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VENETIAN CASINO RESORT, LLC
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND USAGE.........................................1
ARTICLE II FORMATION; NAME; TERM.........................................6
2.1 Formation.....................................................6
2.2 Company Name..................................................6
2.3 Effective Date................................................6
2.4 Term..........................................................6
2.5 Registered Agent and Office...................................6
2.6 Principal Place of Business...................................6
2.7 Filings.......................................................6
2.8 Purpose.......................................................6
2.9 Assets........................................................7
2.10 Separateness from Affiliates..................................7
2.11 Authorized Person.............................................8
2.12 Certificates..................................................8
ARTICLE III CONTRIBUTIONS.................................................8
3.1 Capital Contributions.........................................8
ARTICLE IV CAPITAL ACCOUNTS; ALLOCATIONS.................................8
4.1 Capital Accounts..............................................8
4.2 Allocation of Net Profit......................................8
4.3 Allocation of Net Loss........................................9
4.4 Interim Allocations Due to Percentage Interest Adjustment.....9
4.5 Regulatory Allocations........................................9
4.6 Certain Tax Matters..........................................10
ARTICLE V DISTRIBUTIONS................................................11
5.1 General......................................................11
5.2 Tax Distributions............................................11
5.3 Return of Capital............................................12
5.4 Limits on Distributions......................................12
ARTICLE VI BOOKS; RECORDS; ACCOUNTING; FINANCIAL AND TAX MATTERS........12
6.1 Accounting Method............................................12
6.2 Accounting Records...........................................12
6.3 Fiscal Year..................................................12
6.4 Reports......................................................12
6.5 Bank and Investment Accounts.................................13
6.6 Records......................................................13
6.7 Tax Matters Partner..........................................13
6.8 Classification as a Partnership..............................13
ARTICLE VII MANAGEMENT BY THE MANAGING MEMBER............................13
7.1 Management by the Members....................................13
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7.2 Admission of New Members.....................................13
7.3 Appointment of Officers......................................14
7.4 Power of Members.............................................14
ARTICLE VIII LIABILITY; EXCULPATION; INDEMNIFICATION......................14
8.1 Liability of Members; Reimbursement of Managing Member.......14
8.2 Duties and Liabilities of Covered Persons....................14
8.3 Indemnification..............................................15
ARTICLE IX TRANSFERS....................................................15
9.1 General Restrictions.........................................15
9.2 Violative Transfers..........................................16
9.3 Substituted Member...........................................16
9.4 Approval by the Nevada Gaming Commission.....................16
ARTICLE X BANKRUPTCY; TERMINATION; DISSOLUTION; LIQUIDATION
AND WINDING-UP...............................................17
10.1 Bankruptcy...................................................17
10.2 Termination of the Company...................................17
10.3 Liquidation and Winding-Up...................................17
10.4 Survival of Rights, Duties and Obligations...................18
10.5 Claims of the Members........................................18
ARTICLE XI GENERAL PROVISIONS...........................................18
11.1 Notices......................................................18
11.2 Entire Agreement; Non-Waiver.................................19
11.3 Amendments...................................................19
11.4 Further Assurances...........................................19
11.5 Applicable Law...............................................19
11.6 Severability.................................................19
11.7 Counterparts.................................................19
11.8 Table of Contents and Headings...............................19
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AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
VENETIAN CASINO RESORT, LLC
This Amended and Restated Limited Liability Company Agreement (this
"Agreement") of Venetian Casino Resort, LLC, a Nevada limited liability company
(the "Company"), dated as of November 14, 1997, is adopted and entered into by
and between Las Vegas Sands, Inc., a Nevada corporation ("LVSI"), as managing
member ("Managing Member"), and Interface Group Holding Company, Inc., a Nevada
corporation ("Interface Holding"), as non-managing member ("Non-Managing
Member") (each, a "Member" and collectively, with all other Persons who from
time to time become Members pursuant to this Agreement, the "Members"), pursuant
to and in accordance with the Nevada Limited Liability Company Act, Nev. Rev.
Stat. ▇▇.▇▇. 86.011 to 86.571, as amended from time to time (the "Act"), and the
terms of this Agreement.
WHEREAS, the Company was formed September 5, 1997, pursuant to the Act, and
the Company's members are LVSI and Interface Holding; and
WHEREAS, the parties desire to participate in a joint venture to construct,
hold, own, manage and operate the Venetian Casino Resort, a large-scale
Venetian-themed hotel, casino, retail, meeting and entertainment complex located
in Las Vegas, Nevada (the "Venetian Casino Resort") and to engage in any lawful
act or activity for which limited liability companies may be formed under the
Act and in any and all activities necessary or incidental to the foregoing.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Members hereby agree as
follows:
ARTICLE I
DEFINITIONS AND USAGE
1.1 "Adjusted Capital Account" shall mean, with respect to any Member, such
Member's Capital Account balance, increased by such Member's share of Company
Minimum Gain and Member Minimum Gain.
1.2 "Affiliate" shall mean, with respect to any Person, any other Person,
that, directly or indirectly, controls or is controlled by, or is under direct
or indirect common control with, such Person; provided, that, the Company and
LVSI shall not be deemed to be Affiliates for purposes of Sections 2.9 and 2.10.
"Control," as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise; and the terms "controlling" and
"controlled" shall have correlative meanings.
1.3 "Articles" shall mean the articles of organization of the Company
attached hereto as Exhibit A.
1.4 "Bank Facility" shall mean the Credit Agreement dated as of November
14, 1997, among the Company, LVSI, the lenders named therein, and ▇▇▇▇▇▇▇ ▇▇▇▇▇
Credit Partners, L.P., as arranger and syndication agent, and The Bank of Nova
Scotia, as administrative agent, as revised, amended, modified or restated.
1.5 "Capital Account" shall mean, with respect to each Member, the capital
account of such Member, maintained as set forth in Section 4.1.
1.6 "Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
1.7 "Company Minimum Gain" shall mean "partnership minimum gain," as
defined in ss. 1.704-2(b)(2) of the Treasury Regulations, and shall be
determined in accordance with ss. 1.704-2(d) of the Treasury Regulations.
1.8 "Depreciation" shall mean, with respect to any fiscal year, an amount
equal to the depreciation, amortization or other cost recovery deduction
allowable with respect to an asset for Federal income tax purposes, except that
if the Gross Asset Value of the asset differs from its adjusted tax basis,
Depreciation shall be determined either (a) in accordance with the methods used
for Federal income tax purposes and shall equal the amount that bears the same
ratio to the Gross Asset Value of such asset as the depreciation, amortization
or other cost recovery deduction computed for Federal income tax purposes with
respect to such asset bears to the adjusted Federal income tax basis of such
asset; provided, however, that if any such asset that is depreciable or
amortizable has an adjusted federal income tax basis of zero, the rate of
Depreciation shall be as determined by the "tax matters partner," or (b) as set
forth in Treasury Regulations Section 1.704-3(d)(2) if the Company, pursuant to
Section 4.6(b), uses the remedial method of allocations under Section 704(c) of
the Code.
1.9 "Effective Tax Rate" shall mean, for any year, the percentage
determined by the tax matters partner to be a reasonable estimate of the highest
marginal combined Federal, state and local income tax rate (giving effect to the
deduction of state and local income taxes, as applicable, for Federal and state
income tax purposes), applicable to individuals residing in the state of Nevada
with respect to the taxable income allocated to the Members by the Company for
Federal income tax purposes.
1.10 "Final Determination" shall mean (i) a decision, judgment, decree or
other order by a court of original jurisdiction which has become final (i.e.,
the time for filing an appeal shall have expired), (ii) a closing agreement made
under Section 7121 of the Code or any other settlement agreement entered into in
connection with an administrative or judicial proceeding, (iii) the expiration
of the time for instituting a claim for refund, or if a claim was filed, the
expiration of the time for instituting suit with respect thereto, or (iv) in any
case where judicial review shall be unavailable, a decision, judgment, decree or
other order of an administrative official or agency which has become final.
1.11 "GAAP" shall mean generally accepted accounting principles as in
effect in the United States from time to time.
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1.12 "Gross Asset Value" shall mean, with respect to any asset, the asset's
adjusted basis for Federal income tax purposes, except that (i) the Gross Asset
Value of any asset contributed to the Company shall be its gross fair market
value at the time such asset is contributed or deemed contributed for purposes
of computing Capital Accounts, (ii) upon a contribution of money or other
property to the Company by a new or existing Member as consideration for an
interest in the Company, and upon a distribution of money or other property to a
retiring or continuing Member as consideration for an interest in the Company,
the Gross Asset Value of all of the assets of the Company shall be adjusted to
equal their respective gross fair market values, (iii) the Gross Asset Value of
any asset distributed in kind to any Member shall be the gross fair market value
of such asset on the date of such distribution, and (iv) the Gross Asset Value
of any asset determined pursuant to clauses (i) or (ii) above shall thereafter
be adjusted from time to time by the Depreciation taken into account with
respect to such asset for purposes of determining Net Profit or Net Loss.
1.13 "Loan" shall mean (i) any Indebtedness of the Company and LVSI under
the Bank Facility, (ii) any Indebtedness of the Company and LVSI under the
credit agreement between the Company, LVSI, Grand Canal Shops Mall Construction,
LLC and GMAC Commercial Mortgage Corporation, as revised, amended, modified or
restated, (iii) any Indebtedness under the 12-1/4% Mortgage Notes due 2004
issued by the Company and LVSI pursuant to the indenture dated as of November
14, 1997, among the Company, LVSI, certain guarantors named therein and First
Trust National Association, as trustee, as revised, amended, modified or
restated or (iv) any Indebtedness under the 14-1/4% Senior Subordinated Notes
due 2005 issued by the Company and LVSI pursuant to the indenture, dated as of
November 14, 1997 among the Company, LVSI, certain guarantors named therein, and
First Union National Bank, as trustee, as revised, amended, modified or
restated.
1.14 "Member Minimum Gain" shall mean "partner nonrecourse debt minimum
gain," as defined in ss. 1.704-2(i)(2) of the Treasury Regulations, and shall be
determined in accor dance with ss. 1.704-2(i)(3) of the Treasury Regulations.
1.15 "Member Nonrecourse Debt" shall mean "partner nonrecourse debt," as
defined in ss. 1.704-2(b)(4) of the Treasury Regulations.
1.16 "Member Nonrecourse Deductions" shall mean "partner nonrecourse
deductions," as defined in ss. 1.704-2(i)(1) of the Treasury Regulations, and
shall be determined in accordance with ss. 1.704-2(i)(2) of the Treasury
Regulations.
1.17 "Net Profit" or "Net Loss" shall mean, with respect to any fiscal
year, the taxable income or loss of the Company as determined for federal income
tax purposes, with the following adjustments:
(i) Such taxable income or loss shall be increased by the amount, if
any, of tax-exempt income received or accrued by the Company;
(ii) ch taxable income or loss shall be reduced by the amount, if any,
of all expenditures of the Company described in Section 705(a)(2)(B) of the
Code, including expenditures treated as described therein under ss.
1.704(b)(2)(iv)(i) of the Treasury Regulations;
(iii) If the Gross Asset Value of any asset is adjusted pursuant to
clause (ii) or (iii) of the definition of Gross Asset Value, the amount of such
adjustment shall be taken into account, immediately prior to the event giving
rise to such adjustment, as gain or loss from the
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disposition of such asset for purposes of computing Net Profit or Net Loss;
(iv) Gain or loss resulting from any disposition of any asset with
respect to which gain or loss is recognized for Federal income tax purposes
shall be computed by reference to the Gross Asset Value of the asset disposed
of, notwithstanding that such Gross Asset Value differs from the adjusted tax
basis of such asset; and
(v) In lieu of the depreciation, amortization, or other cost recovery
deductions taken into account in computing such taxable income or loss, there
shall be taken into account Depreciation for such fiscal year.
1.18 "Nonrecourse Deductions" shall have the meaning set forth in ss.
1.704-2(b)(1) of the Treasury Regulations. The amount of Nonrecourse Deductions
for any year equals the excess, if any, of the net increase in the amount of
Company Minimum Gain during such year over the aggregate amount of any
distributions during such year of proceeds of a Nonrecourse Liability that are
allocable to an increase in Company Minimum Gain, determined in accordance with
ss. 1.704-2(c) of the Treasury Regulations.
1.19 "Nonrecourse Liability" shall have the meaning set forth in ss.
1.704-2(b)(3) of the Treasury Regulations.
1.20 "Person" shall mean any individual, partnership, company, corporation,
limited liability company, trust, estate, unincorporated association, syndicate,
joint venture or organization, or any government or any department, agency or
political subdivision thereof, or any other entity.
1.21 "Preferred Return," with respect to the Non-Managing Member, shall
mean a return at the rate of 12%, compounded semi-annually on June 30 and
December 31, beginning as of June 30, 1997, to the extent not distributed
pursuant to Section 5.1(a), on the Unrecovered Preferred Capital.
1.22 "Sales and Contribution Agreement" shall mean the Sale and
Contribution Agreement, dated as of November 14, 1997, among the Company, Grand
Canal Shops Mall, LLC and Grand Canal Shops Mall Construction, LLC, as revised,
amended, modified or restated.
1.23 "Transfer" shall mean any transfer, sale, assignment, pledge, lease,
hypothecation, mortgage, gift or creation of security interest, lien or trust
(voting or otherwise) or other encumbrance or other disposition of any
interests. "Transferor" and "Transferee" have correlative meanings and, in
addition, shall mean any Person who, in the case of a Transferor, issues
securities and, in the case of a Transferee, acquires securities so issued.
1.24 "Treasury Regulations" shall mean the Income Tax Regulations
promulgated under the Code, as amended from time to time.
1.25 "Unpaid Preferred Return," with respect to the Non-Managing Member,
shall mean an amount equal to the excess, if any, of the cumulative accrued
Preferred Return over the aggregate of all amounts previously distributed to
such Member pursuant to Section 5.1(a).
1.26 "Unrecovered Preferred Capital," with respect to the Non-Managing
Member,
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shall mean an amount equal to the excess, if any, of actual amount of cash
contributed by Interface Holding pursuant to Section 3.1 over the aggregate of
all amounts previously distributed to such Member pursuant to Section 5.1(b).
1.27 Cross References. Each of the following terms shall have the meaning
assigned thereto in the Section of this Agreement set forth below opposite such
term:
Act..............................................................Preamble
Agreement....................................................... Preamble
Capital Account.......................................................4.1
Company..........................................................Preamble
Conversion............................................................2.1
Covered Person.....................................................8.2(a)
Deficit Member.....................................................4.5(e)
Effective Date........................................................2.3
Loan Documents.....................................................2.9(b)
LVSI.............................................................Preamble
Mall Assets...........................................................2.8
Managing Member..................................................Preamble
Members..........................................................Preamble
Non-Managing Member..............................................Preamble
Original Agreement...............................................Preamble
Phase II Land.........................................................2.8
Property..............................................................2.8
Regulatory Allocations.............................................4.5(f)
Series A Preferred Return.............................................2.1
Series B Preferred Return.............................................2.1
tax matters partner...................................................6.6
Venetian Casino Resort...........................................Preamble
1.28. Usage Generally. The definitions in Article I shall apply equally to
both the singular and plural forms of the terms defined. Whenever the context
may require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. All references herein to Articles, Sections, Exhibits and
Schedules shall be deemed to be references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. All Exhibits and Schedules attached hereto shall be deemed incorporated
herein as if set forth in full herein and, unless otherwise defined therein, all
terms used in any Exhibit or Schedule shall have the meaning ascribed to such
term in this Agreement. The words "include", "includes" and "including" shall be
deemed to be followed by the phrase "without limitation". All accounting terms
not defined in this Agreement shall have the meanings determined by GAAP. The
words "hereof", "herein" and "hereunder" and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. Unless otherwise expressly provided
herein, any agreement, instrument or statute defined or referred to herein or in
any agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of agreements or instruments) by waiver or consent and
(in the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein.
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ARTICLE II
FORMATION; NAME; TERM
2.1 Formation. LVSI and Interface Holding formed the Company as a limited
liability company on September 5, 1997, under and pursuant to the provisions of
the Act. The Members hereby agree that the Company shall be governed by the
terms and conditions of this Agreement. Subject to the terms and conditions
herein, the Managing Member shall own a common equity interest in the Company
and the Non-Managing Member shall own a preferred equity interest in the Company
(the "Series A Preferred Interest"). The Non-Managing Member, at any time and in
its sole discretion, may convert (a "Conversion") the Series A Preferred
Interest into a preferred equity interest which will be entitled to the
Preferred Return, beginning on the Effective Date (the "Series B Preferred
Interest").
2.2 Company Name. The name of the Company shall be Venetian Casino Resort,
LLC.
2.3 Effective Date. This Agreement shall become effective upon the
execution of this Agreement by the Members (the "Effective Date").
2.4 Term. The Company shall have perpetual existence unless sooner
dissolved or terminated as provided in the Act or this Agreement.
2.5 Registered Agent and Office. The Company's registered agent and office
in Nevada shall be ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 1700 Bank of America Plaza, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
2.6 Principal Place of Business. The principal place of business of the
Company shall be at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ or
at such other or additional place or places as the Members shall determine from
time to time. The Company may have other offices, either within or outside of
the State of Nevada, at such place or places as the Members may from time to
time designate or the business of the Company may require.
2.7 Filings. The Members promptly shall cause the execution and delivery of
such documents and performance of such acts consistent with the terms of this
Agreement as may be necessary to comply with the requirements of law for the
formation, qualification and operation of a limited liability company under the
laws of each jurisdiction in which the Company shall conduct business.
2.8 Purpose. The purpose for which the Company is formed and the nature of
business proposed to be transacted and carried on by it shall be limited to the
following: (i) to construct, hold, own, manage, market and operate a hotel,
casino, resort, meeting, convention, retail and entertainment complex known as
the Venetian Casino Resort (the "Property"), located at ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, (ii) to engage in the casino gaming, hotel,
and resort business at the Property and any activity and business incidental,
directly related or similar thereto (including without limitation, (a) owning
and operating a meeting and convention facility at the Property, (b) owning,
operating and leasing, including ground leases, a retail and entertainment mall
at the Property, known as the Grand Canal Shops Mall prior to its transfer to an
Affiliate of the Company and (c) leasing property to energy providers), (iii) to
enter into and perform casino lease or
6
casino management agreements with any Affiliate or other Person to operate
any casino to be located on the Phase II Land [(as defined in the Loan
Documents)] or any other casino owned or operated by an Affiliate of the Company
or LVSI, (iv) to own equity interests in any Persons that (a) are engaged or
proposed to be engaged in any business described in this Section 2.8, (b) are
formed to hold, own and develop the Phase II Land and (c) are formed to acquire
and hold directly or indirectly equity interests in any Persons described in
clauses (iv)(a) and (b), (v) to enter into any transaction with any of its
Affiliates or LVSI to the extent permitted under this Agreement, and (vi) to
engage in any business or activity that is a reasonable extension, development
or expansion thereof or ancillary thereto, including any hotel, entertainment,
convention, trade show, meeting, recreation, retail sale or other activity or
business designed to promote, market, support, develop, construct or enhance the
casino gaming, hotel and resort business operated by the Company (including,
without limitation, incurring indebtedness or providing guarantees, security
interests or other forms of credit support in connection with the business
activities described above, transferring the Phase II Land and the [Mall
Assets](as defined in the Loan Documents) to Affiliates and owning and operating
joint ventures to supply materials or services for the construction or operation
of the Property).
2.9 Assets.
(a) So long as any of the Loan remains outstanding, the Company shall
not take title to any personal or real property other than in the name of the
Company.
(b) So long as any of the Loan remains outstanding, the Company shall
not commingle its property with the property of any of its Affiliates, except as
permitted under the documents evidencing, securing or otherwise relating to the
Loan (collectively, as the same may from time to time be amended, the "Loan
Documents").
2.10 Separateness from Affiliates. So long as any of the Loan remains
outstanding, the Company shall (a) pay solely from its assets all obligations of
any kind incurred by it and not pay from its assets the obligations of any other
Person, except to the extent otherwise expressly permitted under the Loan
Documents; (b) conduct business solely in its own name, and hold itself out as a
separate entity; (c) not enter into or be a party to any transaction with any
Affiliate, except on terms which are no less favorable to the Company than would
be obtained in a comparable arm's length transaction with an unrelated third
party, except as permitted under the Loan Documents; (d) not acquire obligations
or securities of its Members or any other Affiliates of such Members, except to
the extent otherwise expressly permitted under the Loan Documents; (e) not make
loans to any other Person or buy or hold evidence of Indebtedness issued by any
other Person, except as permitted under the Loan Documents; (f) maintain its
bank accounts, books, and records on a separate basis from those of any other
Person and maintain a principal executive and administrative office through
which its business is conducted separate from that of any Affiliate; provided,
however, that the Company and any of its Affiliates may have offices in the same
location provided there is a fair and appropriate allocation of overhead costs,
if any, among the Company and/or any such Affiliates and each of the Company and
any such Affiliates bears its fair share of such costs; (g) disclose in any
consolidated financial statements for a group of which the Company is a member,
the Company's separate legal existence and indicate that the assets and
liabilities of the Company are intended to be available only to the creditors of
the Company; (h) observe all limited liability company formalities regarding its
existence, including, without limitation, memorializing the determinations of
the Managing Member on all significant transactions, paying the salaries of its
own employees, if any (or paying a proportionate share of the salary of any
employee of any Affiliate who performs work for both the Company and such
Affiliate) and preparing, filing and paying all taxes of the Company; (i) use
7
separate stationery, invoices and checks; (j) correct any known misunderstanding
regarding its separate identity; (k) not identify itself as a division of any
other Person; (l) not be the obligor or guarantor of, otherwise responsible for,
the payment of any obligations for borrowed money, except as permitted under the
Loan Documents; and (m) not amend Sections 2.8, 2.9 and 2.10 of this Agreement
in ay manner, except as permitted under the Loan Documents. Nothing hereinabove
contained shall in any way limit the ability of the Company to pay distributions
to its Members.
2.11 Authorized Person. ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇ hereby is designated as an
authorized person, within the meaning of the Act, to execute, deliver and file
the Articles.
2.12 Certificates. The Non-Managing Member's preferred equity interest in
the Company shall be evidenced by a certificate of interest, substantially in
the form of Exhibit B attached hereto, issued by the Company on the Effective
Date.
ARTICLE III
CONTRIBUTIONS
3.1 Capital Contributions. On or prior to the date of this Agreement, all
capital contributions by the Members shall have been made to the Company. From
time to time, the Members may agree to make additional capital contributions in
cash, real property or other property and, at such times, shall have their
Capital Accounts increased pursuant to Section 4.1.
ARTICLE IV
CAPITAL ACCOUNTS; ALLOCATIONS
4.1 Capital Accounts. A separate capital account (a "Capital Account")
shall be maintained for each Member. Each Member's Capital Account shall be
credited with (a) the amount of such Member's capital contribution made in cash,
(b) the fair market value (net of liabilities assumed or taken subject to) of
all property contributed by such Member, (c) such Member's allocated share of
Net Profit of the Company and (d) any items of income and gain allocated to such
Member pursuant to Section 4.5. Each Member's Capital Account shall be reduced
by (a) the amount of any cash distributions to such Member, (b) the fair market
value (net of liabilities assumed or taken subject to) of all property
distributed in kind to such Member, (c) such Member's allocated share of Net
Loss of the Company and (d) any items of deduction and loss allocated to such
Member pursuant to Section 4.5.
4.2 Allocation of Net Profit. Except as otherwise provided in the further
provisions of this Article IV, Net Profit of the Company for any fiscal year
shall be allocated as follows and in the following order of priority:
(a) First, to LVSI to the extent of any deficit balance in its Capital
Account;
(b) Next, to Interface Holding until it has received aggregate
allocations of Net Profit pursuant to this Section 4.2(b) for the current and
all prior years equal to the cumulative
8
Net Loss allocated to such Member pursuant to Section 4.3(b) for all prior
periods;
(c) Next, if a Conversion has occurred, to Interface Holding until it
has received aggregate allocations of Net Profit pursuant to this Section 4.2(c)
for the current and all prior years equal to the cumulative accrued Preferred
Return;
(d) Next, to LVSI until it has received aggregate allocations of Net
Profit pursuant to this Section 4.2(d) for the current and all prior years equal
to the cumulative Net Loss allocated to such Member pursuant to Section 4.3(a)
for all prior periods;
(e) Thereafter, to LVSI.
4.3 Allocation of Net Loss. Except as otherwise provided in the further
provisions of this Article IV, Net Loss of the Company for any fiscal year shall
be allocated as follows and in the following order of priority:
(a) First, to LVSI until its Capital Account balance has been reduced
to zero;
(b) Second, to Interface Holding until its Capital Account balance has
been reduced to zero; and
(c) Thereafter, to LVSI.
4.4 Interim Allocations Due to Percentage Interest Adjustment. Except as
may be otherwise agreed to by the Members, in the event of a transfer of an
interest in the Company, the Company's Net Profit or Net Loss shall be allocated
among the Members for the periods before and after the change or transfer based
on an interim closing of the books. This Section 4.4 shall apply both for
purposes of computing a Member's Capital Account and for Federal income tax
purposes, unless the Members otherwise agree.
4.5 Regulatory Allocations.
(a) Notwithstanding any other provision of this Article IV, if there is
a net decrease in Company Minimum Gain during any year, each Member shall be
specially allocated items of income and gain for such year (and, if necessary,
subsequent years) in an amount equal to the portion of such Member's share of
the net decrease in Company Minimum Gain, determined in accordance with ss.
1.704-2(g) of the Treasury Regulations. Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to be
allocated to each Member pursuant thereto. The items to be so allocated shall be
determined in accordance with ss. 1.704-2(f)(6) of the Treasury Regulations.
This Section 4.5(a) is intended to comply with the minimum gain chargeback
requirement in ss. 1.704-2(f) of the Treasury Regulations and shall be inter
preted consistently therewith.
(b) Notwithstanding any other provisions of this Article IV except
Section 4.5(a), if there is a net decrease in Member Minimum Gain attributable
to a Member Nonrecourse Debt during any year, each Member who has a share of the
Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in
accordance with ss. 1.704-2(i)(5) of the Treasury Regulations, shall be
specially allocated items of income and gain for such year (and, if
9
necessary, subsequent years) in an amount equal to the portion of such Member's
share of the net decrease in Member Minimum Gain attributable to such Member
Nonrecourse Debt, determined in accordance with ss. 1.704-2(i)(4) of the
Treasury Regulations. Allocations pursuant to the previous sentence shall be
made in proportion to the respective amounts required to be allocated to each
Member pursuant thereto. The items to be so allocated shall be determined in
accordance with ss.1.704-2(i)(4) of the Treasury Regulations. This Section
4.5(b) is intended to comply with the minimum gain chargeback requirement in
ss.1.704-2(i) of the Treasury Regulations and shall be interpreted consistently
therewith.
(c) Nonrecourse Deductions for any year shall be allocated to LVSI.
(d) Any Member Nonrecourse Deductions for any year shall be specially
allocated to the Member who bears the economic risk of loss with respect to the
Member Nonrecourse Debt to which such Member Nonrecourse Deductions are
attributable in accordance with ss. 1.704- 2(i)(1) of the Treasury Regulations.
(e) Notwithstanding any other provision of this Article IV, no Member
shall be allocated in any fiscal year of the Company any Net Loss to the extent
such allocation would cause or increase a deficit balance in such Member's
Adjusted Capital Account, taking into account all other allocations to be made
for such year pursuant to this Article IV and the reasonably expected
adjustments, allocations and distributions described in ss. 1.704-1(b)(2)(ii)(d)
of the Treasury Regula tions. Any such Net Loss that would be allocated to a
Member (the "Deficit Member") shall instead be allocated to the other Members.
Moreover, if a Deficit Member unexpectedly receives an adjustment, allocation or
distribution described in ss. 1.704-1(b)(2)(ii)(d) of the Treasury Regulations
which creates or increases a deficit balance in such Member's Adjusted Capital
Account (computed after all other allocations to be made for such year pursuant
to this Article IV have been tentatively made as if this Section 4.5(e) were not
in this Agreement), such Deficit Member shall be allocated items of income and
gain in an amount equal to such deficit balance. This Section 4.5(e) is intended
to comply with the qualified income offset requirement of ss.
1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be interpreted
consistently therewith.
(f) The allocations set forth in Sections 4.5(a) through 4.5(e) (the
"Regulatory Allocations") shall be taken into account in allocating items of
income, gain, loss and deduction among the Members so that, to the extent
possible, the net amount of such allocations of other items and the Regulatory
Allocations to each Member shall be equal to the net amount that would have been
allocated to each such Member if the Regulatory Allocations had not occurred.
(g) For purposes of ss. 1.752-3(a)(3) the Members' shares of "excess
nonrecourse liabilities" shall equal their respective shares of Nonrecourse
Deductions.
4.6 Certain Tax Matters.
(a) Except as otherwise provided herein, all items of Company income,
gain, deduction and loss shall be allocated among the Members in the same
proportion as they share in the Net Profit and Net Loss to which such items
relate. Any credits against income tax shall be allocated to LVSI.
(b) Income, gain, loss or deductions of the Company shall, solely for
income tax purposes, be allocated among the Members in accordance with Section
704(c) of the Code
10
and the Treasury Regulations promulgated thereunder, so as to take account of
any difference between the adjusted basis of the assets of the Company and their
respective Gross Asset Values upon contribution. In furtherance of the
foregoing, the Managing Member shall determine which of the methods prescribed
in such Regulations the Company shall employ.
ARTICLE V
DISTRIBUTIONS
5.1 General. No Member shall be entitled to receive any distribution from
the Company except as provided in this Agreement. Except as otherwise provided
in Sections 5.2 and 10.4, distributions of Company cash or other property shall
be made semi-annually (to the extent permitted by the debt agreements and
instruments of the Company) at such times and in such amounts as may be
determined by the Managing Member (in its sole discretion) and in the following
order of priority:
(a) First, if a Conversion has occurred, to Interface Holding, in an
amount equal to its Unpaid Preferred Return at such time;
(b) Next, to Interface Holding, in an amount equal to the lesser of its
Unrecovered Preferred Capital or its positive Capital Account balance at such
time; and
(c) Thereafter, to LVSI if the Unrecovered Preferred Capital of
Interface Holding is equal to zero.
5.2 Tax Distributions.
(a) Notwithstanding the provisions of Section 5.1 , if it is
anticipated that the allocations of Net Profit for any year pursuant to Section
4.2 will result in the Members recognizing taxable income with respect to the
Company for such year, the Members shall make a good faith estimate of the
amount of such taxable income to be recognized by each of the Members, and
distributions of Company cash shall be made to each of the Members in an amount
equal to the Effective Tax Rate multiplied by such Member's allocations of Net
Profit for such year pursuant to Section 4.2. Distributions required to be made
pursuant to this Section 5.2(a) shall be made in quarterly installments in a
timely manner so that the Members may pay any estimated or required income or
similar taxes, and shall be treated, at the election of the Managing Member,
either as (i) amounts to be distributed pursuant to Section 5.1 or (ii) advances
against such amounts.
(b) The computation of the amounts required to be distributed pursuant
to Section 5.2(a) for any year shall be adjusted (i) prior to each distribution
for such year, (ii) upon the filing of the Company's Federal income tax return
for such year, (iii) upon any Final Determination of the Company's taxable
income for such year and (iv) at any other time when in the good faith judgment
of the Managing Member it appears that a prior estimate has been incorrect, in
each case so as to take into account actual determinations and/or revised
estimates of the Members' shares of taxable income for such year for Federal
income tax purposes. Following any such adjustment, the amounts to be
distributed pursuant to Section 5.2(a) shall be adjusted appropriately, or
additional distributions shall be made, so as to give effect to such actual
determinations and/or revised estimates.
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5.3 Return of Capital.
(a) Notwithstanding Section 5.1 or any other provision of this
agreement, if there shall be a distribution of a 1% Managing Member's interest
in Grand Canal Shops Mall Holding Company, LLC or Grand Canal Shops Mall, LLC to
Grand Canal Mall MM, Inc. in connection with or following the transactions
contemplated by the Sale and Contribution Agreement, then, for purposes of this
Agreement, such distribution shall be treated as a distribution in kind to LVSI.
(b) Notwithstanding Section 5.1, beginning on the twelfth anniversary
of the Effective Date and on a semi-annual basis thereafter, distributions under
Sections 5.1(a) and (b) must be made to Interface Holding until its Unrecovered
Preferred Capital is equal to zero.
(c) Notwithstanding Section 5.1, the Company shall, to the extent
desired and as directed from time to time by the Managing Member, make
distributions of cash or other property to the Managing Member; provided that
such distributions shall not exceed $50,000,000 in the aggregate.
(d) Upon the Unrecovered Preferred Capital balance equaling zero, the
Non-Managing Member shall no longer be considered a Member for purposes of this
Agreement and shall not be entitled to receive any allocations or distributions
from the Company pursuant to terms of this Agreement.
5.4 Limits on Distributions. Notwithstanding any provision to the contrary
contained in this Agreement, the Company shall not make a distribution to any
Member with respect to such Member's interest if such distribution would violate
the Act or other applicable law.
ARTICLE VI
BOOKS; RECORDS; ACCOUNTING; FINANCIAL AND TAX MATTERS
6.1 Accounting Method. The Company shall keep its accounting records and
shall report its profits or losses on the accrual method of accounting in
accordance with GAAP.
6.2 Accounting Records. The Company shall keep complete and accurate
business and accounting records reflecting all transactions of the Company. The
Company's records shall be maintained at the principal place of business of the
Company and shall be subject to inspection or examination by the Members at all
reasonable times.
6.3 Fiscal Year. The fiscal year of the Company initially shall end on
December 31 of each year.
6.4 Reports.
(a) Upon the request of any Member, as soon as practicable but in any
event within 120 days after the close of each fiscal year of the Company, the
Company shall prepare and deliver, or cause to be prepared and delivered, to
each Member the following financial state ments: (i) a balance sheet of the
Company as at the end of such fiscal year; (ii) a statement of net
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profit and net loss for such fiscal year; and (iii) a statement of cash flows of
the Company for such fiscal year.
(b) The Company shall prepare, or cause to be prepared, and shall file
all tax returns, be they information returns or otherwise, which are required to
be filed with the Internal Revenue Service, state and local tax authorities and
foreign tax jurisdictions, if any. A copy of such returns shall be furnished to
each of the Members.
(c) The Company shall furnish the Members with all Company information
required to be reported in the tax returns of the Members for tax jurisdictions
in which the Company is considered to be doing business, including a report
indicating each Member's share for income tax purposes of the Company's income,
gain, credits, losses and deductions within 180 days after the end of the
Company's fiscal year or as soon thereafter as possible, if the Company is
unable to provide such information within such 180 day period.
6.5 Bank and Investment Accounts. All funds of the Company shall be
deposited in its name in such checking, savings or other accounts, or held in
its name in the form of such other investments as shall be designated by the
Managing Member. All withdrawals of such deposits or liquidations of such
investments by the Company shall be made exclusively upon the signature or
signatures of such officer or officers of the Company as the Managing Member may
designate.
6.6 Records. The Company shall keep at its registered office such records
as are required by the Act and by the Nevada Gaming Control Act, as amended from
time to time.
6.7 Tax Matters Partner. The "tax matters partner" (as such term is defined
in Section 6231(a)(7) of the Code) of the Company shall be the Managing Member.
6.8 Classification as a Partnership. The parties hereto intend that the
Company be classified as a partnership for federal tax purposes effective as of
the date of this Agreement. The tax matters partner shall not file an election
for the Company to be taxable as an association, and shall, for and on behalf of
the Company, take all steps as may be required to maintain the Company's
classification as a partnership for federal tax purposes. By executing this
Agreement, each of the parties hereto consents to the authority of the tax
matters partner to make any such election and shall cooperate in the making of
such election (including providing consents and other authorizations that may be
required).
ARTICLE VII
MANAGEMENT BY THE MANAGING MEMBER
7.1 Management by the Members. The Company shall be managed solely by the
Managing Member. The Non-Managing Member shall have no voting or consent rights
except to the extent required by law or provided for herein.
7.2 Admission of New Members. No new members shall be admitted without the
consent of all the existing Members except in accordance with the transfer
provisions contained in Article IX. Notwithstanding the foregoing, without the
consent of the Non-Managing Member, the Managing Member may elect to admit as
new members officers of the Company or LVSI upon the
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receipt by the Company of fair consideration as determined by the Managing
Member in its sole discretion; provided that the interests issued to such new
members shall only be (i) non-voting common equity interests of the Company
(representing up to 7.5% of the common equity interests in the Company) and (ii)
non-voting profit interests (representing up to a 7.5% profit interest in the
Company for which the Company may pay distributions either (a) at any time or
(b) only upon the liquidation or dissolution of the Company). Prior to the
admission of an additional member of the Company or the issuance of a profit
interest, the Members shall amend this Agreement to make such changes as the
Managing Member shall determine to reflect the admission of such additional
member or the issuance of such profit interest.
7.3 Appointment of Officers. The Managing Member may, from time to time,
appoint officers of the Company, hire Company executives, and set the
compensation of such officers and executives.
7.4 Power of Members. The Members shall have the power to exercise any and
all rights or powers granted to Members pursuant to the express terms of this
Agreement. Except as otherwise specifically provided by this Agreement or
required by the Act, and except for powers of the Managing Member pursuant to
Section 7.1, no Member shall have the power to act for or on behalf of, or to
bind, the Company.
ARTICLE VIII
LIABILITY; EXCULPATION; INDEMNIFICATION
8.1 Liability of Members; Reimbursement of Managing Member. The Members
shall not have any liability for the obligations or liabilities of the Company
except to the extent provided in the Act and other applicable law. A Member
shall not be personally liable for any indebtedness, liability or obligation of
the Company, except that such Member shall remain personally liable for the
payment of any capital contributions required by Article III, and as otherwise
set forth in this Agreement, the Act and any other applicable law. The Managing
Member shall be entitled to reimbursement from the Company for all reasonable
out-of-pocket expenses that are incurred by the Managing Member in its
performance of the services rendered as Managing Member of the Company or that
otherwise directly relate to the purpose of the Company as provided in Section
2.8 hereof.
8.2 Duties and Liabilities of Covered Persons.
(a) To the extent that, at law or in equity, any Member, any Affiliate
of a Member or any shareholders, partners, members, employees, representatives
or agents of a Member or their respective Affiliates, any officer or any
employee or agent of the Company (each a "Covered Person") has duties (including
fiduciary duties) and liabilities related thereto to the Company or to any other
Covered Person, a Covered Person acting under this Agreement shall not be liable
to the Company or to any other Covered Person for its good faith reliance on the
provisions of this Agreement.
(b) Unless otherwise expressly provided herein, (i) whenever a conflict
of interest exists or arises between Covered Persons, or (ii) whenever this
Agreement or any other agreement contemplated herein provides that a Covered
Person shall act in a manner that is, or provides terms that are, fair and
reasonable to the Company or any Member, the Covered Person shall resolve such
conflict of interest, taking such action or providing such terms, considering in
each
14
case the relative interest of each party (including its own interest) to such
conflict, agreement, transaction or situation and the benefits and burdens
relating to such interests, any customary or accepted industry practices, and
any applicable generally accepted accounting practices or principles. In the
absence of bad faith by the Covered Person, the resolution, action or term so
made, taken or provided by the Covered Person shall not constitute a breach of
this Agreement or any other agreement contemplated herein or of any duty or
obligation of the Covered Person at law or in equity or otherwise.
(c) Whenever in this Agreement a Covered Person is permitted or
required to make a decision (i) in its "discretion" or under a grant of similar
authority or latitude, the Covered Person shall be entitled to consider only
such interests and factors as it desires, including its own interests, and shall
have no duty or obligation to give any consideration to any interest of or
factors affecting the Company or any other Person, or (ii) in its "good faith"
or under another express standard, the Covered Person shall act under such
express standard and shall not be subject to any other or different standard
imposed by this Agreement or other applicable law.
8.3 Indemnification.
(a) The Company shall indemnify any Covered Person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding brought by or against the Company or
otherwise, whether civil, criminal, administrative or investigative, including,
without limitation, an action by or in the right of the Company to procure a
judgment in its favor, by reason of the fact that such Covered Person is or was
a Member, officer, employee or agent of the Company, or that such Covered Person
is or was serving at the request of the Company as a partner, member, director,
officer, trustee, employee or agent of another Person, against all expenses,
including attorneys' fees and disbursements, judgments, fines and amounts paid
in settlement actually and reasonably incurred by such Covered Person in
connection with such action, suit or proceeding. Notwithstanding the foregoing,
no indemnification shall be provided to or on behalf of any Covered Person if a
judgment or other final adjudication adverse to such Covered Person establishes
that his or her acts constituted intentional misconduct or gross negligence.
(b) The indemnification provided by this Section 8.3 shall not be
deemed exclusive of any other rights to indemnification to which those seeking
indemnification may be entitled under any agreement, determination of Members or
otherwise. The rights to indemnification and reimbursement or advancement of
expenses provided by, or granted pursuant to, this Section 8.3 shall continue as
to a Covered Person who has ceased to be a Member, officer, employee or agent
(or other person indemnified hereunder) and shall inure to the benefit of the
executors, administrators, legatees and distributees of such person.
ARTICLE IX
TRANSFERS
9.1 General Restrictions.
(a) No Member may Transfer all or any portion of such Member's interest
(including any beneficial interest therein), unless the following conditions are
met: (i) the other Member approves the Transfer, which approval may be withheld
in such other Member's sole
15
discretion; (ii) an instrument of Transfer in form and substance satisfactory to
such other Member, executed by the Transferor and the Transferee of the
interest, together with such additional instruments and documents as shall be
requested by such other Member, shall be delivered to the Company; and (iii) the
Transferee shall, if so requested, assume the obligations, if any, of the
Transferor to the Company. Any Person that acquires an interest pursuant to this
Article IX shall assume all obligations of the transferring Member.
(b) Notwithstanding Section 9.1(a)(1), without the consent of the
Managing Member, after the opening of the Venetian Casino Resort and the
repayment of all indebtedness under the Bank Facility, the Non-Managing Member
may transfer all or any portion of such Member's interest (including any
beneficial interest therein), if the Company has received an opinion of counsel
reasonably satisfactory to the Managing Member that such Transfer would, in the
opinion of such counsel, (i) not result in the violation of, or loss of
exemption under, any applicable federal or state securities law; (ii) not result
in the breach of any agreement to which the Company is a party or is bound;
(iii) not result in the Company no longer being treated as a partnership for
federal income tax purposes, or in a termination of the Company for federal
income tax purposes; (iv) not cause the assets of the Company to be treated as
"plan assets" under the Employee Retirement Income Security Act of 1974, as
amended (and any successor statute) or the Code; and (v) not caused the Company
to be treated as a publicly traded partnership under the Code. In its
discretion, the Managing Member may waive the requirement for delivery of all or
any part of the opinion described above.
9.2 Violative Transfers. No Member may make a Transfer of an interest in
the Company in violation of Section 9.1, and any such Transfer shall be null,
void and without effect.
9.3 Substituted Member. As a condition to the admission of any Person as a
substituted Member, the Person to be admitted shall execute and acknowledge such
instruments, in form and substance satisfactory to the non-transferring Member
as such Member may deem necessary or desirable to effectuate such admission, and
shall confirm that the individual's legal representative, committee or other
entity to be admitted as a Member has agreed to be bound by all of the
covenants, terms and conditions of this Agreement, as the same shall have been
amended.
9.4 Approval by the Nevada Gaming Commission. Notwithstanding anything to
the contrary expressed or implied in this Agreement, the sale, assignment,
transfer, pledge or other disposition of any interest in the Company is
ineffective unless approved in advance by the Nevada Gaming Commission. If at
any time the Nevada Gaming Commission finds that a Member which owns any such
interest is unsuitable to hold that interest, the Nevada Gaming Commission shall
immediately notify the Company of that fact. The Company shall, within 10 days
from the date that it receives the notice from the Nevada Gaming Commission,
return to the unsuitable Member the amount of his capital account as reflected
on the books of the Company. Beginning on the date when the Nevada Gaming
Commission serves notice of a determination of unsuitability, pursuant to the
preceding sentence, upon the Company, it is unlawful for the unsuitable Member:
(a) to receive any share of the distribution of profits or cash or any other
property of, or payments upon dissolution of, the Company, other than a return
of capital as required above; (b) to exercise directly or through a trustee or
nominee, any voting right conferred by such interest; (c) to participate in the
management of the business and affairs of the Company; or (d) to receive any
remuneration in any form from the Company, for services rendered or otherwise.
16
Any Member that is found unsuitable by the Nevada Gaming Commission shall
return all evidence of any ownership in the Company to the Company, at which
time the Company shall, within 10 days after the Company receives notice from
the Nevada Gaming Commission, return to the Member in cash, the amount of his
capital account as reflected on the books of the Company, and the unsuitable
Member shall no longer have any direct or indirect interest in the Company.
ARTICLE X
BANKRUPTCY; TERMINATION; DISSOLUTION; LIQUIDATION AND WINDING-UP
10.1 Bankruptcy. The Managing Member is authorized to file, on behalf of
the company, a petition for relief under title 11 of the United States Code.
10.2 Termination of the Company. In the event of the affirmative agreement
for a dissolution of all of the Members, the Company shall be terminated on the
90th day after the occurrence of such event.
10.3 Liquidation and Winding-Up. If the Company is dissolved pursuant to
Section 10.1, the Company shall be liquidated and wound up in accordance with
the Act and the following provisions:
(a) The assets, properties and business of the Company shall be
liquidated by the Members as promptly as possible, but in an orderly and
businesslike manner so as not to involve undue sacrifice. Notwithstanding the
foregoing, if it is determined by the Members not to sell all or any portion of
the properties and assets of the Company, such properties and assets shall be
distributed in kind in the order of priority set forth in subsection (c);
provided, however, that the fair market value of such properties and assets
shall be used in determining the extent and amount of a distribution in kind of
such properties and assets in lieu of actual cash proceeds of any sale or other
disposition thereof.
(b) Net Profit or Net Loss of the Company for the year of liquidation
shall be credited or charged to the Capital Accounts of the Members in
accordance with the allocation provisions set forth in Sections 4.2 and 4.3,
respectively.
(c) The proceeds of sale of all or substantially all of the properties
and assets of the Company and all other properties and assets of the Company not
sold, as provided in subsection (b) above, and valued at the fair market value
thereof as provided in such subsection (b), shall be applied and distributed as
follows, and in the following order or priority:
(i) First, to the payment of all debts and liabilities of the
Company and the expenses of liquidation not otherwise adequately provided for;
(ii) Second, to the setting up of any reserves that are reasonably
necessary for any contingent unforeseen liabilities or obligations of the
Company or of the Members arising out of, or in connection with, the Company;
(iii) Third, to Interface Holding in an amount equal to its
Unrecovered Preferred Capital at such time;
17
(iv) Fourth, to Interface Holding in an amount equal to its Unpaid
Preferred Return at such time; and
(v) Fifth, the remaining proceeds to LVSI.
(d) A Certificate of Cancellation shall be filed with the Secretary of
State of the State of Nevada by the Members.
10.4 Survival of Rights, Duties and Obligations. Termination, dissolution,
liquidation or winding up of the Company for any reason shall not release any
party from any liability which at the time of such termination, dissolution,
liquidation or winding up already had accrued to any other party or which
thereafter may accrue in respect to any act or omission prior to such
termination, dissolution, liquidation or winding up.
10.5 Claims of the Members. Members and former Members shall look solely to
the Company's assets for the return of their contributions to the Company, and
if the assets of the Company remaining after payment of or due provision for all
debts, liabilities and obligations of the Company are insufficient to return
such contributions, the Members and former Members shall have no recourse
against the Company or any other Member.
ARTICLE XI
GENERAL PROVISIONS
11.1 Notices. Wherever provision is made in this Agreement for the giving
of any notice, such notice shall be in writing and shall be deemed to have been
duly given if mailed by first class United States mail, postage prepaid,
addressed to the party entitled to receive the same or delivered personally to
such party, or telegraphed, telexed, sent by facsimile transmission or sent by
overnight courier, in each case to the addresses or facsimile telephone numbers
therefor set forth below:
If to LVSI:
Las Vegas Sands, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board
If to Interface Holding:
Interface Group Holding Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chairman of the Board
or to such other address, in any such case, as any party hereto shall have last
designated by notice to the other party. Notice shall be deemed to have been
given on the day that it is so delivered personally, telegraphed, telexed or
sent by facsimile transmission and the appropriate answerback
18
received or, if sent by overnight courier, shall be deemed to have been given
one day after delivery by the courier company, or if mailed, three days
following the date on which such notice was so mailed.
11.2 Entire Agreement; Non-Waiver. This Agreement constitutes the entire
agreement of the parties hereto. No delay on the part of any party in exercising
any right hereunder shall operate as a waiver thereof, nor shall any waiver,
express or implied, by any party of any right hereunder or of any failure to
perform or breach hereof by any other party constitute or be deemed a waiver of
any other right hereunder or of any other failure to perform or breach hereof by
the same or any other Member, whether of a similar or dissimilar nature thereof.
11.3 Amendments. This Agreement may be amended from time to time only upon
the written approval of the Managing Member and the other Members.
11.4 Further Assurances. Each of the Members hereby agrees to execute and
deliver all such other and additional instruments and documents and to do such
other acts and things as may be reasonably necessary or appropriate to carry out
the intent and purposes of this Agreement.
11.5 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Nevada (other than its rules of
conflicts of law to the extent that the application of the laws of another
jurisdiction would be required thereby), and specifically the Act and the Nevada
Gaming Control Act, as amended from time to time. ▇▇▇▇▇ County, Nevada, shall be
the exclusive venue for any action brought by any party in any way related to
this Agreement.
11.6 Severability. In the event that any provision of this Agreement shall
be declared to be invalid, illegal or unenforceable, such provision shall
survive to the extent it is not so declared, and the validity, legality and
enforceability of the other provisions hereof shall not in any way be affected
or impaired thereby, unless such action would substantially impair the benefits
to either party of the remaining provisions of this Agreement.
11.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
11.8 Table of Contents and Headings. The table of contents and headings in
this Agreement are solely for convenience of reference and shall not affect the
interpretation or construction of any of the provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed, by their respective duly authorized officers or partners, on the date
first above written.
MEMBERS
LAS VEGAS SANDS, INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary
INTERFACE GROUP HOLDING COMPANY, INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary
20