applicable Legal Requirements);
provided
that
the Party exercising its rights under this Section 2.4.5 shall reimburse the Party burdened by such
exercise for all reasonable costs and expenses incurred by such burdened Party in connection
therewith.
2.4.5.2 Each Party shall have the right to cause the other Parties to confirm the precise
boundaries of such easements and to memorialize the same by a recorded agreement executed by the
Owner of the burdened property and the Owner of the benefited Property (
provided
that, in
any event, each such easement shall be located in such a commercially appropriate location on the
burdened property as to minimize, to the extent reasonably possible, interference with the
construction, use and operation of such property and the buildings and other improvements from time
to time located thereon).
2.4.6
Easements for Vertical and Lateral Support
. H/C I Owner, H/C II Owner, Mall I
Owner, Mall II Owner and Residential Portion Owner hereby grant to the others a right and easement
for vertical and lateral support of the Phase I Mall, the Phase II Mall, the Phase I Hotel/Casino,
the Phase II Hotel/Casino and the Condominium and an easement in and to all structural members,
footings, caissons, foundations, columns and beams and any other supporting components located
within or constituting a part of the Phase I Hotel/Casino, the Phase I Mall, the Mall I Space, the
H/C I Space, Phase II Hotel/Casino, the Phase II Mall, the Mall II Space, the H/C II Space, the
Condominium or the Residential Portion for the support of the Phase I Mall, the Phase I
Hotel/Casino, the
55
Phase II Mall, the Phase II Hotel/Casino and the Condominium and all Facilities
located therein or thereon.
2.4.7
Miscellaneous
.
2.4.7.1
Except as otherwise expressly provided in this Article 2, each grantor of an easement under this Article 2 may relocate any easement
on its parcel at its sole cost and expense
provided
that such relocation: (1) does not
cause any interruption in the utilization of the easement by the Owner of the dominant tenement for
the affected easement (except
de
minimis
interruptions, as to degree or time, which shall be
scheduled by agreement with the Owner of the dominant tenement for the affected easement); (2) does
not diminish the capacity or efficiency of such easement (excepting
de
minimis
effects); (3) will
not make it more difficult or more expensive for the Owner of the dominant tenement with respect to
any utility easement to use, maintain, repair, or replace the utility lines, unless, in the case of
increased expense, the relocating grantor, at the time of such adverse relocation, agrees to bear
any future additional costs arising from such relocation; and (4) will not interfere with or
adversely affect (other than to a
de
minimis
extent) the maintenance, use or operation of the
dominant tenement or the conduct of its Owners business thereat.
2.4.7.2 Except as otherwise provided herein with respect to Limited Common Areas, each
benefited Owner of any easement described in this Article 2 or any other
provision of this Agreement may allow its Tenants and Permittees from time to time to use such
easement;
provided
that the use by such Tenants and Permittees shall be consistent with the
use rights granted under the applicable provisions of this Article 2 or
the applicable other provisions of this Agreement.
56
2.4.8
Antennae
. H/C I Owner and H/C II Owner grant to each of Mall I Owner, Mall II
Owner and SECC Owner the right to use the communication frequencies provided by the antennae that
H/C I Owner and H/C II Owner have installed in and on the Venetian and the Palazzo, subject to the
cost sharing provisions of Section 5.1.3 H/C I Owner and H/C II
Owner shall have the right to establish reasonable rules and regulations for the use of the radio
frequencies and radio equipment, including the number of receivers and channels that each of Mall I
Owner, Mall II Owner and SECC Owner may use, and Mall I Owner, Mall II Owner and SECC Owner agree
to abide by such rules and regulations and to cause their employees to abide by such rules. Mall I
Owner and Mall II Owner agree that any radio communications between and among their respective
employees in and around the Venetian and the Palazzo shall be limited to 35 radios for Mall I Owner
and 30 radios for Mall II Owner at any given time, which radios shall operate only on the GCS A,
GCS B and GCS C channels, as maintained by H/C I Owners or H/C II Owners electronic shop, as
applicable, or any other channels as may be designated by H/C I Owner and H/C II Owner from time to
time;
provided
,
however
, that Mall I Owner and Mall II Owner shall, subject to
reasonable rules and regulations promulgated by H/C I Owner and H/C II Owner, also have access to
channel 402 (the fire channel), channel 402A, channel Engineer A (the maintenance channel),
and the security channel. Mall I Owner and Mall II Owner also agree that to the extent that they
desire to obtain additional radio communications capabilities, Mall I Owner and Mall II Owner shall
be required to obtain their own channels, and related equipment, at their sole cost and expense,
and only to the extent that such additional channels do not interfere with or diminish H/C I
Owners and H/C II Owners radio
communications capabilities.
57
2.4.9
Mall I H/C Exclusive Areas
. The Mall I H/C Exclusive Areas contain utility
equipment and other facilities that service the SECC, the Mall I Space, the H/C I Space and the
Phase IA Airspace. Notwithstanding anything herein to the contrary, the Mall I H/C Exclusive Areas
shall be accessible to and used by H/C I Owner and its agents, employees, contractors and
subcontractors only, and (notwithstanding the fact that the Mall I H/C Exclusive Areas are located
within the Mall I Space) no other Party (including Mall I Owner) shall have any easement or other
access rights to the Mall I H/C Exclusive Areas. In order to effectuate the foregoing, Mall I
Owner hereby grants H/C I Owner an exclusive easement right to access and use the Mall I H/C
Exclusive Areas. Mall I Owner may access the Mall I H/C Exclusive Areas after obtaining the
consent of H/C I Owner, which shall not be unreasonably withheld. H/C I Owner may require that any
agent or employee of Mall I Owner accessing the Mall I H/C Exclusive Areas be accompanied by a
representative of H/C I Owner.
2.4.10
Mall II H/C Exclusive Areas
. The Mall II H/C Exclusive Areas contain utility
equipment and other facilities that service the SECC, the Mall II Space and the H/C II Space.
Notwithstanding anything herein to the contrary, the Mall II H/C Exclusive Areas shall be
accessible to and used by H/C II Owner and its agents, employees, contractors and subcontractors
only, and (notwithstanding the fact that the Mall II H/C Exclusive Areas are located within the
Mall II Space) no other Party (including Mall II Owner) shall have any easement or other access
rights to the Mall II H/C Exclusive Areas. In order to effectuate the foregoing, Mall II Owner
hereby grants H/C II Owner an exclusive easement right to access and use the Mall II H/C Exclusive
Areas. Mall II Owner may access the Mall II H/C Exclusive Areas after obtaining the
58
consent of H/C
II Owner, which shall not be unreasonably withheld. H/C II Owner may require that any agent or
employee of Mall II Owner accessing the Mall II H/C Exclusive Areas be accompanied by a
representative of H/C II Owner.
2.4.11
Residential Portion H/C Exclusive Areas and Residential Portion Mall II Exclusive
Areas
.
2.4.11.1 The Residential Portion H/C Exclusive Areas shall be determined by H/C I Owner and
Residential Portion Owner and set forth in an exhibit to the Condo Amendment. Notwithstanding
anything herein to the contrary, the Residential Portion H/C Exclusive Areas shall be accessible to
and used by H/C I Owner and its agents, employees, contractors and subcontractors only, and
(notwithstanding the fact that the Residential Portion H/C Exclusive Areas are located within the
Residential Portion) no other Party (including Residential Portion Owner) shall have any easement
or other access rights to the Residential Portion H/C Exclusive Areas. In order to effectuate the
foregoing, Residential Portion Owner hereby grants H/C I Owner an exclusive easement right to
access and use the Residential Portion H/C Exclusive Areas. Residential Portion Owner may access
the Residential Portion H/C Exclusive Areas after obtaining the consent of H/C I Owner, which shall
not be unreasonably withheld. H/C I Owner may require that any agent or employee of Residential
Portion Owner accessing the Residential Portion H/C Exclusive Areas be accompanied by a
representative of H/C I Owner.
2.4.11.2 The Residential Portion Mall II Exclusive Areas shall be determined by H/C I Owner
and Residential Portion Owner and set forth in an exhibit to the Condo Amendment. Notwithstanding
anything herein to the contrary, the Residential Portion Mall II Exclusive Areas shall be
accessible to and used by Mall II Owner and its
59
agents, employees, contractors and subcontractors only, and (notwithstanding the fact that the
Residential Portion Mall II Exclusive Areas are located within the Residential Portion) no other
Party (including Residential Portion Owner) shall have any easement or other access rights to the
Residential Portion Mall II Exclusive Areas. In order to effectuate the foregoing, Residential
Portion Owner hereby grants Mall II Owner an exclusive easement right to access and use the
Residential Portion Mall II Exclusive Areas. Residential Portion Owner may access the Residential
Portion Mall II Exclusive Areas after obtaining the consent of Mall II Owner, which shall not be
unreasonably withheld. H/C I Owner may require that any agent or employee of Residential Portion
Owner accessing the Residential Portion Mall II Exclusive Areas be accompanied by a representative
of Mall II Owner.
ARTICLE 3
COVENANTS REGARDING SECC AND ADDITIONAL RETAIL SPACE
Section 3.1
SECC Operation
. H/C I Owner, H/C II Owner and SECC Owner hereby covenant, in favor of
Mall I Owner and Mall II Owner that, subject to Force Majeure Events, the SECC, or another
convention, trade show and exposition center located on the SECC Land, the Phase I Land, the Phase
II Land and/or any other land adjacent to the Integrated Resort or connected thereto by walkways,
pedestrian bridge or other interior pedestrian access routes (
Adjacent Land
), shall be
continuously operated as a convention, trade show and exposition center and for ancillary uses (but
not retail or restaurant uses except consistent with uses as of the date hereof and except in
accordance with the provisions of Section 3.2 and Section 3.3) in a manner and at a level that
shall be no less than the standards as of the date hereof of First class convention, trade show and
60
exposition centers. The Parties acknowledge that SECC
Owners use and operation of the SECC on the date hereof satisfies such standards.
Section 3.2
Other Convention Centers
. SECC Owner, H/C I Owner and H/C II Owner hereby agree, for
the benefit of Mall I Owner and Mall II Owner, that subject to Section 3.3 below, each convention,
trade show and/or exposition center (each, a
Convention Center
) operated on the Phase I
Land, Phase II Land, SECC Land and Adjacent Land (excluding any space in the Phase I Hotel/Casino
or Phase II Hotel/Casino, as to which the restrictions set forth in Section 4.1 below applies)
shall not have, in the aggregate and including space covered by the next sentence, more square feet
of retail and/or restaurant space than the sum of (x) 2,500 plus (y) the amount of retail and/or
restaurant space in the SECC as of the date hereof. In addition, SECC Owner agrees, for the
benefit of Mall I Owner and Mall II Owner, that subject to Section 3.3 below, any building
constructed on the SECC Land shall not have, in the aggregate and including space covered by the
preceding sentence, more square feet of retail and/or restaurant space than the sum of (x) 2,500
plus (y) the amount of retail and/or restaurant space in the SECC as of the date hereof.
Section 3.3
Additional Retail Space
. Any building constructed on the SECC Land (including the
existing building on the SECC Land as of the date hereof), and any convention center on Adjacent
Land, shall be permitted to contain retail and/or restaurant space that, if not for this
Section 3.3, would be prohibited pursuant to Section 3.1 and Section 3.2; provided, however, that
such retail and/or restaurant space must at all times be owned, operated, managed and leased by
either H/C I Owner, H/C II Owner or an Affiliate of either; provided further,
however, that (a) such Owner shall have the right to negotiate
61
Leases with brokers
representing Tenants or potential Tenants and (b) such Owner shall have the right to sell such
space or any portion thereof to Mall I Owner or Mall II Owner or an Affiliate of either on terms
satisfactory to such Owner and such buyer in the sole discretion of each of them. The Parties
acknowledge and confirm that in the event that the relevant Parties attempt to reach agreement on a
sale pursuant to clause (b) of the preceding sentence but are unable to so agree, the first proviso
clause of the preceding sentence shall remain in effect. In the event of a sale of such retail
and/or restaurant space pursuant to a judgment of foreclosure of a Mortgage, or any conveyance(s)
of such retail and/or restaurant space to the applicable Mortgagee or any Affiliate thereof in
connection with a deed-in-lieu of foreclosure transaction, then the first proviso clause of the
first sentence of this Section 3.3 shall no longer be in force or effect and such retail and/or
restaurant space may be owned, operated, managed and/or leased by any third-party which is not a
competitor of General Growth Properties, Inc. Notwithstanding the definition of Affiliate set
forth in Schedule I, solely for purposes of this Section 3.3 the term Affiliate as applied to H/C
I Owner or H/C II Owner shall not include any entity in which a competitor of General Growth
Properties, Inc., holds any interest (other than an ownership interest in a publicly traded
company).
ARTICLE 4
OPERATION OF PHASE I
HOTEL/CASINO AND PHASE I MALL; OPERATION OF PHASE II
HOTEL/CASINO AND PHASE II MALL;
TENANT NON-COMPETITION
Section 4.1
Operating Covenants of H/C I Owner and H/C II Owner
. H/C I Owner agrees for the
benefit of Mall I Owner and Mall II Owner in the case of
62
Sections 4.1.1, 4.1.2 and 4.1.4 below (and
H/C II Owner agrees for the benefit of Mall I Owner and Mall II Owner in the case of Sections
4.1.3, 4.1.4 and 4.1.5 below) as follows:
4.1.1 H/C I Owner shall continuously (subject to Force Majeure Events) operate and exclusively
use the Phase I Hotel/Casino as a Venetian-themed hotel and casino and for ancillary uses (but not
retail or restaurant tenants or uses except for the space covered by the Phase I Casino Level
Master Lease (whether or not such Lease remains in effect) and other space currently used for
retail or restaurant purposes as of the date hereof and except in accordance with the provisions of
Sections 4.1.2 and 4.1.4) in a manner and at a level that shall be no less than the standards of
First-class Las Vegas Boulevard-style hotel/casinos. Notwithstanding the foregoing, H/C I Owner
shall have the right to cease operating the Phase I Hotel/Casino in accordance with the
Venetian-theme upon one hundred and twenty (120) days prior notice to Mall I Owner. At all times,
the first floor of the Phase I Hotel/Casino (excluding Phase 1A and the Congress Facility), other
than space used for restaurants and ballrooms as of the date hereof, shall be used primarily for
gaming purposes.
4.1.2 H/C I Owner shall have the right to operate, or lease to a tenant to operate, a
restaurant/bar located (i) in the space known, as of May 17, 2004, as the Sports Book together
with adjacent casino space (the
Sports Book Space
), so long as such Sports Book Space
does not exceed twenty thousand (20,000) square feet in the aggregate and (ii) in any back-of-house
space that is only available to employees of H/C I Owner.
4.1.3 Subject to the proviso clause of Section 4.1.4, the Phase II Hotel/Casino shall not
contain any restaurant or retail space except for the following: (a) restaurants located on the
casino level of the Phase II Hotel/Casino, (b) retail space
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located on the casino level of the
Phase II Hotel/Casino, provided that such retail space, which is currently expected to include a
gift shop, newsstand, apothecary (high-end drug store), coffee/gelato stand and/or jewelry store,
shall not occupy more than ten thousand (10,000) square feet in the aggregate, (c) restaurants
located on a sub-casino level of the Phase II Hotel/Casino, which restaurants are currently
expected to include a wine cellar of approximately seven thousand (7,000) square feet, a restaurant
of approximately twenty-three thousand (23,000) square feet and a café (to form part of a car
dealership) of approximately nine thousand (9,000) square feet, provided that such restaurants
shall not occupy more than thirty-nine thousand (39,000) square feet in the aggregate, and (d) the
space described in Section 4.1.4 below.
4.1.4 In addition to the restaurant and retail space described in the foregoing Sections 4.1.2
and 4.1.3, H/C I Owner and H/C II Owner in the aggregate may elect to create up to 15,000 square
feet of aggregate additional retail (but not restaurant) space in the Phase I Hotel/Casino and the
Phase II Hotel/Casino in the aggregate, provided for clarity, that H/C I Owner and H/C II Owner
shall have the right to operate, or lease to one or more tenants to operate, in the Phase I
Hotel/Casino and the Phase II Hotel/Casino, respectively, (x) car dealerships and (y) stores, shops
and/or stands with merchandise exclusively (subject to de minimis exceptions) related to shows and
productions offered at the Venetian or the Palazzo and
that such dealerships, stores, shops and/or stands shall not constitute retail space for the
purposes of this Section 4.1.
4.1.5 H/C II Owner shall continuously (subject to Force Majeure Events) operate and
exclusively use the Phase II Hotel/Casino as a hotel and casino and for ancillary uses (but not
retail or restaurant tenants or uses except for the space covered by
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the Phase II Casino Level
Master Lease (whether or not such Lease remains in effect) and except in accordance with the
provisions of Sections 4.1.3 and 4.1.4) in a manner and at a level that shall be no less than the
standards of First-class Las Vegas Boulevard style hotel/casinos, as such standards exist as of the
date hereof. At all times after it opens to the public, the ground floor of the Phase II
Hotel/Casino, other than the space that will be used for restaurants and ballrooms and the Phase II
Casino Level Leased Space and except in accordance with the provisions of Sections 4.1.3 and 4.1.4,
shall be used primarily for gaming purposes.
Section 4.2
Operating Covenants of Mall I Owner
. Mall I Owner agrees for the benefit of H/C I
Owner as follows:
4.2.1 Mall I Owner shall continuously (subject to Force Majeure Events) operate and
exclusively use (or cause to be used) the Phase I Mall as a retail and restaurant complex and for
ancillary uses in a manner and at a level that shall be no less than the quality and standard of
the Phase I Mall as of the date hereof, subject to the covenants and restrictions set forth in the
further provisions of this Section 4.2 and provided that Mall I Owner shall use reasonably diligent
efforts (with such efforts to be measured without taking into account the relative financial terms
offered by different prospective Tenants (provided that in no event shall Mall I Owner be
obligated to accept financial terms that are less than market) or the cost of any Tenant
improvement work due to a more upscale use) to (i) upgrade, as promptly as possible (taking into
account existing contractual obligations), the occupant mix of the St. Marks Square area in the
Phase I Mall such that the quality and standard of Mall I Occupants in the St. Marks Square area
are as consistent as is reasonably possible to the quality and standard of Mall
65
II Occupants as of
the date hereof, taking into account the location of the St. Marks Square area and all other
relevant factors, (ii) remove the beverage vending machines located in the elevator vestibule of
the Great Hall and at the back of St. Marks Square, and not locate any vending machines in either
such area or in any other area in open public view (except in the food court area and access
corridors to public restrooms), and (iii) ensure that all burnt-out or missing light bulbs in the
Phase I Mall are immediately replaced. Mall I Owners obligations under this Section 4.2.1 are
subject to Force Majeure Events.
4.2.2
Required Phase I Mall Standard; Identity of Tenants of Phase I Mall; Prohibited
Phase I Mall Uses
.
4.2.2.1 Mall I Owner covenants and agrees that from and after the date hereof, any tenant with
whom Mall I Owner enters into a Lease, and any other Person who, whether pursuant to a sublease
from a Tenant or otherwise, occupies space in Mall I Space, including the operators of any retail
carts or kiosks located in the Mall I Space (any such tenant or other Person, a
Mall I
Occupant
) shall be a retail or restaurant tenant appropriate for and consistent with, a
quality and standard for the Phase I Mall and its aggregate occupant mix that is not less than the
quality and standard of the Phase I Mall
and the Mall I Occupants as of May 17, 2004. Mall I Owner agrees to use commercially
reasonable efforts from and after the date of this Agreement to pursue a maintenance and leasing
program whereby the Phase I Mall and the Mall I Occupants are of a First-class quality and
standard.
4.2.2.2 In all events, Mall I Owner covenants and agrees that no Mall I Occupant shall be a
Competitor and no space in the Phase I Mall shall be used
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(whether by Mall I Owner, any Mall I
Occupant or any other Person) for or as any of the following:
4.2.2.2.1 Conducting or permitting any fire, auction, going-out-of-business or bankruptcy
sale.
4.2.2.2.2 Engaging in any unethical or disreputable method of business operation.
4.2.2.2.3 A so-called flea market.
4.2.2.2.4 Selling, displaying for sale or displaying any pornographic or obscene material.
4.2.2.2.5 A gambling or gaming establishment such as, without limitation, an Off-Track
Betting, sport gambling, casino gambling or similar establishment (provided, that the foregoing
shall not be deemed to restrict the use of portable gaming devices provided by or on behalf of H/C
I Owner or H/C II Owner in the Phase I Mall, if permitted by law).
4.2.2.2.6 Any loudspeakers, phonographs or other devices of similar nature in such a manner so
as to be heard outside of the applicable demised premises.
4.2.2.2.7 A billiard or pool hall (although any First-class bar or restaurant to whom Mall I
Owner may be permitted to rent a portion of the Phase I Mall or Mall I Space under the other terms
of this Agreement may be permitted to install billiard or pool tables ancillary to its primary bar
or restaurant operations).
4.2.2.2.8 Any off-price or discount store.
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4.2.2.2.9 A swap show selling merchandise that is used, damaged or discontinued, or any
second hand store or surplus store (but excluding stores that sell antiques).
4.2.2.2.10 Any establishment any purpose of which:
4.2.2.2.10.1 is to sell, afford or permit on-premises sexual stimulation or sexual
liaisons;
4.2.2.2.10.2 permits or presents obscene, nude or semi-nude performances or modeling;
4.2.2.2.10.3 sells rubber goods or other sexual or erotic products of a type not
commonly found in national chain pharmacies;
4.2.2.2.10.4 sells, rents or permits the viewing of x-rated video, photographs, books
or other material (except, in the case of a book store, if such materials do not constitute
a primary product of the establishment and if such materials are discreetly displayed in
such manner as not to be visible from outside the premises); or
4.2.2.2.10.5 offers any other form of so-called adult entertainment.
4.2.2.2.11 A facility for the sale of paraphernalia for use with illicit drugs.
4.2.2.2.12 A pawn shop or auction house.
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4.2.2.2.13 Any use which emits an obnoxious odor, excessive noise or sound which can be heard
or smelled to a material extent outside of the space occupied for the use.
4.2.2.2.14 Any solicitations or leafleting activity, including, but not limited to, union or
collective bargaining solicitations.
4.2.2.2.15 Promoting, marketing or advertising any business, product, good or item of a
Competitor or selling any product, good or item, the primary or a significant purpose of which is
to promote, market or advertise any business, product, good or item of a Competitor. For example,
and without limiting the foregoing, the sale of a guidebook which includes a description of a
Competitors property would be permitted in the Mall I Space, but the sale of a t-shirt bearing the
logo of a Competitors property would not be permitted pursuant to this Section 4.2.2.2.15
4.2.2.2.16 A wedding chapel, for performing weddings or as part of any wedding-related
program, activity or service.
4.2.2.2.17 An office, store, reading room, headquarters, center or other facility devoted or
opposed to the promotion, advancement, representation, purpose or benefit of: (a) any political
party, political movement or political candidate, (b) any religion, religious group or religious
denomination, (c) any foreign government or (d) any cause of any type or nature whatsoever.
4.2.2.2.18 The sale of telephone calling cards.
4.2.2.2.19 The provision of catering services or the preparation of meals intended to be eaten
in hotel rooms in the Phase I Hotel/Casino or the Phase II Hotel/Casino.
69
4.2.2.2.20 A florist or the sale of flower arrangements.
4.2.2.2.21 A spa, health or fitness club, gym or beauty salon, provided the same shall not
prohibit the retail sale of cosmetics and other spa or beauty products.
4.2.2.2.22 For so long as there is a drug store and/or prescription pharmacy on the land
underneath the Walgreens Airspace, the operation of a drug store or a so-called prescription
pharmacy or for any other purpose requiring a qualified pharmacist or other person authorized by
law to dispense medicinal drugs, directly or indirectly, for a fee or remuneration of any kind.
4.2.2.2.23 Any play, show, performance or other entertainment-type activity other than (a) in
the common areas of the Phase I Mall, (b) in Tenant Space at the Phase I Mall, provided that such
entertainment is ancillary to such Tenant Space and is not its primary purpose, (c) the Venetian
Performers, or (d) an interactive, dinner-theater soap opera known as Tamara and held in the
Tenant Space formerly occupied by In Celebration of Golf.
4.2.3
Venetian Theme
. For so long as the Phase I Hotel/Casino is decorated in
accordance with a Venetian theme, Mall I Owner covenants and agrees to operate and maintain the
Phase I Mall and Mall I Space in keeping with the overall Venetian theme of the Phase I Mall in
existence as of May 17, 2004 (such theme, including the components thereof described in the next
sentence and in the last sentence of
this paragraph, the
Venetian Theme
). In furtherance of, but without limiting, the
foregoing, Mall I Owner shall maintain, and where applicable shall cause its Tenants to maintain,
in a First-class condition the high-end finish and Renaissance-Venice streetscape
70
motif of the
Phase I Mall in existence as of May 17, 2004, characterized by, among other things, a painted
vaulted ceiling, cobblestone floor tiling, piazza style retail store groupings, a St. Marks
Square, and arched bridges over a winding Venetian-themed indoor water canal running the length of
the main mall corridor. All Alterations made by Mall I Owner, its Tenants and other occupants must
be consistent with the Venetian Theme. Additionally, Mall I Owner acknowledges and confirms that
an important component of the Venetian Theme is the currently-existing pantomimes, singing
gondoliers and other street performers (the
Venetian Performers
), and therefore, Mall I
Owner agrees to continue to employ Venetian Performers in numbers and on a schedule similar or
greater to that employed by Mall I Owner as of May 17, 2004, as described in
Exhibit H
attached hereto and made a part hereof. No neon signs (other than neon signs in the food court
as of the date hereof) shall be visible from any of the Phase I Malls public or common areas. The
provisions of this Section 4.2.3 shall cease to be effective at such time as the Phase I
Hotel/Casino ceases to be decorated in accordance with the Venetian Theme.
4.2.4
Grand Canal Shoppes Name; Right to Use Venetian Logo
.
4.2.4.1 Mall I Owner agrees that, subject to the further provisions of this Section 4.2.4.1,
the Phase I Mall shall continuously and exclusively operate under the names Grand Canal Shoppes,
Grand Canal Shoppes at The Venetian, Grand Canal Shoppes at The Venetian Las Vegas and Grand Canal Shoppes at The Venetian Resort Hotel Casino. Mall I Owner may not use any of
such names to identify any other retail facility aside from the Phase I Mall. The uses of such
names are subject to the following licenses and restrictions:
71
4.2.4.1.1 H/C I Owner hereby grants to Mall I Owner and its Affiliates a non-exclusive,
non-transferable (except as hereinafter provided), irrevocable, perpetual and royalty-free
worldwide license, without charge or fee, to use and display the names The Venetian Resort Hotel
Casino, The Venetian Las Vegas and The Venetian (each, a
Venetian Name
) and the logo
shown on
Exhibit I-1
attached hereto and made a part hereof (as the same may be changed as
described below) (the
Venetian Logo
);
provided
,
however
, that (1) all
uses of any Venetian Name and the Venetian Logo must be consistent with a First-class Las Vegas
Boulevard-style hotel casino; (2) all uses of any Venetian Name must either be (y) as part of the
Venetian Logo or (z) consistent with the style guidelines described in
Exhibit R-1
attached
hereto and made a part hereof, as the same may be amended from time to time by Mall I Owner and H/C
I Owner; (3) any use of any Venetian Name and Venetian Logo on, or as a part of, advertising,
marketing or promotional materials or products, goods and items for sale shall be a proper use of
such license only if (x) the applicable material, product, good or item also includes a reference
to the Grand Canal Shoppes name or a Tenant or other Phase I Mall occupant, or a business being
operated at the Phase I Mall (so that, for example, a Tenant in the Phase I Mall can sell (pursuant
to the sublicense described in the next paragraph) items that say [Name of tenant] at The
Venetian or [Name of tenant] at the Grand Canal Shoppes at The Venetian, but cannot sell items
that say only The Venetian and (y) in the case of products, goods and items for sale, H/C I Owner
has given prior
written approval of such use; (4) any use of a Venetian Name in any advertising, marketing or
promotional material must be either in the same typeface as appears in the Venetian Logo, the
Optifavrile or MrsEaves typeface or the predominant typeface of such
72
material and (5) whenever
a Venetian Name is used, the first letter of each word comprising such name shall be capitalized.
No use of such license pursuant to clause (3) of the preceding sentence shall impose, or be deemed
to impose, any liability on H/C I Owner (or any affiliate thereof) with respect to the applicable
material, product, good or item. H/C I Owner reserves the right to replace, alter or modify the
Venetian Logo at any time in its sole discretion, but upon not less than thirty (30) days prior
written notice to Mall I Owner. Upon any such notification from H/C I Owner to Mall I Owner, Mall
I Owner shall, as of the effective date of the applicable change as set forth in such notice,
cease, and cause Mall I Occupants to cease, using the old Venetian Logo (but shall continue to have
the rights set forth herein with respect to the replacement, altered or modified Venetian Logo).
Notwithstanding any prior agreements between H/C I Owner and Mall I Owner to the contrary, as of
the date hereof the foregoing license represents the only rights of Mall I Owner to use the
Venetian Name and the Venetian Logo (and therefore any such prior agreements are hereby deemed
terminated and of no force and effect).
4.2.4.1.2 Mall I Owner may sublicense the above described license to Mall I Occupants,
provided that (1) such sublicense provides that the sublicense can only use the Venetian Names and
Venetian Logo within the scope of, and pursuant to, the above-described license, (2) Mall I Owner
shall be responsible and liable
for all breaches by any sublicensee of any such sublicense and (3) such sublicense gives H/C I
Owner the right to enforce its terms and restrictions.
4.2.4.1.3 If H/C I Owner shall determine that any advertising, marketing or promotional
materials used or planned to be used by Mall I
73
Owner or any of its sublicensees violate the terms
of the above-described license, Mall I Owner shall, immediately upon written notification from H/C
I Owner of such determination, cease (or cause the applicable sublicensee to immediately cease)
such advertising, marketing or promotion.
4.2.4.1.4 Mall I Owner acknowledges that subject to the license granted herein, H/C I Owner
owns all legal right, title and interest in and to the Venetian Names and the Venetian Logo. Mall
I Owner agrees that any and all uses of the Venetian Names and Venetian Logo, and any goodwill
resulting from such uses, shall inure solely to the benefit of H/C I Owner.
4.2.4.2 Mall I Owner, H/C I Owner and H/C II Owner hereby agree that:
4.2.4.2.1 Mall I Owner hereby grants to H/C I Owner and H/C II Owner and their Affiliates a
non-exclusive, non-transferable (except as hereinafter provided), irrevocable, perpetual and
royalty-free worldwide license, without charge or fee, to use and display the Grand Canal Shoppes
name (the
Grand Canal Shoppes Name
) and the logo shown on
Exhibit U-1
attached
hereto and made a part hereof (as the same may be changed as described below) (the
Grand Canal
Shoppes Logo
);
provided
,
however
, that (x) no such use and display shall be
permitted in connection with any property located in the United States other than the Integrated
Resort
and (y) all uses of the Grand Canal Shoppes Name and the Grand Canal Shoppes Logo must be (1)
consistent with a First-class hotel and casino and related amenities and services and (2)
consistent with the style guidelines described in
Exhibit R-1
attached hereto and made a
part hereof, as the same may be amended from time to time by Mall I Owner, H/C I
74
Owner and H/C II
Owner. Mall I Owner reserves the right to replace, alter or modify the Grand Canal Shoppes Logo
(but in no event, so long as the Phase I Hotel/Casino is operating under one of the Venetian Names,
shall Mall I Owner have the right to replace, alter or modify the Grand Canal Shoppes Name) at any
time in its sole discretion, but upon not less than thirty (30) days prior written notice to H/C I
Owner and H/C II Owner. Upon any such notification from Mall I Owner to H/C I Owner and H/C II
Owner, H/C I Owner and H/C II Owner shall, as of the effective date of the applicable change as set
forth in such notice, cease using the old Grand Canal Shoppes Logo.
4.2.4.2.2 H/C I Owner and H/C II Owner acknowledge that subject to the license granted herein,
Mall I Owner owns all legal right, title and interest in and to the Grand Canal Shoppes Name and
the Grand Canal Shoppes Logo. H/C I Owner and H/C II Owner agree that any and all uses of the
Grand Canal Shoppes Name and Grand Canal Shoppes Logo, and any goodwill resulting from such uses,
shall inure solely to the benefit of Mall I Owner.
4.2.5
Directional Signage
. Mall I Owner shall include the location of and/or
directions to the Phase I Hotel/Casino in all directional signage (including mall directories,
overhead directionals, backlit and non-backlit directionals and velvet banners bearing directional
information), directories and locational diagrams and maps located within the Phase I Mall. H/C I
Owner shall include the location of and/or directions to the
Phase I Mall in all directional signage (including overhead directionals and backlit and
non-backlit directions), directories and locational diagrams and maps located within the Phase I
Hotel/Casino. At a minimum, H/C I Owner and Mall I Owner shall include directions to the Phase I
Mall and the Phase I Hotel/Casino, respectively, at those locations
75
identified on
Exhibit X
attached hereto and made a part hereof. The directional signage at each of the locations set forth
on
Exhibit X
shall be substantially similar to the signage that is at such locations as of
the date hereof, which signage is also shown or described on
Exhibit X
.
4.2.6
Hours of Phase I Mall Operation
. Notwithstanding the provisions of Section
5.1.5.1, all of the retail stores in the Phase I Mall shall (subject to Force Majeure Events) be
open every day, opening no later than 10 am PST or PDT, as applicable, and closing no earlier than
11 pm (Sunday through Thursday) or 12 am (Friday and Saturday) PST or PDT, as applicable, 7 days a
week, 365 (or 366, as applicable) days per year and all of the restaurants in the Phase I Mall
shall (subject to Force Majeure Events) be open for lunch and dinner, 7 days a week, 365 (or 366,
as applicable) days per year (collectively, as applicable to retail stores and restaurants, the
Hours of Operation
), except that existing restaurant Tenants shall only be required to be
open during the hours specified in their current Leases. New Leases and renewals of current Leases
entered into by Mall I Owner and Tenants shall require Tenants to be open during the applicable
Hours of Operation. Mall I Owner shall be responsible for enforcing the Hours of Operation.
4.2.7
Required Provisions in Standard Form of Mall Leases
. Any Lease entered into by
Mall I Owner and a Tenant from and after the date hereof shall provide for the following:
4.2.7.1 H/C I Owner shall have the right to prohibit any Tenant advertising at the Phase I
Mall or which mentions the Phase I Mall, the Venetian or the Palazzo which, in the reasonable
judgment of H/C I Owner, impairs the reputation of H/C I Owner or the Venetian or H/C II Owner or
the Palazzo.
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4.2.7.2 H/C I Owner shall be a third-party beneficiary of the provisions described in the
foregoing paragraph (a) (and the applicable Leases shall so provide) and shall have the right to
take all appropriate action to enforce such provisions, but shall not have the right to initiate
any eviction proceedings against the Tenant.
4.2.7.3 With respect to the existing Lease provisions described on
Exhibit Y
attached
hereto and made a part hereof, for so long as the applicable Leases are in effect, (i) Mall I Owner
shall not amend such provisions without H/C I Owners consent, (ii) H/C I Owner shall be entitled
to all of the benefits of such provisions and Mall I Owner shall not take any actions to deprive
H/C I Owner of such benefits and (iii) Mall I Owner shall, at H/C I Owners expense, take all
actions reasonably requested by H/C I Owner to enforce such provisions and to cause H/C I Owner to
receive the benefits thereof, provided that in no event shall Mall I Owner be obligated to initiate
any eviction proceedings against the applicable Tenant unless Mall I Owner, in its sole discretion,
elects to do so.
4.2.7.4 The inclusion of the provision set forth in
Exhibit Z
attached hereto and made
a part hereof. To the extent any Lease shall not include the
provision set forth in
Exhibit Z
, such Lease shall be null and void and of no force
and effect. H/C I Owner shall be a third-party beneficiary of the provision described in
Exhibit Z
(and the applicable Leases shall so provide) and H/C I Owner shall have the right
to take all appropriate action to enforce such provision, including initiating and prosecuting to
completion eviction proceedings.
4.2.8 Intentionally Omitted.
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4.2.9
Duratran Units
. Mall I Owner shall (a) maintain the backlit Duratran units in
the Phase I Mall shown on
Exhibit X
attached hereto and made a part hereof, or other
advertising surfaces or space of comparable quality and in similar locations, and (b) reserve
(without charge) each such unit or replacement surface or space for use by H/C I Owner to advertise
its business (or any component thereof, any business of any Affiliate or any business of a Tenant
in the Phase I Hotel/Casino or in any space leased to H/C I Owner in the Phase I Mall) and/or
special events to be held at the Phase I Hotel/Casino. H/C I Owner shall (a) maintain the backlit
Duratran units in the Phase I Hotel/Casino shown on
Exhibit X
, or other advertising
surfaces or space of comparable quality and similar locations, and (b) reserve (without charge)
each such unit or replacement, surface or space for use by Mall I Owner to advertise the Phase I
Mall and/or particular Tenants located in, or special events to be held at, the Phase I Mall or the
space covered by the Phase I Casino Level Master Lease.
4.2.10
Marketing/Advertising
. No promotional, marketing or advertising material for
the Phase I Mall shall show or mention (a) any other restaurant and/or retail complex other than
the Phase II Mall or (b) any casino or gaming-related business (including, without limitation, any
Internet gaming business) other than the Venetian and any other casino or gaming-related business
owned by H/C I Owner or any Affiliate thereof. In no event shall Mall I Owner accept advertising
for the monorail of The Las Vegas Monorail Company (or any successor) that currently runs on a four
mile route along the east side of Las Vegas Boulevard.
4.2.11
Compliance with Gaming Laws
. Mall I Owner acknowledges that H/C I Owner and
Affiliates of H/C I Owner are businesses that are or may be subject to
78
and exist because of privileged licenses issued by Gaming Authorities. Therefore, not less
than thirty (30) days prior to entering into any Lease (a
Proposed Lease
), Mall I Owner
shall notify H/C I Owner of its intention to enter into such Proposed Lease. If the tenant under
such Proposed Lease (the
Proposed Tenant
) is a corporation, Mall I Owner shall require
such Proposed Tenant to disclose to Mall I Owner and H/C I Owner the names of all of its officers
and directors. Unless it is a publicly traded corporation on a national stock exchange, the
Proposed Tenant shall disclose to Mall I Owner and H/C I Owner all direct and indirect ownership
interests in the Proposed Tenant and all lenders or sources of financing. If requested to do so by
H/C I Owner, Mall I Owner shall require a Proposed Tenant to obtain any license, qualification,
clearance or the like which shall be requested or required of any Proposed Tenant by any Gaming
Authority or any regulatory authority having jurisdiction over H/C I Owner or any Affiliate of
H/C I Owner. If a Proposed Tenant fails to satisfy such requirement or if H/C I Owner or any
Affiliate of H/C I Owner is directed not to involve itself in business with a Proposed Tenant by
any such authority, or if H/C I Owner shall in good faith determine, in H/C I Owners good-faith
judgment, that a Proposed Tenant, or any of its officers, directors, employees, agents, designees
or representatives, or a partner, owner, member, or shareholder, or any lender or financial
participant (a) is or might be engaged in, or is about to be engaged in, any activity or
activities, or (b) was or is involved in any relationship, either of which could or does jeopardize
H/C I Owners business, reputation or such licenses, or those of its Affiliates, or if any such
license is threatened to be, or is, denied, curtailed, suspended or revoked, then Mall I Owner, at
H/C I Owners direction, shall not enter into the Proposed Lease with the
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Proposed Tenant. Any Lease entered into in violation of this Section 4.2.11 shall be deemed
null and void and of no force and effect.
4.2.12
H/C I Owner Obligations to Tenants
. If any Lease existing as of the date
hereof covering space in the Phase I Mall or in the Phase I Casino Level Leased Space contains an
agreement requiring the landlord under the Lease to provide services that can be provided only by
H/C I Owner (by way of example, and not in limitation of the foregoing, a covenant in a Lease to
provide a certain number of hotel rooms in the Phase I Hotel/Casino without charge to a Mall I
Occupant), H/C I Owner covenants and agrees to comply with such provisions as if it was the
landlord under the applicable Lease, at no charge to Mall I Owner.
Section 4.3
Operating Covenants of Mall II Owner
. Mall II Owner agrees for the
benefit of H/C II Owner as follows:
4.3.1 Mall II Owner shall continuously (subject to Force Majeure Events) operate and
exclusively use (or cause to be used) the Phase II Mall as a retail and restaurant complex and for
ancillary uses in a manner and at a level that shall be First-class, subject to the covenants and
restrictions set forth in the further provisions of this Section 4.3. Mall II Owners obligations
under this Section 4.3.1 are subject to Force Majeure Events.
4.3.2
Required Phase II Mall Standard; Identity of Tenants of Phase II Mall; Prohibited
Phase II Mall Uses
.
4.3.2.1 Mall II Owner covenants and agrees that from and after the date hereof, any tenant
with whom Mall II Owner enters into a Lease, and any other Person who, whether pursuant to a
sublease from a Tenant or otherwise, occupies space in
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Mall II Space (any such tenant or other Person, a
Mall II Occupant
) shall be a
retail or restaurant tenant appropriate for and consistent with a quality and standard for the
Phase II Mall and its aggregate occupant mix that is not less than the quality and standard of the
Phase II Mall and the Mall II Occupants as of the date hereof and that is required under
Section 4.3.1 above. Mall II Owner agrees to use commercially reasonable efforts from and after
the date of this Agreement to pursue a maintenance and leasing program whereby the Phase II Mall
and the Mall II Occupants are of a First-class quality and standard.
4.3.2.2 In all events, Mall II Owner covenants and agrees that no Mall II Occupant shall be a
Competitor and no space in the Phase II Mall shall be used (whether by Mall II Owner, any Mall II
Occupant or any other Person) for or as any of the following:
4.3.2.2.1 Conducting or permitting any fire, auction, going-out-of-business or bankruptcy
sale.
4.3.2.2.2 Engaging in any unethical or disreputable method of business operation.
4.3.2.2.3 A so-called flea market.
4.3.2.2.4 Selling, displaying for sale or displaying any pornographic or obscene material.
4.3.2.2.5 A gambling or gaming establishment such as, without limitation, an Off-Track
Betting, sport gambling, casino gambling or similar establishment (provided, that the foregoing
shall not be deemed to restrict the use of portable gaming devices provided by or on behalf of H/C
I Owner or H/C II Owner in the Phase II Mall, if permitted by law).
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4.3.2.2.6 Any loudspeakers, phonographs or other devices of similar nature in such a manner so
as to be heard outside of the applicable demised premises.
4.3.2.2.7 A billiard or pool hall (although any First-class bar or restaurant to whom Mall II
Owner may be permitted to rent a portion of the Phase II Mall or Mall II Space under the other
terms of this Agreement may be permitted to install billiard or pool tables ancillary to its
primary bar or restaurant operations).
4.3.2.2.8 Any off-price or discount store.
4.3.2.2.9 A swap show selling merchandise that is used, damaged or discontinued, or any
second hand store or surplus store (but excluding stores that sell antiques).
4.3.2.2.10 Any establishment any purpose of which:
4.3.2.2.10.1 is to sell, afford or permit on-premises sexual stimulation or sexual
liaisons;
4.3.2.2.10.2 permits or presents obscene, nude or semi-nude performances or modeling;
4.3.2.2.10.3 sells rubber goods or other sexual or erotic products of a type not
commonly found in national chain pharmacies;
4.3.2.2.10.4 sells, rents or permits the viewing of x-rated video, photographs, books
or other material (except, in the case of a book store, if such materials do not constitute
a primary product of the
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establishment and if such materials are discreetly displayed in such manner as not to
be visible from outside the premises); or
4.3.2.2.10.5 offers any other form of so-called adult entertainment.
4.3.2.2.11 A facility for the sale of paraphernalia for use with illicit drugs.
4.3.2.2.12 A pawn shop or auction house.
4.3.2.2.13 Any use which emits an obnoxious odor, excessive noise or sound which can be heard
or smelled to a material extent outside of the space occupied for the use.
4.3.2.2.14 Any solicitations or leafleting activity, including, but not limited to, union or
collective bargaining solicitations.
4.3.2.2.15 Promoting, marketing or advertising any business, product, good or item of a
Competitor or selling any product, good or item, the primary or a significant purpose of which is
to promote, market or advertise any business, product, good or item of a Competitor. For example,
and without limiting the foregoing, the sale of a guidebook which includes a description of a
Competitors property would be permitted in the Mall II Space, but the sale of a t-shirt bearing
the logo of a Competitors property would not be permitted pursuant to this Section 4.3.2.2.15.
4.3.2.2.16 A wedding chapel, for performing weddings or as part of any wedding-related
program, activity or service.
4.3.2.2.17 An office, store, reading room, headquarters, center or other facility devoted or
opposed to the promotion, advancement, representation,
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purpose or benefit of: (a) any political party, political movement or political candidate,
(b) any religion, religious group or religious denomination, (c) any foreign government or (d) any
cause of any type or nature whatsoever.
4.3.2.2.18 The sale of telephone calling cards.
4.3.2.2.19 The provision of catering services or the preparation of meals intended to be eaten
in hotel rooms in the Phase I Hotel/Casino or the Phase II Hotel/Casino.
4.3.2.2.20 A florist or the sale of flower arrangements.
4.3.2.2.21 A spa, health or fitness club, gym or beauty salon, provided the same shall not
prohibit the retail sale of cosmetics and other spa or beauty products.
4.3.2.2.22 For so long as there is a drug store and/or prescription pharmacy on the land
underneath the Walgreens Airspace, the operation of a drug store or a so-called prescription
pharmacy or for any other purpose requiring a qualified pharmacist or other person authorized by
law to dispense medicinal drugs, directly or indirectly, for a fee or remuneration of any kind.
4.3.2.2.23 any play, show, performance or other entertainment-type activity other than (a) in
the common areas of the Phase II Mall or (b) in Tenant Space at the Phase II Mall, provided that
such entertainment is ancillary to such Tenant Space and is not its primary purpose.
4.3.3
Palazzo Mall Requirements
. In furtherance of, but without limiting, the
foregoing, Mall II Owner covenants and agrees to maintain, and where applicable shall cause its
Tenants to maintain, in a First-class condition, the current
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physical layout design features and high-end aesthetic appearance of the Phase II Mall
(including, without limitation, the Phase II Malls floor finishes, common area wall locations and
finishes, ceiling systems and finishes, windows, lighting, etc.). No neon signs shall be visible
from any of the Phase II Malls public or common areas. The Parties acknowledge and confirm that
the covenants contained in this Section 4.3.3 and in Section 5.2.1.1 are independent covenants and
also acknowledge and confirm that notwithstanding the fact that this Agreement does not state that
any other covenants of the Parties contained herein are independent of any of the other covenants
contained herein and also does not state that any other covenants of the Parties contained herein
are dependent on any of the other covenants contained herein, such fact shall not be construed as
an indication or as evidence that any particular covenants contained herein are either independent
of, or dependent on, other particular covenants contained herein.
4.3.4
The Shoppes at The Palazzo Name; Right to Use the Palazzo Logo
.
4.3.4.1 Mall II Owner agrees that the Phase II Mall shall continuously and exclusively operate
under the names The Shoppes at The Palazzo, The Shoppes at The Palazzo Las Vegas and The
Shoppes at The Palazzo Resort Hotel Casino. Mall II Owner may not use any of such names to
identify any other retail facility aside from the Phase II Mall. The uses of such names are
subject to the following licenses and restrictions:
4.3.4.1.1 H/C II Owner hereby grants to Mall II Owner and its Affiliates a non-transferable
(except as hereinafter provided), irrevocable, perpetual and royalty-free worldwide license,
without charge or fee, to use and display the name
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The Palazzo (the
Palazzo Name
), the logo shown on
Exhibit I-2
attached
hereto and made a part hereof (as the same may be changed as described below) (the
Palazzo
Logo
), and The Shoppes at The Palazzo name (the
The Shoppes at The Palazzo Name
)
and the logo shown on
Exhibit U-2
attached hereto and made a part hereof (as the same may
be changed as described below) (the
The Shoppes at The Palazzo Logo
);
provided
,
however
, that (1) all uses of the Palazzo Name, the Palazzo Logo, The Shoppes at The
Palazzo Name and The Shoppes at The Palazzo Logo must be consistent with a First-class Las Vegas
Boulevard-style hotel casino; (2) all uses of the Palazzo Name must either be (y) as part of the
Palazzo Logo or (z) consistent with the style guidelines described in
Exhibit R-2
attached
hereto and made a part hereof, as the same may be amended from time to time by Mall II Owner and
H/C II Owner; (3) all uses of The Shoppes at The Palazzo Name must either be (y) as part of The
Shoppes at The Palazzo Logo or (z) consistent with the style guidelines described in
Exhibit R-2
attached hereto and made a part hereof, as the same may be amended from time to
time by Mall II Owner and H/C II Owner; (4) any use of the Palazzo Name or the Palazzo Logo on, or
as a part of, advertising, marketing or promotional materials or products, goods and items for sale
shall be a proper use of such license only if (x) the applicable material, product, good or item
also includes a reference to the Phase II Mall or a Tenant or other Phase II Mall occupant, or a
business being operated at the Phase II Mall (so that, for example, a Tenant in the Phase II Mall
can sell (pursuant to the sublicense described in the next paragraph) items that say [Name of
tenant] at The Palazzo but cannot sell items that say only The Palazzo and (y) in the case of
products, goods and items for sale, H/C II Owner has given prior written approval of such use;
(5) any use of the Palazzo Name or The Shoppes at The
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Palazzo Name in any advertising, marketing or promotional material must be either in the same
typeface as appears in the Palazzo Logo or The Shoppes at The Palazzo Logo, the Requiem Text HTF
Small Caps typeface or the predominant typeface of such material; and (6) whenever the Palazzo
Name or The Shoppes at The Palazzo Name are used, the first letter of each word comprising such
names shall be capitalized. No use of such license pursuant to clause (4) of the preceding
sentence shall impose, or be deemed to impose, any liability on H/C II Owner (or any affiliate
thereof) with respect to the applicable material, product, good or item. The foregoing license
shall be non-exclusive with respect to the Palazzo Name and the Palazzo Logo and exclusive in the
United States with respect to The Shoppes at The Palazzo Name and The Shoppes at The Palazzo Logo.
Notwithstanding any prior agreements between H/C II Owner and Mall II Owner to the contrary, as of
the date hereof the rights granted herein represent the only rights of Mall II Owner and its
Affiliates to use the Palazzo Name, the Palazzo Logo, The Shoppes at The Palazzo Name and The
Shoppes at The Palazzo Logo (and therefore any such prior agreements are hereby deemed terminated
and of no force and effect).
4.3.4.1.2 Mall II Owner may sublicense the above-described license to Mall II Occupants,
provided that (1) such sublicense provides that the sublicense can only use the Palazzo Name, the
Palazzo Logo, The Shoppes at The Palazzo Name and The Shoppes at The Palazzo Logo within the scope
of, and pursuant to, the above-described license, (2) Mall II Owner shall be responsible and liable
for all breaches by any sublicensee of any such sublicense and (3) such sublicense gives H/C II
Owner the right to enforce its terms and restrictions.
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4.3.4.1.3 If H/C II Owner shall determine that any advertising, marketing or promotional
materials used or planned to be used by Mall II Owner or any of its sublicensees violate the terms
of the above-described license, Mall II Owner shall, immediately upon written notification from
H/C II Owner of such determination, cease (or cause the applicable sublicensee to immediately
cease) such advertising, marketing or promotion.
4.3.4.1.4 Mall II Owner acknowledges that, subject to the license granted herein, H/C II Owner
owns all legal right, title and interest in and to the Palazzo Name, the Palazzo Logo, The Shoppes
at The Palazzo Name and The Shoppes at The Palazzo Logo. Mall II Owner agrees that any and all
uses of the Palazzo Name, the Palazzo Logo, The Shoppes at The Palazzo Name and The Shoppes at The
Palazzo Logo, and any goodwill resulting from such uses, shall inure solely to the benefit of
H/C II Owner. H/C II Owner shall, at is sole expense and in its reasonable judgment, obtain and
maintain appropriate U.S. federal trademark and service mark registrations covering The Shoppes at
The Palazzo Name and The Shoppes at The Palazzo Logo. Mall II Owner shall cooperate with H/C II
Owner (at H/C II Owners expense) in connection with the filing, prosecution and maintenance of
such applications and registrations.
4.3.4.2 Mall II Owner, H/C I Owner and H/C II Owner hereby agree that:
4.3.4.2.1 Any use of The Shoppes at The Palazzo Name and The Shoppes at The Palazzo Logo by
H/C I Owner and H/C II Owner and their Affiliates shall be subject to the following: (x) no such
use and display shall be permitted in connection with any property located in the United States
other than the Integrated
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Resort and any such use and display in connection with the Integrated Resort shall not promote
any retail component thereof other than the Phase II Mall; (y) all uses of The Shoppes at The
Palazzo Name and The Shoppes at The Palazzo Logo must be (1) consistent with a First-class hotel
and casino and related amenities and services and (2) consistent with the style guidelines
described in
Exhibit R-2
attached hereto and made a part hereof, as the same may be amended
from time to time by Mall II Owner, H/C I Owner and H/C II Owner; and (z) H/C II Owner and its
Affiliates shall not register any domain names that contain The Shoppes at The Palazzo Name.
4.3.4.2.2 H/C II Owner reserves the right to replace, alter or modify the Palazzo Logo at any
time in its sole discretion, but upon not less than thirty (30) days prior written notice to
Mall II Owner. Upon any such notification from H/C II Owner to Mall II Owner, Mall II Owner shall,
as of the effective date of the applicable change as set forth in such notice, cease, and cause
Mall II Occupants to cease, using the old Palazzo Logo (but shall continue to have the rights set
forth herein with respect to the replacement, altered or modified Palazzo Logo).
4.3.4.2.3 Mall II Owner reserves the right to replace, alter or modify The Shoppes at The
Palazzo Logo at any time, but upon not less than thirty (30) days prior written notice to H/C II
Owner and subject to H/C II Owners reasonable approval. Upon any such notification from Mall II
Owner to H/C II Owner, H/C I Owner, H/C II Owner and their Affiliates shall, as of the effective
date of the applicable change as set forth in such notice, cease using the old The Shoppes at The
Palazzo Logo (but shall continue to have the rights set forth herein with respect to the
replacement, altered or modified The Shoppes at The Palazzo Logo).
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4.3.4.2.4 Mall II Owner shall have the irrevocable, perpetual and royalty-free worldwide right
to register and use (a) the domain name <theshoppesatthepalazzo.com> and (b) to the extent
reasonably necessary to prevent cybersquatting, any other domain names containing the term
Palazzo (or its phonetic equivalent) along with a term or terms primarily suggesting or relating
to shopping mall services and/or retail sales.
4.3.4.2.5 H/C II Owner shall have the right to pursue all enforcement actions, claims, and/or
litigation relating to The Shoppes at The Palazzo Name and The Shoppes at The Palazzo Logo;
provided, however, that should Mall II Owner provide notice to H/C II Owner of an actual or
potential third-party infringement of The Shoppes at The Palazzo Name and/or The Shoppes at The
Palazzo Logo and H/C II Owner not take affirmative action to cease such infringement within thirty
(30) days of receiving such notice, Mall II Owner may pursue such actual or potential infringement
in its own name. If any damages are awarded or obtained as a result of pursuing a third-party
infringer, whichever Party pursued the claim shall retain any and all such damages.
4.3.5
Directional Signage
. Mall II Owner shall include the location of and/or
directions to the Phase II Hotel/Casino in all directional signage (including mall directories,
overhead directionals, and backlit and non-backlit directionals), directories and locational
diagrams and maps located within the Phase II Mall. H/C II Owner shall include the location of
and/or directions to the Phase II Mall in all directional signage (including overhead directionals
and backlit and non-backlit directions), directories and locational diagrams and maps located
within the Phase II Hotel/Casino. At a minimum, H/C II Owner and Mall II Owner shall include
directions to the Phase II Mall and the
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Phase II Hotel/Casino, respectively, at those locations identified on
Exhibit X
attached hereto and made a part hereof. The directional signage at each of the locations set forth
on
Exhibit X
shall be substantially similar to the signage that is at such locations as of
the date hereof, which signage is also shown or described on
Exhibit X
.
4.3.6
Hours of Phase II Mall Operation
. Notwithstanding the provisions of
Section 5.2.5.1, all of the retail stores and restaurants in the Phase II Mall shall (subject to
Force Majeure Events) be open every day during the Hours of Operation, except that Barneys and
existing restaurant Tenants shall only be required to be open during the hours specified in their
current Leases. New Leases and renewals of current Leases entered into by Mall II Owner and
Tenants shall require Tenants to be open during the applicable Hours of Operation provided that
during all times that the Phase II Mall does not have a food village, restaurant Tenants located
in the space described in Exhibit T attached hereto shall not be required to be open for lunch.
Mall II Owner shall be responsible for enforcing the Hours of Operation.
4.3.7
Required Provisions in Standard Form of Mall Leases
. Any Lease entered into by
Mall II Owner and a Tenant from and after the date hereof shall provide for the following:
4.3.7.1 H/C II Owner shall have the right to prohibit any Tenant advertising at the Phase II
Mall or which mentions the Phase II Mall, the Venetian or the Palazzo which, in the reasonable
judgment of H/C II Owner, impairs the reputation of H/C II Owner or the Palazzo or H/C I Owner or
the Venetian.
4.3.7.2 H/C II Owner shall be a third-party beneficiary of the provisions described in the
foregoing Section 4.2.7.1 (and the applicable Leases shall so
91
provide) and shall have the right to take all appropriate action to enforce such provisions,
but shall not have the right to initiate any eviction proceedings against the Tenant.
4.3.7.3 The inclusion of the provision set forth in
Exhibit Z
attached hereto and made
a part hereof. To the extent any Lease shall not include the provision set forth in
Exhibit Z
, such Lease shall be null and void and of no force and effect. H/C II Owner
shall be a third-party beneficiary of the provision described in
Exhibit Z
(and the
applicable Leases shall so provide) and H/C II Owner shall have the right to take all appropriate
action to enforce such provision, including initiating and prosecuting to completion eviction
proceedings.
4.3.8
Intentionally Omitted
.
4.3.9
Duratran Units and Kiosks
. Mall II Owner shall not install any Duratran
units, free standing light boxes, retail carts or kiosks in the common areas or existing
corridors of the Phase II Mall without the consent of H/C II Owner, which consent shall not be
unreasonably withheld so long as the quality and standards of such proposed Duratran units, free
standing light boxes, retail carts or kiosks are consistent with the quality and standard of the
Phase II Mall and the quality and standard of nearby Tenants.
4.3.10
Marketing/Advertising
. No promotional, marketing or advertising material for
the Phase II Mall shall show or mention (a) any other restaurant and/or retail complex other than
the Phase II Mall or (b) any casino or gaming-related business (including, without limitation, any
Internet gaming business) other than the Palazzo and any other casino or gaming-related business
owned by H/C II Owner or any Affiliate thereof. In no event shall Mall II Owner accept advertising
for the monorail of The Las
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Vegas Monorail Company (or any successor) that currently runs on a four mile route along the
east side of Las Vegas Boulevard.
4.3.11
Compliance with Gaming Laws
. Mall II Owner acknowledges that H/C II Owner and
Affiliates of H/C II Owner are businesses that are or may be subject to and exist because of
privileged licenses issued by Gaming Authorities. Therefore, not less than thirty (30) days prior
to entering into any Proposed Lease, Mall II Owner shall notify H/C II Owner of its intention to
enter into such Proposed Lease. If the Proposed Tenant is a corporation, Mall II Owner shall
require such Proposed Tenant to disclose to Mall II Owner and H/C II Owner the names of all of its
officers and directors. Unless it is a publicly traded corporation on a national stock exchange,
the Proposed Tenant shall disclose to Mall II Owner and H/C II Owner all direct and indirect
ownership interests in the Proposed Tenant and all lenders or sources of financing. If requested
to do so by H/C II Owner, Mall II Owner shall require a Proposed Tenant to obtain any license,
qualification, clearance or the like which shall be requested or required of any Proposed Tenant by
any Gaming Authority or any regulatory authority having jurisdiction over H/C II Owner or any
Affiliate of H/C II Owner. If a Proposed Tenant fails to satisfy such requirement or if H/C II
Owner or any Affiliate of H/C II Owner is directed not to involve itself in business with a
Proposed Tenant by any such authority, or if H/C II Owner shall in good faith determine, in H/C II
Owners good-faith judgment, that a Proposed Tenant, or any of its officers, directors, employees,
agents, designees or representatives, or a partner, owner, member, or shareholder, or any lender or
financial participant (a) is or might be engaged in, or is about to be engaged in, any activity or
activities, or (b) was or is involved in any relationship, either of which could or does jeopardize
H/C II Owners business,
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reputation or such licenses, or those of its Affiliates, or if any such license is threatened
to be, or is, denied, curtailed, suspended or revoked, then Mall II Owner, at H/C II Owners
direction, shall not enter into the Proposed Lease with the Proposed Tenant. Any Lease entered
into in violation of this Section 4.3.11 shall be deemed null and void and of no force and effect.
Section 4.4
Exterior Signs, Boards and Banners
. Except in accordance with the
following provisions of this Section 4.4, neither Mall I Owner nor Mall II Owner shall install, or
permit any Person to install, signs, boards or banners of any kind on any portion of the exterior
walls or façade of any portion of the Phase I Mall or the Phase II Mall.
4.4.1 Mall I Owner shall be permitted to (i) maintain the existing Madame Tussauds LED
board on the exterior of the Madame Tussauds tenant space for so long as the Madame Tussauds
Lease is in effect, and (ii) install one (1) LED board on the roof of the retail annex located
on the Retail Annex Land; provided, that in all events such LED board shall only advertise
Tenants located in the Phase I Mall, the Phase II Mall, the Phase I Hotel/Casino and/or the
Phase II Hotel/Casino and/or retail brands sold by such Tenants at their location in the Phase I
Mall, the Phase II Mall, the Phase I Hotel/Casino and/or the Phase II Hotel/Casino. In the event
of advances in technology, if H/C I Owner replaces its existing LED board with a new type of
board, all references in the preceding sentence to an LED board shall be deemed to be references
to one of such new type of board.
4.4.2 In the event H/C I Owner and/or H/C II Owner installs one or more signs or banners on
any portion of the exterior walls or façade of the Phase I Hotel/Casino or the Phase II
Hotel/Casino, each of Mall I Owner and Mall II Owner shall
94
be permitted to install on the exterior walls or façade of the Phase I Mall or the Phase II
Mall signs or banners, as applicable (including related support equipment substantially similar to
that used by H/C I Owner or H/C II Owner, as applicable), of substantially the same type and
quality and for substantially the same period of time; provided, that in all events any such signs
or banners installed by Mall I Owner and/or Mall II Owner shall only advertise tenants located in
the Phase I Mall, the Phase II Mall, the Phase I Hotel/Casino and/or the Phase II Hotel/Casino
and/or retail brands sold by such Tenants at their location in the Phase I Mall, the Phase II Mall,
the Phase I Hotel/Casino and/or the Phase II Hotel/Casino.
ARTICLE 5
COVENANTS REGARDING PHASE I LAND OPERATIONS
AND PHASE II LAND OPERATIONS
Section 5.1
Covenants Regarding Phase I Land Operations
. H/C I Owner and SECC Owner
and Mall I Owner (and H/C II Owner and Mall II Owner in the case of Section 5.1.3) agree for the
benefit of each other as follows:
5.1.1
H/C-Mall I Common Areas; H/C I Pass-through Areas; H/C I Limited Common Areas;
Venetian Building Shell and Core
.
5.1.1.1 H/C I Owner agrees, in accordance with the standards of First-class hotel/casinos as
provided in this Agreement, to maintain, repair and restore (including any necessary replacement
and capital improvement work required in connection therewith), and to keep in operation, open to
the public (except for (x) portions thereof, such as service areas, not generally open to the
public, (y) the Mall I H/C Exclusive Areas and, (z) except in emergency situations, the H/C I
Limited Common Area) and available for the Permitted Uses, except as may be required to maintain in
the required
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condition, order and repair, (i) all H/C I Pass-through Areas, the Mall I H/C Exclusive Areas
and the H/C I Limited Common Areas, and (ii) all H/C-Mall I Common Areas. All of H/C I Owners
obligations pursuant to the preceding sentence shall be at H/C I Owners sole cost and expense,
subject to the cost sharing provisions of Section 5.1.3. The aforesaid maintenance of the
H/C-Mall I Common Areas, H/C I Pass-through Areas and the H/C I Limited Common Areas shall include,
without limitation, except to the extent provided hereinabove, (i) patrolling with suitable and
adequate uniformed and/or non-uniformed, unarmed security personnel in accordance with prevailing
practice at properties of like usage in Clark County, Nevada; (ii) maintaining suitable and
adequate lighting (including the expenses of power and of light bulb installation and replacement)
in all H/C-Mall I Common Areas, H/C I Pass-through Areas and the H/C I Limited Common Areas and
keeping same lit during such times as First-class Las Vegas Boulevard-style hotel/casinos and/or
First-class restaurant and retail complexes are open to the public (or for the purpose of taking
inventory or maintenance or restoration or any other purpose not prohibited hereunder
(collectively,
Permitted Maintenance
)), equivalent to not less than 10-foot candles in
portions generally open to the public when required to be lit to service the opening of any
building comprising the Venetian to the public, and otherwise to the extent of such lesser standard
as may be reasonably adequate under the circumstances to service the opening of any building
comprising the Venetian for the purpose of Permitted Maintenance; (iii) cleaning, window-washing
(exclusive of any windows forming part of a separate space tenants premises), planting,
replanting, landscaping, ventilating, heating and air-cooling of the H/C-Mall I Common Areas, the
H/C I Pass-through Areas and the H/C I Limited Common Areas; and (iv) cleaning and keeping in good
order and repair, and
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replacing when necessary, all fixtures and other installations in the H/C-Mall I Common Areas,
the H/C I Pass-through Areas and the H/C I Limited Common Areas including, but not limited to,
pools, fountains, telephone booths, vending machines, gaming machines and equipment, benches and
the like. H/C I Owner shall not permit the H/C I Mall Common Areas, the H/C I Pass-through Areas
and the H/C I Limited Common Areas to be used for any solicitations or leafleting activity,
including, but not limited to, union or collective bargaining solicitations. The H/C-Mall I Common
Areas shall be open to the general public and operated, and all public entrances thereto shall be
open to the general public and operated during such normal operating times as any portion of either
the SECC or the Phase I Mall are open for business to the public, and in addition during such times
as First-class Las Vegas Boulevard-style hotel/casinos and/or First-class restaurant and retail
complexes are open. The H/C I Pass-through Areas shall be open to the general public and operated
24 hours a day, seven days a week, 365 (or 366, as applicable) days per year. Notwithstanding the
foregoing, if either the SECC or the Phase I Mall is not open to the public but is in the process
of Permitted Maintenance therein, and the other of the SECC or the Mall I Space is not open for
business to the public, then H/C I Owner need not during such Permitted Maintenance keep the public
entrances to the H/C-Mall I Common Areas or the H/C I Pass-through Areas open to the general
public, but must keep such public entrances open to the employees, agents, contractors and
subcontractors of the Owner performing such Permitted Maintenance. In addition to the foregoing,
whenever any connecting
level of the SECC or the Phase I Mall is open for business, the doors
connecting such level of the SECC or the Phase I Mall, as the case may be, with the H/C I Space
shall be open and if either the SECC or Phase I Mall is in the process of Permitted
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Maintenance the doors connecting such level of the SECC or the Phase I Mall, as the case may
be, with the H/C I Space, shall at the election of SECC Owner or Mall I Owner, as the case may be,
be open to SECC Owner or Mall I Owner, respectively. Mall I Owner shall be responsible for
removing trash from the Phase I Mall and transporting the same to dumpsters maintained by H/C I
Owner on the Phase I land.
5.1.1.2 Subject to Section 5.1.3, H/C I Owner shall, at all times, operate, maintain, restore,
repair and replace and keep and maintain in good order, condition, and repair, and in a neat and
attractive condition, consistent with the standards that prevail in First-class Las Vegas
Boulevard-style hotel/casinos, the Electric Substation, building systems, Facilities, foundation,
floor slabs, and other structural components of the Phase I Base Building (including, without
limitation, all components providing structural support for the Mall I Space and the Phase I Mall),
including, without limitation, the roof, exterior walls, exterior wall systems, exterior wall
fenestrations, interior and exterior bearing walls, columns, slabs and members and sprinkler
systems or other fire suppression systems (from the central control location to the point at which
such sprinkler or fire suppression systems enter space leased to a Tenant, beyond which point
Mall I Owner and/or Tenant shall have maintenance responsibility for the sprinkler and fire
suppression systems located in such Tenants space), stairwells, elevators, escalators (if any) and
any other similar mechanical conveyancing devices or systems and (to the extent located outside of
the Mall I Space) electrical switchgear, transformers and all other electrical systems
(collectively, the
Venetian Building Shell and Core
). All of said maintenance and
repairs and any restorations or replacements required in connection therewith shall be of
First-class quality and shall be done in a good and workmanlike manner.
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Supplementing the foregoing, any repair or alteration of the Venetian fire suppression system
shall be performed only by H/C I Owner. Mall I Owner shall give H/C I Owner notice of any damage
to the Phase I Mall or the Venetian Building Shell and Core (whether or not caused by Mall I Owner)
or of any defects in the Venetian Building Shell and Core or any portion thereof or any fixtures or
equipment therein promptly after Mall I Owner first learns thereof. H/C I Owner covenants to
maintain dumpsters necessary for disposal of trash generated by the Phase I Hotel/Casino and the
Phase I Mall. As part of the maintenance obligations set forth in this Section 5.1.1, H/C I Owner
shall be responsible for all necessary or appropriate ground water remediation.
5.1.1.3 Notwithstanding any other provision hereof, H/C I Owner agrees, in accordance with the
standards of First-class hotel/casinos, to provide, or cause to be provided, pest control services
and fire extinguishers and fire extinguisher maintenance to and for the Phase I Mall. Mall I Owner
agrees to grant H/C I Owner and its contractors appropriate access to the Phase I Mall in order for
H/C I Owner to fully comply with its obligations under the preceding sentence and under
Section 5.1.1.2.
5.1.1.4 In the event any Owner has any concerns regarding performance by H/C I Owner of any of
its obligations under this Section 5.1.1, such Owner shall give notice to H/C I Owner, Attention:
VP Facilities, in accordance with Section 14.15.
5.1.1.5 H/C I Owners obligations under this Article 5 are subject to Force Majeure Events and
to the provisions of Article 11.
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5.1.2
No Obstructions to H/C I Pass-through Areas, the H/C-Mall I Common Areas and the
H/C I Limited Common Areas
.
5.1.2.1 Except to the extent that temporary construction barricades are reasonably required by
H/C I Owner to perform work in and maintain the H/C I Pass-through Areas, the H/C-Mall I Common
Areas and the H/C I Limited Common Areas in accordance with the terms hereof and such barricades do
not interfere with the use of the H/C I Pass-through Areas, H/C-Mall I Common Areas and the H/C I
Limited Common Areas or the Phase I Mall or the SECC except to the minimal extent necessary to
permit H/C I Owner to perform its obligations with respect to such space, no fence, barricade or
other obstruction shall be placed, kept, permitted or maintained on the H/C I Pass-through Areas,
the H/C-Mall I Common Areas or the H/C I Limited Common Areas which will interfere with the
intended uses thereof. H/C I Owner, in exercising its rights under this Section 5.1.2, shall use
commercially reasonable efforts to minimize interference with the maintenance, use and operation of
(i) the SECC and SECC Owners business at the same and (ii) the Phase I Mall and Mall I Owners
business at the same.
5.1.3
Cost Sharing
.
5.1.3.1 Mall I Owner shall pay as its required share of applicable Hotel/Casino/Mall/SECC
Common Area Charges (
Mall I Owners Share
), and Mall II Owner shall pay as its required
share of applicable Hotel/Casino/Mall/SECC Common Area Charges (
Mall II Owners Share
),
to H/C I Owner or H/C II Owner, as appropriate, the respective amounts set forth on
Schedule II
attached hereto and made a part hereof, and absolutely no other amounts except
as expressly provided for herein. SECC Owners payments to H/C I Owner or H/C II Owner, as
appropriate, on account of
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Hotel/Casino/Mall/SECC Common Area Charges (
SECC Owners Share
) shall be consistent
with past practice and methodology. Notwithstanding anything to the contrary set forth in this
Agreement, the Parties acknowledge and confirm that all Hotel/Casino/Mall/SECC Common Area Charges
allocable to Mall I Owner and Mall II Owner and relating to periods prior to the date hereof have
been paid in full.
5.1.3.2 Each of Mall I Owners Share, Mall II Owners Share and SECC Owners Share shall be
subject to further adjustment from time to time during the Term to the extent equitable by
agreement of the Owners after consultation with the Mortgagees of the Owners;
provided
,
that
if any such Mortgagee shall believe that such adjustment would (i) not be agreed to by
a Commercially Reasonable Owner or (ii) will cause a Material Adverse Effect, then the Owners and
their Mortgagees will negotiate in good faith until they agree on adjustments acceptable to all
such parties; if the parties shall not agree within thirty (30) days, the Owners and their
Mortgagees shall agree to an Independent Expert reasonably acceptable to all the Owners and their
Mortgagees who shall deliver to SECC Owner, Mall I Owner, Mall II Owner and each of their
respective Mortgagees (as well as the Mortgagees of H/C I Owner and H/C II Owner) a written
statement describing and certifying to an adjustment to
Schedule II
that (i) would be
agreed to by a Commercially Reasonable Owner, (ii) will not cause a Material Adverse Effect and
(iii) has appropriately allocated costs to reflect relative benefits. Such written statement shall
be binding on the Owners and their Mortgagees.
5.1.3.3 Hotel/Casino/Mall/SECC Common Area Charges shall be payable in monthly installments on
the first day of each month during the balance of the
101
Term, the first and last installment of which shall be reduced on a pro rata basis to reflect
the actual number of days in said month included within the Term.
5.1.3.4 Not less than thirty (30) days prior to the commencement of each calendar year, H/C I
Owner and H/C II Owner shall submit to each of SECC Owner, Mall I Owner and Mall II Owner a
statement setting forth (i) H/C I Owner and H/C II Owners good-faith estimate of the amount of
Hotel/Casino/Mall/SECC Common Area Charges for such calendar year, (ii) Mall I Owners Share
thereof (the amount of such Mall I Owners Share being hereinafter referred to as
Mall I
Owners Common Area Charge Obligations
), (iii) Mall II Owners Share thereof (the amount of
such Mall II Owners Share being hereinafter referred to as
Mall II Owners Common Area Charge
Obligations
) and (iv) SECC Owners Share thereof (the amount of such SECC Owners Share being
hereinafter referred to as
SECC Owners Common Area Charge Obligations
).
5.1.3.5 Within ninety (90) days following the end of each calendar year, H/C I Owner and/or
H/C II Owner shall furnish to each of SECC Owner, Mall I Owner and Mall II Owner, and each of their
Mortgagees, a written statement (the
Operating Expense Statement
), showing in reasonable
detail by categories (i) the total Hotel/Casino/Mall/SECC Common Area Charges for such calendar
year, (ii) Mall I Owners Common Area Charge Obligations for such calendar year and payments, if
any, made by Mall I Owner with respect thereto, (iii) Mall II Owners Common Area Charge
Obligations for such calendar year and payments, if any, made by Mall II Owner with respect thereto
and (iv) SECC Owners Common Area Charge Obligations for such calendar year and payments, if any,
made by SECC Owner with respect thereto together, in
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each case (but subject to the last parenthetical clause of the first Note in Schedule II),
with copies of supporting invoices, receipts and such other data reasonably necessary for SECC
Owner, Mall I Owner and Mall II Owner to verify such charges (collectively,
Supporting
Documentation
). If SECC Owners, Mall I Owners or Mall II Owners aggregate actual payments
on account of Hotel/Casino/Mall/SECC Common Area Charges for any calendar year shall be less than
SECC Owners, Mall I Owners or Mall II Owners, as the case may be, actual Common Area Charge
Obligations for such calendar year, SECC Owner, Mall I Owner or Mall II Owner, as the case may be,
shall pay such deficiency within ten (10) days of receipt by such Party of the Operating Expense
Statement and Supporting Documentation from H/C I Owner and/or H/C II Owner, as the case may be.
If SECC Owners, Mall I Owners or Mall II Owners aggregate actual payments on account of
Hotel/Casino/Mall/SECC Common Area Charges for any calendar year exceed SECC Owners actual Common
Area Charge Obligations, Mall I Owners actual Common Area Charge Obligations or Mall II Owners
actual Common Area Charge Obligations, as the case may be, as indicated by the Operating Expense
Statement for such calendar year, then H/C I Owner and/or H/C II Owner, as appropriate, shall,
within ten (10) days of the preparation of the Operating Expense Statement, refund the amount of
such excess payment to SECC Owner, Mall I Owner or Mall II Owner, as the case may be, in cash.
H/C I Owner and H/C II Owner shall keep complete and accurate books and records, in accordance with
generally accepted accounting principles consistently applied, of the Hotel/Casino/Mall/SECC Common
Area Charges and shall retain those books and records at their corporate offices. For a period of
three (3) years after the end of each calendar year, and for so long thereafter as any dispute
exists with respect thereto, H/C I
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Owner and H/C II Owner shall preserve all such books and records, including any payroll and
time records, vouchers, receipts, correspondence and memos pertaining to the Hotel/Casino/Mall/SECC
Common Area Charges for such calendar year. Each of SECC Owner, Mall I Owner or Mall II Owner may,
within three (3) years after the delivery of any Operating Expense Statement and Supporting
Documentation, examine, at such Owners expense (unless otherwise provided herein), H/C I Owners
and H/C II Owners books and records relating to the charges set forth on such Operating Expense
Statement. Such examination shall be conducted during ordinary business hours upon not less than
five (5) Business Days Notice, in a manner so as to reasonably minimize any interference with
H/C I Owners and H/C II Owners business. If such examination discloses that H/C I Owner or
H/C II Owner has overstated Mall I Owners actual Common Area Charge Obligations, Mall II Owners
actual Common Area Charge Obligations or SECC Owners actual Common Area Charge Obligations, as the
case may be, then H/C I Owner or H/C II Owner, as the case may be, shall promptly refund the
overpayment to Mall I Owner, Mall II Owner or SECC Owner, as the case may be, and if the
overpayment is more than three percent (3%) of the amount such Owner should have paid, H/C I Owner
or H/C II Owner, as the case may be, shall also pay the reasonable, out-of-pocket costs of such
Owners examination and interest on the overpayment at the Interest Rate from the date such Owner
overpaid H/C I Owner or H/C II Owner, as the case may be, until such Owner receives such refund.
5.1.3.6 With respect to Hotel/Casino/Mall/SECC Common Area Charges, any dispute between the
Owners shall be resolved by determination of the Independent Expert in accordance with
Section 14.16, which shall be the exclusive and
104
binding method for the resolution of any such dispute. Each of the Owners agrees to execute
and deliver, or cause to be executed and delivered, to the others any instruments that may be
required to effectuate or facilitate the provisions of this Agreement relating to the matters set
forth in this Section 5.1.3.
5.1.4
H/C I Space, Phase I Hotel/Casino Maintenance and Repair
.
5.1.4.1 Throughout the Term, H/C I Owner, at its sole cost and expense, shall, consistent with
First-class Las Vegas Boulevard-style hotel/casinos (a) clean and maintain the H/C I Space, the
Phase I Hotel/Casino and all parts thereof and facilities therein, including, without limitation
all portions of the interior walls and floors and all improvements therein, (b) keep and maintain
the same in good order, condition and repair and in a neat, attractive and rentable condition, and
(c) make all necessary repairs and restorations thereto and/or replacements of portions thereof,
interior and exterior, structural and non-structural, ordinary and extraordinary, including,
without limitation, all repairs and replacements necessitated by H/C I Owners or any of H/C I
Owners Tenants moving property in or out of the H/C I Space or installation or removal of
furniture, fixtures or other property or by the performance by H/C I Owner or any Tenant of any
Alterations, or when necessitated by the negligence or willful misconduct or improper conduct of
H/C I Owner or any Tenant or the Permittees of either of them. All of said repairs and any
restorations or replacements required in connection therewith shall be of a quality and class equal
to the original work or installation and shall be done in a good and workmanlike manner. All work
undertaken by H/C I Owner pursuant to this Section 5.1.4 shall be performed in accordance with
Sections 5.1.7 through 5.1.10.
105
5.1.4.2 H/C I Owners obligations under this Article 5 are subject to Force Majeure Events and
the provisions of Article 11.
5.1.5
Mall I Pass-through Areas, Mall I Space and Phase I Mall Maintenance and Repair
.
5.1.5.1 Mall I Owner agrees, in accordance with the required standards provided in this
Agreement, to maintain, repair and restore (including any necessary replacement and capital
improvement work required in connection therewith) at all times and to keep in operation, open to
the public (except for (x) portions thereof, such as service areas, not generally open to the
public and, (y) except in emergency situations, the Mall I Limited Common Areas) and available for
the Permitted Uses, except as may be required to maintain in the required condition, order and
repair, at Mall I Owners sole cost and expense, all Mall I Pass-through Areas and Mall I Limited
Common Areas. The aforesaid maintenance of the Mall I Pass-through Areas and Mall I Limited Common
Areas shall include, without limitation, except to the extent provided hereinabove, (i) patrolling
with suitable and adequate uniformed and/or non-uniformed, unarmed security personnel in accordance
with prevailing practice at properties of like usage in Clark County, Nevada; (ii) maintaining
suitable and adequate lighting (including the expenses of power and of light bulb installation and
replacement) in all Mall I Pass-through Areas and Mall I Limited Common Areas and keeping same lit
during such times as First-class retail and restaurant complexes are open (to the public or for
Permitted Maintenance or restoration or any other purpose not prohibited hereunder), equivalent to
not less than 10-foot candles in portions generally open to the public when required to be lit to
service the opening of any building comprising the Venetian to the public, and
106
otherwise to the extent
of such lesser standard as may be reasonably adequate under the circumstances to service the
opening of any building comprising the Venetian for Permitted Maintenance; (iii) cleaning,
window-washing (exclusive of any windows forming part of a separate space tenants premises),
planting, replanting, landscaping, ventilating, heating and air-cooling of the Mall I Pass-through
Areas and Mall I Limited Common Areas; and (iv) cleaning and keeping in good order and repair, and
replacing when necessary, all fixtures and other installations in the Mall I Pass-through Areas and
the Mall I Limited Common Areas including, but not limited to, pools, fountains, telephone booths,
vending machines, benches and the like. Mall I Owner shall not permit the Mall I Pass-through
Areas to be used for any solicitations or leafleting activity, including, but not limited to, union
or collective bargaining solicitations. The public address system in the Phase I Mall, if used at
all, shall be used solely for playing background music at a reasonable volume and for announcements
related to emergencies or for personal safety announcements (for example, locating lost children or
directing patrons to emergency exits). The Mall I Pass-through Areas shall be open to the general
public and operated and all public entrances thereto shall be open to the general public and
operated 24 hours a day, 7 days a week, 365 (or 366, as applicable) days per year, at all times
throughout the Term provided that less than substantial portions of the same may be closed at any
one time for cleaning outside the Hours of Operation so long as such closing does not affect access
to the H/C I Space or materially affect access to the rest of the Phase I Mall. Notwithstanding
the foregoing, if either the SECC or the H/C I Space is not open to the public but is in the
process of having Permitted Maintenance therein, and the other of the SECC or the H/C I Space is
not open
for business to the public, then Mall I Owner
107
need not during such Permitted Maintenance, keep
the public entrances to the Mall I Pass-through Areas open to the general public. In addition to
the foregoing, whenever any connecting level of the SECC or the H/C I Space is open for business,
the doors connecting such level of the SECC or the H/C I Space, as the case may be, with the Mall I
Space, shall be open and if either the SECC or H/C I Space is in the process of having Permitted
Maintenance performed, the doors connecting such level of the SECC or the H/C I Space, as the case
may be, with the Mall I Space, shall at the election of SECC Owner or H/C I Owner, as the case may
be, be open to SECC Owner or H/C I Owner, respectively.
5.1.5.2 Throughout the Term, Mall I Owner, at its sole cost and expense, shall (a) clean and
maintain the Mall I Space and the Phase I Mall and all parts thereof and facilities therein,
including, without limitation all portions of the interior walls and floors and all improvements
therein, the plumbing systems located in the Mall I Space and any electrical switchgear,
transformers and other electrical systems located in the Mall I Space, (b) keep and maintain the
same in good order, condition and repair and in a neat, attractive and rentable condition,
consistent with First-class retail and restaurant complexes as provided in this Agreement, and (c)
make all necessary repairs thereto and/or replacements of portions thereof, ordinary and
extraordinary, including, without limitation, all repairs and replacements necessitated by Mall I
Owners or any Tenants moving property in or out of the Mall I Space or installation or removal of
furniture, fixtures or other property or by the performance by Mall I Owner or any Tenant of any
Alterations, or when necessitated by the negligence or willful misconduct or improper conduct of
Mall I Owner or any Tenant or the Permittees of either of them. All of said repairs and any
restorations or replacements required in connection therewith shall be of a quality and class
108
equal to the original work or installation and shall be done in a good and workmanlike manner. All
work undertaken by Mall I Owner pursuant to this Section 5.1.5, shall be performed in accordance
with Sections 5.1.7 through 5.1.10.
5.1.5.3 In the event any Owner has any concerns regarding performance by Mall I Owner of any
of its obligations under this Section 5.1.5, such Owner shall give notice to Mall I Owner,
Attention: General Manager, in accordance with Section 14.15.
5.1.5.4 Mall I Owners obligations under this Article 5 are subject to Force Majeure Events,
the provisions of Article 11 and Section 5.1.1.3.
5.1.6
No Obstructions to Mall I Pass-through Areas
. Except to the extent that
temporary construction barricades are reasonably required by Mall I Owner to perform work in and
maintain the Mall I Pass-through Areas and the Mall I Limited Common Areas in accordance with the
terms hereof and such barricades do not interfere with the use of the H/C I Pass-through Areas or
the Phase I Hotel/Casino or the SECC except to the minimal extent necessary to permit Mall I Owner
to perform its obligations with respect to such space, no fence, barricade or other obstruction
shall be placed, kept, permitted or maintained on the Mall I Pass-through Areas and the Mall I
Limited Common Areas which will interfere with the intended uses thereof. Mall I Owner, in
exercising its rights under this Section 5.1.6, shall use commercially reasonable efforts to
minimize interference with the maintenance, use and operation of (i) the SECC and SECC Owners
business at the same and (ii) the Phase I Hotel/Casino and H/C I Owners business at the same.
109
5.1.7
Alterations
. H/C I Owner and Mall I Owner each agree for the benefit of the
other (except as otherwise expressly set forth herein) that from and after the date hereof:
5.1.7.1 H/C I Owner and Mall I Owner may each make (or allow any Tenant to make) Alterations
to the improvements from time to time located within or on their respective Lots in accordance with
the further provisions of this Article 5 and the provisions of Article 4 herein from time to time
during the Term.
5.1.7.2 H/C I Owner may from time to time as it deems appropriate in its absolute discretion,
subject to the provisions of Sections 5.1.8 through 5.1.10 and to the other provisions of this
Section 5.1.7, make Alterations to all portions of the Phase I Hotel/Casino.
5.1.7.3 Mall I Owner may from time to time as it deems appropriate in its absolute discretion,
subject to the provisions of Sections 5.1.8 through 5.1.10 and to the other provisions of this
Section 5.1.7, make Alterations to all portions of the Mall I Space and the Phase I Mall.
5.1.7.4 Neither H/C I Owner nor Mall I Owner may make (or allow any Person to make) any
Alteration or restoration which affects in a material respect (any such Alteration or restoration,
a
Material Alteration
) (i) the Venetian Building Shell and Core, (ii) the H/C-Mall I
Common Areas, (iii) the H/C I Limited Common Areas, (iv) the Mall I Limited Common Areas, (v) the
Electric Substation, (vi) the HVAC Plant, (vii) the Mall I H/C Exclusive Areas, (viii) the Phase I
Automobile Parking Area or (ix) the public entrances to and from such Owners property to the other
Owners properties, without in each instance obtaining the prior written consent thereto of (a) the
other Owner
110
(or, in the case of the Electric Substation or the HVAC Plant, all Owners), (b) the Mortgagee
of each of H/C I Owner and Mall I Owner, and (c) with respect to a Material Alteration affecting
the Electric Substation and/or the HVAC Plant, SECC Owner and its Mortgagees, all of which consents
shall not be unreasonably withheld, conditioned or delayed if a Commercially Reasonable Owner would
grant its consent and the same is not likely to have a Material Adverse Effect. Either Owner may
make (or allow any Tenant to make) any Alteration which singularly or together with related work is
not a Material Alteration without the other Owners or any Mortgagees consent in accordance with
the further provisions of this Article 5 and as is otherwise permitted by the terms of this
Agreement. Together with each request for approval of a Material Alteration, the requesting Owner
shall present to the non-requesting Owner and the Mortgagee of each of H/C I Owner and Mall I Owner
(and all other Owners and the Mortgagees of such other Owners with respect to a Material Alteration
affecting the Electric Substation and/or the HVAC Plant) for its approval plans and specifications
for such work prepared by an Architect. An Owners or any Mortgagees approval of any Material
Alteration shall not constitute any assumption of any responsibility or liability by such Owner or
Mortgagee for the accuracy or sufficiency of the applicable plans and specifications and the
requesting Owner shall be solely responsible for such items and shall be liable for any damage
resulting therefrom. The requesting Owner shall reimburse its Mortgagees, the non-requesting Owner
and its Mortgagee (and SECC Owner and the Mortgagee of SECC Owner with respect to a Material
Alteration affecting the Electric Substation and/or the HVAC Plant) upon receipt of invoices for
the non-requesting Owners and its Mortgagees actual out-of-pocket costs incurred in connection
with any review of any plans and
111
specifications in accordance with this Section 5.1.7.4, including architects and engineers
fees and costs. Upon reasonable prior notice and during mutually convenient hours, the
non-requesting Owner and/or the Mortgagee of each of H/C I Owner and Mall I Owner (and the SECC
Owner and the Mortgagee of SECC Owner with respect to a Material Alteration affecting the Electric
Substation and/or the HVAC Plant) may inspect Material Alterations from time to time in order to
assure itself that such work is being carried on in accordance with the requirements of this
Agreement,
provided
that such inspection does not unreasonably interfere with the
continuance and completion of the Material Alterations, and
provided
further that the
failure of an Owner or any Mortgagee to inspect such work (or, if such work is inspected, the
results or findings of such inspection) shall not in and of itself be considered a waiver of any
right accruing to such Owner or Mortgagee upon any failure of the requesting Owner to perform such
work in accordance with this Agreement. In undertaking any activities described in, and performing
its obligations under, this Article 5, each Owner shall use all commercially reasonable efforts to
minimize interference (including, without limitation, interference due to closure) with the
maintenance, use and operation of the Phase I Mall, the Phase I Hotel/Casino, and the SECC.
5.1.8
Alteration Requirements
. H/C I Owner and Mall I Owner each covenants and agrees
for the benefit of the other (and all of the other Owners in the case of Section 5.1.8.7) that no
Alterations to their respective Lots and/or any buildings or improvements located thereon or
therein will be made except in compliance with this Article 5, and hereby covenants that it will
comply with each and all of the following provisions:
112
5.1.8.1 All Alterations shall be made (1) with commercially reasonable diligence and dispatch
in a First-class manner with First-class materials and workmanship, architecturally consistent in
style with the existing improvements, (2) in accordance with the applicable requirements set forth
for H/C I Owner and Mall I Owner in Article 4 herein and (3) in such a manner as will not interfere
(other than to a
de
minimis
extent) with the use, occupancy, maintenance or operation of the Phase
I Base Building, the Phase I Hotel/Casino or the Phase I Mall or any of the businesses conducted
thereat.
5.1.8.2 Before any Alterations are begun, the Owner performing or causing such Alteration to
be performed shall obtain, at its own sole cost and expense, all licenses, permits, approvals and
authorizations in connection with any such Alterations required by any Governmental Authorities.
Upon any Owners request, the other Owner shall join in the application for such licenses, permits,
approvals and authorizations whenever such action is necessary, and the requesting Owner covenants
that the non-requesting Owner will not suffer, sustain or incur any cost, expense or liability by
reason thereof. All Material Alterations shall be made under the supervision of an Architect.
5.1.8.3 All Alterations shall be made in compliance and conformity with all applicable Legal
Requirements.
5.1.8.4 In making any Alteration, the Owner performing or causing such Alteration to be
performed shall not violate (a) the terms or conditions of any insurance policy affecting or
relating to the Venetian (including, without limitation, any insurance policy in respect of the
entire Phase I Base Building), or (b) the terms of any covenants, restrictions or easements
affecting the Venetian.
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5.1.8.5 No Alterations shall create any encroachment upon any street or upon any other portion
of the Venetian.
5.1.8.6 All contractors performing any Alteration shall be required to abide by the Contractor
Safety Permit Process described on
Exhibit P
attached hereto and made a part hereof. H/C I
Owner may, from time to time, update and revise the Contractor Safety Permit Process attached
hereto as
Exhibit P
in its reasonable discretion.
5.1.8.7 No Alteration will be made that will affect the structural integrity and support of
the SECC, Phase I Hotel/Casino, H/C I Space, Mall I Space, Phase I Mall, Mall II Space or Phase II
Mall.
5.1.9
Contractor Insurance
. The Owner performing or causing a Material Alteration to
be performed shall cause each of its general contractors to obtain, prior to commencing any
Material Alteration, and to keep in force, for the benefit of Mall I Owner, H/C I Owner and each of
their Mortgagees until the applicable Material Alteration is completed:
5.1.9.1 Commercial general liability insurance for the project on an occurrence basis,
including coverage for premises/operations, products/completed operations, broad form property
damage, blanket contractual liability, independent contractors and personal injury, with no
exclusions for explosion, collapse and underground perils, with primary coverage limits of no less
than $1,000,000 for injuries or death to one or more persons or damage to property resulting from
any one occurrence and a $2,000,000 aggregate limit. Such policy shall be endorsed to list H/C I
Owner and Mall I Owner as additional insureds and include a waiver of subrogation endorsement. The
commercial general liability policy shall also include a severability of interest clause;
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5.1.9.2 Automobile liability insurance, including coverage for owned, non-owned and hired
automobiles for both bodily injury and property damage and containing appropriate no-fault
insurance provisions or other endorsements in accordance with state legal requirements, with limits
of no less than $1,000,000 per accident with respect to bodily injury, property damage or death;
5.1.9.3 Workers compensation insurance and employers liability or stop gap liability, with a
limit of not less than $1,000,000, and such other forms of insurance which are required by law,
providing statutory benefits and covering loss resulting from injury, sickness, disability or death
of the employees of such Owner;
5.1.9.4 Umbrella Excess Liability Insurance of not less than $5,000,000 per occurrence and in
the aggregate; and
5.1.9.5 All such insurance shall be written by companies reasonably approved by H/C I Owner,
Mall I Owner and each of their Mortgagees and shall be on terms reasonably satisfactory to H/C I
Owner and Mall I Owner. Certificates for such insurance shall be delivered to H/C I Owner and Mall
I Owner at least three (3) Business Days before any work on such Material Alteration begins at the
Venetian. H/C I Owner or Mall I Owner, as the case may be, shall also maintain such additional
insurance as the other shall reasonably request from time to time, provided such insurance coverage
is maintained by tenants or owners of facilities or portions of facilities similar to the Venetian.
5.1.10
Payment of Other Owners Expenses
. In connection with the making of any
Material Alterations, the Owner performing such Material Alterations shall
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pay the other Owners reasonable actual out-of-pocket costs and expenses incurred in
connection therewith.
5.1.11
Trade Fixtures and Personal Property
. Notwithstanding anything to the contrary
set forth in this Article 5, H/C I Owner and Mall I Owner and its Tenants may, without the other
Owners consent, install in their respective Lots trade fixtures and personal property, provided
that no such installation shall interfere with or damage the Venetian Building Shell and Core;
provided
that any such installations located in any Pass-through Area or in the H/C-Mall I
Common Areas or on any wall fronting on any Pass-through Area or any H/C-Mall Common Area must
comply with the requirements for Alterations set forth in this Article 5. Such trade fixtures and
personal property may be removed from time to time so long as any damage caused to any part of the
Venetian caused by such removal shall be promptly restored at the removing Owners sole cost and
expense.
5.1.12
Negative Covenants With Respect to Floor Loads
. Neither Mall I Owner nor H/C I
Owner shall suffer or permit any part of the Venetian to be used in any manner, or anything to be
done therein, or suffer or permit anything to be brought into or kept in any part of the Venetian,
which would in any way place weight on any floor area in excess of its maximum floor load.
5.1.13
Shared Security Operations
. H/C I Owner shall continue to maintain and operate
the system of security cameras located throughout the Phase I Mall, which system shall, subject to
the terms of the following two sentences of this Section 5.1.13, provide a separate live feed for
each of H/C I Owner and Mall I Owner and provide Mall I Owner with primary control over its
cameras, including the ability to pan,
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tilt and zoom. Mall I Owner shall not have access to the monitoring room for the security camera
system. H/C I Owner shall have the right to override this system in order to comply with any rules
and regulations of the Nevada Gaming Control Board or any other rule or regulation applicable to
the Venetian or for any other valid business purpose. At Mall I Owners request, H/C I Owner shall
provide any videos requested by Mall I Owner to prosecute or defend slip-and-fall, shoplifting or
similar claims or for any other business purpose. Mall I Owner shall have the right, at its
election, to install and operate its own security system in the Phase I Mall.
Section 5.2
Covenants Regarding Phase II Land Operations
. H/C II Owner and Mall II Owner agree
for the benefit of each other as follows:
5.2.1
H/C-Mall II Common Areas; H/C II Pass-through Areas; H/C II Limited Common Areas;
Palazzo Building Shell and Core
.
5.2.1.1 H/C II Owner agrees, in accordance with the standards of First-class hotel/casinos as
provided in this Agreement, to maintain, repair and restore (including any necessary replacement
and capital improvement work required in connection therewith), and to keep in operation, open to
the public (except for (x) portions thereof, such as service areas, not generally open to the
public, (y) the Mall II H/C Exclusive Areas and (z) except in emergency situations, the H/C II
Limited Common Area) and available for the Permitted Uses, except as may be required to maintain in
the required condition, order and repair, (i) all H/C II Pass-through Areas, the Mall II H/C
Exclusive Areas and the H/C II Limited Common Areas, and (ii) all H/C-Mall II Common Areas. All of
H/C II Owners obligations pursuant to the preceding sentence shall be at H/C II Owners cost and
expense but shall be subject to contributions by Mall II Owner
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under the cost sharing provisions of Section 5.1.3. The aforesaid maintenance of the H/C-Mall
II Common Areas, H/C II Pass-through Areas and the H/C II Limited Common Areas shall include,
without limitation, except to the extent provided hereinabove, (i) patrolling with suitable and
adequate uniformed and/or non-uniformed, unarmed security personnel in accordance with prevailing
practice at properties of like usage in Clark County, Nevada; (ii) maintaining suitable and
adequate lighting (including the expenses of power and of light bulb installation and replacement)
in all H/C-Mall II Common Areas, H/C II Pass-through Areas and the H/C II Limited Common Areas and
keeping same lit during such times as First-class Las Vegas Boulevard-style hotel/casinos and/or
First-class restaurant and retail complexes are open (to the public or for Permitted Maintenance or
restoration or any other purpose not prohibited hereunder), equivalent to not less than 10-foot
candles in portions generally open to the public when required to be lit to service the opening of
any building comprising the Palazzo to the public, and otherwise to the extent of such lesser
standard as may be reasonably adequate under the circumstances to service the opening of any
building comprising the Palazzo for the purpose of Permitted Maintenance; (iii) cleaning,
window-washing (exclusive of any windows forming part of a separate space tenants premises),
planting, replanting, landscaping, ventilating, heating and air-cooling of the H/C-Mall II Common
Areas, the H/C II Pass-through Areas and the H/C II Limited Common Areas; and (iv) cleaning and
keeping in good order and repair, and replacing when necessary, all fixtures and other
installations in the H/C-Mall II Common Areas, the H/C II Pass-through Areas and the H/C II Limited
Common Areas, including, but not limited to, pools, fountains, waterfalls (including those
beginning in the Mall II Space), skylights (including those in the Mall II Space), telephone
booths, vending
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machines, gaming machines and equipment, benches and the like. H/C II Owner shall not permit the H/C II
Mall Common Areas, the H/C II Pass-through Areas and the H/C II Limited Common Areas to be used for
any solicitations or leafleting activity, including, but not limited to, union or collective
bargaining solicitations. H/C II Owner also agrees to maintain the quality and standard of the
aesthetic appearance of the H/C II Mall Common Areas, H/C II Pass-through Areas and H/C II Limited
Common Areas (including, without limitation, the floor finishes, common wall finishes, ceiling
systems and finishes, window lighting, etc., of such areas) so that the same is at least equal to
the quality and standard of such appearance as of the date hereof. The H/C-Mall II Common Areas
shall be open to the general public and operated, and all public entrances thereto shall be open to
the general public and operated, during such normal operating times as any portion of the Phase II
Mall is open for business to the public, and in addition during such times as First-class Las Vegas
Boulevard-style hotel/casinos and/or First-class restaurant and retail complexes are open. The H/C
II Pass-through Areas shall be open to the general public and operated 24 hours a day, seven days a
week, 365 (or 366, as applicable) days per year. Notwithstanding the foregoing, if the Phase II
Mall is not open to the public but is in the process of Permitted Maintenance therein, then H/C II
Owner need not during such Permitted Maintenance keep the public entrances to the H/C-Mall II
Common Areas or the H/C II Pass-through Areas open to the general public, but must keep such public
entrances open to the employees, agents, contractors and subcontractors of the Mall II Owner. In
addition to the foregoing, whenever any connecting level of the Phase II Mall is open for business,
the doors connecting such level with the H/C II Space shall be open, and, if the Phase II Mall is
in the process of Permitted Maintenance, the doors connecting such level
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with the H/C II Space shall at the election of Mall II Owner be open to Mall II Owner. Mall
II Owner shall be responsible for removing trash from the Phase II Mall and transporting the same
to dumpsters maintained by H/C II Owner on the Phase II Land.
5.2.1.2 Subject to contributions by Mall II Owner under the cost sharing provisions of Section
5.1.3, H/C II Owner shall, at all times, operate, maintain, restore, repair and replace and keep
and maintain in good order, condition, and repair, and in a neat and attractive condition,
consistent with the standards that prevail in First-class Las Vegas Boulevard-style hotel/casinos,
the building systems, Facilities, foundation, floor slabs, and other structural components of the
Phase II Base Building (including, without limitation, all components providing structural support
for the Mall II Space and the Phase II Mall), including, without limitation, the roof, exterior
walls, exterior wall systems, exterior wall fenestrations, interior and exterior bearing walls,
columns, slabs and members and sprinkler systems or other fire suppression systems (from the
central control location to the point at which such sprinkler or fire suppression systems enter
space leased to a Tenant, beyond which point Mall II Owner and/or Tenant shall have maintenance
responsibility for the sprinkler and fire suppression systems located in such Tenants space),
stairwells, elevators, escalators (if any) and any other similar mechanical conveyancing devices or
systems and (to the extent located outside of the Mall II Space) electrical switchgear,
transformers and all other electrical systems (collectively, the
Palazzo Building Shell and
Core
). All of said maintenance and repairs and any restorations or replacements required in
connection therewith shall be of First-class quality and shall be done in a good and workmanlike
manner. Supplementing the foregoing, any repair or alteration of the Palazzo fire suppression
system shall be performed only by
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H/C II Owner. Mall II Owner shall give H/C II Owner notice of any damage to the Phase II Mall or
the Palazzo Building Shell and Core (whether or not caused by Mall II Owner) or of any defects in
the Palazzo Building Shell and Core or any portion thereof or any fixtures or equipment therein
promptly after Mall II Owner first learns thereof. H/C II Owner covenants to maintain dumpsters
necessary for disposal of trash generated by the Phase II Hotel/Casino and the Phase II Mall. As
part of the maintenance obligations set forth in this Section 5.2.1, H/C II Owner shall be
responsible for all necessary or appropriate ground water remediation.
5.2.1.3 Notwithstanding any other provision hereof, H/C II Owner agrees, in accordance with
the standards of First-class hotel/casinos, to provide, or cause to be provided, pest control
services and fire extinguishers and fire extinguisher maintenance to and for the Phase II Mall.
Mall II Owner agrees to grant H/C II Owner and its contractors appropriate access to the Phase II
Mall in order for H/C II Owner to fully comply with its obligations under the preceding sentence
and under this Section 5.2.1.2.
5.2.1.4 In the event any Owner has any concerns regarding performance by H/C II Owner of any
of its obligations under this Section 5.2.1, such Owner shall give notice to H/C II Owner,
Attention: VP Facilities, in accordance with Section 14.15.
5.2.1.5 H/C II Owners obligations under this Article 5 are subject to Force Majeure Events
and to the provisions of Article 11.
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5.2.2
No Obstructions to H/C II Pass-through Areas, the H/C-Mall II Common Areas and the
H/C II Limited Common Areas
.
5.2.2.1 Except to the extent that temporary construction barricades are reasonably required by
H/C II Owner to perform work in and maintain the H/C II Pass-through Areas, the H/C-Mall II Common
Areas and the H/C II Limited Common Areas in accordance with the terms hereof and such barricades
do not interfere with the use of the H/C II Pass-through Areas, H/C-Mall II Common Areas and the
H/C II Limited Common Areas or the Phase II Mall except to the minimal extent necessary to permit
H/C II Owner to perform its obligations with respect to such space, no fence, barricade or other
obstruction shall be placed, kept, permitted or maintained on the H/C II Pass-through Areas, the
H/C-Mall II Common Areas or the H/C II Limited Common Areas which will interfere with the intended
uses thereof. H/C II Owner, in exercising its rights under this Section 5.2.2, shall use
commercially reasonable efforts to minimize interference with the maintenance, use and operation of
the Phase II Mall and Mall II Owners business at the same.
5.2.3
Intentionally Omitted
.
5.2.4
H/C II Space, Phase II Hotel/Casino Maintenance and Repair
.
5.2.4.1 Throughout the Term, H/C II Owner, at its sole cost and expense, shall, consistent
with First-class Las Vegas Boulevard-style hotel/casinos (a) clean and maintain the H/C II Space,
the Phase II Hotel/Casino and all parts thereof and facilities therein, including, without
limitation all portions of the interior walls and floors and all improvements therein, (b) keep and
maintain the same in good order, condition and repair and in a neat, attractive and rentable
condition, and (c) make all necessary repairs
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and restorations thereto and/or replacements of portions thereof, interior and exterior,
structural and non-structural, ordinary and extraordinary, including, without limitation, all
repairs and replacements necessitated by H/C II Owners or any of H/C II Owners Tenants moving
property in or out of the H/C II Space or installation or removal of furniture, fixtures or other
property or by the performance by H/C II Owner or any Tenant of any Alterations, or when
necessitated by the negligence or willful misconduct or improper conduct of H/C II Owner or any
Tenant or the Permittees of either of them. All of said repairs and any restorations or
replacements required in connection therewith shall be of a quality and class equal to the original
work or installation and shall be done in a good and workmanlike manner. All work undertaken by
H/C II Owner pursuant to this Section 5.2.4. shall be performed in accordance with Sections 5.2.7
through 5.2.10.
5.2.4.2 H/C II Owners obligations under this Article 5 are subject to Force Majeure Events
and the provisions of Article 11.
5.2.5
Mall II Pass-through Areas, Mall II Space and Phase II Mall Maintenance and
Repair
.
5.2.5.1 Mall II Owner agrees, in accordance with the required standards provided in this
Agreement, to maintain, repair and restore (including any necessary replacement and capital
improvement work required in connection therewith) at all times and to keep in operation, open to
the public (except for (x) portions thereof, such as service areas, not generally open to the
public and, (y) except in emergency situations, the Mall II Limited Common Areas) and available for
the Permitted Uses, except as may be required to maintain in the required condition, order and
repair, at Mall II Owners sole cost and expense, all Mall II Pass-through Areas and Mall II
Limited Common Areas. The
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aforesaid maintenance of the Mall II Pass-through Areas and Mall II Limited Common Areas shall
include, without limitation, except to the extent provided hereinabove, (i) patrolling with
suitable and adequate uniformed and/or non-uniformed, unarmed security personnel in accordance with
prevailing practice at properties of like usage in Clark County, Nevada; (ii) maintaining suitable
and adequate lighting (including the expenses of power and of light bulb installation and
replacement) in all Mall II Pass-through Areas and Mall II Limited Common Areas and keeping same
lit during such times as First-class retail and restaurant complexes are open (to the public or for
Permitted Maintenance or restoration or any other purpose not prohibited hereunder), equivalent to
not less than 10-foot candles in portions generally open to the public when required to be lit to
service the opening of any building comprising the Palazzo to the public, and otherwise to the
extent of such lesser standard as may be reasonably adequate under the circumstances to service the
opening of any building comprising the Palazzo for Permitted Maintenance; (iii) cleaning,
window-washing (exclusive of any windows forming part of a separate space tenants premises),
planting, replanting, landscaping, ventilating, heating and air-cooling of the Mall II Pass-through
Areas and Mall II Limited Common Areas; and (iv) cleaning and keeping in good order and repair, and
replacing when necessary, all fixtures and other installations in the Mall II Pass-through Areas
and the Mall II Limited Common Areas including, but not limited to, pools, fountains, telephone
booths, vending machines, benches and the like. Mall II Owner shall not permit the Mall II
Pass-through Areas to be used for any solicitations or leafleting activity, including, but not
limited to, union or collective bargaining solicitations. The public address system in the Phase
II Mall, if used at all, shall be used solely for playing background music at a reasonable
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volume and for announcements related to emergencies or for personal safety announcements (for example,
locating lost children or directing patrons to emergency exits). The Mall II Pass-through Areas
shall be open to the general public and operated and all public entrances thereto shall be open to
the general public and operated 24 hours a day, 7 days a week, 365 (or 366, as applicable) days per
year, at all times throughout the Term provided that less than substantial portions of the same may
be closed at any one time for cleaning outside the Hours of Operation so long as such closing does
not affect access to the H/C II Space or materially affect access to the rest of the Phase II Mall.
Notwithstanding the foregoing, if the H/C II Space is not open to the public but is in the process
of having Permitted Maintenance therein, then Mall II Owner need not during such Permitted
Maintenance keep the public entrances to the Mall II Pass-through Areas open to the general public.
In addition to the foregoing, whenever any connecting level of the H/C II Space is open for
business, the doors connecting such level of the H/C II Space with the Mall II Space shall be open,
and, if the H/C II Space is in the process of having Permitted Maintenance performed, the doors
connecting such level of the H/C II Space with the Mall II Space shall, at the election of H/C II
Owner, be open to H/C II Owner.
5.2.5.2 Throughout the Term, Mall II Owner, at its sole cost and expense, shall (a) clean and
maintain the Mall II Space and the Phase II Mall and all parts thereof and facilities therein,
including, without limitation all portions of the interior walls and floors and all improvements
therein, the plumbing systems located in the Mall II Space and any electrical switchgear,
transformers and other electrical systems located in the Mall II Space, (b) keep and maintain the
same in good order, condition and repair and in a neat, attractive and rentable condition,
consistent with First-class retail and restaurant
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complexes as provided in this Agreement, and (c) make all necessary repairs thereto and/or replacements
of portions thereof, ordinary and extraordinary, including, without limitation, all repairs and
replacements necessitated by Mall II Owners or any Tenants moving property in or out of the Mall
II Space or installation or removal of furniture, fixtures or other property or by the performance
by Mall II Owner or any Tenant of any Alterations, or when necessitated by the negligence or
willful misconduct or improper conduct of Mall II Owner or any Tenant or the Permittees of either
of them. All of said repairs and any restorations or replacements required in connection therewith
shall be of a quality and class equal to the original work or installation and shall be done in a
good and workmanlike manner. All work undertaken by Mall II Owner pursuant to this Section 5.2.5,
shall be performed in accordance with Sections 5.2.7 through 5.2.10.
5.2.5.3 In the event any Owner has any concerns regarding performance by Mall II Owner of any
of its obligations under this Section 5.2.5, such Owner shall give notice to Mall II Owner,
Attention: General Manager, in accordance with Section 14.15.
5.2.5.4 Mall II Owners obligations under this Article 5 are subject to Force Majeure Events,
the provisions of Article 11 and Section 5.2.1.3.
5.2.6
No Obstructions to Mall II Pass-through Areas
. Except to the extent that
temporary construction barricades are reasonably required by Mall II Owner to perform work in and
maintain the Mall II Pass-through Areas and the Mall II Limited Common Areas in accordance with the
terms hereof and such barricades do not interfere with the use of the H/C II Pass-through Areas or
the Phase II Hotel/Casino except to the minimal extent necessary to permit Mall II Owner to perform
its obligations with respect
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to such space, no fence, barricade or other obstruction shall be placed, kept, permitted or
maintained on the Mall II Pass-through Areas and the Mall II Limited Common Areas which will
interfere with the intended uses thereof. Mall II Owner, in exercising its rights under this
Section 5.2.6, shall use commercially reasonable efforts to minimize interference with the
maintenance, use and operation of the Phase II Hotel/Casino and H/C II Owners business at the
same.
5.2.7
Alterations
. H/C II Owner and Mall II Owner each agree for the benefit of the
other (except as otherwise expressly set forth herein) that from and after the date hereof:
5.2.7.1 H/C II Owner and Mall II Owner may each make (or allow any Tenant to make) Alterations
to the improvements from time to time located within or on their respective Lots in accordance with
the further provisions of this Article 5 and the provisions of Article 4 herein from time to time
during the Term.
5.2.7.2 H/C II Owner may from time to time, as it deems appropriate in its absolute
discretion, subject to the provisions of Sections 5.2.8 through 5.2.10 and to the other provisions
of this Section 5.2.7, make Alterations to all portions of the Phase II Hotel/Casino.
5.2.7.3 Mall II Owner may from time to time, as it deems appropriate in its absolute
discretion, subject to the provisions of Sections 5.2.8 through 5.2.10 and to the other provisions
of this Section 5.2.7, make Alterations to all portions of the Mall II Space and the Phase II Mall.
5.2.7.4 Neither H/C II Owner nor Mall II Owner may make (or allow any Person to make) any
Material Alteration affecting (i) the Palazzo Building Shell
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and Core, (ii) the H/C-Mall II Common Areas, (iii) the H/C II Limited Common Areas, (iv) the
Mall II Limited Common Areas, (v) the Mall II H/C Exclusive Areas, (vi) the Phase II Automobile
Parking Area or (vii) the public entrances to and from such Owners property to the other Owners
properties, without in each instance obtaining the prior written consent thereto of (a) the other
Owner and (b) the Mortgagee of each of H/C II Owner and Mall II Owner, all of which consents shall
not be unreasonably withheld, conditioned or delayed if a Commercially Reasonable Owner would grant
its consent and the same is not likely to have a Material Adverse Effect. Either Owner may make
(or allow any Tenant to make) any Alteration which singularly or together with related work is not
a Material Alteration without the other Owners or any Mortgagees consent in accordance with the
further provisions of this Article 5 and as is otherwise permitted by the terms of this Agreement.
Together with each request for approval of a Material Alteration, the requesting Owner shall
present to the non-requesting Owner and the Mortgagee of each of H/C II Owner and Mall II Owner for
its approval plans and specifications for such work prepared by an Architect. An Owners or any
Mortgagees approval of any Material Alteration shall not constitute any assumption of any
responsibility or liability by such Owner or Mortgagee for the accuracy or sufficiency of the
applicable plans and specifications, and the requesting Owner shall be solely responsible for such
items and shall be liable for any damage resulting therefrom. The requesting Owner shall reimburse
its Mortgagees, the non-requesting Owner and its Mortgagee upon receipt of invoices for the
non-requesting Owners and its Mortgagees actual out-of-pocket costs incurred in connection with
any review of any plans and specifications in accordance with this Section 5.2.7.4, including
architects and engineers fees and costs. Upon reasonable prior
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notice and during mutually convenient hours, the non-requesting Owner and/or the Mortgagee of each of
H/C II Owner and Mall II Owner may inspect Material Alterations from time to time in order to
assure itself that such work is being carried on in accordance with the requirements of this
Agreement,
provided
that such inspection does not unreasonably interfere with the
continuance and completion of the Material Alterations, and
provided
further that the
failure of an Owner or any Mortgagee to inspect such work (or, if such work is inspected, the
results or findings of such inspection) shall not in and of itself be considered a waiver of any
right accruing to such Owner or Mortgagee upon any failure of the requesting Owner to perform such
work in accordance with this Agreement. In undertaking any activities described in, and performing
its obligations under, this Article 5, each Owner shall use all commercially reasonable efforts to
minimize interference (including, without limitation, interference due to closure) with the
maintenance, use and operation of the Phase II Mall and the Phase II Hotel/Casino.
5.2.8
Alteration Requirements
. H/C II Owner and Mall II Owner each covenants and
agrees for the benefit of the other (and all of the other Owners in the case of Section 5.2.8.7)
that no Alterations to their respective Lots and/or any buildings or improvements located thereon
or therein will be made except in compliance with this Article 5, and hereby covenants that it will
comply with each and all of the following provisions:
5.2.8.1 All Alterations shall be made (1) with commercially reasonable diligence and dispatch
in a First-class manner with First-class materials and workmanship, architecturally consistent in
style with the existing improvements, (2) in accordance with the applicable requirements set forth
for H/C II Owner and Mall II Owner
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in Article 4 herein and (3) in such a manner as will not interfere (other than to a de minimis
extent) with the use, occupancy, maintenance or operation of the Phase II Base Building, the Phase
II Hotel/Casino or the Phase II Mall or any of the businesses conducted thereat.
5.2.8.2 Before any Alterations are begun, the Owner performing or causing such Alteration to
be performed shall obtain, at its own sole cost and expense, all licenses, permits, approvals and
authorizations in connection with any such Alterations required by any Governmental Authorities.
Upon any Owners request, the other Owner shall join in the application for such licenses, permits,
approvals and authorizations whenever such action is necessary, and the requesting Owner covenants
that the non-requesting Owner will not suffer, sustain or incur any cost, expense or liability by
reason thereof. All Material Alterations shall be made under the supervision of an Architect.
5.2.8.3 All Alterations shall be made in compliance and conformity with all applicable Legal
Requirements.
5.2.8.4 In making any Alteration, the Owner performing or causing such Alteration to be
performed shall not violate (a) the terms or conditions of any insurance policy affecting or
relating to the Palazzo (including, without limitation, any insurance policy in respect of the
entire Phase II Base Building), or (b) the terms of any covenants, restrictions or easements
affecting the Palazzo.
5.2.8.5 No Alterations shall create any encroachment upon any street or upon any other portion
of the Palazzo.
5.2.8.6 All contractors performing any Alteration shall be required to abide by the Contractor
Safety Permit Process described on
Exhibit P
attached hereto and made a part hereof. H/C
II Owner may, from time to time, update and revise
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the Contractor Safety Permit Process attached hereto as
Exhibit P
in its reasonable
discretion.
5.2.8.7 No Alteration will be made that will affect the structural integrity and support of
the SECC, Phase II Hotel/Casino, H/C II Space, Mall II Space, Phase II Mall, Mall I Space or Phase
I Mall.
5.2.9
Contractor Insurance
. The Owner performing or causing a Material Alteration to
be performed shall cause each of its general contractors to obtain, prior to commencing any
Material Alteration, and to keep in force, for the benefit of Mall II Owner, H/C II Owner and each
of their Mortgagees until the applicable Material Alteration is completed:
5.2.9.1 Commercial general liability insurance for the project on an occurrence basis,
including coverage for premises/operations, products/completed operations, broad form property
damage, blanket contractual liability, independent contractors and personal injury, with no
exclusions for explosion, collapse and underground perils, with primary coverage limits of no less
than $1,000,000 for injuries or death to one or more persons or damage to property resulting from
any one occurrence and a $2,000,000 aggregate limit. Such policy shall be endorsed to list H/C II
Owner and Mall II Owner as additional insureds and include a waiver of subrogation endorsement.
The commercial general liability policy shall also include a severability of interest clause;
5.2.9.2 Automobile liability insurance, including coverage for owned, non-owned and hired
automobiles for both bodily injury and property damage and containing appropriate no-fault
insurance provisions or other endorsements in accordance
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with state legal requirements, with limits of no less than $1,000,000 per accident with
respect to bodily injury, property damage or death;
5.2.9.3 Workers compensation insurance and employers liability or stop gap liability, with a
limit of not less than $1,000,000, and such other forms of insurance which are required by law,
providing statutory benefits and covering loss resulting from injury, sickness, disability or death
of the employees of such Owner;
5.2.9.4 Umbrella excess liability insurance of not less than $5,000,000 per occurrence and in
the aggregate; and
5.2.9.5 All such insurance shall be written by companies reasonably approved by H/C II Owner,
Mall II Owner and each of their Mortgagees and shall be on terms reasonably satisfactory to H/C II
Owner and Mall II Owner. Certificates for such insurance shall be delivered to H/C II Owner and
Mall II Owner at least three (3) Business Days before any work on such Material Alteration begins
at the Palazzo. H/C II Owner or Mall II Owner, as the case may be, shall also maintain such
additional insurance as the other shall reasonably request from time to time, provided such
insurance coverage is maintained by tenants or owners of facilities or portions of facilities
similar to the Palazzo.
5.2.10
Payment of Other Owners Expenses
. In connection with the making of any
Material Alterations, the Owner performing such Material Alterations shall pay the other Owners
reasonable actual out-of-pocket costs and expenses incurred in connection therewith.
5.2.11
Trade Fixtures and Personal Property
. Notwithstanding anything to the contrary
set forth in this Article 5, H/C II Owner and Mall II Owner and its Tenants
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may, without the other Owners consent, install in their respective Lots trade fixtures and
personal property, provided that no such installation shall interfere with or damage the Palazzo
Building Shell and Core;
provided
that any such installations located in any Pass-through
Area or in the H/C-Mall II Common Areas or on any wall fronting on any Pass-through Area or any
H/C-Mall II Common Area must comply with the requirements for Alterations set forth in this Article
5. Such trade fixtures and personal property may be removed from time to time so long as any
damage caused to any part of the Palazzo caused by such removal shall be promptly restored at the
removing Owners sole cost and expense.
5.2.12
Negative Covenants With Respect to Floor Loads
. Neither Mall II Owner nor H/C
II Owner shall suffer or permit any part of the Palazzo to be used in any manner, or anything to be
done therein, or suffer or permit anything to be brought into or kept in any part of the Palazzo,
which would in any way place weight on any floor area in excess of its maximum floor load.
5.2.13
Shared Security Operations
. H/C II Owner shall maintain and operate the system
of security cameras located throughout the Phase II Mall, which system shall, subject to the terms
of the following two sentences of this Section 5.2.13, provide a separate live feed for each of H/C
II Owner and Mall II Owner and provide Mall II Owner with primary control over its cameras,
including the ability to pan, tilt and zoom. Mall II Owner shall not have access to H/C II Owners
monitoring room for the security camera system. H/C II Owner shall have the right to override this
system in order to comply with any rules and regulations of the Nevada Gaming Control Board or any
other rule or regulation applicable to the Palazzo or for any other valid business purpose. At
Mall II
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Owners request, H/C II Owner shall provide any videos requested by Mall II Owner to prosecute
or defend slip-and-fall, shoplifting or similar claims or for any other business purpose. Mall II
Owner shall have the right, at its election, to install and operate its own security system in the
Phase II Mall.
ARTICLE 6
TAXES
Section 6.1 Each of the Owners agrees for the benefit of the others as follows:
6.1.1
Owners to Pay Taxes
. All taxes, assessments and other charges (including,
without limitation, real property taxes and assessments), and all interest and penalties with
respect thereto (all of the foregoing, collectively,
Taxes
) levied or assessed or which
(if unpaid) may result in the imposition of a lien: (i) against all or any portion of the SECC
Land and all buildings and other improvements from time to time located on the SECC Land (or
against any of the Owners with respect to the same) shall be paid, prior to delinquency thereof, by
SECC Owner, (ii) against all or any portion of the Phase I Land (excluding the Mall I Space) and
all buildings and other improvements from time to time located on the Phase I Land (excluding the
Mall I Space) (or against any of the Owners with respect to the same) shall be paid, prior to
delinquency thereof, by H/C I Owner, (iii) against all or any portion of the Mall I Space and all
improvements from time to time located thereon (or against any of the Owners with respect to the
same) shall be paid, prior to delinquency thereof, by Mall I Owner, (iv) against all or any portion
of the Phase II Land (excluding the Mall II Space) and all buildings and other improvements from
time to time located on the Phase II Land (excluding the Mall II Space) (or against any of the
Owners with respect to the same) shall be paid, prior to delinquency thereof, by H/C II Owner and
(v) against all or any portion of the Mall II Space and all improvements
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from time to time located thereon (or against any of the Owners with respect to the same)
shall be paid, prior to delinquency thereof, by Mall II Owner.
6.1.2
Right to Contest
. Each Party shall have the right to contest, in good faith and
at its own cost and expense, the validity or amount of any Taxes that, in the absence of such
contest, it would be required to pay hereunder;
provided
,
however
, that if at any
time payment of the whole or any part thereof shall be necessary in order to prevent the sale,
under applicable law, of any property with respect to which any easement, right or interest has
been granted pursuant to this Agreement, then the contesting party shall pay or cause same to be
paid in time to prevent such sale. Any such payment may be made under protest.
6.1.3
Bills
. In the event that any Party shall receive a bill, invoice or similar
writing (each of the foregoing, a
Bill
) in respect of any Taxes that any other Party is
required to pay hereunder, then the Party in receipt of such bill shall (i) pay, prior to
delinquency, the portion, if any, of the Taxes referenced in such Bill for which such Party is
responsible and (ii) promptly deliver the same to the other Party, whereupon such other Party shall
pay, prior to delinquency, the portion of the Taxes referenced in such Bill for which such other
Party is responsible. Additionally, if any Party hereto shall receive a notice or other official
writing relating to any Taxes that any other Party hereto is required to pay under this Agreement
(other than a Bill), then such receiving Party shall promptly furnish a copy of the same to such
other Party. Each Party shall, promptly upon the request of any other Party, exhibit to such other
Party for examination, receipts for the Taxes required to be paid by such Party pursuant to this
Article 6.
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6.1.4
Failure to Pay Taxes
. In the event any Party shall fail to pay any Taxes that
it is required to pay hereunder, any other Party or its Mortgagee may (but shall not be required
to) pay all or any portion of such Taxes and the non-paying Party shall reimburse the paying Party
or its Mortgagee, as applicable, on demand therefor by the paying Party or its Mortgagee, for the
sums so expended, with interest thereon, for the period from such demand to such reimbursement, at
an annual rate equal to four (4%) percent per annum in excess of the rate announced from time to
time by LaSalle National Bank, or any successor thereto, as its prime rate at its main office in
Chicago, IL (the
Interest Rate
);
provided
,
however
, that with respect to
a Mortgagee, Interest Rate shall mean the rate which is the greater of (i) the Interest Rate (as
defined above) and (ii) the default interest rate applicable to similar defaults as set forth in
such Mortgagees loan documents. The provisions of Sections 14.10.1 and 14.10.2 shall apply to
this Section 6.1.4.
ARTICLE 7
PERMANENT PARKING
Section 7.1
Automobile Parking Areas
. The Phase I Automobile Parking Area and the
Phase II Automobile Parking Area shall be available for use by the Owners in accordance with the
provisions of this Article 7.
Section 7.2
Valet Parking
. Subject to the cost sharing provisions of Section 5.1.3,
H/C I Owner and H/C II Owner shall provide valet parking service in the Phase I Automobile Parking
Area and the Phase II Automobile Parking Area, respectively, on a first come, first served basis.
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Section 7.3
Parking Spaces
.
7.3.1 H/C I Owner grants to each of the Owners the non-exclusive right to use all the Parking
Spaces in the Phase I Automobile Parking Area on a first come, first served basis, subject to the
provisions of this Agreement;
provided
that such Owner is using its Lot for its Permitted
Use. H/C II Owner grants to each of the Owners the non-exclusive right to use all the Parking
Spaces in the Phase II Automobile Parking Area on a first come, first served basis, subject to
the provisions of this Agreement;
provided
that such Owner is using its Lot for its
Permitted Use.
7.3.2 In no event shall any Owners rights and easements relating to parking comprise less
than the minimum number of Parking Spaces which shall be in such a location as shall be necessary
for such Owner (i) to be in compliance with all applicable Legal Requirements with respect to
Parking Spaces and (ii) to conduct its business on or in its Lot in accordance with its Permitted
Use (collectively, the
Minimum Parking Standards
);
provided
,
however
,
that neither H/C I Owner nor H/C II Owner shall have any obligation to alter or expand the
Automobile Parking Areas in order to accommodate increased parking needs imposed upon any other
Owner as a consequence of a change in the applicable Legal Requirements applicable to such Owner or
a change in the intended use of such Owners Lot. H/C I Owner and H/C II Owner may make any
Alterations to the Phase I Automobile Parking Area and Phase II Automobile Parking Area,
respectively, so long as such Alterations are consistent with the Minimum Parking Standards of each
Owner. Each Owner acknowledges and confirms that as of the date hereof, its rights and easements
relating to parking are consistent with its Minimum Parking Standards.
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7.3.3 H/C I Owner and H/C II Owner shall agree on a commercially reasonable plan to share the
costs of operating and maintaining the Automobile Parking Areas which, in the case of each of SECC
Owner, Mall I Owner and Mall II Owner, a Commercially Reasonable Owner would agree to.
Section 7.4
Employee Parking
. H/C I Owner and H/C II Owner shall have the right, in
their sole discretion, to prohibit or restrict the use of the Phase I Automobile Parking Area and
the Phase II Automobile Parking Area, respectively, by employees or employees of Tenants of the
other Owners;
provided
,
however
, that H/C I Owner and/or H/C II Owner, as the case
may be, shall make Parking Spaces available to a limited number of senior executives of any such
Owner, if requested by such Owner and approved by H/C I Owner and/or H/C II Owner, as the case may
be, which approval shall not be unreasonably withheld. H/C I Owner and H/C II Owner shall make the
Employee Parking Garage available for use by any employees not permitted to use the Automobile
Parking Areas;
provided
,
however
, that, if the capacity of the Employee Parking
Garage is insufficient (after the number of spaces, if any, designated by H/C I Owner and/or H/C II
Owner for patrons and guests of the Owners are reserved therefor) to accommodate all of such
employees, then H/C I Owner and H/C II Owner shall have the right to provide additional parking in
one or more (on- or off-site) facilities and to designate, in their sole discretion, which
facilities (or portions of such facilities) shall be available to any of such employees.
Section 7.5
Capital Improvements/Maintenance
. H/C I Owner shall have the right to
make capital improvements and the obligation to perform Maintenance on the Parking Access Easement
Area located on the Phase I Land, which rights shall be
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exercised at the sole cost and expense of H/C I Owner, subject to the cost sharing provisions
of Section 5.1.3. H/C II Owner shall have the right to make capital improvements and the
obligation to perform Maintenance on the Parking Access Easement Area located on the Phase II Land,
which rights shall be exercised at the sole cost and expense of H/C II Owner, subject to the cost
sharing provisions of Section 5.1.3. SECC Owner shall have the right to make capital improvements
and the obligation to perform Maintenance on the Parking Access Easement Area located on the SECC
Land, which right and obligation shall be exercised at its sole cost and expense.
Section 7.6
Rights of Others to Use Parking Spaces
. Nothing herein shall be construed
as precluding H/C I Owner and/or H/C II Owner from granting from time to time to other Persons
(including without limitation other Owners) rights to use Parking Spaces. Such grants may be on
terms determined by H/C I Owner and/or H/C II Owner, as the case may be, in its sole discretion.
Notwithstanding the foregoing, a particular grant shall not be permitted if usage of the rights
granted will either (i) result in any Owner not being afforded its Minimum Parking Standards or
(ii) otherwise adversely affect the conduct of another Owners business in accordance with the
terms hereof (except to a de minimis extent), unless such Owner first consents to such grant.
Section 7.7
Parking Rules and Regulations
.
7.7.1 Only H/C I Owner with respect to the Phase I Automobile Parking Area and H/C II Owner
with respect to the Phase II Automobile Parking Area shall have the right to establish, revise and
replace, from time to time, reasonable rules and regulations (
Parking Rules and
Regulations
) for use of the Phase I Automobile Parking Area or the Phase II Automobile Parking
Area, as the case may be;
provided
that no such
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rules or regulations or revisions thereto shall (i) deprive any Owner of its Minimum Parking
Standards or (ii) be enforced in a manner which discriminates against an Owner or its Permittees.
A copy of the Parking Rules and Regulations shall be provided to each Owner. Each Owner shall
comply with the Parking Rules and Regulations. The power to enforce the Parking Rules and
Regulations shall be vested exclusively in H/C I Owner and H/C II Owner, as the case may be. In
this regard, the Parties acknowledge and agree that the Parking Rules and Regulations to be adopted
from time to time by H/C I Owner and H/C II Owner are intended to facilitate the orderly
administration of the Automobile Parking Areas and the use of the rights therein granted, and no
Owner shall have any claim against H/C I Owner or H/C II Owner with respect to the Automobile
Parking Areas for failure to enforce the Parking Rules and Regulations against any other Owner, or
Person so long as such rules and regulations do not deprive any Owner of its Minimum Parking
Standards and are not enforced in a discriminatory manner. Rules and regulations initially
applicable to the use of the Automobile Parking Areas pursuant to this Agreement are set forth in
Schedule III
attached hereto.
7.7.2 In the event of any dispute between the Owners regarding the establishment, revision or
enforcement of Parking Rules and Regulations pursuant to this Section 7.7, the affected Owners
shall submit the matter for determination by the Independent Expert pursuant to the provisions of
Section 14.16.
Section 7.8
Parking Fees; Maintenance Charges
. H/C I Owner and H/C II Owner shall
have the right to require the payment of parking fees for the benefit of the Owners. Such fees
shall be equitably apportioned among the Owners as the Owners shall agree (and, absent such
agreement, as an Independent Expert shall decide).
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ARTICLE 8
THE VENETIAN AND THE PALAZZO
Section 8.1
Predevelopment Agreement
. H/C I Owner shall not take any action under
that certain Sands Resort Hotel & Casino Agreement dated as of February 18, 1997 by and between the
County of Clark and Las Vegas Sands, Inc., which agreement, as amended by amendment dated
September 16, 1997, is commonly referred to as the Predevelopment Agreement, a copy of which is
attached hereto and made a part hereof as
Exhibit V
, that could have a material adverse
effect on any of the easements, rights or interests granted to SECC Owner, H/C II Owner, Mall I
Owner or Mall II Owner hereunder and/or on the use, operation or enjoyment by SECC Owner of the
SECC (or SECC Owners business at the same), H/C II Owner of the H/C II Space (or H/C II Owners
business at the same), Mall I Owner of the Phase I Mall (or Mall I Owners business at the same) or
Mall II Owner of the Phase II Mall (or Mall II Owners business at the same).
Section 8.2
Mechanics Liens
.
8.2.1 In the event any mechanics, materialmens or similar lien is filed against the H/C I
Space, the Mall I Space, the H/C II Space or the Mall II Space or any buildings or other
improvements from time to time located on or in the H/C I Space, the Mall I Space, the H/C II Space
or the Mall II Space and owned by H/C I Owner, Mall I Owner, H/C II Owner or Mall II Owner, as the
case may be, which lien relates to work claimed to have been done for, or materials claimed to have
been furnished to or for the benefit of SECC Owner, the SECC Land, the SECC and/or any other
improvements owned by SECC Owner, then SECC Owner shall take any and all actions necessary to
cancel, discharge or bond or insure over such lien within thirty (30) days after notice to SECC
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Owner that such lien has been filed, and SECC Owner shall indemnify and hold H/C I Owner,
Mall I Owner, H/C II Owner or Mall II Owner, as the case may be, and its Mortgagees harmless from
and against any and all costs, expenses, claims, losses or damages (including, without limitation,
reasonable attorneys fees and expenses) resulting therefrom by reason thereof.
8.2.2 In the event any mechanics, materialmens or similar lien is filed against the SECC
Land, the SECC, any other buildings or other improvements from time to time located on the SECC
Land, which lien relates to work claimed to have been done for, or materials claimed to have been
furnished to, or for the benefit of, H/C I Owner, Mall I Owner, H/C II Owner and/or Mall II Owner,
the H/C I Space, Mall I Space, H/C II Space and/or the Mall II Space and/or any buildings or other
improvements owned by H/C I Owner, Mall I Owner, H/C II Owner and/or Mall II Owner, then H/C I
Owner, Mall I Owner, H/C II Owner and/or Mall II Owner, as the case may be, shall take any and all
actions necessary to cancel or discharge (by bonding or insuring over) such lien within thirty (30)
days after notice to H/C I Owner, Mall I Owner, H/C II Owner and/or Mall II Owner, as the case may
be, that such lien has been filed, and H/C I Owner, Mall I Owner, H/C II Owner and/or Mall II
Owner, as the case may be, shall indemnify and hold SECC Owner and its Mortgagees harmless from and
against any and all costs, expenses, claims, losses or damages (including, without limitation,
reasonable attorneys fees and expenses) resulting therefrom by reason thereof.
8.2.3 In the event any mechanics, materialmens or similar lien is filed against the H/C I
Space, the H/C II Space and/or the Mall II Space, any buildings or other improvements from time to
time located on or in the H/C I Space, the H/C II Space and/or
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the Mall II Space and owned by H/C I Owner, H/C II Owner and/or Mall II Owner, which lien
relates to work claimed to have been done for, or materials claimed to have been furnished to or
for the benefit of Mall I Owner, the Mall I Space, the Phase I Mall and/or any other improvements
owned by Mall I Owner, then Mall I Owner shall take any and all actions necessary to cancel or
discharge (by bonding or insuring over) such lien within thirty (30) days after notice to Mall I
Owner that such lien has been filed, and Mall I Owner shall indemnify and hold H/C I Owner, H/C II
Owner and/or Mall II Owner, as the case may be, and its/their Mortgagees harmless from and against
any and all costs, expenses, claims, losses or damages (including, without limitation, reasonable
attorneys fees and expenses) resulting therefrom by reason thereof.
8.2.4 In the event any mechanics, materialmens or similar lien is filed against the Mall I
Space, the H/C II Space and/or the Mall II Space, any buildings or other improvements from time to
time located on or in the Mall I Space, the H/C II Space and/or the Mall II Space and owned by
Mall I Owner, H/C II Owner and/or Mall II Owner, which lien relates to work claimed to have been
done for, or materials claimed to have been furnished to, or for the benefit of, H/C I Owner, the
H/C I Space and/or any buildings or other improvements owned by H/C I Owner, then H/C I Owner shall
take any and all actions necessary to cancel, discharge, bond or insure over such lien within
thirty (30) days after notice to H/C I Owner that such lien has been filed, and H/C I Owner shall
indemnify and hold Mall I Owner, H/C II Owner and/or Mall II Owner, as the case may be, and
its/their Mortgagees harmless from and against any and all costs, expenses, claims, losses or
damages (including, without limitation, reasonable attorneys fees and expenses) resulting
therefrom by reason thereof.
143
8.2.5 In the event any mechanics, materialmens or similar lien is filed against the H/C I
Space, the H/C II Space and/or the Mall I Space, any buildings or other improvements from time to
time located on or in the H/C I Space, the H/C II Space and/or the Mall I Space and owned by H/C I
Owner, H/C II Owner and/or Mall I Owner, which lien relates to work claimed to have been done for,
or materials claimed to have been furnished to or for the benefit of Mall II Owner, the Mall II
Space, the Phase II Mall and/or any other improvements owned by Mall II Owner, then Mall II Owner
shall take any and all actions necessary to cancel, discharge or bond or insure over such lien
within thirty (30) days after notice to Mall II Owner that such lien has been filed, and Mall II
Owner shall indemnify and hold H/C I Owner, H/C II Owner and/or Mall I Owner, as the case may be,
and its/their Mortgagees harmless from and against any and all costs, expenses, claims, losses or
damages (including, without limitation, reasonable attorneys fees and expenses) resulting
therefrom by reason thereof.
8.2.6 In the event any mechanics, materialmens or similar lien is filed against the Mall I
Space, the H/C I Space and/or the Mall II Space, any buildings or other improvements from time to
time located on or in the Mall I Space, the H/C I Space and/or the Mall II Space and owned by
Mall I Owner, H/C I Owner and/or Mall II Owner, which lien relates to work claimed to have been
done for, or materials claimed to have been furnished to, or for the benefit of, H/C II Owner, the
H/C II Space and/or any buildings or other improvements owned by H/C II Owner, then H/C II Owner
shall take any and all actions necessary to cancel, discharge or bond or insure over such lien
within thirty (30) days after notice to H/C II Owner that such lien has been filed, and H/C II
Owner shall indemnify and hold Mall I Owner, H/C I Owner and/or Mall II Owner, as the case may be,
144
and its/their Mortgagees harmless from and against any and all costs, expenses, claims, losses
or damages (including, without limitation, reasonable attorneys fees and expenses) resulting
therefrom by reason thereof.
8.2.7 If any of H/C I Owner, Mall I Owner, H/C II Owner, Mall II Owner or SECC Owner fails to
discharge any such lien within the aforesaid periods, then, in addition to any other right or
remedy of the affected Party, the affected Party or any of its Mortgagees (the
Discharging
Party
) may, but shall not be obligated to, discharge the same either by paying the amount
claimed to be due or by procuring the discharge of such lien by deposit in court or bonding. Any
amount paid by the Discharging Party (including, without limitation, reasonable attorneys fees,
disbursements and other expenses) incurred in defending any such action, discharging said lien or
in procuring the discharge of said lien, shall be repaid by the defaulting Party upon demand
therefor, and all amounts so repayable shall be repaid with interest at the Interest Rate from the
date of demand to the date of repayment.
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ARTICLE 9
RESTRICTIVE COVENANTS
Section 9.1
Convention Center Non-Competition
.9.1.1 Mall I Owner hereby agrees for the
benefit of SECC Owner, H/C I Owner and H/C II Owner that Mall I Owner shall not (and shall not
permit any other Person to) own, operate, lease, license or manage any building or other facility
located in the Mall I Space that provides (a) space for or to shows or expositions of the type
generally held at the SECC (as such name may be changed from time to time) or any other Convention
Center on the SECC Land, the H/C I Land or the H/C II Land or (b) meeting room or ballroom space.
9.1.2 Mall II Owner hereby agrees for the benefit of SECC Owner, H/C I Owner and H/C II Owner
that Mall II Owner shall not (and shall not permit any other Person to) own, operate, lease,
license or manage any building or other facility located in the Mall II Space that provides
(a) space for or to shows or expositions of the type generally held at the SECC (as such name may
be changed from time to time) or any other Convention Center on the SECC Land, the H/C I Land or
the H/C II Land or (b) meeting room or ballroom space.
Section 9.2
Tenant Non-Competition
. Except as expressly set forth to the contrary in
that certain Construction, Operation and Reciprocal Easement Agreement dated as of the date hereof
by and between Mall I Owner and Mall II Owner with respect to the rights and obligations of Mall I
Owner and Mall II Owner to and with respect to each other (but not with respect to the rights and
obligations of Mall I Owner and Mall II Owner to or with respect to any other Owner or the rights
and obligations of any other Owner), neither H/C I Owner, Mall I Owner, H/C II Owner nor Mall II
Owner shall enter into any Lease with a Tenant that attempts in any way to limit the ability of any
of the other such Owners
146
to rent space in such other Owners Lot to any Tenant or for any purpose.
If any Lease entered into by H/C I Owner, Mall I Owner, H/C II Owner or Mall II Owner contains such
a provision, the other Owners shall have no obligation to comply with such provision.
Section 9.3
Savings
. The restrictions set forth herein are considered by the Parties
to be reasonable for the purpose of protecting the respective owners of the SECC, the Phase I
Hotel/Casino and the Phase II Hotel/Casino from time to time and its business thereat. However, if
any such restriction is found by a court of competent jurisdiction to be unenforceable because it
extends for too long a period of time or over too great a range
of activities or in too broad a geographic area, it is the intention of the Parties that such
restriction shall be interpreted to extend only over the maximum period of time, range of
activities or geographic area as to which it may be enforceable.
ARTICLE 10
INSURANCE
Section 10.1
Insurance to be Carried by the Owners
.
10.1.1
Insurance to Be Carried by H/C I Owner
. From the date hereof, and at all times
during the Term, H/C I Owner shall obtain and maintain (and shall pay all premiums in accordance
with Section 10.4.1.1.3), for the benefit of itself and the other Owners (other than any Opting-Out
Owner), insurance providing at least the following coverages (
Shared Insurance
):
10.1.1.1
All Risk Property Insurance
. All risk property insurance, as such term
is used in the insurance industry, with flood and earthquake (including sinkhole and subsidence)
and on an agreed amount (no co-insurance) loss limit basis and providing coverage for the
Integrated Resort, including removal of debris, insuring the buildings, structures, machinery,
equipment, fixtures and other properties
147
constituting a part of or located within the Integrated
Resort (but excluding all personal property located within the Mall I Space or Mall II Space) in a
minimum amount not less than the maximum foreseeable loss (as such term is used in the insurance
industry, and as determined by the applicable insurance company or applicable insurance broker or
by an Independent insurance consultant selected by H/C I Owner and reasonably satisfactory to
Mall I Owner and Mall II Owner) for the Integrated Resort, and in any case subject to an annual
limit of $100,000,000 for flood coverage and $100,000,000 for earthquake coverage, but in no event
in an amount less than the limit necessary to satisfy other
contracts executed in connection with the Integrated Resort. Such policy shall include a
replacement cost endorsement with no deduction for depreciation, and, unless provided under the all
risk policy, boiler and machinery coverage on a comprehensive basis including breakdown and
repair with limits not less than the maximum foreseeable loss (as such term is used in the
insurance industry, and as determined by the applicable insurance company or applicable insurance
broker or by an Independent insurance consultant selected by H/C I Owner and reasonably
satisfactory to Mall I Owner and Mall II Owner) for the insured objects. The policy/policies shall
include increased cost of construction coverage, debris removal, and building ordinance coverage to
pay for loss of
undamaged property which may be required to be replaced due to enforcement of
local, state, or federal ordinances subject to a sublimit of $10,000,000. All such policies may
have deductibles of not greater than $1,000,000 per loss with the exception of earthquake and flood
(5% of values at risk).
10.1.1.2
Business Interruption Insurance
. Business interruption insurance on an all
risk basis, including boiler and machinery, in an amount equal to
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satisfy policy coinsurance
conditions, but with limits not less than the equivalent to twelve (12) months projected revenues
less allowable insurance company deductions on a non-continuing basis;
provided
,
however
, that so long as H/C I Owner shall carry a combined property and business
interruption policy (a
Combined Policy
) and the maximum foreseeable loss amount
calculated by the applicable insurance company or applicable insurance broker or an Independent
insurance consultant pursuant to Section 10.1.1.1 includes a calculation of business interruption
loss, then said maximum foreseeable loss amount shall be the required limit for the all-risk
insurance described by Section 10.1.1.1
and the business interruption insurance described by this Section 10.1.1.2. Such coverage
shall include a six (6) month indemnity period beyond the period covered by the business
interruption insurance. The deductible or waiting period shall not exceed thirty (30) days. H/C I
Owner and Mall I Owner shall also maintain or cause to be maintained (a) expediting or extra
expense coverage in an amount not less than $2,500,000 and (b) with respect to the Integrated
Resort, contingent business interruption insurance, or equivalent coverage as respects the HVAC
Plant in an amount not less than three (3) months gross revenues.
10.1.1.3
Terrorism Insurance
. If any insurance policy described in Sections 10.1.1.1
or 10.1.1.2 above shall contain an exclusion from coverage under such policy for loss or damage
incurred as a result of an act of terrorism (as defined in the Terrorism Risk Insurance Act or any
successor federal statute) or similar acts of sabotage, H/C I Owner shall maintain insurance
against loss or damage incurred as a result of acts of terrorism or similar acts of sabotage in an
amount of not less than the maximum foreseeable loss, provided such insurance is Commercially
Available.
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Any Owner which is participating in any Shared Insurance set forth in this Section 10.1.1
shall, with respect to such Shared Insurance, be a
Participating Owner
.
10.1.2
Insurance as to Each Owner
. From the date hereof, and at all times during the
Term, each Owner shall obtain and maintain, and shall pay all premiums for, the following insurance
for itself (unless otherwise agreed to in writing by the Owners), providing at least the following
coverages:
10.1.2.1
Commercial General Liability Insurance
. Commercial general liability
insurance for such Owners property on an occurrence basis, including
coverage for premises/operations, products/completed operations, broad form property damage,
blanket contractual liability, independent contractors and personal injury, with no exclusions for
explosion, collapse and underground perils, with primary coverage limits of no less than $1,000,000
for injuries or death to one or more persons or damage to property resulting from any one
occurrence and a $2,000,000 aggregate limit. Each such commercial general liability policy shall
also include a severability of interest clause and will not exclude cross suits in the event more
than one entity is a named insured under the liability policy. With respect to the insurance set
forth in this Section 10.1.2.1, deductibles and/or self-insured retention in excess of $500,000 may
be subject to Mortgagee approval pursuant to Section 10.2.6.1 hereof.
10.1.2.2
Automobile Liability Insurance
. Automobile liability insurance, including
coverage for owned, non-owned and hired automobiles for both bodily injury and property damage and
containing appropriate no-fault insurance provisions or other endorsements in accordance with state
legal requirements, with limits
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of no less than $1,000,000 per accident with respect to bodily
injury, property damage or death.
10.1.2.3
Workers Compensation Insurance
. Workers compensation insurance providing
statutory benefits, and employers liability or stop gap liability with a limit of not less than
$1,000,000, covering loss resulting from injury, sickness, disability or death of the employees of
each Owner. Each Owner may self insure, with a retention not greater than $1,000,000 per
occurrence, provided that the same is permitted by and in compliance with applicable Nevada law.
10.1.2.4
Umbrella/Excess Liability Insurance
. Umbrella/excess liability insurance of
not less than $125,000,000 per occurrence and in the aggregate during construction and operations.
Such coverages shall be on a per occurrence basis and over and above coverage provided by the
policies described in Section 10.1.2.1, Section 10.1.2.2 and (with respect to stop gap or employer
liability insurance only) Section 10.1.2.3 above.
10.1.2.4.1
Impairment of Limits
. If the policy or policies provided under
Section 10.1.2 contain(s) aggregate limits applying to operations other than operations of the
applicable Owner at the applicable property that is part of the Integrated Resort, and such limits
are diminished below $120,000,000 by any incident, occurrence, claim, settlement or judgment
against such other operations which has caused the insurer to establish a reserve, the applicable
Owner, within thirty (30) days after knowledge of such event, shall purchase an additional
umbrella/excess liability insurance policy satisfying the requirements of Section 10.1.2.4 in an
amount approved by the applicable Mortgagee, which approval shall not be unreasonably withheld,
conditioned or
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delayed;
provided
a Commercially Reasonable Owner of the applicable property
would so consent and same would not have a Material Adverse Effect on such property, Owner or
Mortgagee;
provided
that in no event shall the amount of such insurance exceed the maximum
aggregate amount of such insurance required pursuant to the first sentence of Section 10.1.2.4.
10.1.3
Opting-Out Owners
. Notwithstanding anything herein contained, Mall I Owner
and/or Mall II Owner (an
Opting-Out Owner
) may elect at any time and from time to time by
notice to H/C I Owner to obtain on its own behalf (and not on a
shared basis with any other portion of the Integrated Resort) any of the insurance coverages
set forth in Section 10.1.1 hereof (other than with respect to all risk property insurance with
respect to any shared perimeters), in which event (a) each Opting-Out Owner shall pay for its own
such insurance and the costs and benefits thereof shall not be shared; (b) each Opting-Out Owner
shall provide H/C I Owner and its Mortgagees, upon request and in all events not less than once
every 12 months, with reasonably satisfactory evidence of such coverage; (c) the insurance coverage
provided by the separate policies maintained by each Owner must be substantially equivalent to
provide coverage for the Opting-Out Owners exposures to the coverage that would have been required
to be maintained by H/C I Owner for the benefit of all Owners if the Opting-Out Owners had not made
such election; and (d) in the event that an Opting-Out Owner has elected to obtain on its own
behalf the insurance set forth in Section 10.1.1.1 hereof, then with respect to such Opting-Out
Owner, the coverages maintained by H/C I Owner pursuant to Section 10.1.1 shall be limited to
covering the shared perimeter between the applicable Owners. If the parties cannot agree on any
matter set forth in this Section 10.1.3, the Opting-Out Owner
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shall still have the right to
immediately opt-out and subsequently any open matters shall be resolved by an Independent insurance
consultant selected by H/C I Owner and satisfactory to the Opting-Out Owners.
10.1.4
Additional Coverage
. The Parties acknowledge and confirm that the coverage
requirements set forth in this Article 10 are minimum requirements, and any Owner (for purposes of
this Section 10.1.4, a
Purchasing Owner
) may procure additional coverage (
Additional
Coverage
) so long as the same does not adversely impact any other Owners ability to obtain
the minimum required coverages or collect proceeds with respect
thereto. The other Owners shall cooperate in good faith (all reasonable out of pocket costs
of which cooperation shall be reimbursed by the Purchasing Owner) with the efforts by a Purchasing
Owner to purchase Additional Coverage, such cooperation to include, without limitation, increasing
(at the Purchasing Owners sole cost and expense) the coverage limit on any insurance required to
be maintained under the preceding provisions of this Article 10. Any Purchasing Owner that
acquires Additional Coverage shall give each other Owner written notice of such fact, which notice
shall designate specified insurance policies or portions thereof as Additional Coverage and shall
be accompanied by a copy of a certificate of insurance evidencing such policy.
Section 10.2
General Conditions Covering Insurance
.
10.2.1
Insurer Requirements
. All insurance required under this Agreement to be
carried by the Owners shall be effected under valid and enforceable policies and shall:
10.2.1.1 be issued by either (i) insurers rated A- or better by Standard and Poors, A- or
better with a minimum size rating of VIII by Bests
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Insurance Guide and Key Ratings
(
Bests
), or (ii) a syndicate of insurers through which at least sixty percent (60%) of
the coverage (if there are 4 or fewer members of the syndicate) or at least fifty percent (50%) of
the coverage (if there are 5 or more members of the syndicate) is with carriers having a
claims-paying-ability rating by Standard and Poors not lower than A- or by Bests not lower than
A-:VIII and the balance of the coverage is, in each case, with insurers having a
claims-paying-ability rating by Standard and Poors of not lower than BBB or by Bests not lower
than B+, provided that in each case, the first loss risk is borne by the carriers having a
claims-paying-rating by
Standard and Poors of not lower than A- or by Bests not lower than A-:VIII; or, with
respect to each rating requirement in the foregoing clauses (i) and (ii), an equivalent rating by
another nationally recognized insurance rating agency of similar standing if Standard and Poors
and Bests shall no longer be published, and
10.2.1.2 with respect to any flood hazard insurance coverage, be issued by any insurance
company authorized by the United States government to issue such insurance provided such flood
hazard insurance is reinsured by the United States government.
10.2.2
Additional Insured Requirements
. All insurance required under
Section 10.1.2.1, Section 10.1.2.2 or Section 10.1.2.4 of this Agreement to be carried by the
Owners shall name each of the Owners and each of their respective Mortgagees as named (solely as to
the Owner purchasing such insurance) or additional insureds, as their interests may appear. Any
Shared Insurance required under this Agreement to be carried by H/C I Owner shall name Trustee, the
applicable Participating Owners and each of their respective Mortgagees as their interests may
appear.
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10.2.3
Loss Payees
. All Shared Insurance policies shall insure the interests of the
applicable Participating Owners and their respective Mortgagees, and shall name Trustee as loss
payee; provided that all Shared Insurance policies covering real or personal property or business
interruption shall name Trustee as additional insured and First Loss Payee/Mortgagee in accordance
with CP12 18 (06/95) or equivalent Lenders Loss Payable Endorsement. All non-Shared Insurance
policies shall name only the applicable Owner and its respective Mortgagee as loss payees. In the
event the HVAC
Plant is insured under the blanket policy, such blanket policy may also contain loss payee
provisions in favor of the owner of the HVAC Plant.
10.2.4
Evidence of Insurance
. Each Owner shall submit certificates of insurance of
each policy required pursuant to the requirements of this Article 10. If any other Owner or any
Mortgagee reasonably believes that the information contained in such certificates does not fully
demonstrate that such Owner is maintaining insurance in compliance with the requirements of this
Article 10, such Owner shall submit copies of the policies or redacted portions of such policies to
the extent necessary to demonstrate such compliance. With respect to any Shared Insurance, H/C I
Owner shall also provide all applicable Participating Owners with a copy of a policy endorsement or
applicable excerpts from the policy verifying adding each such applicable Participating Owner as an
additional insured, to the extent the certificates do not show the same.
10.2.5
Trustee
.
10.2.5.1
Duties
. The Trustee shall have no responsibility to any Owner as a
consequence of performance by the Trustee hereunder except for any bad faith, fraud, gross
negligence or willful misconduct of the Trustee. The Trustee shall have no
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duties or obligations
hereunder except as expressly set forth herein or in that certain Trustee Disbursement and
Administration Agreement, dated as of November 14, 1997, by and among Phase I LLC; Mall I LLCs
predecessor-in-interest as Mall I Owner; The Bank of Nova Scotia, as Trustee; and certain other
parties, 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 or thereof.
10.2.5.2
Pledge of Collateral
. Any amounts received by the Trustee with respect to
any Shared Insurance proceeds shall be held by the Trustee in accounts for the benefit of the
Mortgagees of the Lots affected and which are covered by such Shared Insurance (or if there is no
such Mortgagee, the applicable Participating Owner). The Trustee shall establish separate accounts
for such proceeds allocable to each respective Lot. At the request of the Participating Owner of a
particular Lot, the account established with respect to such Lot will permit the investment of the
funds therein in investments identified by said Participating Owner, subject to the reasonable
approval of the Mortgagee of such Lot. Notwithstanding the foregoing:
10.2.5.2.1 any such account established for a particular Lot and all funds and investments
therein and all proceeds thereof are hereby pledged, assigned, transferred and delivered by the
respective Participating Owners to the Trustee for the benefit of the Mortgagees of such Lot, and
such Participating Owners hereby grant to the Trustee for the benefit of such Mortgagees a
continuing lien on and security interest in all of the foregoing as collateral security for the
obligations under their respective loan documents, in the same priorities as apply to the liens
which they hold with respect to such Lots; and
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10.2.5.2.2 such Participating Owners shall take all steps reasonably requested by the Trustee
or such Mortgagees in order to perfect said security interests.
10.2.5.3
Casualty
. In the event of any damage or destruction by fire or other
casualty (each, a
Casualty
) covered by Shared Insurance for which the Trustee receives
any proceeds, such proceeds shall be held in trust for the applicable
Participating Owners and their respective Mortgagees until such time as they are distributed
by the Trustee in accordance with the provisions of Section 10.4.3 hereof. In the event that,
pursuant to Section 10.4.3, any Participating Owner or Mortgagee elects for any property Shared
Insurance proceeds to be retained and held in Trust by Trustee, the following provisions shall
apply with respect to the distribution of such proceeds:
10.2.5.3.1
Interim Payments
. At the end of each month, or from time to time, as
reasonably requested by the applicable Participating Owner, against such Participating Owners
Independent Architects certificate in form and content reasonably satisfactory to the affected
Mortgagees of each Owners Lot, the Trustee shall distribute to such Participating Owner (or at
such Participating Owners direction, to its contractor or contractors) an amount which shall be
that proportion of the total amount held in trust for such Participating Owner which 90% (or such
greater amount as may be reasonably agreed to by the applicable Participating Owner(s) and their
Mortgagees) of the payments to be made to the contractors or materialmen for work done, material
supplied and services rendered during each month or other period bears to the total contract price
for such contractors or materialmen;
provided
that at the time of any such progress payment
(a) there are no liens against the property by reason of such work which have not
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been bonded or
insured over, and (b) to the extent the aggregate amount of any insurance proceeds shall be less
than the amount necessary to restore the affected property, the Party entitled to such proceeds has
paid such deficiency out of other funds.
10.2.5.3.2
Final Payment
. At the completion of the applicable work, the balance of
such proceeds required to complete the payment of such work shall be paid to the applicable
Participating Owner (or, if required by its loan
documents, its Mortgagee for payment to the applicable contractors or materialmen) entitled to
such proceeds, or its contractor or contractors,
provided
that at the time of such payment
(a) there are no liens against the property by reason of such work which have not been bonded or
insured over, and with respect to the time of payment of any balance remaining to be paid at the
completion of the work the period within which a lien may be filed has expired, or proof has been
submitted that all costs of work theretofore incurred have been paid, and (b) the applicable
Participating Owners Independent Architect shall certify in a certificate, the form and content of
which is reasonably satisfactory to the affected Mortgagee, that all required work is completed
and proper and of a quality and class of the original work and in accordance with the Plans.
10.2.5.3.3
Excess Proceeds
. Any property Shared Insurance proceeds not required to be
applied to pay for the costs of rebuilding under Article 11 hereof, shall be paid by the Trustee to
the applicable Participating Owner entitled to such excess proceeds (or, if required by its loan
documents, its Mortgagee).
10.2.6 Mortgagees.
10.2.6.1
Approval of Certain Insurance
. Unless otherwise permitted under the
applicable Owners loan documents, with respect to the insurance set
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forth in Section 10.1.2.1
hereof, deductibles and/or self-insured retention in excess of $500,000 shall be subject to review
and approval by the applicable Mortgagee, which approval shall not be unreasonably withheld,
conditioned or delayed;
provided
a Commercially Reasonable Owner of the applicable property
would so approve and same would not have a Material Adverse Effect on such property, Owner or
Mortgagee. Without limiting anything set forth in this Article 10, each applicable Mortgagee shall
also
have the approval rights set forth in Section 10.1.2.4, Section 11.2 and Section 11.1.3
hereof, if applicable.
10.2.6.2
Right to Cure
. On or before December 30th of each year during the Term or
upon request (but not more than once in any twelve (12) month period), H/C I Owner shall furnish to
Trustee and each other Owner, with a copy for each Mortgagee, a certificate signed by an officer of
H/C I Owner or an authorized insurance representative of H/C I Owner, showing the insurance then
maintained by or on behalf of H/C I Owner under this Article 10 and stating that such insurance
complies in all material aspects with the terms hereof, together with a statement from the
applicable insurance companies of the premiums then due, if any. If at any time the insurance
required to be maintained by H/C I Owner under this Article 10 shall be reduced or cease to be
maintained (other than as a result of any other Owner electing to be an Opting-Out Owner with
respect thereto), then (without limiting the rights of Trustee and/or any Mortgagee hereunder in
respect of any event of default which arises as a result of such failure), Trustee at the direction
of any of the Mortgagees may, but shall not be obligated to, maintain the insurance required hereby
and, in such event, H/C I Owner shall reimburse
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Trustee and/or the applicable Mortgagees upon
demand for the cost thereof together with interest thereon at the Interest Rate.
10.2.6.2.1
Mortgagee Consent to Release of Proceeds
. If all or any material portion
of the Integrated Resort shall be damaged or destroyed in whole or in part by Casualty, the Owner
of the property incurring the loss shall notify all Mortgagee(s) within ten (10) Business Days of
the occurrence of such Casualty. Each affected Mortgagee shall permit insurance proceeds with
respect to any Casualty to be
applied to restoration of buildings and/or other improvements on or in the affected Lot in
accordance with the provisions of this Article 10 and Article 11, provided that such affected
Mortgagee shall have received on or before ninety (90) days after the date of the Casualty in
question a certificate from an Independent Expert certifying that (a) such Casualty can be restored
within three (3) years after the date of delivery of such certificate and (b) the aggregate amount
of insurance proceeds payable in connection with such Casualty (together with any other funds
committed by the affected Owners to be applied to such restoration, and provided that the Owner of
the Lot as to which such Mortgagee has a security interest in shall be deemed to have committed any
funds needed to cover the costs of such restoration) shall be sufficient to finance the anticipated
cost (including scheduled debt service payments through the anticipated date of completion of the
restoration) of such restoration as set forth in such certificate. If the condition set forth in
the preceding clause (a) or the condition set forth in the preceding clause (b) cannot be satisfied
with respect to a particular Lot, any affected Mortgagee shall be paid its equitable share of the
applicable insurance proceeds (as determined by an Independent Expert and subject to
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Section 10.4.2.1 and Section 10.4.2.2), to be applied in accordance with the provisions of its loan
documents.
10.2.7
Mutual Release; Waiver of Subrogation
. Each Party hereby releases and waives
for itself, and to the extent legally possible for it to do so, on behalf of its insurer, each of
the other Parties and their officers, directors, agents, members, partners, servants and employees
from liability for any loss or damage to any or all property (including any resulting loss of time
element including business interruption, rents or extra expense) located in or on the H/C I Space,
the H/C II Space, the Mall I Space, the Mall II
Space, the SECC Land and/or any improvements located in or on any of the foregoing, which loss
or damage is of the type said Party is required to insure against by this Article 10, irrespective
of any negligence on the part of the released Party which may have contributed to or caused such
loss or damage. Each Party covenants that it will, if generally available in the insurance
industry, obtain for the benefit of each such released Party a waiver of any right of subrogation
which the insurer of such Party may acquire against any such Party by virtue of the payment of any
such loss covered by such insurance.
10.2.8
Insurance Not Commercially Available
. If any insurance (including the limits,
coverages, coinsurance waiver or deductibles thereof) required to be maintained under this
Article 10, other than insurance required to be maintained by law, shall not be Commercially
Available, the applicable Owners and their respective Mortgagees shall not unreasonably withhold
their consent to waive such requirement to the extent maintenance thereof is not so available;
provided
(a) the Owner normally responsible for maintaining such insurance shall first
request any such waiver in writing,
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which request shall be accompanied by written reports in form
and content and prepared by an Independent insurance advisor of recognized national standing
reasonably acceptable to the other Owners certifying that such insurance is not reasonably
available (e.g. obtainable in the insurance marketplace at costs not to exceed 150% of the amount
of the prior premiums) and commercially feasible in the commercial insurance market for property of
a similar type (collectively,
Commercially Available
) (and, in any case where the
required amount is not so available, certifying as to the maximum amount which is so available) and
setting forth the basis for such conclusions, (b) at any time after the granting of any
such waiver, the applicable Owners shall furnish to the other Owners within fifteen (15) days
after request by the other Owners, updates of the prior reports reasonably acceptable to such other
Owners from such insurance advisor reaffirming such conclusion, and (c) any such waiver shall be
effective only so long as such insurance shall not be Commercially Available, it being understood
that the failure of the applicable Owners to timely furnish any such updated report after any such
request shall be conclusive evidence that such waiver is no longer effective. Notwithstanding
anything to the contrary set forth in this Article 10, any failure to maintain insurance coverage
in accordance with any provision of this Article 10 due to such insurance being commercially
unavailable shall not constitute a default hereunder and the Owner normally responsible for
maintaining such insurance shall be in full compliance with such provisions so long as such Owner
has complied with the provisions of this Section 10.2.8.
10.2.9
Policies on claims-made basis
. If any policy is written on a claims-made
basis and such policy is not to be renewed or the retroactive date of such policy is to be changed,
the applicable Owner shall obtain prior to the expiration date or
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date change of such policy the
broadest basic and supplemental extended reporting period coverage reasonably available in the
commercial insurance market for each such policy and shall promptly provide the other Owners with
proof that such coverage has been obtained.
10.2.10
Termination
. Each policy required to be maintained under this Article 10
shall provide that such insurance may not be canceled, terminated or materially changed for any
reason whatsoever, unless the insurance carrier delivers thirty (30) days (or ten (10) days in
connection with a notice of nonpayment of premium) notice of such
cancellation, termination or material change to the Owners and their Mortgagees and Trustee.
Section 10.3
Non-Shared Insurance Premiums, Limit and Deductible Sharing and Loss
Adjustment Process
.
10.3.1
Premiums
. Each Owners Insurance Share of the premiums of any non-Shared
Insurance purchased by such Owner solely for its own benefit (including, without limitation, any
insurance set forth in Section 10.1.2 or Section 10.1.4 hereof) shall be one hundred percent
(100%), and such Owner shall bear all of the costs of such insurance. Such Owner shall pay all
such costs on or before the date due.
10.3.2
Limit and Deductible Sharing
. With respect to any non-Shared Insurance
purchased by any Owner for its own benefit, there shall not be any loss limit or deductible
sharing. Any such Owner shall be entitled to one hundred percent (100%) of all proceeds and
benefits with respect to any such insurance, subject to any rights of its Mortgagees under its loan
documents.
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10.3.3
Loss Adjustment
. With respect to any non-Shared Insurance purchased by any
Owner for its own benefit, the applicable Owner shall have sole control over any loss adjustment
process, subject to any rights of its Mortgagees under its loan documents. If requested by any
such Owner, the other Owners shall reasonably cooperate with and assist such Owner in adjusting any
such loss (at the requesting Owners expense). In the event that the Trustee or any other Owner or
any of their respective Mortgagees shall receive proceeds relating to any non-Shared Insurance,
such amount shall be promptly paid over as the applicable Owner shall direct. Any such property
non-Shared Insurance proceeds (excluding the proceeds of any business interruption, or use and
occupancy
insurance) shall be used with all reasonable diligence by the applicable Owner and/or its
Mortgagee for rebuilding, repairing or otherwise reconstructing, to the extent required pursuant to
the provisions of Article 11.
Section 10.4
Shared Insurance Premiums, Limit and Deductible Sharing and Loss Adjustment
Process
.
10.4.1
Insurance Share
. Each Owners Insurance Share with respect to any Shared
Insurance in which such Owner is participating shall be determined as follows:
10.4.1.1
Allocation
. The premiums with respect to any Shared Insurance shall be
allocated among the applicable Participating Owners based on the percentage of total insured values
relative to such Shared Insurance, as such values are determined by the insurance carrier providing
the Shared Insurance or applicable insurance broker on a commercially reasonable basis and in
accordance with the following provisions of this Section 10.4.1 (provided, however, that in the
event any Participating Owner disagrees with such allocation, such Participating Owner may submit
the same to an
164
Independent Expert for determination). Each Participating Owner who is covered by
such Shared Insurance agrees to promptly (and in no event later than 120 days prior to the
expiration of each relevant insurance policy) provide to H/C I Owners insurance companies,
consultants, brokers and agents (with a copy to the other Participating Owners who are sharing in
such Shared Insurance) any reasonable information requested by any of such persons and entities in
connection with (a) the procurement or maintenance of such Shared Insurance and (b) the calculation
of each Participating Owners Insurance Share.
10.4.1.1.1
Factors
. In determining any such allocation of premiums, the insurance
carrier providing the Shared Insurance or applicable insurance
broker shall be instructed as follows: (a) premiums with respect to insurance for any shared
perimeters shall be allocated equally to each Participating Owner abutting such shared perimeter,
(b) if applicable, the space demised pursuant to that certain Casino Level Restaurant/Retail Master
Lease (the
Phase I Casino Level Leased Space
) dated May 17, 2004 (as the same has been
and may hereafter be amended), by and between H/C I Owner and Mall I Owner (the
Phase I Casino
Level Master Lease
) shall be considered as part of the Mall I Space for purposes of
determining any Mall I Owners Insurance Share and any H/C I Owners Insurance Share, and (c) if
applicable, the space demised pursuant to that certain Casino Level Restaurant/Retail Master Lease
(the
Phase II Casino Level Leased Space
) of even date herewith (as the same may hereafter
be amended), by and between H/C II Owner and Mall II LLC (the
Phase II Casino Level Master
Lease
) shall be considered as part of the Mall II Space for purposes of determining any
Mall II Owners Insurance Share and any H/C II Owners Insurance Share.
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10.4.1.1.2
Changes in Property
. Notwithstanding the foregoing, (a) if at any time
there is a material addition or deletion to any applicable Participating Owners covered property
which is then subject to any Shared Insurance, any applicable Insurance Shares shall be
appropriately adjusted by mutual agreement of the applicable Owners, and (b) if Mall I Owner or
Mall II Owner (for purposes of this clause (b) only, the
Electing Owner
) purchases
Additional Coverage that, with respect to its Property, is primary to rather than in excess of
any Shared Insurance coverage with respect to which it is a Participating Owner, then (i) the
Electing Owners Insurance Share with respect to such Shared Insurance coverage shall be equitably
reduced, each other Participating Owners Insurance Share with respect to such Shared Insurance
coverage
shall be equitably increased, and (ii) any resulting rebate in the cost of obtaining and
maintaining such Shared Insurance coverage shall be for the benefit of the Electing Owner.
10.4.1.1.3
Payment of Shared Insurance Costs
. Within ten (10) Business Days of
receipt from an invoice from H/C I Owner with respect to any Shared Insurance in which the
applicable Participating Owner is participating (which invoice shall include the underlying invoice
from the applicable insurance carrier or broker along with the applicable premium allocation), each
applicable Participating Owner shall pay its Insurance Share of such Shared Insurance to H/C I
Owner. H/C I Owner shall pay the costs of any such Shared Insurance prior to the date the same are
due. If any applicable Participating Owner shall fail to make any payment required to be made in
accordance with the provisions of this Section 10.4.1.1.3, H/C I Owner shall still pay such costs
in full prior to the date the same are due, and the non-paying Participating Owner shall reimburse
H/C I Owner, on demand therefor, for the amount advanced by H/C I Owner on such non-
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paying
Participating Owners behalf, with interest thereon for the period from such demand to such
reimbursement at the Interest Rate. In the event of any dispute as to such amount, the
Participating Owner shall promptly pay the non-disputed portion thereof, and provide in writing the
basis of such dispute, which the Participating Owners shall endeavor to resolve in good faith.
10.4.1.1.4 Notwithstanding the foregoing, the Owners acknowledge and confirm that (i) the
allocations among the Owners of the costs of the current policies of insurance which expire on
April 12, 2008 have previously been agreed to and paid in full, and (ii) the insurance carrier
providing the Shared Insurance or applicable insurance broker shall determine the aggregate
Insurance Share of H/C I Owner,
H/C II Owner and SECC Owner, and such Owners shall allocate such aggregate Insurance Share
amongst themselves as they see fit.
10.4.2
Loss Limits and Deductibles
. Except as hereinafter set forth, the proceeds,
loss limits and deductibles with respect to any Shared Insurance shall be based on the percentage
each applicable Participating Owners insured loss value bears to the total loss incurred.
Notwithstanding the foregoing, with respect to a terrorism loss or a loss that exceeds the limits
available covered by Shared Insurance, the proceeds, loss limits and/or deductibles shall be as
follows:
10.4.2.1
Terrorism
. Any Shared Insurance proceeds (including proceeds in connection
with business interruption or similar coverage) payable in connection with a Casualty that is the
result of a terrorist act affecting all or any portion of the Phase I Mall, the Phase I
Hotel/Casino or the SECC shall be allocated equitably to each applicable Participating Owner across
each of such properties based on the percentage each
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applicable Participating Owners insured loss
value bears to the total loss incurred;
provided
,
however
, that notwithstanding the
foregoing, such proceeds shall be paid (a) first, if Mall I Owner is a Participating Owner in such
Shared Insurance, to the Mortgagee of Mall I Owner, in an amount equal to the lesser of
(i) $120,000,000, (ii) the then-outstanding aggregate principal amount of indebtedness owed to
Mall I Owners Mortgagees, (iii) the sum of (x) the cost of restoring the Phase I Mall and
(y) rental income lost by Mall I Owner as a result of such Casualty, to the extent such lost income
is covered by the applicable insurance policy or policies and (iv) the total amount of such
insurance proceeds, and (b) second, if SECC Owner is a Participating Owner in such Shared
Insurance, to the Mortgagee of SECC Owner, in an amount at least equal to the lesser of
(i) $141,000,000, (ii) the then-outstanding aggregate principal amount of indebtedness owed to
SECC Owners Mortgagees, (iii) the sum of (x) the cost of restoring the SECC and (y) income lost by
SECC Owner as a result of such casualty, to the extent such lost income is covered by the
applicable insurance policy or policies and (iv) the total amount of such proceeds.
10.4.2.2
Loss In Excess of Insurance Limit
. If there is an insured loss in excess of
the limit of insurance available with respect to any property covered by a Shared Insurance policy
maintained under this Article 10, each applicable Participating Owners percentage share of the
limit and deductible applicable to, and proceeds payable under, such policy shall (subject to the
provisions of Section 10.4.2.1) be calculated based on the relative losses (with respect to
property covered by such Shared Insurance) suffered by each Participating Owner.
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10.4.3
Loss Adjustment
. In case of any Casualty with respect to the Integrated Resort
or any portion thereof which is covered by Shared Insurance, the applicable Participating Owners
and such Owners Mortgagees (to the extent required under the applicable loan documents) shall
jointly settle, compromise and adjust any claim in good faith. Trustee shall pay over to the
applicable Participating Owners (or any Participating Owners Mortgagee if, (i) at the time, there
is an event of default under such Mortgagees loan documents, or (ii) the same is required by such
Mortgagees loan documents) the applicable insurance proceeds received by Trustee in accordance
with the provisions hereof; provided, however, that at the election of any Participating Owner or
any Mortgagee, all such property Shared Insurance proceeds shall be retained and held in trust by
Trustee and distributed in accordance with the provisions of Section 10.2.5.3
hereof. Such Participating Owners and/or Mortgagees shall allocate such Shared Insurance
proceeds in accordance with the provisions of this Section 10.4 and any such property Shared
Insurance proceeds (excluding the proceeds of any business interruption, or use and occupancy
insurance) shall be used with all reasonable diligence by the Party entitled to such proceeds under
the provisions of this Agreement for rebuilding, repairing or otherwise reconstructing, to the
extent required pursuant to the provisions of Article 11.
10.4.4
Disputes
. If the applicable Participating Owners and/or their respective
Mortgagees (to the extent required under any applicable loan documents) cannot agree as to any
decision regarding any actual or proposed adjustment, settlement or compromise with respect to any
Shared Insurance within ninety (90) days after the need for any such decision first arises, then
any applicable Participating Owner and/or their respective Mortgagees shall have the right to
submit the decision in question to an
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Independent Expert selected by such Participating Owners
and/or their respective Mortgagees pursuant to Section 14.16 hereof.
Section 10.5
Insurance Requirements Review
. At the request of any Party, but not more
frequently than once every three (3) years and not earlier than the third (3rd) anniversary of the
date hereof, H/C I Owner shall designate an Independent insurance consultant (approved by Mall I
Owner and Mall II Owner, which approval shall not be unreasonably withheld or delayed) to review
the insurance requirements of the Integrated Resort and prepare a report (the
Insurance
Report
) (the costs of which Insurance Report shall be allocated 70% to H/C I Owner and H/C II
Owner, 15% to Mall I Owner and 15% Mall II Owner) setting out its recommendations relating to the
types and amounts of the insurance coverages for the Integrated Resort. Prior to finalization, the
report shall be
submitted in draft form to each Owner for comment. H/C I Owner shall submit the Insurance
Report to the other Owners and Mortgagees, which, upon approval by all Owners and (to the extent
required under any Owners loan documents) their respective Mortgagees (which approval shall not be
unreasonably withheld, conditioned or delayed; provided a Commercially Reasonable Owner of the
applicable property would so consent and same would not have a Material Adverse Effect on such
property, Owner or Mortgagee) shall, to the extent the recommendations differ from the types and
amounts of coverages and other covenants set forth in this Article 10, amend and supersede the
applicable provisions of this Article 10; provided, however, that no amendment shall eliminate or
restrict any Owners right to become an Opting-Out Owner.
Section 10.6
Insurance to Be Carried By Tenants
. H/C I Owner, H/C II Owner, Mall I
Owner and Mall II Owner shall require in their Leases with Tenants, that all Tenants
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leasing space
from any such Owner in the Integrated Resort procure and maintain during the terms of their Leases
the following insurance coverages:
10.6.1
Replacement Cost Coverage
. Full replacement cost coverage for all improvements
and betterments installed by or on behalf of any Tenant and full replacement cost insurance for
Tenants personal property;
10.6.2
Business Interruption
. Business interruption insurance on an actual loss
sustained basis for a minimum of twelve (12) months;
10.6.3
General Liability
. $1,000,000 commercial general liability insurance;
10.6.4
Automobile Liability
. Automobile liability insurance for all owned, non-owned
and hired vehicles with minimum limits of $1,000,000 combined single limit;
10.6.5
Workers Compensation
. Statutory workers compensation and employers liability
insurance in limits sufficient to meet the umbrella carriers requirement;
10.6.6
Liquor
. Only if alcohol is served or sold in the applicable leased space,
liquor legal liability insurance with a minimum limit of $1,000,000 each common cause/ occurrence;
and
10.6.7
Umbrella
. Umbrella/excess insurance of not less than $1,000,000 if the
applicable leased space is not for restaurant use and is less than 2,000 square feet and
$10,000,000 in all other cases, over and above the coverage described in Sections 10.6.3 through
10.6.6.
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All insurance set forth in this Section 10.6, except for workers compensation insurance,
supplied by the parties shall be primary as respects insurance provided by the Owners and shall
waive rights of subrogation against the Owners. All third party liability coverage maintained by
Tenants and independent contractors engaged by an Owner shall add Trustee, the Owners and their
respective Mortgagees as additional insureds. Each Tenant shall supply satisfactory evidence of
insurance to the Owners and Trustee.
Section 10.7
Disputes
. In the event of any dispute under this Article 10 (including
without limitation if any Owner believes that any information provided by any other Owner pursuant
to this Article 10 is incorrect, incomplete or misleading, or the applicable Owners cannot, through
good faith negotiation, determine the allocation of
premiums or any other allocation set forth herein), the matter shall be referred to an
Independent Expert selected by H/C I Owner and approved by the other Owners pursuant to the
provisions of Section 14.16.
ARTICLE 11
DAMAGE OR DESTRUCTION BY FIRE OR OTHER CASUALTY
Section 11.1
Casualty
. H/C I Owner, Mall I Owner, H/C II Owner, Mall II Owner and
SECC Owner agree for the benefit of each other that, in case of loss or damage with respect to all
or any material portion of the Phase I Mall, the Phase I Hotel/Casino, Phase II Mall, the Phase II
Hotel/Casino or the SECC or any part thereof by Casualty, the Owner of the affected space will
promptly give written notice thereof to the other Parties. In the event of such Casualty:
11.1.1
Phase I Mall; Phase II Mall
. Mall I Owner, whether or not the insurance
proceeds made available in connection therewith shall be sufficient for such purpose, shall, in
accordance with the further provisions of this Article 11, repair the Phase
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I Mall with due
diligence at its sole cost and expense as nearly as reasonably possible to its condition and
aesthetic appeal immediately prior to such Casualty. Notwithstanding the foregoing, Mall I Owner
may elect to make changes in the Phase I Mall in connection with such repair. All repairs
undertaken by Mall I Owner pursuant to this Section 11.1.1 (including any changes Mall I Owner
makes in connection with any such repairs) shall be performed in accordance with Sections 5.1.7
through 5.1.10, as well as the further provisions of this Article 11. In the event of a Casualty
affecting both the Phase I Mall and the Phase I Hotel/Casino, Mall I Owners obligations hereunder
shall be subject to completion by H/C I Owner of restoration of those portions of the Venetian
Building Core and Shell necessary to be restored in order for Mall I Owner to fulfill its
restoration
obligations under this Section 11.1.1. Mall II Owner, whether or not the insurance proceeds
made available in connection therewith shall be sufficient for such purpose, shall, in accordance
with the further provisions of this Article 11, repair the Phase II Mall with due diligence at its
sole cost and expense as nearly as reasonably possible to its condition and aesthetic appeal
immediately prior to such Casualty. Notwithstanding the foregoing, Mall II Owner may elect to make
changes in the Phase II Mall in connection with such repair. All repairs undertaken by Mall II
Owner pursuant to this Section 11.1.1 (including any changes Mall II Owner makes in connection with
any such repairs) shall be performed in accordance with Sections 5.2.7 through 5.2.10, as well as
the further provisions of this Article 11. In the event of a Casualty affecting both the Phase II
Mall and the Phase II Hotel/Casino, Mall II Owners obligations hereunder shall be subject to
completion by H/C II Owner of restoration of those portions of the Palazzo Building Core and Shell
necessary
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to be restored in order for Mall II Owner to fulfill its restoration obligations under
this Section 11.1.1.
11.1.2
Phase I Hotel/Casino; Phase II Hotel/Casino
. H/C I Owner, whether or not the
insurance proceeds made available in connection therewith shall be sufficient for such purpose
shall, in accordance with the further provisions of this Article 11, repair the Phase I
Hotel/Casino with due diligence at its sole cost and expense as nearly as reasonably possible to
its condition and aesthetic appeal immediately prior to such Casualty. All repairs undertaken by
H/C I Owner pursuant to this Section 11.1.2 (including any changes H/C I Owner makes in connection
with any such repairs) shall be performed in accordance with Sections 5.1.7 through 5.1.10 and the
further provisions of this Article 11. H/C II Owner, whether or not the insurance proceeds made
available in
connection therewith shall be sufficient for such purpose shall, in accordance with the
further provisions of this Article 11, repair the Phase II Hotel/Casino with due diligence at its
sole cost and expense as nearly as reasonably possible to its condition and aesthetic appeal
immediately prior to such Casualty. All repairs undertaken by H/C II Owner pursuant to this
Section 11.1.2 (including any changes H/C II Owner makes in connection with any such repairs) shall
be performed in accordance with Sections 5.2.7 through 5.2.10 and the further provisions of this
Article 11.
11.1.3
Casualty Affecting More than One Property
. If a Casualty shall damage all or
any part of more than one of the Phase I Hotel/Casino, the Phase II Hotel/Casino, the Phase I Mall
and the Phase II Mall, any Shared Insurance proceeds shall be allocated in accordance with the
provisions of Section 10.4 hereof and the relevant Owners shall consult with each other and
reasonably agree as to (a) the allocation between
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themselves of the cost of and method of payment
for the proposed restoration, (b) the time required to effect such restoration, and (c) the Party
who shall perform such restoration. Notwithstanding the foregoing, with respect to any casualty
involving a loss of greater than $1,500,000 (or multiple losses in any consecutive twelve (12)
month period in excess of $6,000,000), such agreement shall be made with the approval of the
affected Mortgagee(s) (to the extent required under the applicable loan documents), which approval
shall not be unreasonably withheld, conditioned or delayed. If all affected Parties and applicable
Mortgagee(s) do not reach agreement on the above-described issues within sixty (60) days after
receipt of insurance proceeds, the issues not so agreed to may be submitted by any such Party or
Mortgagee to an Independent Expert for determination. All repairs undertaken by any Party pursuant
to this Section 11.1.3 (including any changes such Party
makes in connection with any such repairs) shall be performed in accordance with
Sections 5.1.7 through 5.1.10 or 5.2.7 through 5.2.10, as applicable, and the further provisions of
this Article 11.
11.1.4
Cooperation
. The Owners shall cooperate in good faith to coordinate the work
performed by or for each pursuant to the foregoing Sections 11.1.1 through 11.1.3.
11.1.5
SECC
. SECC Owner, whether or not the insurance proceeds made available in
connection therewith shall be sufficient for such purpose shall, in accordance with the further
provisions of this Article 11, repair the SECC with due diligence at its sole cost and expense as
nearly as reasonably possible to its condition and aesthetic appeal immediately prior to such
Casualty. All repairs undertaken by SECC Owner pursuant to this Section 11.1.5 (including any
changes SECC Owner makes in
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connection with any such repairs) shall be performed in accordance with
Sections 5.1.7 through 5.2.1.5 (
mutatis mutandis
) and the further provisions of this Article 11.
Section 11.2
Cost of Restoration; Uninsured Losses
.
11.2.1
Cost of Restoration
. The cost of restoration of any Casualty affecting the
Phase I Hotel/Casino, the Phase I Mall, the Phase II Hotel/Casino, the Phase II Mall or the SECC
shall be paid first out of available insurance proceeds with respect to the applicable property.
To the extent the amount of such insurance proceeds shall be less than the amount necessary to
restore the affected Lot(s) (the
Insurance Proceeds Shortfall
), the applicable Parties
shall reasonably agree on the amount of each Partys contribution towards the Insurance Proceeds
Shortfall, with each such Party being only responsible for costs relating to its Lots. If such
Parties shall be unable to reach agreement
within thirty (30) days of the date of such Casualty, any of such Parties may enforce its
rights to arbitration pursuant to Article 15.
11.2.2
Uninsured Loss
. If a Casualty which is not covered by an insurance policy
required to be maintained in accordance with the provisions of Article 10 (each, an
Uninsured
Loss
) shall occur, the affected Parties shall reasonably agree on the amount of each such
Partys contribution (each, an
Uninsured Loss Contribution
) towards the cost to restore
the property affected by such Uninsured Loss, subject to the following Mortgagee consent rights:
11.2.2.1 with respect to an aggregate Uninsured Loss which is less than $1,500,000.00, no
Mortgagees consent shall be required; and
11.2.2.2 with respect to an aggregate Uninsured Loss which is equal to or greater than
$1,500,000.00, the consent of all affected Mortgagees (other than
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any Mortgagee that is an
Affiliate of any Owner) shall be required, but only to the extent such consent is required under
the applicable loan documents and provided that such approval shall not be unreasonably withheld,
conditioned or delayed.
Section 11.3
Default Under Mortgagees Loan Documents
. Notwithstanding anything to
the contrary contained herein, after the occurrence of any Casualty or upon notice from a Taking
Authority of a contemplated Taking, if an event of default shall occur and be continuing under any
affected Mortgagees loan documents, then such Mortgagee shall be entitled to make all decisions
and take all actions that the Owner that is a party to such loan document would be entitled to make
under this Article 11 or under Article 12 (and such Owner shall not have the right to make any such
decisions or take such actions).
ARTICLE 12
CONDEMNATION
Section 12.1
Taking of Mall I Space or Mall II Space
.
12.1.1 If less than substantially all of the Mall I Space and/or the Phase I Mall is
permanently taken by any public or quasi-public authority, or private entity or individual (each, a
Taking Authority
) having the power of condemnation, under any statute or by right of
eminent domain or purchased under threat or in lieu of such taking (collectively, a
Taking
), then Mall I Owner shall promptly restore the Phase I Mall as nearly as
reasonably possible to its condition and aesthetic appeal at the time of the partial Taking less
the portion lost in such Taking. Notwithstanding the foregoing, Mall I Owner may elect to make
changes in connection with such restoration, subject to the further provisions of this
Section 12.1.1. All restorations undertaken by Mall I Owner pursuant to the foregoing shall be
subject to the provisions of Sections 5.1.7 through 5.1.10 and, in the case of Mall I Owner, the
provisions of Section 4.2.6. In the event of a Taking affecting
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both the Phase I Mall and the
Phase I Hotel/Casino, Mall I Owners obligations hereunder shall be subject to completion by H/C I
Owner of restoration of those portions of the Venetian Building Core and Shell necessary to be
restored in order for Mall I Owner to fulfill its restoration obligations under this Section
12.1.1.
12.1.2 If there is a Taking of less than substantially all of the Mall II Space and/or the
Phase II Mall, then Mall II Owner shall promptly restore the Phase II Mall as nearly as reasonably
possible to its condition and aesthetic appeal at the time of the partial Taking less the portion
lost in such Taking. Notwithstanding the foregoing, Mall II Owner may elect to make changes in
connection with such restoration, subject to the further provisions of this Section 12.1.2. All
restorations undertaken by Mall II Owner
pursuant to the foregoing shall be subject to the provisions of Sections 5.2.7 through 5.2.10
and, in the case of Mall II Owner, the provisions of Section 4.3.6. In the event of a Taking
affecting both the Phase II Mall and the Phase II Hotel/Casino, Mall II Owners obligations
hereunder shall be subject to completion by H/C II Owner of restoration of those portions of the
Palazzo Building Core and Shell necessary to be restored in order for Mall II Owner to fulfill its
restoration obligations under this Section 12.1.2.
Section 12.2
Taking of H/C I Space or H/C II Space
.
12.2.1 If there is a Taking of less than substantially all of the H/C I Space and/or the
Phase I Hotel/Casino, H/C I Owner shall promptly restore the Phase I Hotel/Casino as nearly as
reasonably possible to its condition and aesthetic appeal at the time of the partial Taking less
the portion lost in such Taking. Notwithstanding the foregoing, H/C I Owner may elect to make
changes in connection with such restoration,
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subject to the further provisions of this
Section 12.2.1. All restorations undertaken by H/C I Owner pursuant to the foregoing shall be
subject to Sections 5.1.7 through 5.1.10.
12.2.2 If there is a Taking of less than substantially all of the H/C II Space and/or the
Phase II Hotel/Casino, H/C II Owner shall promptly restore the Phase II Hotel/Casino as nearly as
reasonably possible to its condition and aesthetic appeal at the time of the partial Taking less
the portion lost in such Taking. Notwithstanding the foregoing, H/C II Owner may elect to make
changes in connection with such restoration, subject to the further provisions of this
Section 12.2.2. All restorations undertaken by H/C II Owner pursuant to the foregoing shall be
subject to Sections 5.2.7 through 5.2.10.
Section 12.3
Taking of More than One Property
. If there is a Taking of less than
substantially all of the H/C I Space, the Phase I Hotel/Casino, the H/C II Space and/or the
Phase II Hotel/Casino, on the one hand, and the Mall I Space, the Phase I Mall, the Mall II
Space and/or the Phase II Mall, on the other hand, the relevant Owners shall consult with each
other and one or more Independent Architects and reasonably agree as to (x) the cost allocation
between themselves and method of payment for the proposed restoration, (y) the time required to
effect such restoration, and (z) the Party who shall perform such restoration. If the relevant
Parties shall be unable to reach agreement within thirty (30) days of the date any such Party first
receives notice from any public or quasi-public authority, or private entity or individual having
the power of condemnation with respect to such Taking, any such Party may cause an equitable
determination as to items (x), (y) and/or (z) by arbitration pursuant to Article 15. All
restorations undertaken by any such Party pursuant to the foregoing shall be subject to the
provisions of Sections 5.1.7
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through 5.1.10 and, in the case of Mall I Owner or Mall II Owner, the
provisions of Section 4.2.6.
Section 12.4
Taking of SECC
. If there is a Taking of less than substantially all of
the SECC, SECC Owner shall comply with the provisions set forth in
Exhibit O
attached
hereto and made a part hereof, and the Parties hereby agree that such provisions shall govern.
Section 12.5
Division of Proceeds
. Each Party shall promptly notify the other Owners
and each Owners respective Mortgagee when it becomes aware of any potential or threatened Taking
of all or any part of any Lot and shall promptly deliver to the others copies of all notices
received in connection therewith. Each Owner shall have the right to represent its respective
interest in each proceeding or negotiation with respect to a Taking or intended Taking and to make
full proof of its claims, and each Mortgagee of such
Owner to the extent permitted under such Mortgagees loan documents shall have the right to
appear in and prosecute in its own or in such Owners name any proceeding or negotiation with
respect to such Taking or intended Taking. No agreement, settlement, sale, or transfer to or with
the condemning authority with respect to any Taking or intended Taking the aggregate proceeds of
which shall be in excess of $1,500,000 shall be made without the consent of the relevant Owners and
their respective Mortgagees, but only to the extent such consent is required under the applicable
loan documents, which consent shall not be unreasonably withheld, conditioned or delayed;
provided
a Commercially Reasonable Owner of the applicable property would so consent and
same would not have a Material Adverse Effect on such property, Owner or Mortgagee.
Notwithstanding anything to the contrary in this Section 12.5, the proceeds of any aggregate
condemnation
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award (other than with respect to the SECC or the SECC Land) in excess of $1,500,000
shall be paid to the Trustee to be held and disbursed in accordance with the provisions of
Section 10.4.3. With respect to a Taking of all or any part of more than one of (i) the H/C I
Space and/or the Phase I Hotel/Casino, (ii) the H/C II Space and/or the Phase II Hotel/Casino,
(iii) the Mall I Space and/or the Phase I Mall and (iv) the Mall II Space and/or the Phase II Mall,
if the condemning authority does not, as part of the Taking proceeding, determine the amount of
condemnation proceeds payable to each relevant Owner, but rather makes a determination only as to
the aggregate amount of proceeds payable to all relevant Owners in connection with the Taking, each
relevant Owner shall receive its appropriate equitable share of such proceeds, as reasonably agreed
to by such relevant Owners. Such relevant Owners shall, in all of their discussions and
negotiations
with the condemning authority, argue for the awarding of separate Taking proceeds payable to
each in accordance with the foregoing.
Section 12.6
Temporary Use or Occupancy
. If the temporary use or occupancy of all or
any part of the Venetian, the Palazzo or the SECC shall be condemned or taken for any public or
quasi-public use or purpose during the Term, this Agreement and the Term shall be and remain
unaffected by such condemnation or taking and each Party shall continue to be responsible for all
of its obligations hereunder (except to the extent prevented from so doing by reason of such
condemnation or taking). In such event, however, the affected Party shall be entitled to appear,
claim, prove and receive the entire award in connection with such temporary taking. If such
temporary use or occupancy terminates prior to the Expiration Date, the affected Party, at its own
expense, shall restore its premises as nearly as possible to its condition prior to the
condemnation or taking.
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Section 12.7
Disputes Between H/C I Owner and Mall I Owner or Between H/C II Owner and
Mall II Owner
. Any dispute between Owners (and/or any applicable Mortgagees) as to the
appropriate sharing of any taking proceeds to be received by each in accordance with the fifth
sentence of Section 12.5 shall be resolved by determination of the Independent Expert in accordance
with Section 14.16, which shall be the exclusive and binding method for the resolution of any such
dispute. Each Owner agrees to execute and deliver, or cause to be executed and delivered, to the
other any instruments that may be required to effectuate or facilitate the provisions of this
Agreement relating to the matters set forth in this Section 12.7.
Section 12.8
Rights of Trustee to Participate in Proceedings, Jointly Settle or
Compromise
. In case of any contemplated Taking with respect to any portion of the
Integrated Resort, the relevant Owners (or any such Owners Mortgagee if, at the time, there
is an event of default under such Mortgagees loan documents) shall jointly participate in any
relevant action or proceeding and jointly settle or compromise any award. Trustee shall pay over
to such Owners and/or Mortgagees the applicable proceeds of the Taking upon receipt therefor by
Trustee and such Persons shall use such proceeds to perform a restoration in accordance with the
provisions of this Article 12.
Section 12.9
Mortgagee Consent to Release of Condemnation Award Proceeds
. If all or
any material portion of the Phase I Hotel/Casino, the Phase I Mall, the Phase II Hotel/Casino or
the Phase II Mall shall be taken pursuant to a Taking, the Owner of the property incurring the loss
shall notify all Mortgagee(s) within ten (10) Business Days after receipt of notice of such Taking.
Each affected Mortgagee shall permit condemnation award proceeds with respect to any Taking to be
applied to restoration of buildings and/or
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other improvements on or in the affected Lot in
accordance with the provisions of this Article 12;
provided
that such affected Mortgagee
shall have received on or before ninety (90) days after the date such Mortgagees receipt of the
notice described above a certificate from an Independent Expert certifying that (x) any restoration
of the affected property required as a consequence of such Taking can be completed within one
(1) year after the date of delivery of such certificate and (y) the amount of condemnation award
proceeds payable in connection with such Taking (together with any other funds committed by the
affected Owner to be applied to such restoration) shall be sufficient to finance the anticipated
cost (including scheduled debt service payments through the anticipated date of completion of the
restoration) of such restoration as set forth in such certificate. If both of the conditions set
forth in the preceding (x) and (y) cannot be satisfied with respect to a
particular Lot, any affected Mortgagee shall be paid its equitable share as determined by the
Independent Expert of condemnation award proceeds to be applied in accordance with the provisions
of its Mortgage and any other loan documents entered into in connection with such Mortgage.
ARTICLE 13
COMPLIANCE WITH LAWS AND OTHER AGREEMENTS
Section 13.1
Legal Requirements
.
13.1.1 Each Party, at its expense (but subject to the provisions of Sections 5.1.3, 7.5 and
7.3), shall comply with all Legal Requirements applicable to its respective Lot. Any Party may
defer compliance with any such Legal Requirements if it shall contest by appropriate proceedings in
accordance with the provisions of Section 13.1.2 below, prosecuted diligently and in good-faith,
the legality or applicability thereof, provided that such deference does not materially adversely
interfere with any other Partys
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use of its Lot as provided under this Agreement. Each Party will
also procure, pay for and maintain all permits, licenses and other authorizations needed for the
operation of its business.
13.1.2 No Owner shall be in default for failure to comply with any Legal Requirement if, and
so long as, (i) such Owner shall diligently and in good-faith contest the same by appropriate legal
proceedings which shall operate to prevent the enforcement or collection of the same and the sale
of its Lot or any part thereof to satisfy the same; (ii) such Owner shall give its Mortgagee and
the other affected Owners and Mortgagees notice of the commencement of such contest, (iii) unless
funds are otherwise reserved or deposited with the applicable Governmental Authority, such Owner
shall furnish to Trustee a cash deposit, or an indemnity bond reasonably satisfactory to all
affected
Mortgagees with a surety reasonably satisfactory to such Mortgagees, in the amount of the cost
of complying with the applicable Legal Requirement, as applicable, plus, in any such case, a
reasonable additional sum to pay all costs, interest, fines and penalties that may be imposed or
incurred in connection therewith, to assure payment of the matters under contest or to prevent any
sale or forfeiture of such Owners Lot or any part thereof; (iv) such Owner shall timely upon final
determination thereof pay the amount of any such cost, together with all costs, interest, fines and
penalties which may be payable in connection therewith; (v) the failure to pay such cost, as
applicable, or any such interest, fine or penalty, does not constitute a default under any other
deed or trust, mortgage or security interest covering or affecting any part of such Owners Lot;
and (vi) notwithstanding the foregoing, such Owner shall immediately upon request of any affected
Mortgagee pay (and if such Owner shall fail so to do, any such Mortgagee may,
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but shall not be
required to, pay or cause to be discharged or bonded against) any such cost, and all such interest,
fines and penalties, notwithstanding such contest, if in the reasonable opinion of any such
Mortgagee such Owners Lot or any part thereof or interest therein, is in danger of being, or is
reasonably likely to be (regardless of whether the sale, forfeiture, foreclosure, termination,
cancellation or loss is imminent), sold, forfeited, foreclosed, terminated, cancelled or lost.
Section 13.2
Gaming Laws
. All Parties and all Persons associated with such Parties
shall promptly and in all events within the applicable time limit, furnish the Nevada Gaming
Commission, the Nevada State Gaming Control Board, the Clark County Liquor and Gaming Licensing
Board and any other agency or subdivision of the State of Nevada, or any other agency or
subdivision thereof, or of any other Governmental Authority
regulating gaming (collectively
Gaming Authorities
) any information reasonably
requested thereby and shall otherwise reasonably cooperate with all Gaming Authorities. A Person
shall be deemed associated with a Party if that Person is an Affiliate thereof, such Person is
employed by such Party, is an officer, director or agent of such Party or any Tenant, has any
contractual relationship with such Party, any Tenant or any Affiliate of such Party or any Tenant,
furnishes services or property to such Party, any Tenant or any Affiliate of such Party or any
Tenant, or has the power to exercise a significant influence over such Party or an Affiliate of
such Party. Without limiting the generality of the foregoing, any Mortgagee and all Tenants shall
be deemed associated with such Party, and for purposes of this Article 13 the term Party shall be
deemed to mean a Party and any Affiliate thereof.
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Section 13.3
Other Agreements
. Each Owner, at its sole cost and expense, shall be
bound by and shall abide by the terms, covenants and conditions of those certain agreements set
forth on
Exhibit Q
attached hereto and made a part hereof.
ARTICLE 14
MISCELLANEOUS
Section 14.1
Rights and Obligations Run With the Land
. Except to the extent otherwise
provided herein and subject to clause (ii) of the next sentence, the easements, rights, interests,
obligations, duties, conditions, covenants and agreements granted hereby or otherwise contained
herein (collectively, the
Rights and Obligations
) shall be appurtenant to and run with
the H/C I Space, the Mall I Space, the H/C II Space, the Mall II Space, the SECC Land and the
Residential Portion, shall bind H/C I Owner, Mall I Owner, H/C II Owner, Mall II Owner, SECC Owner
and Residential Portion Owner and their respective successors in interest to the fee or leasehold
title to the applicable Lot and
the improvements thereon and shall inure only to the benefit of H/C I Owner, Mall I Owner,
H/C II Owner, Mall II Owner and SECC Owner and their respective Mortgagees. Notwithstanding
anything to the contrary contained herein, (i) no other Parties shall be construed as the
beneficiaries of the Rights and Obligations, none of which may be separated from or conveyed,
granted or encumbered separately from the Phase I Land, the Phase II Land, the Mall I Space, the
Mall II Space or the SECC Land, respectively and (ii) the Rights and Obligations shall not be
binding on or inure to the benefit of, the fee owner of the Walgreens Airspace or such fee owners
mortgagees. This Agreement, and the protective covenants, conditions, restrictions, grants of
easements, rights, rights-of-way, liens, charges and equitable servitudes set forth herein, shall,
except as otherwise expressly provided herein, (a) be perpetual, (b) be binding upon all successors
and assigns,
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(c) inure to the benefit of all Persons having or acquiring any right, title or
interest therein or in any part thereof, their heirs, successors and assigns, and, (d) subject to
clause (ii) of the preceding sentence, constitute covenants running with the land pursuant to
applicable law. The Owners agree that upon the transfer of fee title (or leasehold title in the
case of the Walgreens Airspace) to any of the Lots, the deed evidencing such transfer shall be
expressly subject to the provisions of this Agreement which shall be incorporated therein by
reference.
Section 14.2
No Merger
. There shall be no merger of the easements, rights, interests
or estates burdening any property pursuant to this Agreement with the fee estate of such property
by reason of the fact that the same Person may acquire or hold, directly or indirectly, any such
easements, rights, interests or estates and such fee estate, and no merger shall occur unless and
until all Persons having an interest in any such easements,
rights, interests or estates and such fee estate shall join in a written instrument effecting
such merger.
Section 14.3
Transfers
.
14.3.1 If any of H/C I Owner, H/C II Owner, Mall I Owner, Mall II Owner or SECC Owner shall
transfer to any individual, partnership, firm, association, limited liability company, trust or
corporation, or any other form of business or government entity (in any case, a
Person
and, after such transfer, an
Interest Holder
) any of the following partial interests,
such Interest Holder shall be treated, together with all similar Interest Holders, as a single
Party for purposes of this Agreement:
14.3.1.1 Any partial, subdivided interest (other than ownership of a commercial condominium
unit and related undivided interest in common elements or a
187
commercial subdivision) in the Phase I
Land, Phase II Land or the improvements thereon (in the case of H/C I Owner, H/C II Owner, Mall I
Owner or Mall II Owner) or the SECC Land (in the case of SECC Owner) (a
Subdivided Interest
Holder
), provided that this clause (i) shall not apply to any transfer of the Phase I Land,
Phase II Land and/or any improvements thereon to H/C I Owner, H/C II Owner, Mall I Owner or Mall II
Owner contemplated by this Agreement; or
14.3.1.2 Any partial, undivided interest in all of the land or improvements owned by it, such
as may be held by joint tenancy or tenancy-in-common or as a life estate or partnership interests
in a partnership (or a membership interests in a limited liability company) holding all of the
interests in such property.
Notwithstanding the foregoing, Subdivided Interest Holders may be treated as separate Interest
Holders provided that at no time shall there be more than ten (10) such separate
Subdivided Interest Holders with respect to either the Phase I Land, Phase II Land or the SECC
Land, as applicable.
14.3.2 A Mortgagee shall not be deemed to be an Interest Holder unless such Mortgagee is also
a Transferee.
14.3.3 14.3.3.1 All of the Interest Holders with respect to each of the Phase I Land, the
Phase II Land, the Phase I Mall, the Phase II Mall and the SECC Land shall designate one of their
number as their agent (an
Agent
) to act on their behalf so that other Parties shall not
be required with respect to the applicable land or improvements, as the case may be, to obtain the
action or agreement of, or to proceed against, more than one individual or entity in carrying out
or enforcing the terms, covenants, provisions and conditions of this Agreement. The foregoing
requirements to designate an Agent shall not
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apply to stockholders and bondholders of a corporate
Party, the members of a limited liability company or partners of a partnership.
14.3.3.2 Where the transfer is of partial interests as described above but the Persons owning
such partial interests fail to designate an Agent, the acts of the Person who was deemed to be the
Party to this Agreement prior to the transfer (whether or not such Party retains any interest in
the property in question) shall be binding on all Persons having an interest or right in the
applicable land or improvements until such time as written notice of such designation is given and
recorded in the Recorders Office and a copy thereof is served on the Parties hereto as required by
Section 14.15.
14.3.3.3 The exercise of any powers and rights of a Party by such Partys Agent shall be
binding upon all Persons having an ownership or leasehold interest or right in the applicable land
or improvements and upon all Persons having an ownership
interest in the Party in question, to the same extent as if such exercise had been performed
by such Party. The other Parties shall have the right to deal with and rely solely upon the acts
and omissions of such Partys Agent in connection with their performance of this Agreement, but
such designation of an Agent shall not relieve any Party from its obligations under this Agreement.
14.3.3.4 An Agent shall be the authorized agent of its principals for service of any process,
writ, summons, order or other mandate of any nature of any court in any action, suit or proceeding
arising out of this Agreement. Service upon an Agent shall constitute due and proper service of
any such matter upon its principals. Until a successor Agent has been appointed and notice of such
appointment has been given
189
pursuant to the provisions of this Section 14.3, the designation of a
Partys Agent shall remain irrevocable.
14.3.4
Restrictions on Phase I Mall Sales
.
Mall I Owner covenants and agrees, for the benefit of H/C I Owner only, as follows:
14.3.4.1 Notwithstanding any other provision hereof, but subject to the provisions of
Section 14.3.4.3 below, no Phase I Mall Sale may be consummated unless H/C I Owner is given not
less than thirty (30) days written notice of such contemplated transaction and unless H/C I Owner
consents to such transaction, which consent may be withheld in H/C I Owners sole and absolute
discretion;
provided
,
however
, that such consent shall not be required (but such
prior written notice shall still be required) if (x) neither the transferee nor any Affiliate
thereof is a Competitor, (y) the transferee (or an Affiliate thereof) owns or manages not less than
ten million (10,000,000) square feet of retail space in the United States and (z) such Phase I Mall
Sale would not, in
the good-faith judgment of H/C I Owner, jeopardize any of H/C I Owners Gaming Licenses. In
all events, neither Mall I Owner nor any Affiliate thereof shall ever be a Competitor, whether as
the result of a Phase I Mall Sale or otherwise, unless H/C I Owners consents with respect thereto.
Additionally, pursuant to the terms of the Phase I Casino Level Master Lease, the tenant under the
Phase I Casino Level Master Lease must always be Mall I Owner or an Affiliate thereof.
14.3.4.2 Except as described in Section 14.3.4.3 below, H/C I Owner shall have a right of
first offer to consummate any Phase I Mall Sale in accordance with and subject to the following
procedures, and no Phase I Mall Sale shall occur except in accordance with and subject to such
procedures:
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14.3.4.2.1 If Mall I Owner (which, for purposes of this Section 14.3.4, shall include any
owner of a direct or indirect equity or beneficial ownership interest in Mall I Owner) desires to
either (x) sell, assign or otherwise transfer the Mall I Space or Phase I Mall or any portion of
either or any such direct or indirect equity or beneficial ownership interests (any such asset or
interest, including the entire Mall I Space and Phase I Mall, a
Mall I Asset
), or
(y) lease all or substantially all of the Mall I Space or Phase I Mall to one Person or a group of
Affiliated Persons (any such sale, assignment, transfer or lease, a
Phase I Mall Sale
),
Mall I Owner must make a written offer to sell such Mall I Asset to H/C I Owner, which offer must
include the proposed purchase price (or proposed rental payments, in the case of a lease) and all
other material terms of the proposed transaction. Upon receipt of such notice, H/C I Owner shall
have thirty (30) days in which to notify Mall I Owner that it has elected to purchase such Mall I
Asset upon the terms of the offer made to H/C I Owner.
14.3.4.2.2 In the event that H/C I Owner accepts Mall I Owners offer within said thirty (30)
day period, the parties shall negotiate in good-faith for the sixty (60) day period following such
acceptance the terms and provisions of a definitive binding purchase agreement (or lease agreement,
if applicable) in connection therewith. In the event that notwithstanding such good faith
negotiation, no definitive binding written purchase agreement or lease agreement is entered into
between the parties within said sixty (60) day period, Mall I Owner may then, without having to
once again comply with the foregoing provisions of this Section 14.3.4.2, either:
14.3.4.2.2.1 Market the applicable Mall I Asset and conclude the applicable Phase I
Mall Sale for a purchase price not less
191
than ninety-five percent (95%) of the purchase
price offered to H/C I Owner (or for rental payments having a present value (assuming a 6%
annual discount rate) of not less than ninety-five percent (95%) of the rental payments
offered to H/C I Owner, in the case of a lease) and otherwise upon terms not materially
less advantageous to Mall I Owner than the terms offered to H/C I Owner, but only if such
transaction is consummated, or the definitive binding written purchase agreement or lease
agreement with respect thereto is entered into, no later than six (6) months after the
expiration of said sixty (60) day period; or
14.3.4.2.2.2 In the event Mall I Owner desires to sell such Mall I Asset for a
purchase price which is less than ninety-five percent (95%) of the purchase price offered
to H/C I Owner (or for rental payments having a present value (assuming a 6% annual
discount rate) of less than ninety-five percent (95%) of the rental payments offered to
H/C I Owner, in the case of a
lease) or otherwise on terms materially less advantageous to Mall I Owner than the
terms offered to H/C I Owner, provide H/C I Owner (no later than six (6) months after the
expiration of said sixty (60) day period) with written notice of the terms of the offer
from a third-party that Mall I Owner intends to accept (which notice must include a copy of
the proposed definitive binding written purchase agreement or lease agreement that Mall I
Owner intends to execute). In such event, H/C I Owner shall have ten (10) Business Days in
which to notify Mall I Owner that H/C I Owner has elected to purchase such Mall I Asset
upon the terms of the offer presented to H/C I Owner and five (5) days following the
delivery of such notice to execute such a definitive written binding purchase agreement or
lease agreement.
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If H/C I Owner fails to provide such notice within such ten (10) Business
Day period or thereafter fails to enter into a definitive written binding purchase
agreement or lease agreement within such five (5) day period, Mall I Owner may, without
having to once again comply with the foregoing provisions of this Section 14.3.4.2, accept
such third-party offer and consummate the applicable Phase I Mall Sale with such
thirdparty on terms materially consistent with such offer.
14.3.4.2.3 In the event H/C I Owner rejects an offer made by Mall I Owner pursuant to
Section 14.3.4.2.1, Mall I Owner may, without once again complying with the foregoing provisions of
this Section 14.3.4.2, consummate the applicable Phase I Mall Sale with a third party for a
purchase price greater than or equal to ninety-five percent (95%) of the purchase price offered to
H/C I Owner (or for rental payments having a present value (assuming a 6% annual discount rate) of
not less than
ninety-five percent (95%) of the rental payments offered to H/C I Owner, in the case of a
lease), and otherwise on terms not materially less advantageous to Mall I Owner than the terms
offered to H/C I Owner, but only if such sale is consummated, or the definitive binding written
purchase agreement or lease agreement with respect thereto is entered into, no later than six (6)
months after the date H/C I Owner rejected Mall I Owners offer.
14.3.4.2.4 In the event that any Phase I Mall Sale is intended to be consummated as part of a
portfolio sale of other properties and/or interests, Mall I Owner shall cause a fair and reasonable
portion of the aggregate purchase price for such portfolio sale to be allocated to such Phase I
Mall Sale for all purposes of this Section 14.3.4.2.
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14.3.4.3 Mall I Owner acknowledges and confirms that subject to the next sentence, both the
provisions of Section 14.3.4.1 above and Section 14.3.4.2 above, apply with respect to any Phase I
Mall Sale, so that compliance with one set of provisions does not obviate or nullify in any way the
requirement that the other set of provisions be complied with. However, the provisions of
Sections 14.3.4.1 and 14.3.4.2 above shall not apply to (a) sales or other transfers or issuances
of direct or indirect equity or beneficial ownership interests that do not, pursuant to one
transaction or a series of related or unrelated transactions, exceed 66 2/3% of the beneficial
interests in Mall I Owner and that do not result in a change in the Person or Persons that
ultimately control Mall I Owner (as the term control is used in the definition of Affiliate),
(b) transfers to Affiliates, (c) any Phase I Mall Sale pursuant to a judgment of foreclosure of a
Mortgage, or any conveyance(s) of the Mall I Space and/or Phase I Mall to any Mall I Mortgagee or
any Affiliate thereof in connection with a deed-in-lieu of foreclosure transaction (any such
foreclosure or deed-in-lieu thereof,
Phase I Mall Foreclosure Sale
), and, if the
purchaser or transferee in a Phase I Mall Foreclosure Sale is a Mall I Mortgagee or any Affiliate
thereof, any subsequent Phase I Mall Sales by such Mortgagee or Affiliate or any of its direct or
indirect equity holders or beneficial owners, provided that the right of first offer shall
thereafter apply (subject to clauses (a) (e) of this sentence) to any Phase I Mall Sales in which
the seller or transferor is not any of such parties, (d) any transfers or issuances of stock of
General Growth Properties, Inc. or its corporate successor or any other company with stock publicly
traded on the American Stock Exchange or New York Stock Exchange or a similar stock exchange of
another nation or (e) any transfers or issuances of partnership interests in GGP Limited
Partnership.
194
14.3.4.4 By joining in the execution of this Agreement, certain holders of direct and indirect
equity and beneficial ownership interests in Mall I Owner agree, on behalf of themselves and their
successors and assigns, to be bound by the provisions of this Section 14.3.4. Each holder of such
ownership interests in Mall I Owner shall, as a condition to any sale of its interest, obtain a
written agreement from its Transferee, for the benefit of H/C I Owner, agreeing to be bound by the
provisions of Section 14.3.4, and shall deliver a copy of such written agreement to H/C I Owner.
14.3.4.5 Any Phase I Mall Sale that is made in violation of this Section 14.3.4 shall be void
ab initio
.
14.3.4.6 In the event that any Mall I Mortgagee delivers a written notice of any default or
event of default under its mortgage encumbering the Mall I Space (a
Mall I Mortgage
) or
that the outstanding principal under the note or notes secured by such Mall I Mortgage has become
due (whether by acceleration or for any other reason)
(any such notice, a
Mall I Mortgage Default Notice
), the Mall I Mortgagee shall,
simultaneously with the delivery of such notice to Mall I Owner, deliver a copy thereof to H/C I
Owner. In such event, and so long as at the time such notice is delivered H/C I Owner satisfies
the Financial Covenant (as defined below), H/C I Owner shall have the right, but not the
obligation, to make any payment or take any other action necessary to cure any default or event of
default that is susceptible to cure by H/C I Owner (a
Curable Default
), and the
applicable Mall I Mortgagee shall be obligated to accept such cure as if the payment was made or
the action was taken by Mall I Owner,
provided
that (x) H/C I Owner shall not be entitled
to cure more than three (3) interest payment defaults in any twelve (12) month period and (y) if,
at any time after a Mall I Mortgage Default Notice is
195
given but before the applicable Curable
Default is cured, the Financial Covenant is no longer satisfied, H/C I Owners cure right with
respect to such Curable Default shall terminate. H/C I Owner shall have the same cure period
granted to Mall I Owner under the Mall I Mortgage and related loan documents (collectively,
including the Mall I Mortgage, the
Mall I Loan Documents
), plus (A) with respect to the
payment of interest or principal (other than accelerated principal) required by the Mall I Loan
Documents, three (3) Business Days (and in all events not less than three (3) Business Days after
H/C I Owners receipt of the applicable Mall I Mortgage Default Notice), (B) with respect to the
payment of any other amounts under the Mall I Loan Documents, five (5) Business Days (and in all
events not less than five (5) Business Days after H/C I Owners receipt of the applicable Mall I
Mortgage Default Notice), and (C) with respect to any Curable Default other than a failure to make
a payment required by the Mall I Loan Documents, and provided (1) H/C I Owner delivers written
notice to Mall I Mortgagee of its intention to
cure such default within five (5) Business Days after H/C I Owners receipt of the applicable
Mall I Mortgage Default Notice and (2) H/C I Owner is diligently proceeding to cure such default,
such additional time (but not to exceed one hundred and twenty (120) days in the aggregate) as is
reasonably necessary for H/C I Owner to take or effectuate such actions necessary to cure such
default. After any Mall I Mortgage Default Notice is given, the applicable Mortgagee shall give
H/C I Owner written notice if the default or event of default is subsequently cured (other than by
H/C I Owner) or acceleration is revoked.
14.3.4.7 In the event the entire principal sum secured by any Mall I Mortgage becomes
immediately due and payable, whether by acceleration or for any
196
other reason, the Mall I Mortgagee
shall promptly give H/C I Owner written notice of such event (such notice, the
Acceleration
Notice
), and so long as at the time such notice is given H/C I Owner satisfies the Financial
Covenant, H/C I Owner shall have the option (the
Buy-Out Option
) to purchase Mall I
Mortgagees interest in the Mall I Loan Documents and the loan evidenced thereby (the
Mall I
Loan
) at a price equal to the Buy-Out Option Purchase Price (as defined below), provided that
H/C I Owner shall not have such option unless (x) it gives written notice to Mall I Mortgagee of
its election to exercise such option no later than sixty (60) days after the Acceleration Notice
was given and (y) at the time H/C I Owner gives such notice it satisfies the Financial Covenant.
If H/C I Owner elects to exercise such option, H/C I Owner shall be obligated to purchase, and
Mall I Mortgagee shall be obligated to sell, the Mall I Loan and the Mall I Loan Documents for the
Buy-Out Option Purchase Price on a date not less than five (5) Business Days, nor more than ten
(10) Business Days, after H/C I Owner delivers its written notice to Mall I
Mortgagee of such election, such date to be selected by Mall I Mortgagee). Upon payment by
H/C I Owner to Mall I Mortgagee of the Buy-Out Option Purchase Price on the applicable date, the
Mall I Mortgagee shall, pursuant to assignment documents that contain no representations or
warranties other than a representation that the Mall I Mortgagee owns the Mall I Loan Documents
free and clear of all liens, claims and encumbrances, and that are otherwise reasonably
satisfactory to H/C I Owner and Mall I Mortgagee, assign to H/C I Owner (or any designee thereof)
the Mall I Mortgage and the other Mall I Loan Documents. Said assignment shall not relieve Mall I
Owner of any of Mall I Owners defaults and liabilities under said loan. The Buy-Out Option
Purchase Price shall be calculated by the Mall I Mortgagee (or its servicer) three (3) Business
Days prior to the
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date set for purchase and shall, absent manifest error, be binding upon Mall I
Mortgagee and H/C I Owner.
14.3.4.8 Mall I Owner covenants and agrees that it will cause each Mall I Mortgage to include
or cross-reference the provisions of Sections 14.3.4.6 and 14.3.4.7, and to make H/C I Owner a
third party beneficiary of such inclusion or cross-reference, but all Mall I Mortgagees shall be
bound by such provisions even if this sentence is not complied with. If any Mall I Mortgagee does
not comply with Sections 14.3.4.6 and 14.3.4.7, then, in addition to any other rights and remedies
H/C I Owner may have at law or in equity, clause (c) of the second sentence of Section 14.3.5.3
shall be deemed null and void with respect to such Mortgagee and its Mall I Mortgage and any
foreclosure or deed-in-lieu of foreclosure in connection therewith.
14.3.4.9 Mall I Owner shall, within five (5) Business Days after any payment made or expense
incurred by H/C I Owner in connection with the exercise of
H/C I Owners rights under Section 14.3.4.6, reimburse H/C I Owner for such payment or
expense.
14.3.4.10 In consideration of the rights granted to H/C I Owner under Sections 14.3.4.6,
14.3.4.7 and 14.3.4.9 and notwithstanding anything to the contrary contained in this Agreement, if
H/C I Owner shall exercise any of its rights under said Section 14.3.4.6, H/C I Owner hereby
covenants and agrees that, until the satisfaction in full of the applicable Mall I Loan, it shall
not, in connection with any amount owned by Mall I Owner to H/C I Owner pursuant to
Section 14.3.4.9, institute, file, commence, acquiesce, petition (either by itself or in
conjunction with any other person or entity) under Bankruptcy Code Section 303 or otherwise (or
join any person or entity in any such
198
petition) or otherwise invoke or cause any other person or
entity to invoke any bankruptcy, insolvency or similar proceeding with respect to or against Mall I
Owner or seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official with respect to Mall I Owner or all or any part of its property or assets or
ordering the winding-up or liquidation of the affairs of Mall I Owner. Any Mall I Mortgagee shall
be an express third party beneficiary of this Section 14.3.4.10 and shall have the right to take
any and all appropriate action at law or in equity to enforce its provisions.
14.3.4.11 Mall I Owner acknowledges that H/C I Owner and Affiliates of H/C I Owner are
businesses that are or may be subject to and exist because of privileged licenses issued by Gaming
Authorities. If Mall I Owner desires to effectuate any Phase I Mall Sale, Mall I Owner shall
require the proposed purchaser, assignee, transferee or lessee (a
Proposed Transferee
) to
disclose to Mall I Owner and H/C I Owner the names of all of its officers and directors. Unless it
is a publicly traded
corporation on a national stock exchange, the Proposed Transferee shall disclose to Mall I
Owner and H/C I Owner all direct and indirect ownership interests in the Proposed Transferee and
all lenders or sources of financing. If requested to do so by H/C I Owner, Mall I Owner shall
require a Proposed Transferee to obtain any license, qualification, clearance or the like which
shall be requested or required of any Proposed Transferee by any Gaming Authority or any regulatory
authority having jurisdiction over H/C I Owner or any Affiliate of H/C I Owner;
provided
,
however
, that H/C I Owner shall request the same only if a Gaming Authority or any other
such authority requests or requires the same. If a Proposed Transferee fails to satisfy such
requirement or if H/C I Owner or any Affiliate of H/C I Owner is directed not to involve itself in
business with a Proposed Transferee by any
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such authority, or if H/C I Owner shall in good faith
determine, in H/C I Owners good-faith judgment, that a Proposed Transferee or any of its officers,
directors, employees, agents, designees or representatives, or a partner, owner, member, or
shareholder, or any lender or financial participant (a) is or might be engaged in, or is about to
be engaged in, any activity or activities, or (b) was or is involved in any relationship, either of
which could or does jeopardize H/C I Owners business, reputation or such licenses, or those of its
Affiliates, or if any such license is threatened to be, or is, denied, curtailed, suspended or
revoked, then Mall I Owner, at H/C I Owners direction, shall immediately (i) terminate any
relationship with the individual or entity which is the source of the problem, or (ii) cease the
activity creating the problem. If Mall I Owner does not comply with item (i) or (ii) above, then
H/C I Owner may require Mall I Owner to specifically perform such obligation (the parties
recognizing that damages or other remedies would be inadequate
under the circumstances). Any Phase I Mall Sale entered into in violation of this
Section 14.3.4.11 shall be deemed null and void and of no force and effect.
14.3.5
Restrictions on Phase II Mall Sales
.
Mall II Owner covenants and agrees, for the benefit of H/C II Owner only, as follows:
14.3.5.1 Notwithstanding any other provision hereof, but subject to the provisions of
Section 14.3.5.3 below, no Phase II Mall Sale may be consummated unless H/C II Owner is given not
less than thirty (30) days written notice of such contemplated transaction and unless H/C II Owner
consents to such transaction, which consent may be withheld in H/C II Owners sole and absolute
discretion;
provided
,
however
, that such consent shall not be required (but such
prior written notice shall still be required) if (x) neither the transferee nor any Affiliate
thereof is a Competitor, (y) the
200
transferee (or an Affiliate thereof) owns or manages not less than
ten million (10,000,000) square feet of retail space in the United States and (z) such Phase II
Mall Sale would not, in the good-faith judgment of H/C II Owner, jeopardize any of H/C II Owners
Gaming Licenses. In all events, neither Mall II Owner nor any Affiliate thereof shall ever be a
Competitor, whether as the result of a Phase II Mall Sale or otherwise, unless H/C II Owners
consents with respect thereto. Additionally, pursuant to the terms of the Phase II Casino Level
Master Lease, the tenant under the Phase II Casino Level Master Lease must always be Mall II Owner
or an Affiliate thereof.
14.3.5.2 Except as described in Section 14.3.5.3, H/C II Owner shall have a right of first
offer to consummate any Phase II Mall Sale in accordance with and subject to the following
procedures, and no Phase II Mall Sale shall occur except in accordance with and subject to such
procedures:
14.3.5.2.1 If Mall II Owner (which, for purposes of this Section 14.3.5, shall include any
owner of a direct or indirect equity or beneficial ownership interest in Mall II Owner) desires to
either (x) sell, assign or otherwise transfer the Mall II Space or Phase II Mall or any portion of
either or any such direct or indirect equity or beneficial ownership interests (any such asset or
interest, including the entire Mall II Space and Phase II Mall, a
Mall II Asset
), or
(y) lease all or substantially all of the Mall II Space or Phase II Mall to one Person or a group
of Affiliated Persons (any such sale, assignment, transfer or lease, a
Phase II Mall
Sale
), Mall II Owner must make a written offer to sell such Mall II Asset to H/C II Owner,
which offer must include the proposed purchase price (or proposed rental payments, in the case of
a lease) and all other material terms of the proposed transaction. Upon receipt of such notice,
H/C II Owner
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shall have thirty (30) days in which to notify Mall II Owner that it has elected to
purchase such Mall II Asset upon the terms of the offer made to H/C II Owner.
14.3.5.2.2 In the event that H/C II Owner accepts Mall II Owners offer within said thirty
(30) day period, the parties shall negotiate in good-faith for the sixty (60) day period following
such acceptance the terms and provisions of a definitive binding purchase agreement (or lease
agreement, if applicable) in connection therewith. In the event that notwithstanding such good
faith negotiation, no definitive binding written purchase agreement or lease agreement is entered
into between the parties within said sixty (60) day period, Mall II Owner may then, without having
to once again comply with the foregoing provisions of this Section 14.3.5.2, either:
14.3.5.2.2.1 Market the applicable Mall II Asset and conclude the applicable Phase II
Mall Sale for a purchase price not less
than ninety-five percent (95%) of the purchase price offered to H/C II Owner (or for
rental payments having a present value (assuming a 6% annual discount rate) of not less
than ninety-five percent (95%) of the rental payments offered to H/C II Owner, in the case
of a lease) and otherwise upon terms not materially less advantageous to Mall II Owner than
the terms offered to H/C II Owner, but only if such transaction is consummated, or the
definitive binding written purchase agreement or lease agreement with respect thereto is
entered into, no later than six (6) months after the expiration of said sixty (60) day
period; or
14.3.5.2.2.2 In the event Mall II Owner desires to sell such Mall II Asset for a
purchase price which is less than ninety-five percent (95%) of the purchase price offered
to H/C II Owner (or for rental
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payments having a present value (assuming a 6% annual
discount rate) of less than ninety-five percent (95%) of the rental payments offered to
H/C II Owner, in the case of a lease) or otherwise on terms materially less advantageous to
Mall II Owner than the terms offered to H/C II Owner, provide H/C II Owner (no later than
six (6) months after the expiration of said sixty (60) day period) with written notice of
the terms of the offer from a third-party that Mall II Owner intends to accept (which
notice must include a copy of the proposed definitive binding written purchase agreement or
lease agreement that Mall II Owner intends to execute). In such event, H/C II Owner shall
have ten (10) Business Days in which to notify Mall II Owner that H/C II Owner has elected
to purchase such Mall II Asset upon the terms of the offer presented to H/C II Owner and
five (5) days following the delivery of such notice to execute such a definitive written
binding purchase
agreement or lease agreement. If H/C II Owner fails to provide such notice within
such ten (10) Business Day period or thereafter fails to enter into a definitive written
binding purchase agreement or lease agreement within such five (5) day period, Mall II
Owner may, without having to once again comply with the foregoing provisions of this
Section 14.3.5.2, accept such third-party offer and consummate the applicable Phase II Mall
Sale with such third-party on terms materially consistent with such offer.
14.3.5.2.3 In the event H/C II Owner rejects an offer made by Mall II Owner pursuant to
Section 14.3.5.2.1, Mall II Owner may, without once again complying with the foregoing provisions
of this Section 14.3.5.2, consummate the applicable Phase II Mall Sale with a third party for a
purchase price greater than or equal to
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ninety-five percent (95%) of the purchase price offered to
H/C II Owner (or for rental payments having a present value (assuming a 6% annual discount rate) of
not less than ninety-five percent (95%) of the rental payments offered to H/C II Owner, in the case
of a lease), and otherwise on terms not materially less advantageous to Mall II Owner than the
terms offered to H/C II Owner, but only if such sale is consummated, or the definitive binding
written purchase agreement or lease agreement with respect thereto is entered into, no later than
six (6) months after the date H/C II Owner rejected Mall II Owners offer.
14.3.5.2.4 In the event that any Phase II Mall Sale is intended to be consummated as part of a
portfolio sale of other properties and/or interests, Mall II Owner shall cause a fair and
reasonable portion of the aggregate purchase price for such portfolio sale to be allocated to such
Phase II Mall Sale for all purposes of this Section 14.3.5.2.
14.3.5.3 Mall II Owner acknowledges and confirms that subject to the next sentence, both the
provisions of Section 14.3.5.1 above, and the provisions of Section 14.3.5.2, apply with respect to
any Phase II Mall Sale, so that compliance with one set of provisions does not obviate or nullify
in any way the requirement that the other set of provisions be complied with. However, the
provisions of Section 14.3.5.1 and 14.3.5.2 above shall not apply to (a) sales or other transfers
or issuances of direct or indirect equity or beneficial ownership interests that do not, pursuant
to one transaction or a series of related or unrelated transactions, exceed 66 2/3% of the
beneficial interests in Mall II Owner and that do not result in a change in the Person or Persons
that ultimately control Mall II Owner (as the term control is used in the definition of
Affiliate), (b) transfers to Affiliates, (c) any Phase II Mall Sale pursuant to a judgment of
foreclosure of a Mortgage, or any conveyance(s) of the Mall II Space and/or Phase II Mall to any
Mall II Mortgagee
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or any Affiliate thereof in connection with a deed-in-lieu of foreclosure
transaction (any such foreclosure or deed-in-lieu thereof,
Phase II Mall Foreclosure
Sale
), and, if the purchaser or transferee in a Phase II Mall Foreclosure Sale is a Mall II
Mortgagee or any Affiliate thereof, any subsequent Phase II Mall Sales by such Mortgagee or
Affiliate or any of its direct or indirect equity holders or beneficial owners, provided that the
right of first offer shall thereafter apply (subject to clauses (a) (e) of this sentence) to any
Phase II Mall Sales in which the seller or transferor is not any of such parties, (d) any transfers
or issuances of stock of General Growth Properties, Inc. or its corporate successor or any other
company with stock publicly traded on the American Stock Exchange or New York Stock Exchange or a
similar stock exchange of another nation or (e) any transfers or issuances of partnership interests
in GGP Limited Partnership.
14.3.5.4 By joining in the execution of this Agreement, certain holders of direct and indirect
equity and beneficial ownership interests in Mall II Owner agree, on behalf of themselves and their
successors and assigns, to be bound by the provisions of this Section 14.3.5. Each holder of such
ownership interests in Mall II Owner shall, as a condition to any sale of its interest, obtain a
written agreement from its Transferee, for the benefit of H/C II Owner, agreeing to be bound by the
provisions of Section 14.3.5, and shall deliver a copy of such written agreement to H/C II Owner.
14.3.5.5 Any Phase II Mall Sale that is made in violation of this Section 14.3.5 shall be void
ab initio
.
14.3.5.6 In the event that any Mall II Mortgagee delivers a written notice of any default or
event of default under its mortgage encumbering the Mall II Space
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(a
Mall II Mortgage
) or
that the outstanding principal under the note or notes secured by such Mall II Mortgage has become
due (whether by acceleration or for any other reason) (any such notice, a
Mall II Mortgage
Default Notice
), the Mall II Mortgagee shall, simultaneously with the delivery of such notice
to Mall II Owner, deliver a copy thereof to H/C II Owner. In such event, and so long as at the
time such notice is delivered H/C II Owner satisfies the Financial Covenant, H/C II Owner shall
have the right, but not the obligation, to make any payment or take any other action necessary to
cure any Curable Default, and the applicable Mall II Mortgagee shall be obligated to accept such
cure as if the payment was made or the action was taken by Mall II Owner,
provided
that
(x) H/C II Owner shall not be entitled to cure more than three (3) interest payment defaults in any
twelve (12) month period and (y) if, at any time after a Mall II Mortgage Default Notice is given
but before the applicable Curable Default is cured, the Financial Covenant is no
longer satisfied, H/C II Owners cure right with respect to such Curable Default shall
terminate. H/C II Owner shall have the same cure period granted to Mall II Owner under the Mall II
Mortgage and related loan documents (collectively, including the Mall II Mortgage, the
Mall II
Loan Documents
), plus (A) with respect to the payment of interest or principal (other than
accelerated principal) required by the Mall II Loan Documents, three (3) Business Days (and in all
events not less than three (3) Business Days after H/C II Owners receipt of the applicable Mall II
Mortgage Default Notice), (B) with respect to the payment of any other amounts under the Mall II
Loan Documents, five (5) Business Days (and in all events not less than five (5) Business Days
after H/C II Owners receipt of the applicable Mall II Mortgage Default Notice), and (C) with
respect to any Curable Default other than a failure to make a payment required by the Mall II Loan
Documents, and
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provided (1) H/C II Owner delivers written notice to Mall II Mortgagee of its
intention to cure such default within five (5) Business Days after H/C II Owners receipt of the
applicable Mall II Mortgage Default Notice and (2) H/C II Owner is diligently proceeding to cure
such default, such additional time (but not to exceed one hundred and twenty (120) days in the
aggregate) as is reasonably necessary for H/C II Owner to take or effectuate such actions necessary
to cure such default. After any Mall II Mortgage Default Notice is given, the applicable Mortgagee
shall give H/C II Owner written notice if the default or event of default is subsequently cured
(other than by H/C II Owner) or acceleration is revoked.
14.3.5.7 In the event the entire principal sum secured by any Mall II Mortgage becomes
immediately due and payable, whether by acceleration or for any other reason, the Mall II Mortgagee
shall promptly give H/C II Owner an Acceleration
Notice, and so long as at the time such notice is given H/C II Owner satisfies the Financial
Covenant, H/C II Owner shall have a Buy-Out Option to purchase Mall II Mortgagees interest in the
Mall II Loan Documents and the loan evidenced thereby (the
Mall II Loan
) at a price equal
to the Buy-Out Option Purchase Price (as defined below), provided that H/C II Owner shall not have
such option unless (x) it gives written notice to Mall II Mortgagee of its election to exercise
such option no later than sixty (60) days after the Acceleration Notice was given and (y) at the
time H/C II Owner gives such notice it satisfies the Financial Covenant. If H/C II Owner elects to
exercise such option, H/C II Owner shall be obligated to purchase, and Mall II Mortgagee shall be
obligated to sell, the Mall II Loan and the Mall II Loan Documents for the Buy-Out Option Purchase
Price on a date not less than five (5) Business Days, nor more than ten (10) Business Days, after
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H/C II Owner delivers its written notice to Mall II Mortgagee of such election, such date to be
selected by Mall II Mortgagee). Upon payment by H/C II Owner to Mall II Mortgagee of the Buy-Out
Option Purchase Price on the applicable date, the Mall II Mortgagee shall, pursuant to assignment
documents that contain no representations or warranties other than a representation that the
Mall II Mortgagee owns the Mall II Loan Documents free and clear of all liens, claims and
encumbrances, and that are otherwise reasonably satisfactory to H/C II Owner and Mall II Mortgagee,
assign to H/C II Owner (or any designee thereof) the Mall II Mortgage and the other Mall II Loan
Documents. Said assignment shall not relieve Mall II Owner of any of Mall II Owners defaults and
liabilities under said loan. The Buy-Out Option Purchase Price shall be calculated by the Mall II
Mortgagee (or its servicer) three (3) Business Days prior to the date set for purchase and shall,
absent manifest error, be binding upon Mall II Mortgagee and H/C II Owner.
14.3.5.8 Mall II Owner covenants and agrees that it will cause each Mall II Mortgage to
include or cross-reference the provisions of Sections 14.3.5.6 and 14.3.5.7, and to make H/C II
Owner a third party beneficiary of such inclusion or cross-reference, but all Mall II Mortgagees
shall be bound by such provisions even if this sentence is not complied with. If any Mall II
Mortgagee does not comply with Sections 14.3.5.6 and 14.3.5.7, then, in addition to any other
rights and remedies H/C II Owner may have at law or in equity, clause (c) of the second sentence of
Section 14.3.5.3 shall be deemed null and void with respect to such Mortgagee and its Mall II
Mortgage and any foreclosure or deed-in-lieu of foreclosure in connection therewith.
14.3.5.9 Mall II Owner shall, within five (5) Business Days after any payment made or expense
incurred by H/C II Owner in connection with the exercise of
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H/C II Owners rights under
Section 14.3.5.6, reimburse H/C II Owner for such payment or expense.
14.3.5.10 In consideration of the rights granted to H/C II Owner under Sections 14.3.5.6,
14.3.5.7and 14.3.5.9 and notwithstanding anything to the contrary contained in this Agreement, if
H/C II Owner shall exercise any of its rights under said Section 14.3.5.6, H/C II Owner hereby
covenants and agrees that, until the satisfaction in full of the applicable Mall II Loan, it shall
not, in connection with any amount owned by Mall II Owner to H/C II Owner pursuant to
Section 14.3.5.9, institute, file, commence, acquiesce, petition (either by itself or in
conjunction with any other person or entity) under Bankruptcy Code Section 303 or otherwise (or
join any person or entity in any such petition) or otherwise invoke or cause any other person or
entity to invoke any bankruptcy, insolvency or similar proceeding with respect to or against
Mall II Owner or
seek to appoint a receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official with respect to Mall II Owner or all or any part of its property or assets or
ordering the winding-up or liquidation of the affairs of Mall II Owner. Any Mall II Mortgagee
shall be an express third party beneficiary of this Section 14.3.5.10 and shall have the right to
take any and all appropriate action at law or in equity to enforce its provisions.
14.3.5.11 Mall II Owner acknowledges that H/C II Owner and Affiliates of H/C II Owner are
businesses that are or may be subject to and exist because of privileged licenses issued by Gaming
Authorities. If Mall II Owner desires to effectuate any Phase II Mall Sale, Mall II Owner shall
require the Proposed Transferee to disclose to Mall II Owner and H/C II Owner the names of all of
its officers and directors. Unless it is
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a publicly traded corporation on a national stock
exchange, the Proposed Transferee shall disclose to Mall II Owner and H/C II Owner all direct and
indirect ownership interests in the Proposed Transferee and all lenders or sources of financing.
If requested to do so by H/C II Owner, Mall II Owner shall require a Proposed Transferee to obtain
any license, qualification, clearance or the like which shall be requested or required of any
Proposed Transferee by any Gaming Authority or any regulatory authority having jurisdiction over
H/C II Owner or any Affiliate of H/C II Owner;
provided
,
however
, that H/C II Owner
shall request the same only if a Gaming Authority or any other such authority requests or requires
the same. If a Proposed Transferee fails to satisfy such requirement or if H/C II Owner or any
Affiliate of H/C II Owner is directed not to involve itself in business with a Proposed Transferee
by any such authority, or if H/C II Owner shall in good faith determine, in H/C II Owners
good-faith judgment, that a Proposed Transferee or any of its
officers, directors, employees, agents, designees or representatives, or a partner, owner,
member, or shareholder, or any lender or financial participant (a) is or might be engaged in, or is
about to be engaged in, any activity or activities, or (b) was or is involved in any relationship,
either of which could or does jeopardize H/C II Owners business, reputation or such licenses, or
those of its Affiliates, or if any such license is threatened to be, or is, denied, curtailed,
suspended or revoked, then Mall II Owner, at H/C II Owners direction, shall immediately
(i) terminate any relationship with the individual or entity which is the source of the problem, or
(ii) cease the activity creating the problem. If Mall II Owner does not comply with item (i) or
(ii) above, then H/C II Owner may require Mall II Owner to specifically perform such obligation
(the parties recognizing that damages or other remedies would be inadequate under the
circumstances). Any Phase II Mall Sale entered
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into in violation of this Section 14.3.5.11 shall
be deemed null and void and of no force and effect.
Section 14.4
Identity of Mall I Owner and its Officers and Directors; Identity of Mall II
Owner and its Officers and Directors
.
14.4.1 Mall I Owner acknowledges that H/C I Owner and Affiliates of H/C I Owner are businesses
that are or may be subject to and exist because of privileged licenses issued by Gaming
Authorities. Mall I Owner shall promptly notify H/C I Owner of the appointment of any individual
as an officer, director or senior employee of Mall I Owner who does not hold such position as of
the date hereof (each a
New Mall I Individual
). If requested to do so by H/C I Owner,
Mall I Owner shall require any New Mall I Individual or other officer, director, employee, agent,
designee or representative, or a partner, owner, member, or shareholder, or any lender or financial
participant of Mall I
Owner to obtain any license, qualification, clearance or the like which shall be requested or
required of any such individual by any Gaming Authority or any regulatory authority having
jurisdiction over H/C I Owner or any Affiliate of H/C I Owner. If any New Mall I Individual or
other officer, director, employee, agent, designee or representative, or a partner, owner, member,
or shareholder, or any lender or financial participant of Mall I Owner fails to satisfy such
requirement or if H/C I Owner or any Affiliate of H/C I Owner is directed not to involve itself in
business with such individual by any such authority, or if H/C I Owner shall in good faith
determine, in H/C I Owners good-faith judgment, that such individual (a) is or might be engaged
in, or is about to be engaged in, any activity or activities, or (b) was or is involved in any
relationship, either of which could or does jeopardize H/C I Owners business, reputation or such
licenses, or those of its Affiliates, or
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if any such license is threatened to be, or is, denied,
curtailed, suspended or revoked, then Mall I Owner, at H/C I Owners direction, shall immediately
(i) terminate any relationship with the individual or entity which is the source of the problem, or
(ii) cease the activity creating the problem. If Mall I Owner does not comply with item (i) or
(ii) above, then H/C I Owner may require Mall I Owner to specifically perform such obligation (the
parties recognizing that damages or other remedies would be inadequate under the circumstances).
Any appointment of any New Mall I Individual in violation of this Section 14.3.5.11 shall be
deemed null and void and of no force and effect.
14.4.2 Mall II Owner acknowledges that H/C II Owner and Affiliates of H/C II Owner are
businesses that are or may be subject to and exist because of privileged licenses issued by Gaming
Authorities. Mall II Owner shall promptly notify H/C II Owner of the appointment of any individual
as an officer, director or senior employee of Mall II
Owner who does not hold such position as of the date hereof (each a
New Mall II
Individual
). If requested to do so by H/C II Owner, Mall II Owner shall require any New
Mall II Individual or other officer, director, employee, agent, designee or representative, or a
partner, owner, member, or shareholder, or any lender or financial participant of Mall II Owner to
obtain any license, qualification, clearance or the like which shall be requested or required of
any such individual by any Gaming Authority or any regulatory authority having jurisdiction over
H/C II Owner or any Affiliate of H/C II Owner. If any New Mall II Individual or other officer,
director, employee, agent, designee or representative, or a partner, owner, member, or shareholder,
or any lender or financial participant of Mall II Owner fails to satisfy such requirement or if
H/C II Owner or any Affiliate of H/C II Owner is directed not to involve itself in business with
such individual by any such
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authority, or if H/C II Owner shall in good faith determine, in H/C II
Owners good-faith judgment, that such individual (a) is or might be engaged in, or is about to be
engaged in, any activity or activities, or (b) was or is involved in any relationship, either of
which could or does jeopardize H/C II Owners business, reputation or such licenses, or those of
its Affiliates, or if any such license is threatened to be, or is, denied, curtailed, suspended or
revoked, then Mall II Owner, at H/C II Owners direction, shall immediately (i) terminate any
relationship with the individual or entity which is the source of the problem, or (ii) cease the
activity creating the problem. If Mall II Owner does not comply with item (i) or (ii) above, then
H/C II Owner may require Mall II Owner to specifically perform such obligation (the parties
recognizing that damages or other remedies would be inadequate under the circumstances). Any
appointment of any New Mall II Individual in
violation of this Section 14.3.5.11 shall be deemed null and void and of no force and effect.
14.4.3 Notwithstanding anything to the contrary contained in the second and third sentences of
Section 14.3.4.11 or the second and third sentences of Section 14.3.5.11, Mall I Owner or Mall II
Owner, as the case may be, need only use commercially reasonable efforts (or, if H/C I Owner and/or
H/C II Owner agree to reimburse Mall I Owner or Mall II Owner, as the case may be, for any
out-of-pocket costs incurred in connection therewith, best efforts), upon the request of H/C I
Owner or H/C II Owner, to obtain and disclose the names of the directors and officers, all direct
and indirect ownership interests and all lenders or sources of financing of any Proposed Transferee
that is acquiring through the public markets less than a controlling interest in General Growth
Properties, Inc. or in GGP Limited Partnership. For the purpose of this Section 14.4.3, a
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controlling interest in a Person shall mean the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of such Person whether through the
ownership of voting securities, by contract, or otherwise. For clarity, this Section 14.4.3 shall
not vary any of the terms of Section 14.3.4.11 or Section 14.3.5.11 other than the second and third
sentences thereof.
Section 14.5
Mortgages
.
14.5.1 Each Party shall have the right to collaterally assign and encumber this Agreement as
security to one or more of its Mortgagees holding a Mortgage so long as such Mortgagee, in writing
(i) subordinates such Mortgage and the lien thereof to this Agreement and to the rights, interests,
obligations, duties, conditions, covenants and agreements granted pursuant to this Agreement or
otherwise contained herein (whether
such Mortgage is recorded on or after the date hereof) and (ii) agrees to be bound by the
terms and conditions of this Agreement upon its taking title to such property (subject to the
provisions of Section 14.6 below). Notwithstanding the foregoing, regardless of whether any
Mortgagee shall receive a collateral assignment of this Agreement, each Mortgage (whether recorded
on or after the date hereof) and the lien thereof shall automatically be subject and subordinate to
this Agreement and to the rights, interests, obligations, duties, conditions, covenants and
agreements granted pursuant to this Agreement or otherwise contained herein.
14.5.2 Each Party agrees for the benefit of the other Parties and their respective Mortgagees,
that wherever a Party has a right to grant or withhold its consent or approval under this
Agreement, or otherwise has discretion to act or refrain from acting, such Party shall only grant
its consent or approval or act or refrain from acting, as the case
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may be, in such a manner as a
Commercially Reasonable Owner would do and so long as the same is not likely to have a Material
Adverse Effect.
14.5.3 In any instance (other than Section 11.2.2) where a Mortgagees consent is required
under this Agreement and such Mortgagee shall be a trustee for publicly held debt under an
indenture, such Mortgagee shall be deemed to have given its consent upon delivery to such trustee
of a written statement from an Independent Expert certifying that the matter proposed for consent
would be consented to by a Commercially Reasonable Owner of the Lot(s) encumbered in favor of said
Mortgagee and the same is not likely to have a Material Adverse Effect;
provided
,
however
, that the foregoing consent procedure shall not be construed as a means for
satisfying any consents or approvals required to be obtained with respect to matters under the
terms of the indenture, security
documents and other loan documents pertaining to any such Mortgagee, it being understood that
said consent or approval requirements must be satisfied in accordance with their terms.
Section 14.6
Transferee Liability
.
14.6.1 Subject to the further provisions of this Section 14.6, any assignee or transferee (in
either case, a
Transferee
) of all or any portion of the Phase I Land and/or any buildings
or other improvements thereon, the Mall I Space and/or any buildings or other improvements thereon,
the Phase II Land and/or any buildings or other improvements thereon, the Mall II Space and/or any
buildings or other improvements thereon, or the SECC Land and/or any buildings or other
improvements thereon, including, without limitation, any transferee by way of a foreclosure sale or
deed-in-lieu of foreclosure, shall be deemed to have assumed the obligations and liabilities
hereunder of
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the Party from whom such Transferee received its interest in such portion of the
Phase I Land, Mall I Space, the Phase II Land, the Mall II Space or the SECC Land or such buildings
or other improvements (to the extent such obligations or liabilities relate to such portion);
provided that, without limiting the foregoing, within five (5) Business Days of written request
therefor by the non-transferring Party hereto, the Transferee shall execute a writing, in form and
substance reasonably satisfactory to such Transferee and to such non-transferring Party, confirming
such assumption. In the event of such a transfer or assignment, the transferring Party (the
Transferor
) shall be released from any obligations arising after the effective date of
the transfer or assignment (but not any obligations of the Transferor that are outstanding under
this Agreement as of the effective date of the transfer or assignment, and the Transferor and the
Transferee shall be jointly and severally liable
with respect to such obligations). Each Transferor shall give the other Party hereto at least
five (5) Business Days prior written notice of the transfer or assignment in question and shall
furnish a fully-executed copy of the instrument of transfer or assignment, within five (5) Business
Days of execution thereof, to the other Party hereto.
14.6.2 Notwithstanding the foregoing, in the event of a transfer to any Mortgagee (or its
designee) resulting from (i) judicial or nonjudicial foreclosure of the Mortgage held by such
Mortgagee or (ii) the grant of a deed-in-lieu of such foreclosure, then, in either event, (x) the
Transferor shall be released from any obligations arising after the effective date of the transfer;
provided
,
however
, that the Transferor shall not be released from any obligations
which remain outstanding on the date of such transfer and (y) such Mortgagee (or its designee)
shall not be liable for any non-monetary defaults of the Transferor arising under this Agreement
prior to the effective date of the transfer that
216
are not susceptible to cure by the Transferee
after obtaining possession of the Lot in question.
Section 14.7
As-Built Survey
. Each Party, upon the request of any other Party, shall
enter into one or more separate agreements in recordable form setting forth in legally sufficient
detail the easements, rights-of-way and other rights and interests provided for in, or granted (or
required to be granted) pursuant to, this Agreement. In addition, within ninety (90) days
following completion of construction of each of the Palazzo and the Phase II Automobile Parking
Area, H/C II Owner shall, at its sole cost and expense, have an as-built survey prepared by a
reputable licensed surveyor of the applicable portion of the Phase II Land, together with all
improvements constructed thereon and a copy of such survey will be sent to each Owner and to each
Owners Mortgagees.
Section 14.8
Estoppel Certificates
. Each Party shall at any time and from time to
time during the Term (but not more often than once in each calendar quarter), within thirty (30)
days after request by any other Party, execute, acknowledge and deliver to such other Party or to
any existing or prospective purchaser, Mortgagee or lessee designated by such other Party, a
certificate stating: (a) that this Agreement is unmodified and in full force and effect, or if
there has been a modification or modifications, that this Agreement is in full force and effect, as
modified, and identifying the modification agreement or agreements; (b) whether or not there is any
existing default hereunder by either Party in the payment of any sum of money owing to the Party
executing such certificate, whether or not there is any existing default by either Party with
respect to which a notice of default has been given or received by the Party executing such
certificate (and, to the best of the knowledge of the Party executing such certificate, whether any
other default exists under this Agreement),
217
and if there is any such default, specifying the nature
and extent thereof; (c) whether or not there are any outstanding claims, set-offs, defenses or
counterclaims which a Party has asserted against the other Party by notice to the other Party; and
(d) such other matters as may be reasonably requested. The Parties acknowledge and agree that as
of the date hereof, there is no existing default hereunder by Mall II Owner.
Section 14.9
Indemnification
. Each of the Parties shall at all times indemnify and
hold harmless each of the other Parties, their Mortgagees, the Trustee and their respective
partners, principals, officers, directors, shareholders and employees, from and against any and all
losses, liabilities, expenses, costs, demands, claims and judgments, including, without limitation,
reasonable attorneys fees and expenses, incurred or suffered by any such indemnified Party and
arising from or as a result of the death of, or any accident,
injury, loss or damage whatsoever caused to any persons or property (a) as shall occur on the
land or in any buildings or other improvements owned by such indemnifying Party, (b) as shall occur
due to the entry by such indemnifying Party or its Permittees onto the land or buildings owned by
such indemnified Party, (c) as shall occur due to a violation of this Agreement on the part of the
indemnifying Party, (d) as shall occur due to the naming of such other Party in a lawsuit relating
to construction performed by or on behalf of the indemnifying Party or (e) in connection with the
exercise of any rights, licenses or interests granted to, or easements used by such indemnifying
Party hereunder, except, in each case, to the extent such claims (i) result from the gross
negligence or willful misconduct of the indemnified Party or any of its Permittees or any violation
of this Agreement on the part of the indemnified Party, (ii) are covered by any insurance referred
to in Article 10 hereof that is obtained by any Party or would have been covered, if any other
Party had obtained the
218
same, by any such insurance that any other Party is required thereunder to
obtain or to the extent a Party is actually covered by any other insurance or (iii) result from the
exercise of any rights or interests granted to, or easements used by, any other Party hereunder.
In accordance with, but without limiting, the foregoing, H/C II Owner agrees to indemnify and hold
harmless each of the other Owners, their Mortgagees, the Trustee and their respective partners,
principals, officers, directors, shareholders and employees, from and against any and all losses,
liabilities, expenses, costs, demands, claims and judgments, including, without limitation,
reasonable attorneys fees and expenses, incurred or suffered by any such indemnified Party and
arising from or as a result of the death of, or any accident, injury, loss or damage whatsoever
caused to any persons or property as may occur in connection with the construction of the Palazzo,
except, in each case, to the extent
such claims (i) result from the gross negligence or willful misconduct of the indemnified
Party or any of its Permittees or any violation of this Agreement on the part of the indemnified
Party, (ii) are caused by construction, alterations or fit-out work performed by Mall II Buyer or
its Permittees on or about the Phase II Land during the construction of the Palazzo, in which event
Mall II Owner shall be the indemnifying party under this sentence or (iii) are covered by any
insurance referred to in Article 10 hereof that is obtained by any Party or would have been
covered, if any other Party had obtained the same, by any such insurance that any other Party is
required thereunder to obtain or to the extent a Party is actually covered by any other insurance.
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Section 14.10
Rights to Cure Default; Payment of Default and Lien
.
14.10.1 In the event that any Party (a
Defaulting Party
) shall fail to fully,
faithfully and punctually perform or cause to be performed any obligation on the part of such
Defaulting Party hereunder:
14.10.1.1 if such default shall continue for ten (10) days after notice thereof (except in the
event of an emergency where no notice shall be required) from any non-Defaulting Party affected by
such default to the Defaulting Party, such non-Defaulting Party shall have the right (but not the
obligation) to (x) enter upon the property owned or leased by the Defaulting Party to the extent
reasonably required to perform or cause to be performed the obligations of the Defaulting Party
with respect to which the Defaulting Party is in default, (y) perform or cause to be performed such
obligations and (z) be reimbursed by such Defaulting Party, upon demand by such non-Defaulting
Party, for the cost thereof, together with simple interest thereon at the Interest Rate from the
date of demand to the date of reimbursement by the Defaulting Party;
provided
,
however
, that if
such default is susceptible of cure but cannot reasonably be cured within such ten (10) day
period and cannot be cured solely by the payment of money and the Defaulting Party shall have
commenced to cure such default within such ten (10) day period and thereafter diligently and
expeditiously proceeds to cure the same, such ten (10) day period shall be extended to the extent
necessary so to cure such default (but in no event beyond sixty (60) days in total (including the
original ten (10) day period)); and
14.10.1.2 if such failure shall continue for thirty (30) days after notice from such
non-Defaulting Party to the Defaulting Party, then such non-Defaulting Party shall have all rights
and remedies available at law or in equity (other than any right to
220
terminate this Agreement);
provided
,
however
, that if such default is susceptible of cure but cannot
reasonably be cured within such thirty (30) day period and the Defaulting Party shall have
commenced to cure such default within such thirty (30) day period and thereafter diligently and
expeditiously proceeds to cure the same, such thirty (30) day period shall be extended to the
extent necessary so to cure such default (but in no event beyond one hundred eighty (180) days in
total (including the original thirty (30) day period));
provided
further, that any default
that can be cured solely by the payment of money shall be cured within ten (10) days after notice
from such non-Defaulting Party to the Defaulting Party.
14.10.2 If pursuant to Section 14.10.1, a Party is compelled or elects to pay any sum of money
or do any acts which require the payment of money by reason of another Partys failure or inability
to perform any of the terms and provisions in this Agreement to be performed by such other Party,
the Defaulting Party shall promptly upon demand, reimburse the paying Party for such sums, and all
such sums shall bear simple
interest at the Interest Rate from the date of demand for reimbursement until the date of such
reimbursement. Any other sums payable by any Party to any other Party pursuant to the terms and
provisions of this Agreement that shall not be paid when due shall bear simple interest at the
Interest Rate from the due date to the date of payment thereof. All such unpaid sums shall
constitute a valid and enforceable lien on the Defaulting Partys Lot and each Party hereby
consents to the filing by any other Party of any and all documentation necessary or desirable to
perfect and/or secure such lien. No action shall be brought to foreclose such lien unless
(x) thirty (30) days notice of claim of lien is given to the Defaulting Party, (y) such notice and
opportunity to cure is given to the holder of any
221
Mortgage encumbering the Defaulting Partys Lot
as is required under Section 14.15.3, and (z) no such Person shall cure the default in question
within the applicable cure period. Reasonable attorneys fees and charges in connection with
collection of the debt secured by such lien or foreclosure thereof shall be paid by the Party
against whom such action is brought and secured by such lien. Such lien shall be superior to any
other lien and encumbrance on the affected Lot created or arising on or after the date of the
Original REA, including, without limitation, the lien of any Mortgage. The liens provided for in
this Section 14.10 shall only be effective when filed for record by the non-Defaulting Party as a
claim of lien against the defaulting Party in the Recorders Office, signed and acknowledged, which
claim of lien shall contain at least:
14.10.2.1 An itemized statement of all amounts due and payable pursuant hereto;
14.10.2.2 A description sufficient for identification of that portion of the real property of
the Defaulting Party which is the subject of the lien;
14.10.2.3 The name of the Owner or reputed Owner of the property which is the subject of the
lien; and
14.10.2.4 The name and address of the Party claiming the lien.
The lien shall attach from the date a claim is recorded and may be enforced under the procedures
set forth in Nev. Rev. Stat. §§ 116.3116-116.31168, except that the term unit, as used in the
foregoing provisions, shall be deemed to refer to the Defaulting Partys interest in the real
property which is subject to the lien. The Party claiming the lien shall release the claim of lien
once the amounts secured by the lien have been paid in full.
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14.10.3 Notwithstanding the provisions of Section 14.10.2, H/C I Owner and H/C II Owner hereby
expressly agree that any amount due from Mall I Owner or Mall II Owner to H/C I Owner or H/C II
Owner under the provisions of Section 14.3.4.9 or Section 14.3.5.9, as applicable (in each case, a
Cure Reimbursement Amount
), is hereby expressly made subordinate to and junior in right
of payment to the payment of all amounts that are due and payable under any Mall I Loan or Mall II
Loan, as applicable. H/C I Owner and H/C II Owner further agree that any liens and security
interests in favor of such Owner under Section 14.10.2 in respect of any Cure Reimbursement Amounts
in any assets of Mall I Owner or Mall II Owner, as applicable, shall be and hereby are subordinated
in rank and priority to any liens and security interests granted to and in favor of any Mall I
Mortgagee or Mall II Mortgagee in those assets (whether now or hereafter arising) to secure the
applicable Mall I Loan or Mall II Loan. In the event that, at the time any amount is due and
payable to any Mall I Mortgagee under any Mall I Loan or Mall II Mortgagee under any Mall II Loan,
any payment or distribution of assets of Mall I Owner or Mall II Owner, as applicable, of any kind
or character, whether in cash, instruments,
securities or other property, is received by H/C I Owner or H/C II Owner, as applicable, in
respect of a Cure Reimbursement Amount from any source, directly or indirectly, such payment or
distribution shall be held for the benefit of, and shall be immediately paid over and delivered to,
the Mall I Mortgagee or the Mall II Mortgagee to the extent necessary to pay such due and payable
amount under the Mall I Loan or the Mall II Loan.
Section 14.11
Rights Perpetual
. Except as otherwise expressly provided in this
Agreement, (i) the utility, parking, and encroachment easements and related rights and interests
granted herein shall be perpetual and shall remain binding forever and (ii) the
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remainder of this
Agreement shall continue, and the remainder of the obligations hereunder shall remain binding, from
the Commencement Date until the Expiration Date. No Party shall have the right to terminate this
Agreement as a result of any default or alleged default of any other Party, but such limitation
shall not affect, in any manner, any other rights or remedies which any Party may have hereunder,
at law or in equity by reason of any breach of this Agreement.
Section 14.12
Further Assurances
. Each Party upon the request of any other Party and
at the expense of such other Party at any time from time to time, agrees to promptly execute,
acknowledge where appropriate and deliver such additional instruments and documents, in recordable
form if appropriate, and to take such other action, in each case, as may be reasonably requested by
such other Party in order to effectuate the agreements contained herein. The Parties further agree
to make such changes to this Agreement as shall be reasonably required to make this Agreement
consistent with all applicable Legal Requirements.
Section 14.13
Rights Irrevocable
. The Parties hereby agree that, except as otherwise
expressly provided herein, (a) no fee or other charge is payable by any Person in connection with
the use of any easement, right or interest granted hereunder or pursuant to the terms hereof and
(b) all easements, rights and interests granted hereunder or pursuant to the terms hereof shall be
irrevocable.
Section 14.14
No Joint Venture
. Nothing herein contained shall be deemed or construed
by the Parties hereto, or by any third Party, as creating the relationship of principal and agent,
or of partners or joint venturers, between the Parties hereto.
224
Section 14.15
Notices
.
14.15.1 All notices, demands, requests and other communications given hereunder shall be in
writing and shall be deemed to have been given: (i) upon delivery if personally delivered;
(ii) when delivered, postage prepaid, by certified or registered mail, return receipt requested as
evidenced by the return receipt; or (iii) upon delivery if deposited with a nationally recognized
overnight delivery service marked for delivery on the next Business Day, in any case, addressed to
the Party for whom it is intended at its address hereinafter set forth:
If to SECC Owner:
Interface Group-Nevada, Inc.
3355 Las Vegas Boulevard South
Room 1B
Las Vegas, Nevada 89109
Attn: General Counsel
If to H/C I Owner or H/C II Owner:
Venetian Casino Resort, LLC
3355 Las Vegas Boulevard South
Room 1C
Las Vegas, Nevada 89109
Attn: General Counsel
If to Mall I Owner:
Grand Canal Shops II, LLC
c/o GGP Limited Partnership
110 North Wacker Drive
Chicago, Illinois 60606
Tel: (312) 960-5015
Fax: (312) 960-5475
Attn: General Counsel
225
If to Mall II Owner:
Grand Canal Shops II, LLC
c/o GGP Limited Partnership
110 North Wacker Drive
Chicago, Illinois 60606
Tel: (312) 960-5015
Fax: (312) 960-5475
Attn: General Counsel
If to Palazzo Condo:
Palazzo Condo Tower, LLC
3355 Las Vegas Boulevard South
Room 1C
Las Vegas, Nevada 89109
Attn: General Counsel
If to the Trustee:
The Bank of Nova Scotia
580 California Street
21st Floor
San Francisco, CA 94104
Attn: Corporate Banking Agency
San Francisco Station
If to the Building Department:
Clark County Building Division
Department of Development Services
4701 W. Russell Road
Las Vegas, Nevada 89118
Any Party may change its address for the purposes of this section by giving notice of such change
as aforesaid.
14.15.2 The holders of the Existing Mortgages (as defined below) and each other Mortgagee
shall be entitled to receive, in addition to any other notice rights contained herein, notice of
any default by the Party hereto whose property is encumbered by the applicable Mortgage, provided
that each Mortgagee other than holders of the Existing Mortgages (who shall not be required to
deliver a Form Notice) shall have
226
delivered a copy of a notice in the form herein provided to each
Party hereto (the
Form Notice
). The form of such Form Notice shall be as follows:
The undersigned, whose address is
does hereby certify
that it is the beneficiary under a Deed of Trust upon the land
described on
Exhibit A
attached hereto and/or the
buildings or other improvements thereon. In the event that any
notice shall be given of the default, under that certain Fourth
Amended and Restated Reciprocal Easement, Use and Operating
Agreement dated as of
, 2008 between Venetian Casino
Resort, LLC, Phase II Mall Subsidiary, LLC, Grand Canal Shops II,
LLC and Interface Group Nevada, Inc. (the
REA
), on the
part of the Party upon whose property is encumbered by such Deed
of Trust, a copy thereof shall be delivered to the undersigned who
shall have the right to cure such default as set forth in the REA.
Any such notice to a Mortgagee shall be given in the same manner as provided in Section 14.15.1
above. As used herein the term
Existing Mortgages
shall mean the collective reference to
(i) the Deeds of Trust (as defined in the Bank Credit Agreement),
each for the benefit of The Bank of Nova Scotia, as agent (in such capacity, the
Existing
Phase I Mortgagee
, the
Existing Phase II Mortgagee
, the
Existing SECC
Mortgagee
and the
Existing Residential Portion Mortgagee
) as the same may be further
amended, supplemented or otherwise modified or assigned from time to time, (ii) that certain Fee
and Leasehold Deed of Trust, Assignment of Rents and Leases, Security Agreement and Fixture Filing,
dated as of May 17, 2004, delivered by Mall I LLC for the benefit of Wells Fargo Bank, N.A. (as
successor in interest to Archon Financial, L.P.) (the
Existing Mall I Loan
), and
(iii) that certain Fee and Leasehold Deed of Trust, Security Instrument and Fixture Filing dated as
of the date hereof by Mall II LLC, as grantor, to First American Title Insurance Company as trustee
for the benefit of Deutsche Bank Trust Company Americas (the
Existing Mall II Loan
).
For purposes of all notices, demands, requests
227
and other communications hereunder, the address of
the holder of each Existing Mortgage is as follows:
with respect to the Existing Phase I Mortgagee, the Existing
Phase II Mortgagee or the Existing SECC Mortgagee:
The Bank of Nova Scotia
580 California Street, 21st Floor
San Francisco, California 94104
Attention: Mr. Alan Pendergast
and
The Bank of Nova Scotia, as Agent
GWS-Loan Operations
720 King Street West, 2nd Floor
c/o Central Mail Room
44 King Street West
Toronto, Ontario
M5H 1H1
Attention: John Hall
with respect to the Existing
Mall I Loan:
Wells Fargo
PriceWaterhouseCoopers
1201 Louisiana, Suite 2900
Houston, TX 77002-5678
Attention: Eloy Escobeda
with respect to the Existing
Mall II Loan:
Deutsche Bank Securities Inc.
200 Crescent Court, Suite 550
Dallas, Texas 75201
Attention: Scott Speer
and
Deutsche Bank Trust Company Americas
60 Wall Street, MS NYC 60-4216
New York, New York 10005
Attention: Anita Cheung
228
14.15.3 In the event that any notice shall be given of the default hereunder of a Party hereto
and such Defaulting Party shall fail to cure or commence to cure such default (and such default
shall continue after the giving of the applicable notice and the expiration of the applicable cure
period set forth in this Agreement), then and in that event the holder of any Mortgage affecting
the property of the Defaulting Party shall be entitled to receive an additional notice given in the
manner provided herein, that the Defaulting Party has failed so to cure such default, and such
Mortgagee shall have thirty (30) days after the receipt of said additional notice to cure any such
default, or, if such default cannot be cured within thirty (30) days, to diligently commence curing
within such time and diligently and expeditiously cure within a reasonable time thereafter
(including, without limitation, such time as shall be necessary to obtain possession of the
property where possession shall be necessary to effect a cure).
Section 14.16
Disputes/Independent Expert
. Notwithstanding anything to the contrary
contained in this Agreement, in the event there is a dispute that this Agreement
provides will be resolved by an Independent Expert among any of the Parties (the
Disputing Parties
) arising out of or relating to this Agreement and the Disputing Parties
cannot, with respect to any such dispute, resolve such dispute within sixty (60) days, then the
matter(s) in question shall be resolved in accordance with the further provisions of this Section.
In the event of any such disagreement, the Disputing Parties shall promptly notify the Independent
Expert (as defined below) of such disagreement and of their desire that such disagreement be
resolved by the Independent Expert. The Independent Expert shall be instructed to render its
decision within thirty (30) days (or any shorter time reasonably agreed to by the Disputing
Parties) after such notification. Each of the Disputing Parties shall be entitled to present
evidence and arguments to the Independent Expert, which evidence and arguments may include the
relevant provisions hereof. During the pendency of such dispute-resolution procedure, the
Disputing Parties shall continue their performance under this Agreement, including with respect to
the matter that is the subject of such procedure. The determination of the Independent Expert
acting as above provided (i) shall be conclusive and binding upon the Parties and (ii) shall in no
event modify, amend or supplement this Agreement in any manner. The Independent Expert shall be
required to give written notice to the Disputing Parties stating its determination, and shall
furnish to each Party a signed copy of such determination. Each of the Disputing Parties
229
shall pay
its proportionate share of the fees and expenses of the Independent Expert and all other expenses
of the above-described dispute resolution procedure (not including the attorneys fees, witness
fees and similar expenses of the Disputing Parties, which shall be borne separately by each of the
Parties). As used herein, the
Independent Expert
shall mean (a) with respect to any
dispute pertaining to architectural or engineering matters, an
appropriately licensed and/or registered (as applicable), reputable and independent architect
or engineer; (b) with respect to any dispute pertaining to hotel, casino, restaurant or retail
complex operation or management, a reputable and independent Person with experience in commercial
real estate operation and management; (c) with respect to any dispute pertaining to insurance, a
reputable and independent Person with experience in commercial real estate insurance; and (d) with
respect to any other dispute, a licensed, reputable and independent certified public accountant, in
each of (a), (b), (c) or (d) reasonably acceptable to the Disputing Parties. In all events, the
Independent Expert shall (i) not be affiliated with any Owner (or any Affiliate of any Owner) or
any Mortgagee
230
(or any Affiliate of any Mortgagee) and (ii) have at least ten (10) years of relevant
experience and expertise with respect to large commercial real estate projects in Las Vegas, Nevada
and/or Clark County, Nevada. The holder of a Mortgage may participate in any dispute involving an
Independent Expert in conjunction with the Party upon whose Lot it has a Mortgage.
Section 14.17
Savings.
If any provision of this Agreement or the application thereof
to any Person or circumstance shall be invalid or unenforceable to any extent, the remainder of
this Agreement and the application of such provision to other Persons or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
Section 14.18
No Shared Ownership
. The Parties hereto acknowledge and agree that this
Agreement is intended solely to regulate the rights and obligations of the Parties hereto and to
impose the easements and restrictions upon the property specifically
set forth herein, and except as set forth herein, each Party retains full ownership and control over its
own property.
Section 14.19
Headings
. The article and section headings are inserted for convenience
only and shall not affect construction of this Agreement.
Section 14.20
Counterparts
. This Agreement may be executed in any number of
counterparts, and each such counterpart will, for all purposes, be deemed an original instrument,
but all such counterparts together will constitute but one and the same agreement.
Section 14.21
Right to Injunction and Other Remedies
.
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14.21.1 In the event of any violation or threatened violation by any Person of any of the
terms, restrictions, covenants and conditions of this Agreement, any Party hereto shall have the
right to enjoin such violation or threatened violation in a court of competent jurisdiction;
provided, however, that subject to the next sentence, H/C II Owner, its Affiliates and their
respective successors and assigns shall not seek to terminate the right of Mall II Owner and its
Affiliates to use The Shoppes at The Palazzo Name or The Shoppes at The Palazzo Logo in any
injunction proceeding. The restriction described in the proviso clause of the preceding sentence
shall not be deemed to prevent H/C II Owner, its Affiliates or their respective successors and
assigns from seeking to prohibit the unauthorized use of The Shoppes at The Palazzo Name or The
Shoppes at The Palazzo Logo in any injunctive proceeding; provided, however, that H/C II Owner, its
Affiliates and their respective successors and assigns shall not have the right to seek an
injunction to prohibit Mall II Owner or its Affiliates from using the name The Shoppes at The
Palazzo
in connection with the operation and marketing of the Phase II Mall so long as such use is
consistent with the style guidelines described in
Exhibit R-2
attached hereto.
14.21.2 In the event of any violation or threatened violation by any Person of any of the
terms, restrictions, covenants and conditions of this Agreement, any Party hereto shall, in
addition to the right set forth in Section 14.21.1 above, have the right to all other remedies
available at law or in equity, including, with respect to a violation or threatened violation of
Section 3.3 or Section 14.3, the right to specific performance.
Section 14.22
Waiver of Jury Trial
. EACH PARTY HEREBY WAIVES ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT.
232
Section 14.23
No Waiver
. No delay or omission by any Party in exercising any right or
power accruing upon any default, non-compliance or failure of performance of any of the provisions
of this Agreement by any other Party shall be construed to be a waiver thereof. A waiver by any
Party of any of the obligations of any Party shall not be construed to be a waiver of any
subsequent breach of any other term, covenant or agreement set forth in this Agreement.
Section 14.24
Pronouns
. All personal pronouns used in this Agreement, whether in the
masculine, feminine or neuter gender, shall be deemed to include, and to refer also to, all other
genders; all references in the singular shall be deemed to include, and to refer also to, the
plural, and vice versa.
Section 14.25
Construction
. The word
in
with respect to an easement granted
in a particular parcel of land or a portion thereof shall mean, as the context may require,
in, to, on, over, through, over, upon, across, and under, or any one or more
of the foregoing.
Section 14.26
Governing Law
. This Agreement shall be governed and interpreted in
accordance with the laws of the State of Nevada.
Section 14.27
Entire Agreement
. This Agreement contains the entire agreement of the
Parties and this Agreement may only be amended, supplemented, changed, terminated or modified by an
agreement in writing signed by the Parties hereto, consented to by the Mortgagees affected thereby
and recorded in the appropriate public records.
Section 14.28
Recordation
. This Agreement shall be recorded in the Land Records of
Clark County, Nevada, with the costs of such recording to be shared equally by the Parties hereto.
233
Section 14.29
Successors and Assigns
. This Agreement shall be binding on the Parties
hereto and inure to the benefit of their respective heirs, legal representatives, successors and
assigns.
Section 14.30
Binding and Enforceable Agreements; Independent Obligations
.
14.30.1 This Agreement is and is intended to be a fully binding and enforceable contract
between the Parties notwithstanding that certain Parties are currently indirectly owned by the same
principal. Each Party expressly acknowledges that certain third parties, including the separate
creditors of each Party, 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. Each Party
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 arms-length terms or upon any direct or indirect common ownership of the Parties.
14.30.2 All obligations of any Party under this Agreement constitute independent obligations
of such Party and (except where expressly stated to be conditions) are not conditioned in any way
on performance by any other Party. Accordingly, the breach by any Party under this Agreement shall
not excuse performance by any other Party, except where this Agreement expressly states that one
Partys performance is conditioned upon performance by another Party. Nothing in the preceding two
sentences shall limit any right of any Party to recover damages or to obtain equitable relief on
account of any other Partys breach of this Agreement. All Parties acknowledge that every Party
will be making a substantial monetary investment in reliance on the terms of this
234
Agreement and the
independent obligations undertaken by each Party pursuant to this Agreement. Without this
Agreement, the Parties would not be able to achieve a coordinated development of the real property
burdened by this Agreement, which coordinated development is intended and expected to produce
substantial benefits for all Parties. All Parties acknowledge that it would be inequitable for any
Party to be excused from any obligations under this Agreement while retaining its interest in the
property encumbered (and benefited) by this Agreement.
14.30.3
Funds Held by Trustee
. Whenever Trustee is holding funds pursuant to this
Agreement, such funds shall be held in a segregated interest bearing account for the benefit of the
applicable Owners and the applicable Mortgagees.
Section 14.31
Shared Costs
. Wherever it is contemplated in this Agreement that Owners
will share costs, the Owner who contracts for or incurs such costs on behalf of all
such Owners shall do so only pursuant to arms-length agreements at market rates;
provided
that the foregoing shall not apply to an Owner who incurs expense to cure the
default of another Owner.
Section 14.32
No Duplication of Charges
. Notwithstanding the fact that a fee, expense
or other charge may be referenced more than once in this Agreement, no Party shall be required to
pay such fee, expense or other charge more than once.
Section 14.33
Section References
. Wherever the word Section appears with no
reference to a corresponding Article, the referenced Section shall be construed to be within the
Article wherein such reference is made.
Section 14.34
Modifications Requested by Mortgagees
. If any actual or prospective
Mortgagee requests any modification of this Agreement, then the Owners
235
shall, at the request of
the Owner whose Mortgagee is requesting such modification, promptly execute and deliver such
modification as such actual or prospective Mortgagee shall require, provided that such modification
does not affect the rights of any of the other Owners (other than to a de minimis extent), increase
the obligations of any of the other Owners hereunder (other than to a de minimis extent) or violate
any term of any other Owners Mortgages.
Section 14.35
Notice to Clark County Building Department
. The Parties acknowledge and
agree this Agreement allows the Lots to be in compliance with certain Legal Requirements,
including, without limitations, building code requirements of Clark County. Should this Agreement
be terminated or modified without the written concurrence of the Clark County Building Division of
the Department of Development Services (the
Building Department
) verifying that each Lot
will remain or be in compliance with
building code requirements, the Building Department could prohibit continued operation of the
business of a Party until compliance with all Legal Requirements. Although Clark County is not a
Party, each Party covenants and agrees to give notice to Clark County in the manner provided herein
prior to any modification or termination of this Agreement.
Section 14.36
Other Agreements
. Nothing in this Agreement is intended to constitute a
waiver of any rights and obligations contained in the Phase II Mall Agreement or in that certain
Joint Use and Operating Agreement dated February 14, 2005 between H/C I Owner and Mall I Owner, as
the same may hereafter be amended, both of which remain in full force and effect. Without limiting
the generality of the foregoing, nothing in this Agreement is intended to vary the terms of
Section 2 of Article I of such Joint Use and
236
Operating Agreement, and this Agreement shall be included within the definition of
Transactional Documents (as defined therein).
ARTICLE 15
ARBITRATION
Section 15.1
Disputes Covered
. Any dispute including those arising from lack of approval, controversies or disagreements
between the Parties or arising from the interpretation or application of any Article or Section,
and any disputes in this Agreement which by specific provisions are made subject to arbitration
shall be resolved by arbitration, as provided herein;
provided
,
however
, that any Party hereto may seek prohibitory injunctive relief without first
submitting a controversy to arbitration.
Section 15.2
Arbitration Procedures
.
15.2.1 If the Parties (the
Arbitrating Parties
) that are required to agree on an
arbitrable dispute cannot reach an agreement within thirty (30) days after notice of an arbitrable
dispute is given by any Arbitrating Party to the other Party or Parties, then any Arbitrating Party
may at any time after the end of said thirty (30) day period refer the dispute to arbitration by
notifying any other Arbitrating Party thereof, and the Arbitrating Parties agree to cooperate in
obtaining such arbitration.
15.2.2 Each Arbitrating Party shall within twenty (20) days of its receipt of such
notification designate one Person, as hereinafter provided, to represent it as an arbitrator. The
arbitrators so appointed by the Arbitrating Parties shall together designate one or two additional
Persons as arbitrators to the end that the total number of arbitrators shall be an odd number. The
appointment of all additional arbitrators under this Section shall be in writing and shall be
submitted to the Arbitrating Parties within ten (10) days following the selection of the last
arbitrator selected by the Arbitrating Parties. Any
237
Person designated as an arbitrator shall be
knowledgeable and experienced in the matters sought to be arbitrated, and shall in all events
(i) not be affiliated with any Owner (or any Affiliate of any Owner) or any Mortgagee (or any
affiliate of any Mortgagee) and (ii) have at least ten (10) years of relevant experience and
expertise with respect to large commercial real estate projects in Las Vegas, Nevada and/or Clark
County, Nevada. If the dispute to be arbitrated deals with construction, the arbitrator so
appointed shall be experienced and
knowledgeable in the construction industry as it relates to the nature of the structure to
which such arbitration applies. Similarly, any arbitrator appointed in an architectural dispute
shall be qualified as respects architecture as it relates to the nature of the structure to which
such arbitration applies.
15.2.3 The arbitrators shall meet or otherwise confer as deemed necessary by the arbitrators
to resolve the dispute and a decision of a majority of the arbitrators will be binding upon the
Arbitrating Parties. The decision of the arbitrators shall be in writing and shall be made as
promptly as possible after the designation of the last additional arbitrator, but in no event later
than thirty (30) days from the date of the designation of the last additional arbitrator. A copy
of the decision of the arbitrators shall be signed by at least a majority of the arbitrators and
given to each Arbitrating Party and its Mortgagee in the manner provided in Section 14.15 of this
Agreement for the giving of notice.
15.2.4 For each arbitrable dispute the cost and expense of the arbitrators and arbitration
proceeding (except for an Arbitrating Partys attorneys fees) shall be paid and shared by the
Arbitrating Parties, unless the arbitrators assess such cost and expense unequally between the
Arbitrating Parties.
238
15.2.5 The decision of the arbitrators (i) may be entered as a judgment in a court of
competent jurisdiction and (ii) shall in no event modify, amend or supplement this Agreement in any
manner. All arbitration conducted under this Article 15 shall be in accordance with the rules of
the American Arbitration Association, to the extent such rules do not conflict with the procedures
herein set forth. To the extent permitted by law, compliance with this Article 15 is a condition
precedent to the commencement by any
Party of a judicial proceeding arising out of a dispute which is subject to arbitration
hereunder.
15.2.6 The holder of a Mortgage may participate in any arbitration proceedings in conjunction
with the Party upon whose Lot it has a Mortgage.
ARTICLE 16
CONDOMINIUM
Section 16.1
Preliminary Matters
.
16.1.1 Phase I LLC intends to grant Palazzo Condo an encroachment easement with respect to a
portion of the H/C I Space (such easement, the
Phase I Easement
, and such portion, the
Phase I Portion
).
16.1.2 Phase II LLC intends to grant Palazzo Condo an encroachment easement with respect to a
portion of the airspace above the Mall II Space (such easement, the
Phase II Easement
,
and such portion, the
Phase II Portion
).
16.1.3 Palazzo Condo intends to construct in the Residential Portion, the Phase I Portion and
the Phase II Portion (collectively, the
Condominium Space
), and convert to a condominium
form of ownership, a residential development (the
Condominium
).
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16.1.4 The term
Condominium Owner
shall mean, at any given time, the Person or
Persons who then hold(s) the fee interest in the Residential Portion (such interest, the
Residential Interest
), the Phase I Easement and the Phase II Easement.
Section 16.2
Easement
. Each of the Owners hereby grants to Palazzo Condo and to the Person constructing the
Condominium a non-exclusive easement in, on, over, upon, through and
across its respective Lot for passage, ingress and egress, and otherwise as reasonably
necessary, in connection with the construction of the Condominium, provided that (a) such easement
shall be subject to reasonable rules and regulations established by such Owner from time to time,
(b) at any time during which the SECC, the Venetian and/or the Palazzo or any portion thereof is
open to the general public,
Palazzo Condo and such Person shall (i) use commercially reasonable
efforts to minimize interference with the use, enjoyment and occupancy of, and the conduct by SECC
Owner (including, without limitation, SECC Owners parking rights, access to and from the SECC and
rights to Utility Equipment and the HVAC Plant under this Agreement), H/C I Owner, Mall I Owner,
H/C II Owner or Mall II Owner and their respective tenants of its respective business at, the SECC,
the Venetian and the Palazzo, as applicable, (ii) terminate, as soon as reasonably practicable in
accordance with reasonably prudent construction practices, any such interference and (iii) give
SECC Owner, H/C I Owner, Mall I Owner, H/C II Owner and Mall II Owner a reasonably detailed
schedule of any such construction-related activities prior to the commencement of any such
construction-related activities, such schedule to be updated not less frequently than monthly, and
(c) if any construction-related activity in connection with the Condominium is reasonably likely to
cause Mall I Owner to be in breach of any covenant or agreement made as of the date hereof with its
Mortgagee,
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Palazzo Condo and such Person shall, promptly upon the written request of Mall I Owner,
which request must specify in reasonable detail how the activity is causing or is reasonably likely
to cause such a breach, stop such activity or modify such activity so that there is no breach or
reasonably likely breach.
Section 16.3
Electric Substation
. During the construction of the Condominium, the Electric Substation will distribute
electric service to the Condominium Space.
Section 16.4
Other Agreements
. The Parties hereby agree to the following matters relating to the existence of the
Condominium Space and the development and operation of the Condominium (such matters, the
Condo Matters
):
16.4.1 the terms and provisions of this Agreement binding on, and for the benefit of, all of
the Owners or all of the Lots or improvements therein, as applicable, shall in each case be and
hereby are extended to the extent necessary to cover Condominium Owner, the Condominium Space or
the Condominium, as applicable and, at minimum, as required to comply with applicable building
codes and Legal Requirements, including without limitation provisions relating to (i) the granting
of reciprocal easements between Condominium Owner and each of the other Owners for (w) the receipt
of electricity from the Electric Substation and all of its related equipment, (x) Utility Activity
in connection with Utility Equipment, (y) maintenance and repair and (z) access to emergency fire
exits or service corridors or stairs, (ii) the granting, by each of the Owners to H/C I Owner, of
rights of access to any exclusive areas (containing utility equipment or other facilities),
(iii) agreements by Condominium Owner to perform the construction and subsequent maintenance and
repair of the Condominium so as to minimize (to the extent practicable) disruption of the operation
of the other Lots and (iv) agreements between Condominium
241
Owner and each of the other Owners
concerning notice of and restoration following a Casualty or Taking affecting the applicable Lots,
16.4.2 the terms and provisions of Schedule II of this Agreement shall be appropriately
modified to reflect the provision of heating, ventilating and air conditioning services to the
Condominium Space, and such modification shall be effective as of the earlier of (x) the date that
any portion of the Condominium Space is occupied and (y) the date of the first closing of a sale of
a residential unit in the Condominium Space (such date, the
Condo Effective Date
),
16.4.3 Hotel/Casino/Mall/SECC Common Charges shall be appropriately allocated to Condominium
Owner and the existing allocations of Hotel/Casino/Mall/SECC Common Charges to the other Owners
shall be appropriately modified to reflect such allocations, which allocations and modifications
shall be effective as of the Condo Effective Date,
16.4.4 there shall be agreements among the Parties concerning the rights of Condominium
occupants, employees, patrons and guests to use parking spaces available to the occupants,
employees, patrons and guests of the other Lots and Owners and any corresponding and appropriate
modifications to Schedule II, which agreements and modifications shall be effective as of the Condo
Effective Date,
16.4.5 there shall be agreements among the Parties concerning arrangements for insurance for
the Condominium Space, including without limitation a provision for a blanket policy covering the
Condominium, the Venetian and/or the Palazzo, which arrangements may or may not be the same as
those set forth in Article 10 of this REA, and
242
16.4.6 Condominium Owner agrees to indemnify each other Owner with respect to any damage or
loss (including, without limitation, business interruption) to or
destruction of any property owned by such other Owner or such other Owners Tenants as a
result of the construction of the Condominium, subject to exceptions substantially similar to
clauses (i)-(iii) of the first sentence of Section 14.9.
16.4.7 The above-described agreements with respect to the Condo Matters shall be documented in
more detail and on commercially reasonable terms in an amendment to this Agreement (the
Condo
Amendment
). The Parties shall promptly after the date hereof commence such documentation, and
shall execute and deliver the Condo Amendment no later than ninety (90) days following the date
hereof. If H/C I Owner, Mall I Owner, H/C II Owner, Mall II Owner and SECC Owner are not able to
agree on the terms of the Condo Amendment or any portion thereof within said ninety (90)days, the
matter shall be referred to an Independent Expert in accordance with the provisions of
Section 14.16.
[signature page follows]
243
IN WITNESS WHEREOF, the Parties hereto have set their hands the day and year first above
written.
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VENETIAN CASINO RESORT, LLC
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By: Las Vegas Sands, LLC, as managing member
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By:
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/s/ Robert G. Goldstein
Name: Robert G. Goldstein
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Title: Senior Vice President
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INTERFACE GROUP-NEVADA, INC.
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By:
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/s/ Robert P. Rozek
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Name: Robert P. Rozek
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Title: Senior Vice President
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PALAZZO CONDO TOWER, LLC
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By: [Las Vegas Sands, LLC, as managing member]
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By:
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/s/ Robert G. Goldstein
Name: Robert G. Goldstein
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Title: Senior Vice President
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244
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PHASE II MALL SUBSIDIARY, LLC
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By: Palazzo Exchange, LLC, its sole member
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By: CDECRE, LLC, its sole member
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By:
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/s/ Mary Cunningham-Watson
Name: Mary Cunningham-Watson
Title: President
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GRAND CANAL SHOPS II, LLC
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By:
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/s/ Bernard Freibaum
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Name: Bernard Freibaum
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Title: Authorized Officer
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245
THE FOLLOWING PARTIES ARE EXECUTING THIS
AGREEMENT SOLELY FOR THE PURPOSE OF
AGREEING TO BE BOUND BY SECTIONS 14.3.4
AND 14.3.5 OF THIS AGREEMENT:
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GGP-CANAL SHOPPES L.L.C.
By: GGP HOLDING II, INC.,
its sole member
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By:
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/s/ Bernard Freibaum
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Name:
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Bernard Freibaum
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Title:
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Authorized Officer
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GGP HOLDING II, INC.
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By:
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/s/ Bernard Freibaum
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Name:
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Bernard Freibaum
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Title:
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Authorized Officer
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GGP HOLDING, INC.
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By:
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/s/ Bernard Freibaum
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Name:
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Bernard Freibaum
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Title:
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Authorized Officer
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GENERAL GROWTH PROPERTIES, INC.
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By:
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/s/ Bernard Freibaum
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Name:
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Bernard Freibaum
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Title:
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Authorized Officer
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State of Nevada
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)
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ss.:
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County of Clark
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)
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This instrument was acknowledged before me on February 28, 2008, by Robert G. Goldstein, of
Las Vegas Sands, LLC, the managing member of VENETIAN CASINO RESORT, LLC.
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By:
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/s/ Jason Pederson
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(Signature of notarial officer):
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Name:
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Jason Pederson
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(Seal, if any)
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Title:
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Notary Public, State of Nevada
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My commission expires: January 16, 2010
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247
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State of Nevada
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)
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ss.:
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County of Clark
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)
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This instrument was acknowledged before me on February 28, 2008, by Robert P. Rozek as Senior
Vice President & CFO of INTERFACE GROUP-NEVADA, INC.
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By:
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/s/ Jason Pederson
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(Signature of notarial officer)
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Name:
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Jason Pederson
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(Seal, if any)
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Title:
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Notary Public, State of Nevada
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My commission expires: January 16, 2010
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State of Nevada
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)
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ss.:
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County of Clark
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)
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This instrument was acknowledged before me on February 28, 2008, by Robert G. Goldstein as
Senior Vice President of PALAZZO CONDO TOWER, LLC.
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By:
/s/ Jason Pederson
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(Signature of notarial officer)
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Name:
Jason Pederson
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(Seal, if any)
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Title: Notary Public, State of Nevada
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My commission expires: January 16, 2010
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249
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State of Illinois
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)
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ss.:
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County of Cook
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)
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This instrument was acknowledged before me on February 25, 2008, by Mary Cunningham, President
of PHASE II MALL SUBSIDIARY, LLC.
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By:
/s/ Isabella J. Herrera
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(Signature of notarial officer)
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Name:
Isabella J. Herrera
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(Seal, if any)
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Title: Notary Public, State of Illinois
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My commission expires: April 13, 2009
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250
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State of Illinois
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)
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ss.:
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County of Cook
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)
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This instrument was acknowledged before me on February 25th, 2008, by Bernard Freibaum,
Authorized Officer of GRAND CANAL SHOPS II, LLC.
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By:
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/s/ Kathleen Dempsey Boyle
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(Signature of notarial officer)
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Name:
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Kathleen Dempsey Boyle
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(Seal, if any)
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Title:
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Notary Public, State of Illinois
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My commission expires: April 2, 2009
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State of Illinois
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)
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: ss.:
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County of Cook
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)
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This instrument was acknowledged before me on February 25th, 2008, by Bernard Freibaum,
Authorized Officer of GGP Holding II, Inc. the sole member of GGP-CANAL SHOPPES L.L.C..
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By:
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/s/ Kathleen Dempsey Boyle
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(Signature of notarial officer)
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Name:
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Kathleen Dempsey Boyle
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(Seal, if any)
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Title:
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Notary Public, State of Illinois
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My commission expires: April 2, 2009
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252
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State of Illinois
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)
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:
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ss.:
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County of Cook
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)
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This instrument was acknowledged before me on February 25, 2008, by Bernard Freibaum,
Authorized Officer of GGP HOLDING II, INC.
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By:
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/s/ Kathleen Dempsey Boyle
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(Signature of notarial officer)
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Name:
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Kathleen Dempsey Boyle
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(Seal, if any)
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Title:
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Notary Public, State of Illinois
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My commission expires: April 2, 2009
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253
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State of Illinois
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)
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:
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ss.:
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County of Cook
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)
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This instrument was acknowledged before me on February 25, 2008, by Bernard Freibaum,
Authorized Officer of GGP HOLDING, INC.
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By:
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/s/ Kathleen Dempsey Boyle
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(Signature of notarial officer)
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Name:
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Kathleen Dempsey Boyle
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(Seal, if any)
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Title:
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Notary Public, State of Illinois
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My commission expires: April 2, 2009
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254
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State of Illinois
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)
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:
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ss.:
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County of Cook
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)
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This instrument was acknowledged before me on February 25, 2008, by Bernard Freibaum,
Authorized Officer of GENERAL GROWTH PROPERTIES, INC.
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By:
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/s/ Kathleen Dempsey Boyle
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(Signature of notarial officer)
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Name:
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Kathleen Dempsey Boyle
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(Seal, if any)
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Title:
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Notary Public, State of Illinois
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My commission expires: April 2, 2009
255
SCHEDULE I
Definitions
The following terms shall have the meanings set forth in this
Schedule I
:
1.
Accounting Period
shall mean any period commencing January 1 and ending on the
next following December 31.
2.
Adelson
shall mean Sheldon G. Adelson.
3.
Affected Mortgagee
shall mean a Mortgagee who holds a Mortgage encumbering the
Lot affected by the event in question.
4.
Affiliate
when used with respect to a Person, shall mean (i) a Person which,
directly or indirectly, controls, is controlled by or is under common control with such Person or
(ii) a direct or indirect owner, officer, director, employee or trustee of, or a Person which
serves in a similar capacity with respect to, such Person. For the purpose of this definition,
control of a Person which is not an individual shall mean the power (through ownership of more than
50% of the voting equity interests of such Person or through any other means) to direct the
management and policies of such Person.
5.
Alteration
shall mean any improvement, alteration, addition, restoration,
replacement, change or other work, or signage, to the interior or exterior of the Venetian (or the
Palazzo, as applicable) made by or for any Owner or any Tenant.
6.
Architect
shall mean any professional architect licensed in the State of Nevada
selected and/or approved by H/C I Owner or H/C II Owner, as applicable (which approval shall not be
unreasonably withheld, conditioned or delayed).
7.
Automobile Parking Area
shall mean each of the Phase I Automobile Parking Area
and the Phase II Automobile Parking Area.
256
8.
Bank Credit Agreement
shall mean that certain Credit and Guaranty Agreement,
dated as of May 23, 2007, by and among LVSI, as borrower, certain Affiliates of LVSI, as
guarantors, the lenders from time to time parties thereto, The Bank of Nova Scotia, as
Administrative Agent and Collateral Agent, Goldman Sachs Credit Partners L.P., as Syndication
Agent, Joint Lead Arranger and Joint Bookrunner, and other parties, as the same may be amended,
modified and/or restated from time to time.
9.
Business Day
shall mean any day other than Saturday, Sunday, a Federal holiday, a
holiday recognized by the State of Nevada or any day on which banks in Nevada are required or
permitted to be closed.
10.
Buy-Out Option Purchase Price
shall mean the sum, without duplication, of
(a) the principal balance of the Mall I Loan or Mall II Loan, as applicable, (b) accrued and unpaid
interest on the Mall I Loan or Mall II Loan, as applicable, up to (but excluding) the date of
purchase, (c) all other amounts owed by Mall I Owner under the Mall I Loan Documents or by Mall II
Owner under the Mall II Loan Documents as of the date of purchase, including, without limitation
(but only to the extent so owed) (1) any unreimbursed advances made by the servicer of the Mall I
Loan or the Mall II Loan, as applicable, with interest at the applicable rate, (2) any servicing
and special servicing fees, (3) any exit fees, (4) any prepayment, yield maintenance or similar
premiums and (5) if the date of purchase is not a scheduled payment date under the Mall I Loan
Documents or the Mall II Loan Documents, as applicable, accrued and unpaid interest on the Mall I
Loan or Mall II Loan, as applicable, from the date of purchase up to (but excluding) the scheduled
payment date next succeeding the date of purchase and (d) all reasonable fees and expenses
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incurred by Mall I Mortgagee or the Mall II Mortgagee, as applicable, in connection with the
Buy-Out Option.
11.
Clark County
shall mean Clark County, Nevada.
12.
Commencement Date
shall mean the date hereof.
13.
Commercially Reasonable Owner
shall mean, with respect to a given Owner and its
Lot, a commercially reasonable and prudent owner of such Lot together with any buildings and/or
improvements located thereon or therein (and of no other property, rights or interests) (assuming
that, at the time in question, such owner, has equity in such Owners Lot together with buildings
and/or improvements).
14.
Competitor
shall mean a Person other than H/C I Owner or H/C II Owner that
(i) owns or operates (or is an Affiliate of an entity that owns or operates) a hotel located in
Clark County, Nevada; Pennsylvania; Kansas; Macau or Singapore, a convention center located in
Clark County, Nevada; Singapore or Macau or any casino and/or (ii) is a union pension fund or an
Affiliate thereof.
15.
Control
of a Person which is not an individual shall mean the power (through
ownership of more than 50% of the voting equity interests of such Person or through any other
means) to direct the management and policies of such Person.
16.
CPI
shall have the meaning set forth in the Notes of Schedule II.
17.
CPI Adjustment
shall have the meaning set forth in the Notes of Schedule II.
18.
CPI Increase
shall have the meaning set forth in the Notes of Schedule II.
19.
Destination Areas
shall mean with respect to any Owner (i) its Lot, (ii) public
sidewalks, streets, roads, rights of way and the like, (iii) (with respect to Owners
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other than SECC Owner) H/C I Limited Common Areas, Mall I Limited Common Areas, H/C II Limited
Common Areas and Mall II Limited Common Areas and (iv) H/C-Mall I Common Areas and H/C-Mall II
Common Areas.
20.
Effective Date
shall mean the date of this Agreement as set forth on the first
page of this Agreement.
21.
Electricity Provider
shall mean a reasonably experienced, competent and legally
qualified electricity provider.
22.
Employee Parking Garage
shall mean a parking garage maintained or caused to be
maintained by H/C I Owner and/or H/C II Owner and made available for use by the employees of any
Owners or Owners Tenants. The current Employee Parking Garage is the garage shared with Harrahs
Las Vegas, Inc. located on the south side of that certain shared roadway between Harrahs and the
Venetian; provided, that from time to time and at any time the location of the Employee Parking
Garage may be changed by H/C I Owner and or H/C II Owner.
23.
ESA
means an Energy Services Agreement between an Owner and the HVAC Operator.
24.
Expiration Date
shall mean November 14, 2147.
25.
Facilities
means and includes annunciators, antennae, boxes, brackets, cabinets,
cables, coils, computers, conduits, controls, control centers, cooling towers, couplers, devices,
ducts, equipment (including, without being limited to, heating, ventilating, air conditioning and
plumbing equipment), fans, fixtures, generators, hangers, heat traces, indicators, junctions,
lines, machines, meters, motors, outlets, panels, pipes, pumps, radiators, risers, starters,
switches, switchboards, systems, tanks, transformers,
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valves, wiring and the like used in providing services from time to time in any part of the
Phase I Base Building or the Phase II Base Building, as the case may be, including, without being
limited to, air conditioning, alarm, antenna, circulation, cleaning, communication, cooling,
electric, elevator, exhaust, heating, natural gas, plumbing, radio, recording, sanitary, security,
sensing, telephone, television, transportation, ventilation and water service.
26.
Financial Covenant
shall mean that, as of the applicable date, the applicable
Owner (a) has, for the trailing twelve month period ending with the last full fiscal quarter, a
Consolidated Interest Coverage Ratio (as defined in the Bank Credit Agreement as in effect as of
the date hereof) equal to or greater than 1.0:1.0 and (b) is not in default (beyond any applicable
notice and/or grace periods and excluding defaults that have been waived) under any indebtedness
for borrowed money having a principal amount in excess of one hundred million dollars
($100,000,000.00).
27.
First-class
shall mean, as of any point in time, with the highest standards or
of the highest quality, or both, as applicable, in accordance with then-recognized standards in the
industry in question;
provided
,
however
, that wherever the foregoing shall be used
in connection with the Phase I Hotel/Casino, the Phase II Hotel/Casino, the Phase I Mall, the
Mall I Occupants, the Phase II Mall and/or the Mall II Occupants, and/or any matters related to any
of the foregoing, its meaning shall be with reference to such standards then prevailing on Las
Vegas Boulevard, Clark County, Nevada.
28.
Force Majeure Event
shall mean any of the following, which shall render any
Party unable to fulfill, or delays such Party in fulfilling, any of its obligations under this
Agreement: fire or other casualty; acts of God; war; riot or other civil disturbance;
260
accident; emergency; strike or other labor trouble; governmental preemption of priorities or
other controls in connection with a national or other public emergency; shortages or material
defects in the quality of fuel, gas, steam, water, electricity, supplies or labor; or any other
event preventing or delaying a Party from fulfilling any obligation, whether similar or dissimilar,
beyond such Partys reasonable control, as the case may be, provided that under no circumstances
shall financial inability of any Party or any Affiliate thereof be deemed a Force Majeure Event.
29.
Full Replacement Cost
shall mean the actual replacement cost of the property
(real and/or personal) in question (as the cost may from time to time increase or decrease)
determined from time to time (but not more frequently than once in any twelve-month period) at the
request of any Party by an engineer or appraiser in the regular employ of the applicable insurance
company or applicable insurance broker.
30.
Gaming Licenses
means every license, franchise or other authorization to own,
lease, operate or otherwise conduct gaming activities of LVSI, Phase I LLC or certain of their
subsidiaries, including all such licenses granted under the Nevada Gaming Control Act, as codified
in Chapter 463 of the Nevada Revised Statutes, as amended from time to time, and the regulations of
the Nevada State Gaming Commission promulgated thereunder, as amended from time to time, and other
applicable federal, state, foreign or local laws.
31.
Governmental Authority(ies)
shall mean any and all federal, state, city and
county governments and quasi-governmental agencies, and all departments, commissions, boards,
bureaus and offices thereof, in each case having or claiming
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jurisdiction over all or any portion of the Phase I Land, the Mall I Space, the Phase II Land,
the Mall II Space or the SECC Land.
32.
H/C I Limited Common Areas
shall mean the areas described in Section 2.4.1 and
depicted on
Exhibit M
attached hereto and made a part hereof and labeled H/C Limited
Common Areas.
33.
H/C I Pass-through Areas
shall mean the areas and all buildings, structures,
equipment and facilities located thereon or therein, as described in Section 2.4.1 and depicted in
Exhibit M
and labeled H/C Pass-through Areas.
34.
H/C II Limited Common Areas
shall mean the areas described in Section 2.4.1 and
depicted on
Exhibit M
attached hereto and made a part hereof and labeled H/C II Limited
Common Areas.
35.
H/C II Pass-through Areas
shall mean the areas and all buildings, structures,
equipment and facilities located thereon or therein, as described in Section 2.4.1 and depicted in
Exhibit M
and labeled H/C II Pass-through Areas.
36.
H/C-Mall I Common Areas
shall mean the areas and all elevators, escalators and
similar mechanical conveyancing devices, loading docks, truck/loading areas and all other
buildings, structures, equipment and facilities located thereon or therein, as described in Section
2.4.1 and depicted on
Exhibit M
and labeled H/C-Mall Common Areas.
37.
H/C-Mall II Common Areas
shall mean the areas (and all elevators, escalators and
similar mechanical conveyancing devices, loading docks, truck/loading areas and all other
buildings, structures, equipment and facilities located thereon or therein)
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as described in Section 2.4.1 and depicted on
Exhibit M
and labeled H/C-Mall II
Common Areas.
38.
Hotel/Casino/Mall/SECC Common Area Charges
shall mean the total of all monies
paid out during an Accounting Period (x) by H/C I Owner for reasonable costs and expenses
(including capital costs and expenses) directly relating to (i) the maintenance, repair, operation
and management of the Phase I Base Building, Venetian Building Shell and Core, Electric Substation,
Phase I Automobile Parking Area and the H/C-Mall I Common Areas, as provided in Article 5 and
elsewhere in the Agreement and (ii) H/C I Owners obligations under Sections 5.1.1.1 (to the extent
relating to the H/C-Mall I Common Areas), 5.1.1.2 and 5.1.1.3 and (y) by H/C II Owner for
reasonable costs and expenses (including capital costs and expenses) directly relating to (i) the
maintenance, repair, operation and management of the Phase II Base Building, Palazzo Building Shell
and Core, Phase II Automobile Parking Area and the H/C-Mall II Common Areas, as provided in
Article 5 and elsewhere in the Agreement and (ii) H/C II Owners obligations under Sections 5.2.1.1
(to the extent relating to the H/C-Mall II Common Areas), 5.2.1.2 and 5.2.1.3.
Hotel/Casino/Mall/SECC Common Area Charges shall include but not be limited to: all rental charges
for equipment and costs of small tools and supplies; all acquisition costs of maintenance
equipment; policing, security protection, Maintenance, traffic direction, control and regulation of
the Automobile Parking Areas; all costs of cleaning the Automobile Parking Areas, the H/C-Mall I
Common Areas and the H/C-Mall II Common Areas and removal of rubbish, dirt and debris therefrom;
the cost of landscape maintenance and supplies for the Automobile Parking Areas, the H/C-Mall I
Common Areas and the H/C-Mall II Common Areas, including, without limitation,
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perimeter sidewalks; all charges for utility services utilized in connection with Automobile
Parking Areas, the H/C-Mall I Common Areas and the H/C-Mall II Common Areas together with all costs
of maintaining lighting fixtures therein and thereon; all costs of pest control for the Venetian
and the Palazzo; all costs associated with maintaining the Employee Parking Garage and/or any other
parking facility, in each instance pro rata based on the extent to which each Owner (or the
employees, patrons, guests, invitees or employees of Tenants of such Owner) is permitted to use
such facility (and the respective employee parking needs of each Owner) and all premiums for fire
and extended coverage insurance and for public liability and property damage insurance required to
be carried by H/C I Owner pursuant to the provisions of Article 10 (except with respect to the
Phase I Mall or the Phase II Mall in the event that Mall I Owner or Mall II Owner, as applicable,
has elected to obtain such insurance on its own behalf). Mall I Owner and Mall II Owner shall not
be entitled to any depreciation applicable to any Hotel/Casino/Mall/SECC Common Area Charges that
are capital expenditures.
39.
HVAC Facilities
shall mean all HVAC equipment connected to or associated with
the HVAC Plant.
40.
HVAC Plant
shall mean the central utility plant on the Phase I Land which plant,
as of the date hereof, provides thermal energy (heating, ventilation and air-conditioning) to the
Venetian (including the Phase I Mall), the H/C II Space, the Mall II Space and the SECC, as more
particularly set forth on
Exhibit J
attached hereto and made a part hereof.
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41.
HVAC Plant Percentage
means, with respect to a Serviced Owner, the
Proportionate Share, as such percentage is calculated in Section 4.1 and Schedules 4.1(A) and
4.1(B) of its Qualifying ESA.
42.
Independent
means, when used with respect to any Person, a Person who (i) does
not have any direct or indirect financial interest in any Lot or any improvements constructed or
business operated thereon, in any Owner or in any Affiliate of any Owner or in any constituent,
shareholder, or beneficiary of any Owner, and (ii) is not connected with any Owner or any Affiliate
of any Owner or any constituent, shareholder, or beneficiary of any Owner as an officer, employee,
promoter, underwriter, trustee, partner, director or person performing similar functions.
43.
Initial ESAs
means the three (3) ESAs dated as of May 1, 1997 between
Atlantic-Pacific, Las Vegas, LLC (Sempras predecessor-in-interest) and, respectively, H/C I Owner,
Mall I Owner and SECC Owner.
44.
Insurance Share
means an Owners proportionate share of applicable insurance
premiums in accordance with the terms of this Agreement, if and as applicable.
45.
Lease
shall mean any lease, sublease, license, sublicense, concession,
subconcession or other agreement granting the right to use or occupy between Mall I Owner, H/C I
Owner, Mall II Owner or H/C II Owner, on the one hand, and any Tenant, on the other, pursuant to
which a portion of the Tenant Space is demised, and all amendments, modifications and supplements
thereto.
46.
Legal Requirements
shall mean all present and future laws, ordinances, orders,
rules, regulations and requirements of all Governmental Authorities, including, without limitation,
all environmental requirements, and all orders, rules and regulations of
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the National and Local Boards of Fire Underwriters or any other body or bodies exercising
similar functions, foreseen or unforeseen, ordinary as well as extraordinary.
47.
Limited Common Areas
shall mean, collectively, the Mall I Limited Common Areas,
the H/C I Limited Common Areas, the Mall II Limited Common Areas and the H/C II Limited Common
Areas.
48.
Liquidated Damages
shall mean all amounts collected pursuant to Third Party
Warranties.
49.
Lot
shall mean any of the H/C I Space, the Mall I Space, the Phase II Land, the
Mall II Space or the SECC Land.
50.
Maintenance
shall mean, with respect to a particular Automobile Parking Area or
Parking Access Easement Area, all general and extraordinary maintenance and repairs, replacements
and restoration necessary to provide use and enjoyment of the same in accordance with the standards
of First-class hotel/casinos, First-class restaurant and retail complexes and all applicable Legal
Requirements as set forth in this Agreement. Maintenance shall include, but shall not be limited
to, cleaning, sweeping, providing janitorial services, painting, re-striping, filling of
chuckholes, repairing and resurfacing of curbs, sidewalks and roadbeds, maintaining irrigation and
drainage systems, removing debris and trash, undesirable weeds and vegetation, maintaining signs,
markers, lighting and other utilities, maintaining fencing and landscaping, if any, and any other
work reasonably necessary or proper to maintain the easement in good, clean and sanitary condition
and repair. In addition, with respect to easement areas for roadway or vehicular access, such
maintenance shall meet all standards promulgated by Clark County applicable to similar roadways or
vehicular access ways held or controlled by Clark County.
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51.
Mall I H/C Exclusive Areas
shall mean the areas described in Section 2.4.1 and
depicted on
Exhibit M
and labeled Mall I H/C Exclusive Areas.
52.
Mall I Limited Common Areas
shall mean the areas described in Section 2.4.1 and
depicted on
Exhibit M
and labeled Mall I Limited Common Areas.
53.
Mall I Mortgagee
shall mean a Mortgagee who is the holder of a Mortgage (or any
agent or trustee acting on its behalf) encumbering the Mall I Space.
54.
Mall I Pass-through Areas
shall mean the areas and all buildings, structures,
equipment and facilities located thereon or therein, as described in Section 2.4.1 and depicted on
Exhibit M
and labeled Mall I Pass-through Areas.
55.
Mall I Property
shall mean all inventory, trade fixtures, furniture,
furnishings, equipment and signs which are installed or placed by H/C I Owner at the Mall I Space
or installed or placed by Mall I Owner or any Tenant at the Mall I Space.
56.
Mall II Buyer
shall mean GGP Limited Partnership.
57.
Mall II H/C Exclusive Areas
shall mean the areas described in Section 2.4.1 and
depicted on
Exhibit M
and labeled Mall II H/C Exclusive Areas.
58.
Mall II Limited Common Areas
shall mean the areas described in Section 2.4.1 and
depicted on
Exhibit M
and labeled Mall II Limited Common Areas.
59.
Mall II Mortgagee
shall mean a Mortgagee who is the holder of a Mortgage (or any
agent or trustee acting on its behalf) encumbering the Mall II Space.
60.
Mall II Pass-through Areas
shall mean the areas and all buildings, structures,
equipment and facilities located thereon or therein, as described in Section 2.4.1 and depicted on
Exhibit M
and labeled Mall II Pass-through Areas.
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61.
Mall II Property
shall mean all inventory, trade fixtures, furniture,
furnishings, equipment and signs which are installed or placed by H/C II Owner at the Mall II Space
or installed or placed by Mall II Owner or any Tenant at the Mall II Space.
62.
Material Adverse Effect
means with respect to any given Owner and its Lot any
event or condition that has a material adverse effect upon (i) the business operations of such
Owner, taken as a whole, the Lot of such Owner together with any improvements constructed therein
or thereon, taken as a whole, the assets of such Owner, taken as a whole, or the condition
(financial or otherwise) of such Owner, taken as a whole, (ii) the ability of such Owner to perform
any of its material obligations under any Mortgage encumbering its Lot or any documents executed by
such Owner in connection therewith, (iii) the enforceability, validity, perfection or priority of
the lien of any Mortgage encumbering its Lot or any documents executed by such Owner in connection
therewith or (iv) the value of the Lot of such Owner together with any improvements constructed
therein or thereon (or of any Mortgagees interest therein) or the operation thereof.
63.
Material Amortization Date
means the 20th anniversary of the Service
Commencement Date (as such term is defined in the Initial ESAs).
64.
Metering Equipment
shall have the meaning set forth in the Initial ESAs.
65.
Mortgage
shall mean each and every mortgage or deed of trust which may now or
hereafter be placed by or for the benefit of any Party to this Agreement on its interest in the
real property and improvements owned by such Party and which is subject to this Agreement, and all
increases, renewals, modifications, consolidations, replacements and extensions thereof.
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66.
Mortgagee
shall mean, with respect to any Lot, the holder of any Mortgage (or
any agent or trustee acting on its behalf) encumbering that Lot, which holder may not (as to any
Lot other than the Phase II Land, Phase II Mall, H/C I Space and Mall I Space) be a Competitor, but
may be an Affiliate of an Owner;
provided
,
however
, that no such Affiliate holding
a Mortgage shall be entitled to the benefit of any of the Mortgagee protection provisions set forth
in this Agreement, including without limitation Section 14.5; and
provided
further
that, notwithstanding the foregoing, the Mortgage Notes Indenture Trustee shall at all times
constitute a Mortgagee with respect to any Lot then encumbered by a Mortgage in favor of the
Mortgage Notes Indenture Trustee.
67.
Owner
means H/C I Owner, Mall I Owner, SECC Owner, H/C II Owner, Mall II Owner,
Residential Portion Owner and their respective successors and assigns.
68.
Parking Access Easement Area
shall mean the land on which the Parking Access
Easement is located.
69.
Parking Spaces
shall mean parking spaces in the Phase I Automobile Parking Area
or the Phase II Automobile Parking Area, as applicable.
70.
Party
and
Parties
shall mean an Owner and Owners.
71.
Pass-through Areas
shall include without limitation (a) all walkways, streets,
rights of way, roads, entries, sidewalks, paths, alleyways, bridges, pedestrian bridges, water
features, plazas, parks, atrium service ways, public restrooms, buildings, structures and
Automobile Parking Areas located on any of the Lots or in any of the facilities located thereon and
(b) all elevators, escalators and similar mechanical conveyancing devices, and all other equipment
and facilities located in or on such areas,
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and shall comprise (i) H/C I Pass-through Areas, (ii) Mall I Pass-through Areas, (iii) H/C II
Pass-through Areas, (iv) Mall II Pass-through Areas and (v) SECC Pass-through Areas.
72.
Permittee
shall mean, with respect to any Owner and each Tenant of an Owner,
their respective agents, licensees, invitees, employees, customers, contractors, subcontractors,
tenants, subtenants and concessionaires.
73.
Phase I Automobile Parking Area
means the parking structure located on the
southern portion of the Phase I Land, in the general location labeled as the
South Garage
on the Site Plan depicted on
Exhibit W
attached hereto and made a part hereof.
74.
Phase I Base Building
shall mean, collectively (i) the two-level podium
structure constructed by H/C I Owner on the Phase I Land, the first floor of which contains the
Phase I Casino and the second and mezzanine floors of which contains a portion of the Mall I Space
and all of which are connected to the Phase I Hotel, and (ii) the two level retail annex structure
constructed by H/C I Owner on the Retail Annex Land, which contains a portion of the Mall I Space,
together with all improvements, systems, fixtures and other items of property attached or
appurtenant to such structures or used or necessary in the operation thereof, other than Mall I
Property.
75.
Phase I Casino
shall mean the Venetian"-themed casino built within and above
the Phase I Base Building.
76.
Phase I Common Areas
shall mean the H/C I Limited Common Areas, the Mall I
Limited Common Areas and the H/C-Mall I Common Areas.
77.
Phase I Hotel
shall mean the Venetian"-themed hotel built within and above the
Phase I Base Building.
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78.
Phase I Hotel/Casino
shall mean any hotel/casino together with any other
buildings and improvements from time to time located on and/or in the H/C I Space.
79.
Phase IA
means an approximately 1,000 room hotel tower on top of the roof to the
Phase I Automobile Parking Area, an approximately 1,000-parking space expansion of the Phase I
Automobile Parking Area and the Phase 1A Conference Center.
80.
Phase IA Conference Center
shall mean the approximately 150,000 square feet of
additional meeting and conference space located in the Phase IA Airspace.
81.
Phase II Automobile Parking Area
means the parking structure located on the
Phase II Land as depicted on
Exhibit W
attached hereto and made a part hereof.
82.
Phase II Base Building
shall mean, collectively, the tower constructed on the
Phase II Land housing the Phase II Hotel and the podium structure constructed by H/C II Owner both
(a) on the Phase II Land, which is comprised of (i) four underground levels consisting primarily of
a parking garage, (ii) a level consisting primarily of back-of-house space, (iii) a ground level
housing the Phase II Casino, (iv) a level containing a portion of the Mall II Space, (v) a level
consisting primarily of mechanical equipment and (vi) a pool deck and (b) in the Walgreens
Airspace, which portion is comprised of one basement level and six above-ground levels containing
the balance of the Mall II Space, together with all improvements, systems, fixtures and other items
of property attached or appurtenant to such structures or used or necessary in the operation
thereof, other than Mall II Property.
83.
Phase II Casino
shall mean the Palazzo"-themed casino built within and above
the Phase II Base Building.
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84.
Phase II Common Areas
shall mean the H/C II Limited Common Areas, the Mall II
Limited Common Areas and the H/C-Mall II Common Areas.
85.
Phase II Hotel
hall mean the Palazzo"-themed hotel built within and above the
Phase II Base Building.
86.
Phase II Hotel/Casino
shall mean any hotel/casino together with any other
buildings and improvements from time to time located on and/or in the H/C II Space.
87.
Phase II Mall Agreement
shall mean that certain Agreement dated April 12, 2004,
by and between Phase II LLC and Mall II Buyer, as modified and assigned to Phase II Mall Holding,
LLC pursuant to that certain Assignment and Assumption Agreement dated on or about September 30,
2004, and as further modified by that certain Second Amendment to Agreement dated as of January 31,
2008, governing certain aspects of the design, construction and leasing of the Phase II Mall and
the sale of limited liability company interests in Mall II LLC to Mall II Buyer.
88.
Qualifying ESA
means, with respect to an Owner, the ESA which such Owner has
entered into with the HVAC Operator in accordance with the terms hereof. Each of the Initial ESAs
shall constitute Qualifying ESAs for purposes of this Agreement.
89.
Recorders Office
means the office of the County Recorder of Clark County,
Nevada.
90.
Residential Portion Owner
means, at any given time, the Person or Persons who
then hold fee title in and to the Residential Portion.
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91.
Scheduled Termination Date
means, with respect to any HVAC Operator, the
scheduled last date of the term under the Qualifying ESAs, as such date may be extended in
accordance with the terms thereof and hereof.
92.
SECC Pass-through Areas
means the areas and all buildings, structures, equipment
and facilities located thereon or therein as described in Section 2.4.1 and depicted on
Exhibit
M
and labeled SECC Pass-through Areas.
93.
Sempra
means Sempra Energy Solutions, LLC or any successor in interest thereof
under each of the Initial ESAs.
94.
Sempra Term
means the period beginning on the Service Commencement Date (as
defined in the Initial ESAs) and continuing until the expiration or earlier termination of the
Initial ESAs.
95.
Serviced Owner
means each of H/C I Owner, H/C II Owner, Mall I Owner, Mall II
Owner and SECC Owner.
96.
Tax Year
means each period from July 1 through June 30 (or such other fiscal
period as may hereafter be adopted by Clark County, Nevada as the fiscal year for any tax, levy or
charge included in Taxes), any part or all of which occurs during the Term.
97.
Tenant
means any Person who has the right to use or occupy a Tenant Space
pursuant to a Lease.
98.
Tenant Space
means any portion of the Mall I Space, the H/C I Space, the Mall II
Space or the H/C II Space covered by a Lease or similar occupancy agreement.
99.
Term
means the period commencing on the Commencement Date through and including
the Expiration Date or any earlier date on which the Term terminates pursuant to the provisions
hereof or pursuant to law.
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100.
Third Party Warranties
means all warranties, guaranties and other claims
arising out of breaches of contracts and other wrongful acts pertaining to the construction of the
Venetian, Phase IA and the Palazzo.
101.
Trustee
means any of the following: a savings bank, savings and loan
association, commercial bank, trust company (whether acting individually or in a fiduciary
capacity) or insurance company (whether acting individually or in a fiduciary capacity) that has a
combined capital and surplus of $500,000,000 or above, reasonably acceptable to each of the Owners,
and, in each case, reasonably acceptable to each of their Mortgagees and who is not affiliated with
any of the Borrowers or Adelson (or any Affiliate of either). Notwithstanding the foregoing, the
initial Trustee shall be The Bank of Nova Scotia. H/C I Owner shall pay the annual fee of the
Trustee which payment shall be subject to the cost sharing provisions of Section 5.1.3 with respect
to each Owners share of such fee. H/C I Owner can replace the existing Trustee at any time and
from time to time, with the consent of the Existing Phase I Mortgagee for so long as any
indebtedness under the Bank Credit Agreement is outstanding, and with the consent of the other
Owners, which consent shall not be unreasonably withheld;
provided
that any replacement
Trustee shall be selected in accordance with the foregoing provisions of this definition.
102. The following Terms have the meaning set forth in the referenced Sections of this
Agreement:
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|
|
Term
|
|
Section
|
Acceleration Notice
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14.3.4.7
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Additional Coverage
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10.1.4
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Adjacent Land
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Section 3.1
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Agent
|
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14.3.3
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Agreement
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Preamble
|
Arbitrating Parties
|
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15.2.1
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Bests
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10.2.1.1
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274
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|
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Term
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Section
|
Bill
|
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6.1.3
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Building Department
|
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Section 14.35
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Buy-Out Option
|
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14.3.4.7
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Cap II
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Recitals
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Casualty
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10.2.5.3
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Combined Policy
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10.1.1.2
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Commercially Available
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10.2.8
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Condo Amendment
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16.4.7
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Condo Effective Date
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16.4.2
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Condo Matters
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Section 16.4
|
Condominium
|
|
16.1.3
|
Condominium Owner
|
|
16.1.4
|
Condominium Space
|
|
16.1.3
|
Convention Center
|
|
Section 3.2
|
Curable Default
|
|
14.3.4.6
|
Cure Reimbursement Amount
|
|
14.10.3
|
Defaulting Party
|
|
14.10.1
|
Discharging Party
|
|
8.2.7
|
Disputing Parties
|
|
Section 14.16
|
Electing Owner
|
|
10.4.1.1.2
|
Electric Substation
|
|
2.1.2.1
|
ESA Amendment
|
|
2.2.7
|
Existing Mall I Loan
|
|
14.15.2
|
Existing Mall II Loan
|
|
14.15.2
|
Existing Mortgages
|
|
14.15.2
|
Existing Phase I Mortgagee
|
|
14.15.2
|
Existing Phase II Mortgagee
|
|
14.15.2
|
Existing Residential Portion Mortgagee
|
|
14.15.2
|
Existing SECC Mortgagee
|
|
14.15.2
|
Existing Utility Equipment
|
|
2.3.2.1
|
First Amendment to Third REA
|
|
Recitals
|
Form Notice
|
|
14.15.2
|
Gaming Authorities
|
|
Section 13.2
|
Grand Canal Shoppes Logo
|
|
4.2.4.2.1
|
Grand Canal Shoppes Name
|
|
4.2.4.2.1
|
H/C I Encroachment
|
|
Section 1.3
|
H/C I Owner
|
|
Recitals
|
H/C I Space
|
|
Recitals
|
H/C II Encroachment
|
|
1.4.1
|
H/C II Owner
|
|
Recitals
|
H/C II Space
|
|
Recitals
|
Hours of Operation
|
|
4.2.6
|
HVAC Ground Lease
|
|
2.2.1
|
HVAC Space
|
|
2.2.1
|
Independent Expert
|
|
Section 14.16
|
275
|
|
|
Term
|
|
Section
|
Insurance Proceeds Shortfall
|
|
11.2.1
|
Insurance Report
|
|
Section 10.5
|
Integrated Resort
|
|
Recitals
|
Interest Holder
|
|
14.3.1
|
Interest Rate
|
|
6.1.4
|
Interface
|
|
Preamble
|
Interim Mall I LLC
|
|
Recitals
|
Lido
|
|
Preamble
|
LVSI
|
|
Preamble
|
Major Default
|
|
2.2.3.2
|
Mall Subsidiary LLC
|
|
Preamble
|
Mall I Airspace
|
|
Recitals
|
Mall I Asset
|
|
14.3.4.2.1
|
Mall I Encroachment
|
|
Section 1.3
|
Mall I LLC
|
|
Preamble
|
Mall I Loan
|
|
14.3.4.7
|
Mall I Loan Documents
|
|
14.3.4.6
|
Mall I Mortgage
|
|
14.3.4.6
|
Mall I Mortgage Default Notice
|
|
14.3.4.6
|
Mall I Occupant
|
|
4.2.2.1
|
Mall I Owner
|
|
Recitals
|
Mall I Owners Common Area Charge Obligations
|
|
5.1.3.4
|
Mall I Owners Share
|
|
5.1.3.1
|
Mall I Space
|
|
Recitals
|
Mall II Airspace
|
|
Recitals
|
Mall II Asset
|
|
14.3.5.2.1
|
Mall II Encroachment
|
|
1.4.1
|
Mall II LLC
|
|
Preamble
|
Mall II Loan
|
|
14.3.5.7
|
Mall II Loan Documents
|
|
14.3.5.6
|
Mall II Mortgage
|
|
14.3.5.6
|
Mall II Mortgage Default Notice
|
|
14.3.5.6
|
Mall II Occupant
|
|
4.3.2.1
|
Mall II Owner
|
|
Recitals
|
Mall II Owners Common Area Charge Obligations
|
|
5.1.3.4
|
Mall II Owners Share
|
|
5.1.3.1
|
Mall II Space
|
|
Recitals
|
Material Alteration
|
|
5.1.7.4
|
Material Default Termination Date
|
|
2.2.3.2.1
|
Minimum Parking Standards
|
|
7.3.2
|
New Mall I Individual
|
|
14.4.1
|
New Mall II Individual
|
|
14.4.2
|
Operating Expense Statement
|
|
5.1.3.5
|
Opting-Out Owner
|
|
10.1.3
|
Original REA
|
|
Recitals
|
276
|
|
|
Term
|
|
Section
|
Palazzo
|
|
Recitals
|
Palazzo Building Shell and Core
|
|
5.2.1.2
|
Palazzo Condo
|
|
Preamble
|
Palazzo Logo
|
|
4.3.4.1.1
|
Palazzo Name
|
|
4.3.4.1.1
|
Parking Access Easement
|
|
2.4.4.1
|
Parking Rules and Regulations
|
|
7.7.1
|
Participating Owner
|
|
10.1.1.3
|
Permitted Maintenance
|
|
5.1.1.1
|
Person
|
|
14.3.1
|
Phase I Easement
|
|
16.1.1
|
Phase I Portion
|
|
16.1.1
|
Phase I Casino Level Leased Space
|
|
10.4.1.1.1
|
Phase I Casino Level Master Lease
|
|
10.4.1.1.1
|
Phase I Encroachment Easements
|
|
Section 1.3
|
Phase I Encroachments
|
|
Section 1.3
|
Phase I Land
|
|
Recitals
|
Phase I LLC
|
|
Preamble
|
Phase I Mall
|
|
Recitals
|
Phase I Mall Foreclosure Sale
|
|
14.3.4.3
|
Phase I Mall Sale
|
|
14.3.4.2.1
|
Phase IA Airspace
|
|
Recitals
|
Phase II Casino Level Leased Space
|
|
10.4.1.1.1
|
Phase II Casino Level Master Lease
|
|
10.4.1.1.1
|
Phase II Easement
|
|
16.1.2
|
Phase II Encroachment Easements
|
|
1.4.1
|
Phase II Encroachments
|
|
1.4.1
|
Phase II Land
|
|
Recitals
|
Phase II LLC
|
|
Preamble
|
Phase II Mall
|
|
Recitals
|
Phase II Mall Foreclosure Sale
|
|
14.3.5.3
|
Phase II Mall Sale
|
|
14.3.5.2.1
|
Phase II Portion
|
|
16.1.2
|
Proposed Lease
|
|
4.2.11
|
Proposed Tenant
|
|
4.2.11
|
Proposed Transferee
|
|
14.3.4.11
|
Purchasing Owner
|
|
10.1.4
|
REA
|
|
14.15.2
|
Relevant Serviced Owners
|
|
2.2.3.1
|
Replacement HVAC Plant Plan
|
|
2.2.4
|
Requesting Warranty Owner
|
|
1.1.1
|
Residential Interest
|
|
16.1.4
|
Residential Portion
|
|
Recitals
|
Residential Portion Encroachment
|
|
1.4.1
|
Retail Annex Land
|
|
Recitals
|
277
|
|
|
Term
|
|
Section
|
Rights and Obligations
|
|
Section 14.1
|
SECC
|
|
Recitals
|
SECC Land
|
|
Recitals
|
SECC Owner
|
|
Recitals
|
SECC Owners Common Area Charge Obligations
|
|
5.1.3.4
|
SECC Owners Share
|
|
5.1.3.1
|
Second REA
|
|
Recitals
|
Shared Insurance
|
|
10.1.1
|
Sports Book Space
|
|
4.1.2
|
Subdivided Interest Holder
|
|
14.3.1.1
|
Supporting Documentation
|
|
5.1.3.5
|
Taking
|
|
12.1.1
|
Taking Authority
|
|
12.1.1
|
Taxes
|
|
6.1.1
|
The Shoppes at The Palazzo Logo
|
|
4.3.4.1.1
|
The Shoppes at The Palazzo Name
|
|
4.3.4.1.1
|
Third Amended and Restated REA
|
|
Recitals
|
Third Amendment
|
|
Recitals
|
Third Party Warranty Owner
|
|
1.1.1
|
Third REA
|
|
Recitals
|
Transferee
|
|
14.6.1
|
Transferor
|
|
14.6.1
|
Uninsured Loss
|
|
11.2.2
|
Uninsured Loss Contribution
|
|
11.2.2
|
Utility Activity
|
|
2.3.2.1
|
Utility Equipment
|
|
2.3.2.1
|
Venetian
|
|
Recitals
|
Venetian Building Shell and Core
|
|
5.1.1.2
|
Venetian Logo
|
|
4.2.4.1.1
|
Venetian Name
|
|
4.2.4.1.1
|
Venetian Performers
|
|
4.2.3
|
Venetian Theme
|
|
4.2.3
|
Walgreens Airspace Leasehold
|
|
Recitals
|
Walgreens Airspace
|
|
Recitals
|
278
SCHEDULE II
Cost Sharing Allocations
Mall I Owners and Mall II Owners Share of
Hotel/Casino/Mall/SECC Common Area Charges
*
|
|
|
|
|
Expense Item
|
|
Mall I Owners Share
|
|
Mall II Owners Share
|
Maintenance of the
Base Building,
Building Core and
Shell, H/C-Mall
Common Areas and
other common
structures and
equipment)
|
|
$208,382 per
Accounting Period,**
subject to CPI
Adjustment.***
|
|
Same as Mall I Owners
Share.
|
|
|
|
|
|
Pest Control, Fire
Extinguishers and EMT
Services
|
|
The portion of all
actual out-of-pocket
costs related to pest
control, fire
extinguisher service
and EMT service that
is related or
allocable to the
Phase I Mall, as
shown on bills
received by the H/C I
Owner from the
entities providing
such pest control and
fire extinguisher
services and, with
respect to EMT
service, an
allocation of H/C I
Owners payroll and
overhead related to
such service on a
time-responding
basis.
|
|
The portion of all
actual out-of-pocket
costs related to pest
control, fire
extinguisher service
and EMT service that
is related or
allocable to the
Phase II Mall, as
shown on bills
received by the H/C II
Owner from the
entities providing
such pest control and
fire extinguisher
services and, with
respect to EMT
service, an allocation
of H/C II Owners
payroll and overhead
related to such
service.
|
|
|
|
|
|
Parking Garage
Cleaning
|
|
$33,790 per
Accounting Period,
subject to CPI
Adjustment.
|
|
Same as Mall I Owners
Share.
|
|
|
|
|
|
Parking Garage
Security
|
|
$95,743 per
Accounting Period,
subject to CPI
Adjustment.
|
|
Same as Mall I Owners
Share.
|
|
|
|
|
|
Mall Valet Parking
Charge
|
|
$140,798 per
Accounting Period,
subject to CPI
Adjustment.
|
|
Same as Mall I Owners
Share.
|
|
|
|
|
|
Off-Site Employee
Parking
|
|
A to be determined
amount determined
pursuant to a
procedure described
in the Phase II Mall
Agreement per
Accounting Period,
subject to CPI
Adjustment and
further subject to
equitable adjustments
(as determined by the
|
|
Same as Mall I Owners
Share.
|
279
|
|
|
|
|
Expense Item
|
|
Mall I Owners Share
|
|
Mall II Owners Share
|
|
|
Independent Expert if
Mall I Owner and
H/C I Owner and/or
H/C II Owner cannot
agree) (a) every six
months based on the
relative actual usage
by each Owner and its
Permittees during the
prior six months and
(b) if: (i) there are
any rent increases
under the existing
lease for the
off-site employee
parking lot, (ii) the
existing lease for
the off-site employee
parking lot is
terminated and H/C I
Owner and/or H/C II
Owner enters into a
new lease for a new
off-site employee
parking lot, and/or
(iii) the existing
lease for the
off-site employee
parking lot is
terminated and H/C I
Owner and/or H/C II
Owner constructs a
new off-site employee
parking facility on
land it or an
Affiliate or a
third-party owns.
Any such equitable
adjustment pursuant
to clause (b)(iii) of
the preceding
sentence shall be
based on Mall I
Owners equitable
share, based on the
respective off-site
employee parking
needs of each Owner,
of the fair market
rent for the
applicable land
(unless leased from a
third party and so
already addressed by
clause (b)(ii) of the
preceding sentence)
and constructed
facility.
|
|
|
|
|
|
|
|
Shared Insurance
Carried by H/C I
Owner and H/C II
Owner Pursuant to the
Provisions of
Article 10
|
|
Mall I Owners share
of the applicable
insurance premiums
shall be determined
in accordance with
the procedures
described in,
Section 10.4.
|
|
Mall II Owners share
of the applicable
insurance premiums
shall be determined in
accordance with the
procedures described
in, Section 10.4.
|
|
|
|
|
|
HVAC Plant and
|
|
For each Accounting
Period,
|
|
71.39% of Mall I
Owners
|
280
|
|
|
|
|
Expense Item
|
|
Mall I Owners Share
|
|
Mall II Owners Share
|
HVAC
Facilities Operating
Costs (other than the
costs of water,
electricity and
natural
gas)****
|
|
the following
annualized monthly
charges itemized on
the December 10, 2003
Sempra Energy
Solutions invoice
addressed to Grand
Canal Shops Mall, LLC
and attached hereto
as Appendix I to this
Schedule II, subject
to CPI Adjustment:
|
|
Share.
1
|
|
|
Procurement Charge;
Central Plant; Other
Facilities; Central
Plant Real Estate
Taxes; and Other
Facilities Real
Estate Taxes.
|
|
|
|
|
|
|
|
HVAC Plant Water,
Electricity and
Natural Gas Costs****
|
|
$1,500,000 for 2004,
adjusted annually
thereafter as
follows: For every
one percent (1%)
increase in the
amounts charged by
the applicable
electricity providers
and transporters from
the first day of the
prior Accounting
Period to the first
day of the applicable
Accounting Period
(assuming no change
in the amount of
electricity provided
and transported),
there shall be an
eight-tenths of one
percent (.8%)
increase in the
amount owed by Mall I
Owner. For every one
percent (1%) increase
in the amounts
charged by the
applicable natural
gas providers and
transporters from the
first day of the
prior Accounting
Period to the first
day of the applicable
Accounting Period
(assuming no change
in the amount of
|
|
71.39% of Mall I
Owners Share.
|
|
|
|
1
|
|
All references in this Schedule II to 71.39% of Mall I
Owners Share shall be subject to appropriate adjustment, if any, upon
confirmation of the respective gross square footage of the Phase I Mall and the
Phase II Mall (including the master lease components of each).
|
281
|
|
|
|
|
Expense Item
|
|
Mall I Owners Share
|
|
Mall II Owners Share
|
|
|
natural gas provided
and transported),
there shall be an
eighteen
one-hundredths of one
percent (.18%)
increase in the
amount owed by Mall I
Owner. For every one
percent (1%) increase
in the amounts
charged by the
applicable water
providers and
transporters from the
first day of the
prior Accounting
Period to the first
day of the applicable
Accounting Period
(assuming no change
in the amount of
water provided and
transported), there
shall be a two
one-hundredths of one
percent (.02%)
increase in the
amount owed by Mall I
Owner.
|
|
|
|
|
|
|
|
HVAC Plant and HVAC
Facilities
Amortization of
Initial HVAC Plant
and HVAC Facilities
Construction Costs
and Other Capital
Expenditures****
|
|
For each Accounting
Period, the sum of
(x) $1,645,000 plus
(y) the amount of
payments to be made
by Mall I Owner
pursuant to
paragraph 1(g) of
Schedule 4.2 of its
ESA (without giving
effect to this
Schedule II or the
Agreement); provided,
however, that if, in
any Accounting
Period, the
applicable major
repairs, replacements
and capital
investments
(excluding those
relating to the Other
Facilities (as
defined in Mall I
Owners ESA)) exceed
$5 million, and
either Mall I Owner
or H/C I Owner
believes that Mall I
Owners
Proportionate Share
(as defined in Mall I
Owners ESA) is not,
taking into account
all relevant factors,
Mall I Owners
equitable share of
such repairs,
replacements and
investments, then the
actual equitable
share, as agreed to
by
|
|
71.39% of Mall I
Owners Share.
|
282
|
|
|
|
|
Expense Item
|
|
Mall I Owners Share
|
|
Mall II Owners Share
|
|
|
Mall I Owner and
H/C I Owner (or, if
such parties cannot
agree, as determined
by the Independent
Expert) shall be
deemed to be Mall I
Owners
Proportionate Share
for purposes of
calculating the
amount described in
the foregoing
clause (y).
|
|
|
|
|
|
|
|
Water
|
|
$126,834, adjusted
annually, beginning
with calendar year
2009, based on the
percentage increase,
if any, in amounts
charged by the
applicable water
providers and
transporters from
January 1, 2008 to
the first day of the
applicable Accounting
Period (assuming no
change in the amount
of water provided).
|
|
96.24% of Mall I
Owners
Share.
2
|
|
|
|
|
|
Sewer
|
|
$100,048, adjusted
annually, beginning
with calendar year
2009, based on the
percentage increase,
if any, in the
amounts charged by
the applicable
utility companies
from January 1, 2008
to the first day of
the applicable
Accounting Period.
|
|
71.39% of Mall I
Owners Share.
|
|
|
|
|
|
CAM Electric
|
|
$288,335, adjusted
annually, beginning
with calendar year
2009, based on the
percentage increase,
if any, in the
amounts charged by
the applicable
electricity providers
and
|
|
26.07% of Mall I
Owners
Share.
3
|
|
|
|
2
|
|
All references in this Schedule II to 96.24% of Mall I
Owners Share shall be subject to appropriate adjustment, if any, upon
confirmation of the respective gross leasable square footage of the Phase I
Mall and the Phase II Mall (including the master lease components of each).
|
|
3
|
|
All references in this Schedule II to 26.07% of Mall I
Owners Share shall be subject to appropriate adjustment, if any, upon
confirmation of the respective gross common area square footage of the Phase I
Mall and the Phase II Mall (including the master lease components of each).
|
283
|
|
|
|
|
Expense Item
|
|
Mall I Owners Share
|
|
Mall II Owners Share
|
|
|
transporters from
January 1, 2008 to
the first day of the
applicable Accounting
Period (assuming no
change in the amount
of electricity
provided).
|
|
|
|
|
|
|
|
Legal/Accounting
|
|
If it is reasonably
necessary for, or if
Mall I Owner
requests, H/C I Owner
and/or H/C II Owner
to perform, or engage
third parties to
perform, legal or
accounting services
on behalf of Mall I
Owner, such charges
shall be paid for by
Mall I Owner in an
amount equal to the
actual out-of-pocket
costs incurred by
H/C I Owner and/or
H/C II Owner on
account of such
services. If the
legal or accounting
services benefit more
than one Owner, the
costs shall be
divided equally among
the Owners.
|
|
If it is reasonably
necessary for, or if
Mall II Owner
requests, H/C I Owner
and/or H/C II Owner to
perform, or engage
third parties to
perform, legal or
accounting services on
behalf of Mall II
Owner, such charges
shall be paid for by
Mall II Owner in an
amount equal to the
actual out-of-pocket
costs incurred by
H/C I Owner and/or
H/C II Owner on
account of such
services. If the
legal or accounting
services benefit more
than one Owner, the
costs shall be divided
equally among the
Owners.
|
|
|
|
|
|
Electric Substation
capital expenditures
(i.e., expenditures
that, under generally
accepted accounting
principles
consistently applied,
cannot be expensed in
the year in which
they are incurred)
|
|
8.75% of all such
expenditures.
|
|
6.25% of all such
expenditures.
|
|
|
|
|
|
Fire
Suppression/Sprinkler Systems
|
|
100% of all costs
incurred by H/C I
Owner in connection
with its obligations
under
Section 5.1.1.2, to
the extent such
obligations relate to
those portions of all
fire suppression
systems (including
sprinklers) located
within the Mall I
Space.
|
|
100% of all costs
incurred by H/C II
Owner in connection
with its obligations
under Section 5.2.1.2,
to the extent such
obligations relate to
those portions of all
fire suppression
systems (including
sprinklers) located
within the Mall II
Space.
|
|
|
|
|
|
Certain Costs Related
to Changes to
Property, Misconduct
or Breaches
|
|
100% of all costs and
expenses caused by,
attributable to or
necessitated by
(i) Mall I Owners or
any Mall I
|
|
100% of all costs and
expenses caused by,
attributable to or
necessitated by
(i) Mall II Owners or
any Mall II
|
284
|
|
|
|
|
Expense Item
|
|
Mall I Owners Share
|
|
Mall II Owners Share
|
|
|
Occupants moving of
property in or out of
the Mall I Space or
installation or
removal of furniture,
fixtures or other
property, (ii) the
performance by Mall I
Owner or any Mall I
Occupant of any
Alterations,
(iii) the negligence
or willful misconduct
of Mall I Owner or
any Mall I Occupant
or the agents,
employees,
contractors, invitees
and other Permittees
of either of them,
(iv) any breach by
Mall I Owner of the
Agreement, or (v) any
breach by any Phase I
Mall Tenant of its
Lease.
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Occupants moving of
property in or out of
the Mall II Space or
installation or
removal of furniture,
fixtures or other
property, (ii) the
performance by Mall II
Owner or any Mall II
Occupant of any
Alterations, (iii) the
negligence or willful
misconduct of Mall II
Owner or any Mall II
Occupant or the
agents, employees,
contractors, invitees
and other Permittees
of either of them,
(iv) any breach by
Mall II Owner of the
Agreement, or (v) any
breach by any Phase II
Mall Tenant of its
Lease.
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Real estate taxes
allocable to Casino
Level Leased Space
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Mall I Owners
aggregate monetary
obligations pursuant
to the foregoing
provisions of this
Schedule II shall be
reduced
each
Accounting Period by
the amount initial
tax assessment for
the Phase I Casino
Level Leased Space.
Such amount
represents the
agreed-upon portion
of Impositions on the
Phase I Casino Level
Leased Space that
H/C I Owner has
agreed to pay.
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From and after the
date that the initial
real estate tax
assessment for the
Phase II Casino Level
Leased Space is made,
Mall II Owners
aggregate monetary
obligations pursuant
to the foregoing
provisions of this
Schedule II shall be
reduced
each
Accounting Period by
the amount of such
initial tax
assessment, provided
that such amount shall
be appropriately
pro-rated for the
Accounting Period in
which such amount is
first determined.
Such amount represents
the agreed-upon
portion of Impositions
on the Phase II Casino
Level Leased Space
that H/C II Owner has
agreed to pay.
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Stewarding
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A to be determined
amount determined
pursuant to a
procedure described
in the Phase II Mall
Agreement per
Accounting Period,
subject to CPI
Adjustment.
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71.39% of Mall I
Owners Share.
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285
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NOTES:
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*
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Whenever any definite amount (subject to CPI Adjustment or any other adjustment) is set forth on
this chart as a payment for a certain category of expenses, such amount (adjusted for CPI or as
otherwise adjusted) shall be due and payable without regard to the amount actually incurred by
H/C I Owner or H/C II Owner, as the case may be, in respect of that category of expenses (and thus,
no Supporting Documentation pursuant to Section 5.1.3.5 shall be required to be provided in
connection therewith).
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**
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All specified annual amounts in Schedule II shall be appropriately pro-rated for any partial
year, as applicable (except for purposes of calculating future CPI Adjustments).
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***
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CPI Adjustment
, as used on this Schedule II, shall be calculated as follows: Each
specified dollar amount that is subject to CPI Adjustment shall be adjusted as of the first day of
each Accounting Period, beginning with the 2009 Accounting Period, by multiplying such dollar
amount (as it may have previously been adjusted pursuant to this sentence) by the percentage that
is the sum of (x) one hundred percent (100%), plus (y) one hundred percent (100%) of the
CPI Increase (as defined in the following sentence);
provided
,
however
, that no
such adjustment shall result in any dollar amount being less than the amount set forth on
Schedule II.
CPI Increase
shall mean the percentage increase or decrease, if any, that
has occurred in the CPI from the calendar month which is sixteen months prior to the calendar month
in which the applicable Accounting Period begins to the calendar month which is four months prior
to the calendar month in which the applicable Accounting Period begins. (For example, if a CPI
Adjustment is being calculated for the Accounting Period that begins January 1, 2009, the CPI
Increase would be the percentage increase that has occurred in the CPI from September, 2007 to
September, 2008). As so adjusted, such amount will be utilized until the next CPI Adjustment is
calculated as of the first day of the next Accounting Period.
CPI
shall mean the
Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the
United States Department of Labor, U.S. City Average, All Items 1982-1984=100, or any successor
thereto appropriately adjusted. If the Consumer Price Index ceases to be published, and there is
no successor thereto, such other index as the Owners reasonably agree upon (or, if they cannot so
agree, such other index as the Independent Expert shall determine in accordance with
Section 14.16), as appropriately adjusted, shall be substituted for the Consumer Price Index.
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****
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Only applicable during the Sempra Term.
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286
Appendix I to Schedule II
See attached.
287
SCHEDULE III
Parking Rules and Regulations
1. Persons using either the Phase I Automobile Parking Area or the Phase II Automobile Parking
Area, as the case may be, for parking (each a
User
) pursuant to the easement created
under the Fourth Amended and Restated Reciprocal Easement, Use and Operating Agreement to which
these rules and regulations are attached (the
REA
: capitalized terms used herein without
definition shall have the meanings assigned to them in the REA) shall comply with any parking
identification system established by H/C I Owner with respect to the Phase I Automobile Parking
Area or H/C II Owner with respect to the Phase II Automobile Parking Area (each, an
Owner of
the Parking Structure Site
), as the case may be, or its parking operator;
provided
that in no event shall such parking identification system deprive any Owner of its Minimum Parking
Standards. Such a system may include the validation of visitor parking, at the validation rate
applicable to visitor parking from time to time as set by the Owner of the Parking Structure Site
or its parking operator in accordance with the provisions of the REA. Parking stickers, parking
cards, or other identification devices supplied by the Owner of the Parking Structure Site shall
remain the property of the Owner of the Parking Structure Site. Such devices must be displayed as
requested and may not be mutilated in any manner. Each User shall pay a reasonable deposit to the
Owner of the Parking Structure Site or its parking operator for each such device issued to it.
Such deposit shall be paid at the time the device is issued and shall be forfeited if the device is
lost. Such deposit shall be returned without interest at the time the User holding the device
ceases to utilize the
288
Parking Structure. Such devices shall not be transferable, and any such device in the
possession of an unauthorized holder may be retained by the Owner of the Parking Structure Site and
declared void. Upon the suspension or the termination of parking privileges, all parking
identification devices supplied by the Owner of the Parking Structure Site shall be returned to the
Owner of the Parking Structure Site.
2. The Owner of the Parking Structure Site or its parking operator shall from time to time
provide the Owners with the respective number of such devices reasonably requested in writing by
the respective Owners of such Site, it being understood that the number of devices requested may
exceed the respective number of Parking Spaces which such Owner is authorized to use pursuant to
the REA;
provided
,
however
, that (a) if an Owner (and/or its tenants, employees or
invitees), without the prior written consent of the Owner of the Parking Structure Site (or such
Owners parking operator), at any time uses the devices to occupy more than the number of Parking
Spaces then authorized to be used by said Owner (and/or its tenants, employees or invitees)
pursuant to the REA, thereafter the Owner of the Parking Structure Site shall have the right to
confiscate from such Owner the number of devices equal to the number of Parking Spaces by which
such Owners occupancy exceeded the number of Parking Spaces then authorized to be used by the
Owner (and/or its tenants, employees or invitees) pursuant to the REA.
3. Loss or theft of parking identification devices must be reported immediately to the Owner
of the Parking Structure Site or its parking operator, and a report of such loss or theft must be
filed by the User at that time. Any parking identification device reported lost or stolen that is
found on any unauthorized vehicle will be confiscated and the illegal holder will be subject to
prosecution.
289
4. User shall obey all signs and shall park only in areas designed for vehicle parking within
painted stall lines. Parking Spaces are for the express purpose of parking one automobile per
space. Parking Spaces shall be used only for parking vehicles no longer than full-sized passenger
automobiles. All directional signs and arrows must be observed, and all posted speed limits for
the Parking Structure shall be observed. If no speed limit is posted for an area of the Parking
Structure, the speed limit shall be five (5) miles per hour. Users shall not permit any vehicle
that belongs to or is controlled by a User, its agents, employees, invitees, licensees and
visitors, to be loaded, unloaded or parked in areas other than those designated by the Owner of the
Parking Structure Site or its parking operator for such activities. No maintenance, washing,
waxing or cleaning of vehicles shall be permitted in the Automobile Parking Areas. The Automobile
Parking Areas shall not be used for overnight or other storage for vehicles of any type. Each User
shall park and lock his or her own vehicle.
5. Except as otherwise provided in the REA, the Owner of the Parking Structure Site reserves
the right to modify, redesign or redesignate uses permitted in the Automobile Parking Areas or any
portion thereof, to relocate Parking Spaces from floor to floor, and to allocate Parking Spaces
between compact and standard sizes from time to time, as long as the same comply with applicable
Legal Requirements, and do not deprive any Owner of its Minimum Parking Standards. Reserved
Parking Spaces shall be clearly and prominently marked as such by the Owner of the Parking
Structure Site. Neither the Owner of the Parking Structure Site nor its parking operator shall be
liable or responsible for the failure of Users to observe such markings or to obey other rules and
regulations, agreements, laws or ordinances applicable to the Automobile Parking Areas. Without
290
limiting the generality of the foregoing, the Owner of the Parking Structure Site shall not be
obligated to tow any violators vehicle, or to take any other action on account of any such
failure.
6. The Owner of the Parking Structure Site shall be solely responsible for the Maintenance (as
such term is defined in the REA) and operation of the applicable Automobile Parking Area. Without
limiting the generality of the foregoing, the Owner of the Parking Structure Site shall at all
times maintain all gates, elevators, lighting, electrical and exhaust systems, alarms, and
sprinklers in good working order.
7. The Automobile Parking Area shall be accessible 24 hours a day. After normal business
hours, the Automobile Parking Area may be protected by security gates operated by access cards in
order to maintain the security of the Automobile Parking Area.
8. H/C I Owner and/or H/C II Owner, as the case may be, may enter into agreements from time to
time with the other Owners restricting the rights of employees of Tenants of such other Owners to
park in the Automobile Parking Areas.
9. Nothing set forth in these Parking Rules is intended to deprive any Owner of its Minimum Parking
Standards. Any conflict between any provision of these Parking Rules and any provision of the REA
shall be resolved in favor of the REA.