Exhibit 10.56


 


EXECUTION
VERSION


 




 





MASTER DISBURSEMENT AGREEMENT


 


among


 


LIDO CASINO RESORT, LLC,


 


PHASE II MALL HOLDING, LLC,


 


PHASE II MALL SUBSIDIARY,
LLC,


 


THE BANK OF NOVA SCOTIA,


as the Bank Agent,


 


THE BANK OF NOVA SCOTIA,


as the Phase II Mall Agent,


 


GOLDMAN SACHS CREDIT PARTNERS
L.P.,


as the Bank Arranger


 


and


 


THE BANK OF NOVA SCOTIA,


as the Disbursement Agent


 


dated as of


 


September 30, 2004




 





 





















 


TABLE OF CONTENTS


 


	
  ARTICLE 1 – DEFINITIONS; RULES OF
  INTERPRETATION

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Definitions

  	
   

  
	
  1.2

  	
  Rules of Interpretation

  	
   

  
	
  1.3

  	
  Conflict with a Facility Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 2 - FUNDING

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Phase
  II Project.

  	
   

  
	
  2.2

  	
  Availability of Advances.

  	
   

  
	
  2.3

  	
  Accounts.

  	
   

  
	
  2.4

  	
  Mechanics for Obtaining Advances.

  	
   

  
	
  2.5

  	
  Allocation of Advances.

  	
   

  
	
  2.6

  	
  Disbursements.

  	
   

  
	
  2.7

  	
  Payments of Interest and Fees

  	
   

  
	
  2.8

  	
  Phase II Mall Release Date Funding
  Procedures.

  	
   

  
	
  2.9

  	
  Substantial Completion Date Procedures.

  	
   

  
	
  2.10

  	
  Final Completion Procedures

  	
   

  
	
  2.11

  	
  No Approval of Work

  	
   

  
	
  2.12

  	
  Security

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3 - CONDITIONS PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Conditions Precedent to the Effective Date

  	
   

  
	
  3.2

  	
  Conditions Precedent to Equity Advances
  Prior to Initial Loan Advances

  	
   

  
	
  3.3

  	
  Conditions Precedent to Initial Mall
  Advance

  	
   

  
	
  3.4

  	
  Conditions Precedent to Initial Bank
  Advance

  	
   

  
	
  3.5

  	
  Conditions Precedent to Each Advance

  	
   

  
	
  3.6

  	
  No Waiver or Estoppel.

  	
   

  
	
  3.7

  	
  Waiver of Conditions.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 4 - REPRESENTATIONS AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Permits

  	
   

  
	
  4.2

  	
  Security Interests.

  	
   

  
	
  4.3

  	
  Existing
  Defaults

  	
   

  
	
  4.4

  	
  Availability
  of Services, Materials and Utilities

  	
   

  
	
  4.5

  	
  In Balance Requirement

  	
   

  
	
  4.6

  	
  Sufficiency of Interests and Project
  Documents.

  	
   

  
	
  4.7

  	
  Project Budget; Summary Anticipated Cost
  Report.

  	
   

  
	
  4.8

  	
  Project
  Schedule

  	
   

  
	
  4.9

  	
  Proper Subdivision

  	
   

  



 


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  ARTICLE 5 - AFFIRMATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  Use of Proceeds; Repayment of Indebtedness.

  	
   

  
	
  5.2

  	
  Diligent Construction of the Phase II
  Project

  	
   

  
	
  5.3

  	
  Reports; Cooperation.

  	
   

  
	
  5.4

  	
  Notices

  	
   

  
	
  5.5

  	
  In
  Balance Deposits.

  	
   

  
	
  5.6

  	
  Indemnification; Costs and Expenses

  	
   

  
	
  5.7

  	
  Project Documents and Permits

  	
   

  
	
  5.8

  	
  Security Interest in Newly Acquired
  Property

  	
   

  
	
  5.9

  	
  Plans and Specifications

  	
   

  
	
  5.10

  	
  Construction Consultant.

  	
   

  
	
  5.11

  	
  Preserving the Project Security.

  	
   

  
	
  5.12

  	
  Insurance

  	
   

  
	
  5.13

  	
  Application of Insurance and Condemnation
  Proceeds

  	
   

  
	
  5.14

  	
  Construction within Lot Lines

  	
   

  
	
  5.15

  	
  Compliance with Material Project Documents

  	
   

  
	
  5.16

  	
  Utility Easement Modifications

  	
   

  
	
  5.17

  	
  Phase II Mall Recognition Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 6 - NEGATIVE COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Waiver,
  Modification and Amendment.

  	
   

  
	
  6.2

  	
  Scope
  Changes.

  	
   

  
	
  6.3

  	
  Project Budget and Project Schedule Amendment

  	
   

  
	
  6.4

  	
  Limitation on Liens

  	
   

  
	
  6.5

  	
  Opening

  	
   

  
	
  6.6

  	
  Phase II Hotel/Casino Retail Store Space

  	
   

  
	
  6.7

  	
  Title Insurer Escrow Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 7 - EVENTS OF DEFAULT

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Events
  of Default

  	
   

  
	
  7.2

  	
  Remedies

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 8 - CONSULTANTS AND REPORTS

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Removal
  and Fees

  	
   

  
	
  8.2

  	
  Duties

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 9 - THE DISBURSEMENT AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
  9.1

  	
  Appointment and Acceptance

  	
   

  
	
  9.2

  	
  Duties and Liabilities of the Disbursement Agent Generally.

  	
   

  
	
  9.3

  	
  Particular Duties and Liabilities of the Disbursement Agent.

  	
   

  
	
  9.4

  	
  Segregation of Funds and Property Interest

  	
   

  
	
  9.5

  	
  Compensation and Reimbursement of the Disbursement Agent

  	
   

  
	
  9.6

  	
  Qualification of the Disbursement Agent

  	
   

  



 


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  9.7

  	
  Resignation and Removal of the Disbursement Agent

  	
   

  
	
  9.8

  	
  Merger
  or Consolidation of the Disbursement Agent

  	
   

  
	
  9.9

  	
  Statements;
  Information

  	
   

  
	
  9.10

  	
  Limitation of Liability

  	
   

  
	
  9.11

  	
  Safekeeping
  of Accounts.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE 10 - MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  10.1

  	
  Addresses

  	
   

  
	
  10.2

  	
  Further
  Assurances

  	
   

  
	
  10.3

  	
  Delay
  and Waiver

  	
   

  
	
  10.4

  	
  Additional Security; Right to Set-Off

  	
   

  
	
  10.5

  	
  Entire
  Agreement

  	
   

  
	
  10.6

  	
  Governing
  Law

  	
   

  
	
  10.7

  	
  Severability

  	
   

  
	
  10.8

  	
  Headings

  	
   

  
	
  10.9

  	
  Limitation on Liability; Waiver

  	
   

  
	
  10.10

  	
  Waiver of Jury Trial

  	
   

  
	
  10.11

  	
  Consent
  to Jurisdiction

  	
   

  
	
  10.12

  	
  Successors
  and Assigns

  	
   

  
	
  10.13

  	
  Reinstatement

  	
   

  
	
  10.14

  	
  No
  Partnership; Etc.

  	
   

  
	
  10.15

  	
  Costs
  and Expenses

  	
   

  
	
  10.16

  	
  Agreements Among Funding Agents and Other Secured Parties

  	
   

  
	
  10.17

  	
  Counterparts

  	
   

  
	
  10.18

  	
  Confidentiality

  	
   

  
	
  10.19

  	
  Termination

  	
   

  
	
  10.20

  	
  Liability of Loan Parties.

  	
   

  



 


iii





















 


EXHIBITS


 


	
  Exhibit A

  	
  Definitions

  
	
   

  	
   

  
	
  Exhibit B-1

  	
  Effective Date Certificate

  
	
   

  	
   

  
	
  Exhibit B-2

  	
  Construction Consultant’s Effective Date Certificate

  
	
   

  	
   

  
	
  Exhibit B-3

  	
  Insurance Advisor’s Effective Date Certificate

  
	
   

  	
   

  
	
  Exhibit B-4

  	
  Insurance Broker’s Certificate

  
	
   

  	
   

  
	
  Exhibit C-1

  	
  Advance Request and Certificate

  
	
   

  	
   

  
	
  Exhibit C-2

  	
  Construction Consultant’s Advance Certificate

  
	
   

  	
   

  
	
  Exhibit D

  	
  Realized Savings Certificate

  
	
   

  	
   

  
	
  Exhibit E

  	
  Project Budget/Schedule Amendment Certificate

  
	
   

  	
   

  
	
  Exhibit F

  	
  Additional Contract Certificate

  
	
   

  	
   

  
	
  Exhibit G

  	
  Contract Amendment Certificate

  
	
   

  	
   

  
	
  Exhibit H

  	
  Project Budget

  
	
   

  	
   

  
	
  Exhibit H-1

  	
  Summary Anticipated Cost Report

  
	
   

  	
   

  
	
  Exhibit H-2

  	
  Component Specific Anticipated Cost Report

  
	
   

  	
   

  
	
  Exhibit I

  	
  Project Schedule

  
	
   

  	
   

  
	
  Exhibit J

  	
  Safe Harbor Scope Changes

  
	
   

  	
   

  
	
  Exhibit K

  	
  Intentionally Omitted

  
	
   

  	
   

  
	
  Exhibit L

  	
  In Balance Certificate

  
	
   

  	
   

  
	
  Exhibit M

  	
  Schedule of Permits

  
	
   

  	
   

  
	
  Exhibit N-1

  	
  LCR Permitted Encumbrances

  
	
   

  	
   

  
	
  Exhibit N-2

  	
  Phase II Mall Subsidiary Permitted Encumbrances

  
	
   

  	
   

  
	
  Exhibit O

  	
  Insurance Requirements

  
	
   

  	
   

  
	
  Exhibit P

  	
  Schedule of Security Filings

  



 


iv





















 


	
  Exhibit Q

  	
  Form of Unconditional Waiver and Release Upon
  Progress Payment

  
	
   

  	
   

  
	
  Exhibit Q-1

  	
  Form of Unconditional Waiver and Release Upon Final
  Payment

  
	
   

  	
   

  
	
  Exhibit R

  	
  Form of Conditional Waiver and Release Upon Progress
  Payment

  
	
   

  	
   

  
	
  Exhibit S

  	
  Form of Consent

  
	
   

  	
   

  
	
  Exhibit T-1

  	
  Description of the Phase II Site

  
	
   

  	
   

  
	
  Exhibit T-2A

  	
  Description of the Lido Air Space

  
	
   

  	
   

  
	
  Exhibit T-2B

  	
  Description of the Vagabond Air Space

  
	
   

  	
   

  
	
  Exhibit T-3

  	
  Description of the Walgreen’s Air Space

  
	
   

  	
   

  
	
  Exhibit T-4

  	
  Description of Phase II Hotel/Casino Retail Store
  Space

  
	
   

  	
   

  
	
  Exhibit T-5

  	
  Description of the Eligible FF&E

  
	
   

  	
   

  
	
  Exhibit T-6

  	
  Description of FF&E Component

  
	
   

  	
   

  
	
  Exhibit T-7

  	
  List of Plans and Specifications

  
	
   

  	
   

  
	
  Exhibit U

  	
  List of Contracts

  
	
   

  	
   

  
	
  Exhibit V

  	
  Form of Grant Deed

  
	
   

  	
   

  
	
  Exhibit W-1

  	
  Form of Substantial Completion Certificate

  
	
   

  	
   

  
	
  Exhibit W-2

  	
  Form of Construction Consultant’s Substantial
  Completion Certificate

  
	
   

  	
   

  
	
  Exhibit W-3

  	
  Form of Loan Parties’ Phase II Mall Release
  Certificate

  
	
   

  	
   

  
	
  Exhibit W-4

  	
  Form of Construction Consultant’s Phase II Mall
  Release Certificate

  
	
   

  	
   

  
	
  Exhibit W-5

  	
  Form of Phase II Hotel/Casino Opening Date
  Certificate

  
	
   

  	
   

  
	
  Exhibit W-6

  	
  Form of Construction Consultant’s Phase II
  Hotel/Casino Opening Date Certificate

  
	
   

  	
   

  
	
  Exhibit W-7

  	
  Form of Final Completion Certificate

  
	
   

  	
   

  
	
  Exhibit W-8

  	
  Form of Construction Consultant’s Final Completion
  Certificate

  
	
   

  	
   

  
	
  Exhibit X-1

  	
  Form of Subordination, Non-Disturbance and
  Attornment Agreement (Phase II Mall Air Space Lease)

  
	
   

  	
   

  
	
  Exhibit X-2

  	
  Form of Subordination, Non-Disturbance and
  Attornment Agreement (Master Lease)

  



 


v





















 


THIS MASTER DISBURSEMENT AGREEMENT
(this “Agreement”), dated as of 
September 30, 2004, is
entered into by and among LIDO CASINO RESORT,
LLC, a Nevada limited liability company (“LCR”), PHASE II MALL HOLDING, LLC, a Nevada limited liability company (“Phase II Mall Holding”)
and PHASE II MALL SUBSIDIARY, LLC, a Delaware limited liability company
(“Phase II Mall Subsidiary” and, together with Phase II Mall
Holding, the “Phase II Mall Borrowers”), THE BANK OF
NOVA SCOTIA, a Canadian chartered bank, as the Bank Agent, THE BANK OF NOVA SCOTIA, a Canadian chartered bank, as the Phase II Mall Agent, GOLDMAN SACHS CREDIT PARTNERS L.P., as the Bank Arranger and
THE BANK OF NOVA SCOTIA, Canadian chartered bank, as the
Disbursement Agent.


 


RECITALS


 


A.            Existing
Casino Resort.  Las Vegas Sands,
Inc., a Nevada corporation (“LVSI”), and Venetian Casino Resort, LLC, a
Nevada limited liability company (“VCR”), own and operate the Venetian
Casino Resort, a Venetian-themed hotel,
casino, retail, meeting and entertainment complex with an existing total of
approximately 4,000 suites, approximately 116,000 square feet of casino space
and approximately 650,000 square feet of meeting and conference space, located
at 3355 Las Vegas Boulevard South, Clark County, Nevada (the “Existing
Casino Resort”).


 


B.            Phase II
Hotel/Casino.  LCR (an indirect,
wholly-owned subsidiary of LVSI and VCR) owns approximately 14 acres of land
adjacent to the Existing Casino Resort (as
more particularly described in Exhibit T-1, the “Phase II
Site”).  LCR intends to design,
develop, construct and operate an approximately 3,000 suite hotel, a gaming
facility of approximately 100,000 square feet, a multi-story parking structure
and a meeting complex (collectively, the “Phase II Hotel/Casino”) on a
portion of the Phase II Site, to be integrated with the Existing Casino Resort.


 


C.            Phase
II Mall Space.  LCR and Phase II Mall
Subsidiary have entered into a lease (the “Phase II Mall Air Space Lease”)
pursuant to which LCR has agreed to lease certain air space (as more particularly described in Exhibit T-2A (the
“Lido Air Space”) and Exhibit T-2B (the “Vagabond Air Space”)
and, collectively with the Walgreen’s Air Space, the “Phase II
Mall Air Space”) within the Phase II Site and provide certain easements
over the Phase II Site to Phase II Mall Subsidiary.  As provided in this Agreement, the parties
intend that the Phase II Mall Air Space will be converted into one or more
separate legal parcels and conveyed in fee to Phase II Mall Subsidiary on the
terms and conditions set forth herein and in the Phase II Mall Air Space
Lease.  LCR has also leased from CAP II –
Buccaneer, LLC, a New Mexico limited liability company (“CAP”), certain
air space above the contemplated Walgreen’s store located adjacent to the Phase
II Site (as more particularly described in Exhibit
T-3, the “Walgreen’s Air Space”) pursuant to the terms of the
Walgreen’s Lease.  LCR has assigned all
of its right, title and interest in, to and under the Walgreen’s Lease to Phase
II Mall Subsidiary.  On or prior to the Phase
II Mall Release Date, LCR will also lease to Phase II Mall Subsidiary, pursuant
to the terms of the Master Lease, certain retail store space located in the
Phase II Hotel/Casino (such location, as more
particularly described in Exhibit T-4, the “Phase II
Hotel/Casino Retail Store Space”). 
The Phase II Hotel/Casino Retail Store Space, the Phase II Mall Air
Space and the Walgreen’s Air Space are collectively referred to as the “Phase
II Mall Space.”


 


1





















 


D.            Phase II
Mall.  Phase II Mall Subsidiary
(a direct, wholly-owned subsidiary of Phase II Mall Holding and an indirect,
wholly-owned subsidiary of VCR) is currently the lessee of the Phase II Mall
Air Space (and will become the owner of such space in accordance with the terms
of the Phase II Mall Air Space Lease) and the Walgreen’s Air Space and, after
the entering into of the Master Lease, will be the lessee of the Phase II
Hotel/Casino Retail Store Space.  LCR
entered into the Phase II Mall Purchase Agreement with GGP Limited Partnership,
a Delaware limited partnership (the “Phase II Mall Buyer”), pursuant to
which LCR has agreed to design and construct the Phase II Mall in the Phase II
Mall Space.  Pursuant to the Phase II
Mall PA Assignment Agreement, (i) LCR has assigned and Phase II Mall Holding
has assumed the Phase II Mall Purchase Agreement (subject to the reservation of
certain defense rights thereunder which are to be shared by LCR and Phase II
Mall Holding), (ii) LCR remains liable for payment and performance of the
obligations by Phase II Mall Holding under the Phase II Mall Purchase Agreement
and (iii) in accordance therewith, LCR and the Phase II Mall Holding are
obligated to construct the Phase II Mall Improvements, including the Common Elements
and the Demising Walls in accordance with the Phase II Mall Purchase
Agreement.  Upon satisfaction or waiver
of the Phase II Mall Buyer Closing Conditions and payment by Phase II Mall Buyer of the required Purchase
Price, Phase II Mall Holding will sell, transfer and convey 100% of the
membership interests in Phase II Mall Subsidiary to Phase II Mall Buyer for the
consideration set forth in the Phase II Mall Purchase Agreement.


 


E.             Bank
Credit Agreement.  LVSI, VCR, the
Bank Agent, Goldman Sachs Credit Partners L.P., as Bank Arranger, and the Bank
Lenders have entered into the Bank Credit Agreement, pursuant to which the Bank
Lenders have agreed, subject to the terms thereof and hereof, to provide
certain credit facilities to LVSI and VCR, jointly and severally, in an
aggregate amount not to exceed $1,010,000,000, consisting of (i) a
five-year $125,000,000 revolving credit facility (the “Revolving Credit
Facility”), (ii) a five-year $115,000,000 delayed-draw term loan
facility (the “Term A Facility”), (iii) a seven-year $665,000,000
term loan facility (the “Term B Funded Facility”), and (iv) a
seven-year $105,000,000 delayed-draw term loan facility (the “Term B Delayed
Draw Facility” and, together with the Term B Funded Facility, the “Term
B Facility,” and, together with the Term A Facility, the “Term Loan
Facilities” and, together with the Revolving Credit Facility, the “Bank
Facilities”).  The Bank Facilities
will be used, among other things, to finance a portion of the development and
construction costs of the Phase II Hotel/Casino and for certain other
purposes, all as more particularly described herein and therein.  LCR and certain other subsidiaries of LVSI
and VCR have, pursuant to the Bank Subsidiary Guaranty, guaranteed LVSI’s and
VCR’s obligations under the Bank Credit Agreement.


 


F.             Phase
II Mall Construction Loan Agreement. 
The Phase II Mall Borrowers, the Phase II Mall Agent, the Phase II
Mall Lenders, and the other agents and arrangers party thereto have entered
into the Phase II Mall Construction Loan Agreement, pursuant to which the
Phase II Mall Lenders have agreed, subject to the terms thereof and
hereof, to provide certain loans to the Phase II Mall Borrowers, in the
principal amount of $250,000,000 (the “Phase II Mall Construction Loan”),
to finance a portion of the development and construction costs of the
Phase II Mall and for certain other purposes, as more particularly
described therein and herein.


 


G.            Phase II
Mall Contribution.  Substantially
concurrently herewith, VCR and Phase II Mall Subsidiary are executing and
delivering an intercompany loan note,  pursuant to which VCR


 


2





















 


has
made a loan in the principal amount of $25,371,098 to the Phase II Mall
Borrowers  (the “Phase II Mall
Intercompany Loan”), the proceeds of which will be applied by the Phase II
Mall Borrowers to finance a portion of the development and construction costs
of the Phase II Mall and for certain other purposes, as more particularly
described herein and therein.


 


H.            Purpose.  LCR is not a party to the Phase II Mall
Construction Loan Agreement and LCR has no obligations thereunder to the Phase
II Mall Lenders and the other Persons party thereto and the Phase II Mall
Lenders and the other Persons party thereto have no obligations to LCR
thereunder.  The Phase II Mall Borrowers
are not parties to the Bank Credit Agreement and they have no obligations to
the Bank Lenders or any other Persons party thereto and the Bank Lenders and
the other Persons party thereto have no obligations to the Bank Lenders
thereunder.  Nonetheless, the parties
hereto have deemed it to be administratively convenient, in order to expedite
construction of the Phase II Project, including the procedures for the disbursement
of funds related to the development and construction of the Phase II
Hotel/Casino and the Phase II Mall, to enter into this Agreement and set forth,
among other things (a) the mechanics for and allocation of Advances for
Project Costs under the Bank Facilities and the Phase II Mall Construction Loan
and from the Bank Proceeds Account, the Phase II Mall Loan Proceeds Account,
the Phase II Hotel/Casino Equity Account, the Phase II Mall Equity Account, the
Supplemental Hotel/Casino Cash Account, the Free Cash Flow Sub-Account and the
Supplemental Mall Cash Account, (b) certain conditions precedent to the
Effective Date, (c) certain conditions precedent to the initial Advance
and each subsequent Advance for Project Costs under each of the Bank Facilities
and the Phase II Mall Construction Loan, (d) certain representations,
warranties and covenants of LCR and the Phase II Mall Borrowers, and
(e) certain events of default and remedies for each of the Bank Facilities
and the Phase II Mall Construction Loan.


 


AGREEMENT


 


NOW, THEREFORE, in consideration of the
agreements herein and in the other Financing Agreements, and in reliance on the
representations and warranties set forth herein and therein, and for other good
and valuable consideration, the receipt and adequacy of which are hereby acknowledged,
the parties hereto agree as follows:


 


ARTICLE 1 – DEFINITIONS; RULES OF
INTERPRETATION


 


1.1           Definitions.  Except as
otherwise expressly provided herein, capitalized terms used in this Agreement
and its exhibits shall have the meanings given in Exhibit A.  To the extent such terms are defined by
reference to the Financing Agreements, such terms shall continue to have their
original definitions notwithstanding any termination, expiration or amendment
of such agreements unless each of the parties hereto is a signatory to any such
amendment (or otherwise agrees in writing to any applicable changed
definition), in which case all references herein shall be to such terms or
provisions as so amended.


 


1.2           Rules
of Interpretation.  Except
as otherwise expressly provided herein, the rules of interpretation set forth
in Exhibit A shall apply to this Agreement.


 


3





















 


1.3           Conflict with a Facility Agreement.  This Agreement
and each of the Facility Agreements are intended to cover the respective
matters specifically set forth therein. 
In the case of any express conflict between the terms of this Agreement
and the terms of any Facility Agreement with respect to conditions precedent to
each Advance set forth herein, the terms of this Agreement shall control;
provided, however, the parties hereto recognize that each of the Facilities
Agreements may include additional conditions not set forth herein which must be
satisfied before an Advance is made.  LCR
and the Phase II Mall Borrowers shall each be required to comply with each
representation, warranty and covenant set forth in this Agreement and each
Facility Agreement such that if this Agreement has a more restrictive
representation, warranty, covenant or default provision than the Facility
Agreements, or vice versa, LCR or the Phase II Mall Borrowers, as
applicable, shall be required to comply with the more restrictive provision
regardless of the existence of a less restrictive provision in the other.


 


ARTICLE 2 - FUNDING


 


2.1                           Phase II Project.


 


2.1.1        Project Construction.  The parties acknowledge and agree that the
Phase II Hotel/Casino shall be constructed within the Phase II Site using funds
of LCR (whether such funds are derived from loan proceeds or other amounts
received by LCR) and the Phase II Mall shall be constructed within the Phase II
Mall Space using funds of Phase II Mall Subsidiary (whether such funds are
derived from loan proceeds or other amounts received by Phase II Mall
Subsidiary).  Pursuant to the Phase II
Mall PA Assignment Agreement, LCR has agreed to enter into Contracts for the
construction of the Phase II Mall for Phase II Mall Subsidiary in accordance
with the Phase II Mall Purchase Agreement. 
Accordingly, LCR shall enter into all Contracts for the design,
development and construction of the Phase II Project.  To the extent that any such Contracts provide
for the design, development or construction of the Phase II Mall, the following
shall apply:


 


(a)  all decisions with respect to the design,
development and construction of the Phase II Mall shall be taken by mutual
agreement of LCR and Phase II Mall Subsidiary, subject to their respective
obligations under the Facility Agreements and the Phase II Mall Purchase
Agreement.  Without limiting the generality
of the foregoing, (i) by executing this Agreement, Phase II Mall Subsidiary
hereby approves the Contracts entered into by LCR in connection with the
design, construction and development of the Phase II Mall, (ii) all Contracts
entered into after the date hereof that provide for the design, development or
construction of the Phase II Mall shall be mutually approved by LCR and  Phase II Mall Subsidiary, (iii) any
amendments or modifications to the foregoing Contracts, to the extent they
affect the Phase II Mall, shall be mutually approved by LCR and Phase II Mall
Subsidiary, (iv) all Plans and Specifications with respect to the Phase II Mall
shall be mutually approved by LCR and Phase II Mall Subsidiary and (v) the
Project Budget and Project Schedule (including any amendments thereof) with
respect to the construction of the Phase II Mall shall be mutually approved by
LCR and Phase II Mall Subsidiary (with respect to the foregoing clauses (ii),
(iii), (iv) and (v), all such approvals by LCR and Phase II Mall Subsidiary
shall be subject to their respective obligations under the Facility Agreements
and this Agreement).  The foregoing
approvals shall be evidenced by the joint execution by LCR and Phase II Mall
Subsidiary


 


4





















 


of
the various certificates contemplated hereunder (such as, without limitation,
each Project Budget/Schedule Amendment Certificate, Additional Contract
Certificate and Contract Amendment Certificate).


 


(b)  Phase II Mall Subsidiary shall approve all
Project Costs expended in respect of the Phase II Mall, and shall pay such
costs and/or provide funds to LCR to pay such costs (including from funds made
available by the Lenders hereunder). 
Such approval shall be evidenced by Phase II Mall Subsidiary’s execution
of each Advance Request hereunder.


 


(c)  The Project Budget and each Anticipated Cost
Report shall allocate the Project Costs contemplated thereunder between the
Phase II Hotel/Casino and the Phase II Mall. 
LCR shall be solely and exclusively responsible for Project Costs
allocated to the Phase II Hotel/Casino, including all costs overruns and
unanticipated costs related thereto and the Phase II Mall Borrowers shall be
solely and exclusively responsible for Project Costs allocated to the Phase II
Mall, including all costs overruns and unanticipated costs related
thereto.  In no event shall the Phase II
Mall Borrowers be responsible for Project Costs allocated to the Phase II
Hotel/Casino nor shall LCR be responsible for Project Costs allocated to the
Phase II Mall.


 


(d)           LCR does not guarantee nor shall LCR
be responsible in any way for, the performance, or lack of performance, by any
Contractor or other service provider with respect to the Phase II Mall;
provided that LCR shall not be released from any liability due to its own
breach of any Contract, so long as (i) such breach does not arise from the
failure by any Phase II Mall Borrower to pay its allocated portion of Project
Costs in respect of such Contract as contemplated herein or (ii) to the extent
that any actions taken by LCR under such Contract that resulted in such breach
were not objected to by the Phase II Mall Subsidiary.  Similarly, Phase II Mall Subsidiary does not
guarantee nor shall Phase II Mall Subsidiary be responsible in any way for, the
performance, or lack of performance, by any Contractor or other service
provider with respect to the Phase II Hotel/Casino; provided that the Phase II
Mall Subsidiary shall not be released from any liability due to its failure to
pay its allocated portion of Project Costs under any Contract.


 


2.1.2        Representations Regarding Project
Status.  The parties hereto
acknowledge that construction of the Phase II Project commenced prior to
the Effective Date and that, in connection therewith, LCR has entered into
certain Contracts (including the Construction Management Agreement), engaged
certain Contractors, and incurred and paid for certain Project Costs.  In order to account for such construction
activity for purposes of the funding procedures and mechanics set forth herein,
LCR and the Phase II Mall Borrowers have each certified and made certain
representations in the Effective Date Certificate as to various facts
pertaining to the status of the Phase II Project, including, without
limitation, the work performed, the Project Documents entered into, the Project
Costs incurred as of such date, the Project Budget and the Project
Schedule.  Such certifications and
representations of LCR and the Phase II Mall Borrowers have been confirmed by
the Construction Consultant to the extent set forth in the Construction
Consultant’s Effective Date Certificate.


 


5





















 


2.2           Availability
of Advances.


 


2.2.1        Generally.  The Bank Lenders severally, and not jointly,
shall make Advances under the Bank Facilities to LVSI and VCR in accordance
with the Bank Credit Agreement and the applicable terms of this Agreement
(which funds will be contributed indirectly by LVSI and VCR to LCR which, in
turn, will use such funds to pay Project Costs allocated pursuant to the
Project Budget to the Phase II Hotel/Casino). The Phase II Mall Lenders
severally, and not jointly, shall make Advances of the Phase II Mall
Construction Loan to the Phase II Mall Borrowers in accordance with the Phase
II Mall Construction Loan Agreement and the applicable terms of this Agreement,
which funds will be used to pay Project Costs allocated to the Phase II Mall in
accordance with the Project Budget.


 


2.2.2        Availability.  Subject to the satisfaction of all applicable
conditions precedent listed in Article 3 and the other terms and
provisions of this Agreement, Advances under the Facilities and from the
Accounts shall be made during the Availability Period.  Advances shall be made no more frequently
than twice in any 30-day period; provided that (a) payments to any given
Contractor or Subcontractor may not be made more frequently than once in any
30-day period and (b) the advances and transfers of funds contemplated in Sections 2.8
and 2.9 shall be disregarded for purposes of this sentence.


 


2.2.3        FF&E
Financings; Working Capital.


 


(a)           Funding Mechanics for FF&E
Component Costs.  The parties hereto
acknowledge that financing of certain costs of acquisition and installation of
the items comprising the FF&E Component will, subject to Sections 2.2.3(b)
and 2.5.1(d), be made available to LCR through the FF&E Financings
(or through equity contributions made to LCR) and that advances of funds under
the FF&E Financings will not be made pursuant to this Agreement but,
instead, will be made pursuant to separate agreements entered into between LCR
and the providers of such financings.  In
order to account for such funding commitments for purposes of tracking the
progress and status of the Phase II Project hereunder, including the
amount of Available Phase II Hotel/Casino Funds from time to time, (i) it
is contemplated that the providers of certain FF&E Financings will agree,
pursuant to the FF&E Funding Providers’ Intercreditor Agreements to, among
other things, notify the Disbursement Agent from time to time (and in any event
upon the written request of the Disbursement Agent or the Construction
Consultant) of the amounts drawn and amounts available to be drawn under such
FF&E Financings (including interest or fees due or payable thereunder),
(ii) LCR has represented that the Project Budget, Project Schedule and
Plans and Specifications include and reflect the work to be performed in
connection with the FF&E Component, (iii) the Advance Requests to be
submitted hereunder require LCR to, among other things, certify as to the
Project Costs incurred and work from time to time performed in connection with
the FF&E Component, and (iv) the Construction Consultant has and will
confirm LCR’s certifications and representations to the extent set forth in the
Construction Consultant’s Effective Date Certificate and in the other
certificates to be submitted by the Construction Consultant hereunder from time
to time.


 


(b)           Temporary Funding of FF&E
Component Costs.  The parties hereto
further acknowledge that certain FF&E Financings may provide that LCR may
not obtain draws thereunder until delivery to the Phase II Site of the FF&E
Component items financed


 


6





















 


thereby.  In order to fund costs related to the
FF&E Component until draws are permitted under such FF&E Financings,
LCR  may make draws on the
Phase II Hotel/Casino Funding Sources, up to an aggregate amount of Fifty Million Dollars ($50,000,000).  Upon obtaining proceeds of draws under the
FF&E Financings in respect of FF&E Component items the purchase of
which was financed, in whole or in part, with Phase II Hotel/Casino
Funding Sources, LCR shall (i) first, to the extent such items were financed by
withdrawing funds from the Bank Proceeds Account, cause such proceeds to be
deposited in the Bank Proceeds Account, and (ii) second, after making the
deposit referenced in clause (i), to the extent such items were financed by
withdrawing funds from the Phase II Hotel/Casino Equity Account, cause the remaining
proceeds to be deposited in the Phase II Hotel/Casino Equity Account.  Each of the Disbursement Agent and the Bank
Agent shall promptly notify the other upon receipt of notices of any draws
under the FF&E Financings or acquisitions or placing of purchase orders on
FF&E Component items.


 


(c)           Bank Revolving Credit Agreement.  The Bank Credit Agreement provides LVSI and
VCR with a Revolving Credit Facility to finance working capital, other
corporate purposes and, to the extent amounts are available to be drawn
thereunder (and subject to the limitations set forth in the Bank Credit
Agreement), Project Costs allocable to the Phase II Hotel/Casino.  Such Revolving Credit Facility (other than
Project Cost Revolving Loans) will be made available to LVSI and VCR in
accordance with the terms of the Bank Credit Agreement and shall not be
governed by the terms of this Agreement. In order to account for the funding
commitment under the Revolving Credit Facility for purposes of tracking the
progress and status of the Phase II Project hereunder, including the amount of
Available Phase II Hotel/Casino Funds from time to time, (i) the Bank
Agent agrees to notify the Disbursement Agent from time to time of the amounts
drawn and amounts available to be drawn under the Revolving Credit Facility in
respect of such working capital and (ii) the Advance Requests to be
submitted hereunder require LCR, LVSI and VCR to, among other things, certify
as to amounts from time to time drawn and available to be drawn under the Revolving
Credit Facility.


 


2.3           Accounts.


 


2.3.1        Phase II Hotel/Casino Equity Account.  On or prior to
the Effective Date, there shall be established the Phase II Hotel/Casino Equity
Account pursuant to (and subject to the provisions of) the Bank Collateral
Account Agreement.  There shall be
deposited in the Phase II Hotel/Casino Equity Account all cash amounts
described in Sections 2.8(d), 3.2 and 3.4.2 and
certain amounts required pursuant to Section 5.5.1.  As more particularly provided in Section 5.1.1,
there shall be deposited in the Phase II Hotel/Casino Equity Account certain
amounts received by LCR in respect of liquidated or other damages under the
Construction Management Agreement and the Contracts, in each case, prior to the
Final Completion Date.  As more
particularly provided in Section 2.2.3(b), there shall also be deposited
in the Phase II Hotel/Casino Equity Account the proceeds of draws under the
FF&E Financings to the extent, if any, such draws relate to FF&E
Component items the purchase of which was financed, in whole or in part, by
withdrawing funds from the Phase II Hotel/Casino Equity Account.  There shall also be deposited in the Phase II
Hotel/Casino Equity Account all Loss Proceeds with respect to the Phase II
Hotel/Casino received by LCR, the Disbursement Agent or any other Person as
required pursuant to Section 5.13. 
Subject to the provisions of the Bank Collateral Account Agreement,
amounts on deposit in the Phase II Hotel/Casino Equity Account shall, from time
to


 


7





















 


time,
(a) be transferred to the Disbursement Account for application to pay
Project Costs in accordance with Section 2.4.3(a) and/or
(b) applied to prepayment of the Bank Facility Obligations in accordance
with Section 5.13, and, on the Final Completion Date, applied as
provided in Section 2.10. 
Investment income from Permitted Investments on amounts on deposit in
the Phase II Hotel/Casino Equity Account shall be deposited at all times
therein until applied to the payment of Project Costs or application in
accordance with Section 2.10. 
In no event whatsoever shall the Phase II Mall Borrowers have any rights
in the Phase II Hotel/Casino Equity Account or
to amounts deposited therein.


 


2.3.2        Phase II Mall Equity Account.  On or prior to the Effective Date, there
shall be established the Phase II Mall Equity Account pursuant to (and subject
to the provisions of) the Phase II Mall Collateral Account Agreement.  There shall be deposited in the Phase II
Mall Equity Account all cash amounts described in Sections 3.2 and 3.3.2
and certain amounts required pursuant to Section 5.5.1.  As more particularly provided in Section 5.1.1,
there shall be deposited in the Phase II Mall Equity Account certain amounts
received by LCR in respect of liquidated or other damages under the
Construction Management Agreement and the Contracts, in each case, prior to the
Final Completion Date.  There shall also
be deposited in the Phase II Mall Equity Account all Loss Proceeds with respect
to the Phase II Mall received by Phase II Mall Subsidiary, the
Disbursement Agent or any other Person as required pursuant to Section 5.13.  Subject to the provisions of the Phase II
Mall Collateral Account Agreement, amounts on deposit in the Phase II Mall
Equity Account shall, from time to time, (a) be transferred to the
Disbursement Account for application to pay Project Costs in accordance with Section 2.4.3(a)
and/or (b) applied to prepayment of the Phase II Mall Construction Loan
Obligations in accordance with Section 5.13, and, on the Phase II
Mall Release Date, applied as provided in Section 2.8(d).  Investment income from Permitted Investments
on amounts on deposit in the Phase II Mall Equity Account shall be deposited at
all times therein until applied to the payment of Project Costs or application
in accordance with Section 2.8(d). 
In no event whatsoever shall LCR have any
rights in the Phase II Mall Equity Account or
to amounts deposited therein.


 


2.3.3        Bank Proceeds Account.  On or prior to
the Effective Date, there shall be established the Bank Proceeds Account
pursuant to (and subject to the provisions of) the Bank Collateral Account
Agreement.  There shall be deposited in
the Bank Proceeds Account (a) the funds advanced from time to time by the
Bank Lenders in accordance with Sections 2.1.A and 2.1.B of the Bank
Credit Agreement under the Term Loan Facilities to pay a portion of the Project
Costs for the Phase II Hotel/Casino, including the amounts which may be
borrowed on the “Term A Loan Commitment Termination Date” and the “Term B
Delayed Draw Loan Commitment Termination Date” (as each such term is defined in
the Bank Credit Agreement) pursuant to the second to last paragraph of Section
2.1.B of the Bank Credit Agreement, (b) the funds transferred from the “Holding
Account” pursuant to the “Holding Account Agreement” (as each such term is
defined in the Bank Credit Agreement), (c) the funds which are advanced by the
Bank Lenders to the Disbursement Account or which are transferred from the Bank
Proceeds Account to the Disbursement Account but, in each case, are not used by
the day following the day on which they are deposited in accordance with Section 2.3.5
and (d) the proceeds of draws under the FF&E Financings to the extent, if
any, such draws relate to FF&E Component items the purchase of which was
financed, in whole or in part, by withdrawing funds from the Bank Proceeds
Account in accordance with Section 2.3.3(c).  Subject to the provisions of the Bank


 


8





















 


Collateral
Account Agreement, amounts on deposit in the Bank Proceeds Account shall, from
time to time, be transferred to the Disbursement Account in accordance with Section 2.4.3(a).  On the Final Completion Date, funds remaining
in the Bank Proceeds Account shall be applied as provided in Section 2.10.  Investment income from amounts on deposit in
the Bank Proceeds Account shall be deposited at all times therein until applied
to the payment of Project Costs or application in accordance with Section 2.10.  In no event whatsoever shall the Phase II
Mall Borrowers have any rights in the Bank Proceeds Account or
to amounts deposited therein.


 


2.3.4        Phase II Mall Loan Proceeds
Account.  On or prior to the
Effective Date, there shall be established the Phase II Mall Loan Proceeds
Account pursuant to (and subject to the provisions of) the Phase II Mall
Collateral Account Agreement.  There
shall be deposited in the Phase II Mall Loan Proceeds Account the funds
which are advanced by the Phase II Mall Lenders or transferred from the Phase
II Mall Loan Proceeds Account to the Disbursement Account but not used on the
day deposited in accordance with Section 2.3.5 (except for funds to
be subsequently applied pursuant to Sections 2.6.2 and 2.7).  Subject to the provisions of the
Phase II Mall Collateral Account Agreement, amounts on deposit in the
Phase II Mall Loan Proceeds Account shall, from time to time be
transferred to the Disbursement Account in accordance with Section 2.5.3
for application to pay Project Costs in accordance with Section 2.4.3(a)
and, on the Phase II Mall Release Date, be applied as provided in Section 2.8(d)(i).  Investment 
income from amounts on deposit in the Phase II Mall Loan Proceeds
Account shall be deposited at all times therein until applied to the payment of
Project Costs or application in accordance with Section 2.8(d)(i).  In no event
whatsoever shall LCR have any rights in the Phase II
Mall Loan Proceeds Account or to amounts
deposited therein.


 


2.3.5        Disbursement Account.  On or prior to the Effective Date, there
shall be established the Disbursement Account pursuant to (and subject to the
provisions of) the Bank Collateral Account Agreement and the Phase II Mall
Collateral Account Agreement.  Prior to
the Initial Bank Advance Date, there shall be deposited in the Disbursement
Account certain cash amounts as described in Section 3.2.  On each Advance Date, funds shall be
withdrawn from the appropriate Accounts and deposited in the Disbursement
Account in accordance with Section 2.4.3(a).  There shall also be deposited on each Advance
Date the proceeds of Project Cost Revolving Loans and Term Loans advanced by
the Bank Lenders and the funds which are advanced by the Phase II Mall Lenders
on such Advance Date in accordance with Section 2.4.3(a).  Subject to the provisions of the Bank
Collateral Account Agreement and the Phase II Mall Collateral Account
Agreement, as applicable, amounts on deposit in the Disbursement Account shall
be transferred, as applicable, to the appropriate Accounts and/or the Lien
Protection Account and/or applied to pay Project Costs in accordance with Section 2.6.  On the Final Completion Date, funds remaining
in the Disbursement Account shall be applied as provided in Section 2.10.  The deposit of funds into the Disbursement
Account shall not create, vest in, or give LCR or the Phase II Mall Borrowers
any rights to such funds, and (until application in accordance with Section
2.10) neither of them shall have any right to draw, obtain the release or
otherwise use such funds until (x) the requirements of Section 2.4
have been satisfied and (y) the applicable conditions set forth in Article 3
have been satisfied or waived in accordance with the terms hereof.  In the event that any funds deposited in the
Disbursement Account are, for any reason, not withdrawn therefrom pursuant to Section 2.6
by the day following the day on which they are deposited (except for funds to
be subsequently applied pursuant to Sections 2.6.2 and 2.6.3
and, prior to the Initial Bank Advance Date, funds deposited


 


9





















 


pursuant to Section
3.2), such funds shall, on the next day, be withdrawn from the Disbursement
Account and (i) in the case of funds advanced by the Bank Lenders or
withdrawn from the Bank Proceeds Account, be deposited in the Bank Proceeds
Account, (ii) in the case of funds advanced by the Phase II Mall
Lenders or withdrawn from the Phase II Mall Loan Proceeds Account, be
deposited in the Phase II Mall Loan Proceeds Account, and (iii) in
the case of funds withdrawn from the Phase II Hotel/Casino Equity Account, the
Phase II Mall Equity Account, the Supplemental Hotel/Casino Cash Account, the
Supplemental Mall Cash Account  or the Free
Cash Flow Sub-Account, returned to such Account.  Any interest which may accrue on amounts
deposited in the Disbursement Account shall (A) with respect to funds advanced
by the Bank Lenders or withdrawn from the Phase II Hotel/Casino Equity Account,
the Supplemental Hotel/Casino Cash Account, the Free Cash Flow Sub-Account or
the Bank Proceeds Account, be deposited in the Phase II Hotel/Casino Equity
Account and (B) with respect to funds advanced by the Phase II Mall Lenders or
withdrawn from the Phase II Mall Equity Account, the Phase II Mall Loan
Proceeds Account or the
Supplemental Mall Cash Account, be deposited in the Phase II Mall
Equity Account, in each case until applied as herein provided.


 


2.3.6        Phase II Hotel/Casino Cash Management
Account.  On or prior to the
Effective Date, there shall be established the Phase II Hotel/Casino Cash
Management Account pursuant to (and subject to the provisions of) the Bank
Collateral Account Agreement.  Prior to
the Initial Bank Advance Date, there shall be deposited from time to time in the
Phase II Hotel/Casino Cash Management Account all cash amounts described
in Section 3.2.  On the
Initial Bank Advance Date (or as promptly as practicable thereafter), subject
to the satisfaction of all conditions hereunder by LCR and the Phase II Mall
Borrowers with respect to Advances, sufficient funds (as described in the
applicable Advance Request) shall be withdrawn from the Phase II Hotel/Casino
Funding Sources and deposited in the Phase II Hotel/Casino Cash Management
Account such that the amount then on deposit in the Phase II Hotel/Casino
Cash Management Account shall equal Six Million Five Hundred Thousand Dollars
($6,500,000).  Subject to the provisions
of the Bank Collateral Account Agreement, LCR shall be permitted from time to
time to draw checks on and otherwise withdraw amounts on deposit in the
Phase II Hotel/Casino Cash Management Account to pay due and payable
Project Costs allocated to the Phase II Hotel/Casino in accordance with
the terms of this Agreement.  LCR shall
be permitted from time to time to replace amounts drawn from the Phase II
Hotel/Casino Cash Management Account pursuant to this Section 2.3.6 (i)
prior to the Initial Bank Advance Date, by depositing equity funds therein, and
(ii) from and after the Initial Bank Advance Date, by including a request
to such effect in Advance Requests submitted in accordance with Sections 2.4
and 2.5.  On the Final Completion
Date, funds remaining in the Phase II Hotel/Casino Cash Management Account
shall be applied as provided in Section 2.10.  Investment income from Permitted Investments
on amounts on deposit in the Phase II Hotel/Casino Cash Management Account
shall be deposited at all times therein until applied to the payment of Project
Costs or application in accordance with Section 2.10.  In no event
whatsoever shall the Phase II Mall Borrowers have any rights in the Phase II
Hotel/Casino Cash Management Account or to amounts
deposited therein.


 


2.3.7        Phase II Mall Cash Management Account.  On or prior to
the Effective Date, there shall be established the Phase II Mall Cash Management
Account pursuant to (and subject to the provisions of) the Phase II Mall
Collateral Account Agreement.  Prior to
the Initial Mall Advance Date, there shall be deposited from time to time in
the Phase II Mall Cash


 


10





















 


Management
Account certain cash amounts described in Section 3.2.  On the Initial Mall Advance Date (or as
promptly as practicable thereafter), subject to
the satisfaction of all conditions hereunder by LCR and the Phase II Mall
Borrowers with respect to Advances, sufficient funds (as described in the
applicable Advance Request) shall be
withdrawn from the Phase II Mall Funding Sources and deposited in the
Phase II Mall Cash Management Account such that the amount then on deposit
in the Phase II Mall Cash Management Account shall equal Two Million Five Hundred Thousand Dollars
($2,500,000). Subject to the provisions of the Phase II Mall Collateral
Account Agreement, the Phase II Mall Borrowers shall be permitted from time to
time to draw checks on and otherwise withdraw amounts on deposit in the Phase
II Mall Cash Management Account to pay due and payable Project Costs allocated
to the Phase II Mall in accordance with the terms hereof (which payments may be
made by the Phase II Mall Borrowers to LCR to pay for Project Costs allocable
to Phase II Mall.  The Phase II Mall
Borrowers shall be permitted from time to time to replace amounts drawn from
the Phase II Mall Cash Management Account pursuant to this Section
2.3.7  (i) prior to the Initial Mall Advance Date, by depositing
equity funds therein, and (ii) from and after the Initial Mall Advance
Date, by including a request to such effect in
Advance Requests submitted in accordance with Sections 2.4 and 2.5.  On the Phase II Mall Release Date, funds
remaining in the Phase II Mall Cash Management Account shall be applied as
provided in Section 2.8(d). 
Investment income from Permitted Investments on amounts on deposit in
the Phase II Mall Cash Management Account shall be deposited at all times
therein until applied to the payment of Project Costs or application in
accordance with Section 2.8(d). 
In no event whatsoever shall LCR have any rights in the Phase II Mall
Cash Management Account or to amounts deposited therein.


 


2.3.8        Supplemental Hotel/Casino Cash
Account.  On or prior to the
Effective Date, there shall be established the Supplemental Hotel/Casino Cash
Account pursuant to (and subject to the provisions of) the Bank Collateral
Account Agreement and, within the Supplemental Hotel/Casino Cash Account, the
Free Cash Flow Sub-Account.  There shall
be deposited into the Supplemental Hotel/Casino Cash Account and the Free Cash
Flow Sub-Account certain cash amounts described in Sections 5.5.1
and 5.5.2.  From time to time, LCR
may submit an In Balance Certificate to the Disbursement Agent, certifying that
the Phase II Project is, and after the withdrawal of a specified amount of
funds on deposit in the Supplemental Hotel/Casino Cash Account or the Free Cash
Flow Sub-Account (the “Excess Funds”) will be, In Balance (without
giving effect to any Free Cash Flow Credit Amounts that have not been deposited
into the Free Cash Flow Sub-Account). 
The Disbursement Agent and the Construction Consultant shall review the
In Balance Certificate.  In the event that the Disbursement
Agent or the Construction Consultant discovers any mathematical or other minor
errors in the In Balance Certificate or otherwise disagree with the
certifications and calculations set forth therein, they shall promptly notify
LCR.  Within five (5) days after its
receipt of the In Balance Certificate, provided the Construction Consultant
reasonably agrees with the certifications of LCR set forth therein, the
Construction Consultant shall sign the acknowledgment of the Construction Consultant
at the bottom of the In Balance Certificate and deliver the same to the
Disbursement Agent.  Upon receipt by the
Disbursement Agent of the acknowledgment of the Construction Consultant
approving the In Balance Certificate, so long as no Potential Event of Default
or Event of Default has occurred and is continuing, the Disbursement Agent
shall, subject to its own approval of the certifications of LCR set forth
therein and subject to the provisions of the Bank Collateral Account Agreement,
transfer an amount equal to the Excess Funds to an account or accounts
identified by LCR in such In


 


11





















 


Balance
Certificate.  On the Final Completion
Date, funds on deposit in the Supplemental Hotel/Casino Cash Account and the
Free Cash Flow Sub-Account shall be applied as provided in Section 2.10.  Investment income from Permitted Investments
on amounts on deposit in the Supplemental Hotel/Casino Cash Account and the
Free Cash Flow Sub-Account shall be deposited at all times therein until
applied in accordance with Section 2.10.  In no event
whatsoever shall the Phase II Mall Borrowers have any rights in the Supplemental
Hotel/Casino Cash Account or to amounts
deposited therein.


 


2.3.9        Supplemental Mall Cash Account.  On or prior to the Effective Date, there
shall be established the Supplemental Mall Cash Account pursuant to (and
subject to the provisions of) the Phase II Mall Collateral Account
Agreement.  There shall be deposited into
the Supplemental Mall Cash Account certain cash amounts described in Section 5.5.1.  From time to time the Phase II Mall Borrowers
may submit an In Balance Certificate to the Disbursement Agent, certifying that
the Phase II Project is, and after the withdrawal of a specified amount of
funds on deposit in the Supplemental Mall Cash Account (the “Excess Mall
Funds”) will be, In Balance (without giving effect to any Free Cash Flow
Credit Amounts that have not been deposited into the Free Cash Flow
Sub-Account).  The Disbursement Agent and
the Construction Consultant shall review the In Balance Certificate.  In the event that the Disbursement Agent or
the Construction Consultant discovers any mathematical or other minor errors in
the In Balance Certificate or otherwise disagree with the certifications and
calculations set forth therein, they shall promptly notify the Phase II Mall
Borrowers.  Within five (5) days
after its receipt of the In Balance Certificate, provided the Construction
Consultant reasonably agrees with the certifications of the Phase II Mall
Borrowers set forth therein, the Construction Consultant shall sign the
acknowledgment of the Construction Consultant at the bottom of the In Balance
Certificate and deliver the same to the Disbursement Agent.  Upon receipt by the Disbursement Agent of the
acknowledgment of the Construction Consultant approving the In Balance
Certificate, so long as no Potential Event of Default or Event of Default has
occurred and is continuing, the Disbursement Agent shall, subject to its own
approval of the certifications of the Phase II Mall Borrowers set forth therein
and subject to the provisions of the Phase II Mall Collateral Account
Agreement, transfer an amount equal to the Excess Mall Funds to an account or
accounts identified by the Phase II Mall Borrowers in such In Balance
Certificate.  On
the Phase II Mall Release Date, funds remaining in the Phase II Mall Cash
Management Account shall be applied as provided in Section 2.8(d).  Investment income from Permitted Investments
on amounts on deposit in the Supplemental Mall Cash Account shall
be deposited at all times therein until applied to the payment of Project Costs
or application in accordance with Section 2.8(d).  In no event whatsoever shall LCR have any
rights in the Supplemental Mall Cash Account or
to amounts deposited therein.


 


2.4           Mechanics for Obtaining Advances.


 


2.4.1        Advance
Requests.


 


(a)           Subject to Section 2.2.2,
LCR and the Phase II Mall Borrowers shall have the right to, from time to time,
deliver to the Disbursement Agent and the Construction Consultant an Advance
Request, which shall be countersigned by LVSI and VCR, containing all exhibits,
attachments and certificates required thereby (other than the Construction
Consultant’s Certificate), all appropriately completed and duly executed,


 


12





















 


requesting that an Advance be made on or after the
tenth (10th) day (but in any event no less than the seventh (7th)  Banking Day) after delivery of such
Advance Request.


 


(b)           Each Advance Request delivered by LCR
and the Phase II Mall Borrowers pursuant to subsection (a) above shall
(i) request Advances from the Phase II Mall Funding Sources in order (A)
to pay Project Costs with respect to the Phase II Mall, (B) to pay Debt
Service under the Phase II Mall Construction Loan which will become due and
payable on or within 30 days after the requested Advance Date and (C) replenish
funds in the Phase II Mall Cash Management Account (or, with respect to
the Initial Mall Advance, the Phase II Mall Borrowers shall request that
sufficient funds be deposited in the Phase II Mall Cash Management Account
such that the aggregate amount then on deposit in such account equals $2,500,000) and (ii) request
Advances from the Phase II Hotel/Casino Funding Sources to (A) pay Project
Costs with respect to the Phase II Hotel/Casino (including deposits for
FF&E Component items pursuant to Section 2.2.3(b)) estimated to
become due and payable on or prior to the requested Advance Date,
(B) request that a Letter of Credit be issued under the Bank Facilities to
provide credit support for Project Costs and/or (C) replenish funds in the
Phase II Hotel/Casino Cash Management Account (or, with respect to the
Initial Bank Advance, LCR shall request that sufficient funds be deposited in
the Phase II Hotel/Casino Cash Management Account such that the aggregate
amount then on deposit in such account equals $6,500,000).  Each such Advance Request shall include an
estimated cash flow for the requested Advance broken down by Contractor,
Subcontractor and Line Item (to the extent required by Exhibit C-1),
and shall indicate on Appendix XI thereto the Eligible FF&E items funded
entirely (other than costs related to transportation, installation and sales
taxes) by the proceeds of draws under the FF&E Financings and now comprise
part of the FF&E Component.  Promptly
after delivery of each Advance Request, the Disbursement Agent and the
Construction Consultant shall review such Advance Request and attachments
thereto to determine whether all required documentation has been delivered in
the form required by this Agreement and executed by the appropriate
parties.  The Construction Consultant
also shall review the work referenced in such Advance Request, including work
estimated to be completed through the applicable Advance Date as such work is
being performed.


 


(c)           Within five (5) days after its receipt of each Advance Request
pursuant to Section 2.4.1(a), the Construction Consultant shall
deliver directly to the Disbursement Agent (with a copy to each of LCR and the
Phase II Mall Borrowers) its certificate with respect to such Advance Request,
substantially in the form of Exhibit C-2 either approving or
disapproving the Advance Request and independently verifying, to the extent
contemplated in Exhibit C-2, based on information provided to it by
LCR and/or the Phase II Mall Borrowers, as applicable, and the Funding Agents,
any other information to be confirmed or verified by the Construction
Consultant as and to the extent set forth in Exhibit C-2; provided
that if the Construction Consultant disapproves one or more particular payments
or disbursements to any Contractor or Subcontractor or any other Person
requested by the Advance Request, but the Advance Request otherwise complies
with the requirements hereof, then the Construction Consultant shall approve
the Advance Request and all payments and disbursements requested therein other
than the particular payments or disbursements so disapproved.


 


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2.4.2        Funding
Notices from Disbursement Agent.


 


(a)           (i) 
Promptly after delivery of each Advance Request by LCR and the Phase II
Mall Borrowers pursuant to Section 2.4.1(a), the Disbursement Agent shall
review the same in order to determine whether all required documentation has
been provided and whether all applicable conditions precedent pursuant to this
Agreement have been satisfied.  In
particular, and without limiting the generality of the foregoing, the
Disbursement Agent shall independently verify, using information in its
possession and obtained from the Funding Agents and the Construction
Consultant, (i) the calculation of Available Phase II Mall Funds and
calculation of Available Phase II Hotel/Casino Funds, including Anticipated
Earnings set forth in the Advance Request (provided that, with respect to
amounts available under FF&E Financings, the Disbursement Agent shall be
entitled to rely on statements received from the providers of such FF&E
Financings as contemplated in Section 2.2.3(a) in verifying such calculation), (ii) that both before and after
giving effect to the requested Advance, the Phase II Project is and shall be In
Balance, (iii) that the allocation of the requested Advance among the
various funding sources complies with the provisions of Section 2.5 and
(iv) that the calculation of Debt Service to become due and payable under
the Phase II Mall Construction Loan Agreement from and after the requested
Advance Date and prior to the immediately succeeding Advance Date, is accurate.  Subject to the other subsections of this
Section 2.4, at such time as the Disbursement Agent has received the
Construction Consultant’s certificate as required by Section 2.4.1(c) and
otherwise determines that the applicable conditions precedent set forth in
Article 3 with respect to a requested Advance have been satisfied, but no less
than three (3) Banking Days prior to the requested Advance Date, the
Disbursement Agent shall forward the Advance Request and related Construction
Consultant’s certificate to the Person(s) which submitted such Advance Request
and the applicable Funding Agent, and the act of forwarding such Advance
Request and related Construction Consultant’s certificate shall be deemed
approval of such Advance Request by the Disbursement Agent except to the extent
otherwise set forth in writing by the Disbursement Agent.  The Funding Agents shall (upon receipt of the
Advance Request and related Construction Consultant’s certificate forwarded by
the Disbursement Agent in accordance with the preceding sentence) fund the
requested Advance on the requested Advance Date in accordance with Section
2.4.3(a), except to the extent a Stop Funding Notice is then in effect.  The Bank Agent and the Phase II Mall Agent
promptly shall notify the Disbursement Agent if the applicable conditions to an
Advance under their respective Facility Agreements have not been satisfied or
otherwise waived in accordance therewith.


 


(ii)  In the event that, pursuant to Section 2.4.1(c),
the Construction Consultant approves only a portion of the payments or
disbursements requested by the Advance Request or, if based on its review of
the Advance Request the Disbursement Agent finds any minor or purely
mathematical errors or inaccuracies in the Advance Request (including any
inaccuracy in the allocations made pursuant to Section 2.5 hereof),
but the Advance Request otherwise conforms to the requirements of this
Agreement, the Disbursement Agent shall (A) notify LCR, the Phase II Mall
Borrowers, the Funding Agents and the Construction Consultant thereof,
(B) request LCR and the Phase II Mall Borrowers to revise such
certificates to remove the request for the


 


14





















 


disapproved payment and/or rectify any errors or
inaccuracies, (C)  request LCR and the Phase II Mall Borrowers to deliver
to the Disbursement Agent, the Construction Consultant and the applicable
Funding Agents an appropriately revised Advance Request and (D) approve
the requested Advance after receiving from LCR and the Phase II Mall Borrowers
the revised Advance Request.  All
references to a particular requested Advance or Advance Request in the ensuing
provisions of this Article 2 shall, to the extent the context so
requires, refer to the same as revised or modified pursuant to the preceding
sentence.


 


(b)           In the event that the Disbursement
Agent (i) on or prior to the third Banking Day prior to the requested
Advance Date determines pursuant to Section 2.4.3(a) that the
conditions precedent to an Advance have not been satisfied or (ii) prior
to the requested Advance Date receives notice from any Funding Agent that the
conditions set forth in its Facility Agreement with respect to an Advance have
not been satisfied or a Potential Event of Default or an Event of Default has
occurred and is continuing, then the Disbursement Agent shall notify LCR, the
Phase II Mall Borrowers and each Funding Agent thereof as soon as reasonably
possible but in no event later than one (1) Banking Day after such
determination or receipt, as the case may be (a “Stop Funding Notice”).  The Stop Funding Notice shall specify the
conditions precedent which the Disbursement Agent has determined have not been
satisfied and/or shall attach a copy of any notice of failure to satisfy
funding conditions or default received by the Disbursement Agent.  Upon such written notice from the
Disbursement Agent, (i) none of the Funds Providers shall have any
obligation to advance their respective Facilities’ portion of the requested
Advance, (ii) unless consented to by the Bank Agent, the Disbursement
Agent shall not withdraw any funds from the Bank Proceeds Account, the Phase II
Hotel/Casino Equity Account, the Supplemental Hotel/Casino Cash Account or the
Free Cash Flow Sub-Account, (iii) unless consented to by the Phase II Mall Agent,
the Disbursement Agent shall not withdraw any funds from the Phase II Mall Loan
Proceeds Account, the Phase II Mall Equity Account or the Supplemental Mall
Cash Account, (iv) unless approved by the Bank Agent (with respect to
funds constituting the proceeds of the Phase II Hotel/Casino Funding Sources)
or the Phase II Mall Agent (with respect to funds constituting the proceeds of
the Phase II Mall Funding Sources), the Disbursement Agent shall not withdraw,
transfer or release to LCR or the Phase II Mall Borrowers any funds then on
deposit in the Disbursement Account (other than in respect of checks previously
delivered), (v) unless consented to by the Bank Agent, LCR shall not withdraw,
transfer or release to any Person any funds then on deposit in the Phase II
Hotel/Casino Cash Management Account (other than in respect of checks
previously delivered) and (vi) unless consented to by the Phase II Mall
Agent, neither of the Phase II Mall Borrowers shall withdraw, transfer or
release to any Person any funds then on deposit in the Phase II Mall Cash
Management Account (other than in respect of checks previously delivered).


 


(c)           (i) At such time, if ever, as the
Disbursement Agent determines that the conditions precedent to the requested
Advance (other than conditions set forth in the Facilities Agreements, the
determination of which shall be made by the Bank Agent or the Phase II Mall
Agent, as applicable) which had not been satisfied have become satisfied and
provided that, at such time, no Potential Event of Default or Event of


 


15





















 


Default has occurred and currently exists, then the
Disbursement Agent shall notify each Funding Agent thereof and shall be
authorized to make the requested Advance from the Accounts.


 


(ii)           At such time, if ever, as the
Disbursement Agent receives notice from the Funding Agent that issued the
notice of default  or advised the
Disbursement Agent that the conditions set forth in its Facility Agreement with
respect to the requested Advance have not been satisfied, in each case as
described in Section 2.4.2(b)(ii), that such Potential Event of Default
or Event of Default no longer exists or has been waived or that the conditions
have been satisfied, as the case may be, and provided that, at such time, no
other Potential Event of Default or Event of Default has occurred and currently
exists, then the Disbursement
Agent shall notify each other Funding Agent which has not issued such notice of
default thereof and be authorized to make the requested Advance from the
Accounts.


 


2.4.3        Provision
of Funds by the Funding Agents.


 


(a)           In the event that the Disbursement
Agent forwards to the Funding Agents the Advance Request and related
documentation in accordance with Section 2.4.2(a)(i), then, before 2:00
p.m. New York, New York time on the requested Advance Date (or, in the event of
the receipt of notification from the Disbursement Agent pursuant to Section
2.4.2(c), before 2:00 p.m. New York, New York time on the third (3rd)
day after such notification) and so long as no Potential Event of Default or
Event of Default exists hereunder or under such Funding Agent’s Facility
Agreement (i) the applicable Bank Lenders shall deposit or cause to be
deposited (A) in the Bank Proceeds Account, in immediately available funds,
their Term Loan Facility’s portion of the requested Advance made on the “Term A
Loan Commitment Termination Date” and the “Term B Delayed Draw Loan Commitment
Termination Date” (as each such term is defined in the Bank Credit Agreement)
pursuant to the second-to-last paragraph of Section 2.1.B of the Bank
Credit Agreement and (B) in the Disbursement Account, in immediately available
funds, their Facility’s portion of the requested Advance made on any other
date, in each case as determined pursuant to Sections 2.5.1 and 2.5.2
and set forth in the related Advance Request, (ii) if such Advance Request
includes a request for the issuance of one or more Letters of Credit providing
credit support for Project Costs under the Revolving Credit Facility, the Bank
Agent shall send written notice to the Disbursement Agent that the Issuing
Lender is committed to issue each such Letter of Credit, (iii) the Phase II
Mall Lenders shall deposit or cause to be deposited in the Disbursement
Account, in immediately available funds, their Facility’s portion of the
requested Advance as determined pursuant to Sections 2.5.1, 2.5.2
and 2.5.3 and set forth in the related Advance Request, and (iv) the
Disbursement Agent shall withdraw from the applicable Accounts, the portion of
the Advance to be funded from such Account as determined pursuant to Sections
2.5.1 and 2.5.2 and set forth in the related Advance Request and
deposit such funds in the Disbursement Account. 
All funds so deposited in the Disbursement Account shall thereafter be
applied as provided in Section 2.6.


 


(b)           The failure of any Funds Provider to
make any Advance under its Facility shall not relieve any other Funds Provider
of its obligation thereunder to make its


 


16





















 


Advance under such Facility, but no Funds Provider
shall be responsible for the failure of any other Funds Provider to make any
Advance.  The Disbursement Agent (in its
capacity as Disbursement Agent) shall not be responsible for any Funds Provider’s
failure to make any required Advance (including, if applicable, the failure of
the Issuing Lender to issue any Letter of Credit providing credit support for
Project Costs).  The Disbursement Agent
shall not transfer funds from the Bank Proceeds Account or the Phase II Mall
Loan Proceeds Account to the Disbursement Account or release therefrom to LCR
or the Phase II Mall Borrowers any amounts properly advanced until all Advances
requested from the Bank Lenders and the Phase II Mall Lenders by the relevant
Advance Request have been deposited in the Bank Proceeds Account or the Phase
II Mall Loan Proceeds Account and, if applicable, the Bank Agent has confirmed
that the Issuing Lender is committed to issue the requested Letter(s) of
Credit; provided that the Disbursement Agent may release any amounts advanced
by any particular Funds Provider (even if all Advances requested by the
relevant Advance Request have not yet been received) if such Funds Provider
requests such release (the Disbursement Agent shall promptly notify all Funding
Agents upon receiving such request). 
However, the withholding of such Advances by the Disbursement Agent
shall not (x) release any Bank Lender who failed to make its portion of the
Advance (including, if applicable, the Issuing Lender who failed to issue a
Letter of Credit) from liability to Persons party to the Bank Loan Agreement or
(y) release any Phase II Mall Lender who failed to make its portion of the
Advance from liability to Persons party to the Phase II Mall Construction Loan
Agreement.


 


(c)           The Disbursement Agent (in its
capacity as the Disbursement Agent) shall have no liability to LCR or the Phase
II Mall Borrowers arising from any Stop Funding Notice issued pursuant to
Section 2.4.2(b) at the request of any Funding Agent, whether or not such
Funding Agent was entitled to make the request for such Stop Funding
Notice.  None of the Funding Agents shall
have any liability to LCR, the Phase II Mall Borrowers, the Disbursement Agent,
any other Funding Agent or any Lender arising from any Stop Funding Notice
issued by the Disbursement Agent in response to a request for such Stop Funding
Notice made in good faith by such Funding Agent; provided, however, that
nothing herein shall release from liability the Funding Agent that issued the
Stop Funding Request if such issuance constituted an act of gross negligence or
willful misconduct.


 


2.4.4        Change in Facts Certified.  In the event that any of the matters to which
LCR and/or the Phase II Mall Borrowers certified in the corresponding Advance
Request is no longer true and correct in all material respects as of the
applicable Advance Date, the Person which so certified shall either (i) if
the conditions precedent to such Advance are still satisfied, submit a revised
Advance Request incorporating the changed facts or circumstances or
(ii) if the conditions precedent to such Advance are no longer satisfied,
withdraw the Advance Request.  The
acceptance by  LCR or the Phase II
Mall Borrowers of the proceeds of any Advance shall constitute a
re-certification by such recipient of proceeds (and, as applicable, by LVSI and
VCR), as of the applicable Advance Date, of all matters certified to in the
related Advance Request (as resubmitted pursuant to the foregoing provisions).


 


17





















 


2.4.5        References to Dates.  In the event that any day or date referred to
in the foregoing provisions of this Section 2.4 occurs on a day
that is not a Banking Day, the reference shall be deemed to be to the next
succeeding Banking Day.


 


2.5           Allocation
of Advances.


 


2.5.1        Allocations among Construction
Components.  (i) Subject to Section 2.5.1(d),
Phase II Hotel/Casino Funding Sources may only be used (A) for Project Costs
allocated pursuant to the Project Budget to the Phase II Hotel/Casino, (B) to
temporarily fund costs related to the FF&E Component to the extent provided
in Section 2.2.3(b) and (C) replenish funds in the Phase II
Hotel/Casino Cash Management Account (in each case in accordance with Section 2.5.2)
and (ii) Phase II Mall Funding Sources may only be used (A) for Project Costs
allocated pursuant to the Project Budget to the Phase II Mall, including to pay
Debt Service under the Phase II Mall Construction Loan and (B) replenish funds
in the Phase II Mall Cash Management Account (in each case in accordance
with Section 2.5.3).  In
furtherance of the foregoing principle, all Advances to be made hereunder shall
be allocated between Phase II Hotel/Casino Funding Sources and
Phase II Mall Funding Sources as follows:


 


(a)           With respect to Advances which will
be implemented by disbursement of checks to the Construction Manager and/or any
Contractors or Subcontractors, the Advance Request shall set forth the
appropriate allocations between the Phase II Hotel/Casino Funding Sources
and the Phase II Mall Funding Sources on the basis of the amount of
Project Costs allocated to the Phase II Hotel/Casino and the Phase II
Mall, respectively, to be paid from the proceeds of the applicable Advance, as
set forth in the Project Budget and the relevant Advance Request (as confirmed
by the Construction Consultant).


 


(b)           (i) Advances which will be
implemented by transfers of funds into the Phase II Hotel/Casino Cash
Management Account shall be allocated to Phase II Hotel/Casino Funding
Sources and (ii) Advances which will be implemented by transfers of funds into
the Phase II Mall Cash Management Account shall be allocated to
Phase II Mall Funding Sources.


 


(c)           Advances to pay Debt Service on the
Phase II Mall Construction Loan shall be allocated to Phase II Mall
Funding Sources.


 


(d)           Notwithstanding Sections 2.5.1(a),
(b) and (c) above, LCR may:


 


(i)            After all
FF&E Financings then available have been fully funded and utilized, request
Advances from Phase II Hotel/Casino Funding Sources to pay Project Costs
allocated to Eligible FF&E, but only if LCR establishes to the satisfaction
of the Disbursement Agent that the items of Eligible FF&E to be acquired
with such Advances will not be subject to a lien in favor of any Person other
than the Bank Agent  and the
Mortgage Notes Indenture Trustee  (it
being understood that no such Advances will be made unless all conditions
precedent to the requested Advance set forth in this Agreement and in the Bank
Credit Agreement have been satisfied or waived in accordance herewith); and


 


18





















 


(ii)           Request
the Advances contemplated by Section 2.2.3(b).


 


2.5.2        Allocations among Phase II
Hotel/Casino Funding Sources.  All
issuances of Letters of Credit under the Bank Facilities shall be satisfied
through the Revolving Credit Facility pursuant to the procedures set forth in
Article 3 of the Bank Credit Agreement. 
All other Advances to be satisfied from the Phase II Hotel/Casino
Funding Sources shall be made in the following order of priority:


 


(a)           First, from funds from time to time
on deposit in the Phase II Hotel/Casino Equity Account, until Exhausted;


 


(b)           Then, from funds from time to time on
deposit in the Bank Proceeds Account, until Exhausted;


 


(c)           Then, through advances of funds by
the Bank Lenders, until Exhausted;


 


(d)           Then, from funds time to time on
deposit in the Free Cash Flow Sub-Account, until Exhausted;


 


(e)           Then, from funds from time to time on
deposit in the Supplemental Hotel/Casino Cash Account (other than the Free Cash
Flow Sub-Account).


 


Notwithstanding
anything set forth herein to the contrary, the commitment of the Bank Lenders
to advance funds under the Bank Facilities to pay Project Costs shall terminate
on the earlier of (i) the existence of a Commitment Termination Event (as
defined in the Bank Credit Agreement and (ii) the Final Completion Date.


 


2.5.3        Allocations among Phase II Mall
Funding Sources.  All Advances to be
satisfied from the Phase II Mall Funding Sources shall be made in the
following order of priority:


 


(a)           First, from funds from time to time
on deposit in the Phase II Mall Equity Account, until Exhausted;


 


(b)           Then, from funds from time to time on
deposit in the Phase II Mall Loan Proceeds Account, until Exhausted;


 


(c)           Then, through advances of funds by
the Phase II Mall Lenders; until Exhausted;


 


(d)           Then, from funds time to time on
deposit in the Supplemental Mall Cash Account.


 


Notwithstanding
anything set forth herein to the contrary, the commitment of the Phase II Mall
Lenders to advance funds under the Phase II Mall Construction Loan to pay
Project Costs (either by making additional loans or by the disbursement of
funds from the Phase II Mall Loan Proceeds Account) shall terminate on the
earliest of (i) the existence of a


 


19





















 


Commitment
Termination Event (as defined in the Phase II Mall Construction Loan Agreement)
and (ii) the Phase II Mall Release Date (after giving effect to the
transactions contemplated by Section 2.8).


 


2.5.4        FF&E Allocations.  LCR shall from time to time add items of
Eligible FF&E to the description of the FF&E Component on Exhibit
T-6 to accurately reflect the items of Eligible FF&E being funded
entirely (other than costs related to transportation, installation and sales
taxes) by the proceeds of draws under the FF&E Financings. Notwithstanding
any other provision hereof, items of Eligible FF&E that have not been
financed entirely (other than costs related to transportation, installation and
sales taxes) by the proceeds of draws under the FF&E Financings and
therefore do not comprise part of the FF&E Component shall constitute part
of the Phase II Hotel/Casino Component and may be funded in accordance with the
provisions of Sections 2.5.1(d) and 2.5.2.


 


2.5.5        Post-Funding Reallocations.  In the event
that at any time the Disbursement Agent determines that the allocations made in
any previous Advance Requests pursuant to the foregoing provisions of this Section 2.5
were erroneous or inaccurate, the parties shall cooperate to rectify such
misallocations by allocating future Advances in a manner that accounts for the
previous misallocation or by using such other methods reasonably determined by
the Disbursement Agent.


 


2.6           Disbursements.


 


2.6.1        Direct Transfer of Funds to Payees.  No later than 2:00 p.m. New York, New
York time on the requested Advance Date, or such later date as may occur
pursuant to Section 2.4.3(a), if the Disbursement Agent has
(a) received funds in the Disbursement Account from each Funds Provider
required to make an Advance pursuant to the relevant Advance Request other than
any portion of such Advance (i) which will be implemented by transferring funds
from the Bank Proceeds Account and/or the Phase II Mall Loan Proceeds Account
and (ii) for which a Letter of Credit is to be issued under the Revolving
Credit Facility (or if the applicable Funds Provider makes the request
described in the next-to-last sentence of Section 2.4.3(b)), and
(b) if applicable, received confirmation from the Bank Agent that the Issuing
Lender is committed to issue each requested Letter of Credit providing credit
support for Project Costs, the Disbursement Agent shall (i) transfer funds
from the Bank Proceeds Account, the Phase II Mall Loan Proceeds Account, the
Phase II Hotel/Casino Equity Account, the Phase II Mall Equity Account, the
Supplemental Hotel/Casino Cash Account, the Free Cash Flow Sub-Account or the
Supplemental Mall Cash Account  to the Disbursement Account as required pursuant to the
terms hereof, and (ii) transfer all funds (other than the funds described
in Sections 2.6.2 and 2.6.3) by disbursement:


 


(A)
         to the extent requested by LCR
and/or the Phase II Mall Borrowers in the applicable Advance Request, to the
Lien Protection Account;


 


(B)           if requested by LCR and/or the Phase
II Mall Borrowers in the applicable Advance Request, directly to any
Contractors and/or Subcontractors and/or any other Persons listed to be paid in
such Advance Request, by wiring funds or


 


20





















 


distributing
checks payable to each such Person in the amount identified in such Advance
Request as owed to such Persons; or


 


(C)           if not so requested, to LCR for
further distribution to such Persons (as so requested in the applicable Advance
Request).


 


2.6.2        Transfer of Interest and Fees.  No later than 2:00 p.m. New York, New York
time on the date(s) that the Disbursement Agent has been advised by the Phase
II Mall Borrowers in the applicable Advance Request (which date must occur on
or after the day referenced in Section 2.6.1), the Disbursement
Agent shall transfer from the Disbursement Account the funds requested for the
payment of Debt Service under the Phase II Mall Construction Loan to the Phase
II Mall Lenders (in the amount specified in the applicable Advance Request).


 


2.6.3        Transfers to Cash Management Accounts.  On the day referenced in Section 2.6.1,
the Disbursement Agent shall transfer (x) from the Disbursement Account to the
Phase II Hotel/Casino Cash Management Account amounts so requested from Phase
II Hotel/Casino Funding Sources by LCR in the Advance Request and (y) from the
Disbursement Account to the Phase II Mall Cash Management Account amounts so
requested from Phase II Mall Funding Sources by the Phase II Mall Borrowers in
the Advance Request.


 


2.6.4        Special Procedures for Unpaid
Contractors.  Notwithstanding Section 2.6.1,
the parties hereto agree that the Disbursement Agent may make Advances and
transfer any or all sums in the Disbursement Account (a) from Phase II Hotel/Casino
Funding Sources directly to (i) the Construction Manager for amounts due and
owing to the Construction Manager under the Construction Management Agreement,
(ii) any other Contractor for amounts due and owing to such Contractor under
the relevant Contract or (iii) any other Subcontractors, in each case with
respect to payment of amounts due and owing to such parties from LCR  with
respect to amounts allocable to the Phase II Hotel/Casino and (b) from
Phase II Mall Funding Sources directly to (i) the Construction Manager for
amounts due and owing to the Construction Manager under the Construction
Management Agreement, (ii) any other Contractor for amounts due and owing to
such Contractor under the relevant Contract or (iii) any other Subcontractors,
in each case with respect to payment of amounts due and owing to such parties
from LCR or the Phase II Mall Borrowerswith respect to amounts allocable to
the Phase II Mall without further authorization from the parties hereto,
and each of the parties hereto hereby appoint the Disbursement Agent as their
true and lawful attorney-in-fact to make such direct payments and this power of
attorney shall be deemed to be a power coupled with an interest and shall be
irrevocable; provided that the Disbursement Agent shall not exercise its rights
under this power of attorney except to make payments (x) as directed by
LCR and/or the Phase II Mall Borrowers pursuant to an Advance Request or
(y) after direction from the Bank Agent (for amounts payable with respect
to the Phase II Hotel/Casino) and/or the Phase II Mall Agent (for amounts
payable with respect to the Phase II Mall) upon the occurrence and continuation
of an Event of Default.  No further
direction or authorization from any Person shall be necessary to warrant or
permit the Disbursement Agent to make such Advances in accordance with the
foregoing sentence, and, to the extent funds in the Disbursement Account are
not sufficient to make such Advances, the Disbursement Agent shall withdraw the
shortfall (A) for amounts payable with respect to the Phase II Hotel Casino,
with the consent of the Bank Agent, from the Phase II Hotel/Casino


 


21





















 


Equity Account, the Bank
Proceeds Account, the Free Cash Flow Sub-Account and/or the Supplemental
Hotel/Casino Cash Account and (B) for amounts payable with respect to the Phase
II Mall, with the consent of the Phase II Mall Agent, from the Phase II Mall
Equity Account, the Phase II Mall Loan Proceeds Account or
the Supplemental Mall Cash Account, as applicable, and transfer available
funds from the applicable Accounts to the Disbursement Account as needed to
make such Advances.


 


2.6.5        All Advances Secured.  All disbursements made pursuant to this Section 2.6
shall (a) satisfy, in and of themselves, the obligations of the Disbursement
Agent, the Funding Agents and each Lender hereunder and under the relevant
Facility Agreements (except for amounts which were obtained from the Phase II
Hotel/Casino Equity Account, the Phase II Mall Equity Account, the Free Cash
Flow Sub-Account, the Supplemental Hotel/Casino Cash Account or
the Supplemental Mall Cash Account) with respect to the Advance so made and
(b) be secured by the Facilities’ respective Security Documents, if any, in
each case to the same extent as if such disbursements were made directly to the
applicable Loan Party, regardless of the disposition thereof by the payees of
such disbursements.


 


2.7           Payments
of Interest and Fees.  The Phase
II Mall Borrowers shall include in each Advance Request delivered pursuant to Section
2.4.1(a) a request that an Advance of proceeds from the Phase II Mall
Funding Sources be made to pay Debt Service under the Phase II Mall
Construction Loan on or after the requested Advance Date under such Advance
Request and prior to 30 days after such requested Advance Date.  Each such Advance Request shall specify that
the Advance is requested to pay such amounts in respect of the Phase II Mall
Construction Loan, and the amount and the date on which such Debt Service will
become due and payable.  If the Phase II
Mall Borrowers fail to set forth such information in any Advance Request or
fail to deliver timely any Advance Request therefor, then the Phase II Mall
Agent may deliver such information and a request for payment to the
Disbursement Agent, the Construction Consultant and the Phase II Mall
Borrowers, upon which request the Phase II Mall Borrowers shall revise the
Advance Request to provide for such payment. 
The Phase II Mall Borrowers acknowledge that failure of any notice
referenced in this Section 2.7 to be delivered shall not in any way
exonerate or diminish Phase II Mall Borrowers’ obligation to make all payments
under the Phase II Mall Construction Loan Agreement as and when due.


 


2.8           Phase II Mall Release Date
Funding Procedures.


 


(a)           No less than ten (10) days prior
to the anticipated Phase II Mall Release Date, the Phase II Mall Borrowers
and LCR shall deliver to the Phase II Mall Release Interested Parties the
Loan Parties’ Phase II Mall Release Certificate with all attachments
thereto.  The Loan Parties’ Phase II Mall
Release Certificate shall indicate the anticipated Phase II Mall Release
Date and set forth all the other information required thereby, including the
Phase II Mall Required Completion Amount. 
The funding of the Phase II Mall Required Completion Amount pursuant to
clauses (d)(i), (d)(ii) and (d)(iii) below shall be based on the allocation
provisions set forth in Sections 2.5.1, 2.5.2 and 2.5.3
and after subtracting amounts then on deposit in the Phase II Mall Cash
Management Account.  The Loan Parties’
Phase II Mall Release Certificate further shall set forth each Phase II Mall
Funding Source’s portion of the Phase II Mall Required Completion Amount
calculated in accordance with  the preceding
sentence.


 


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(b)           The Disbursement Agent and the
Construction Consultant shall review the Loan Parties’ Phase II Mall Release
Certificate.  In the event that the
Disbursement Agent or the Construction Consultant discovers any mathematical or
other minor errors therein, they shall request LCR and the Phase II Mall
Borrowers to revise and resubmit the certificate.  Within five (5) days after its receipt
of the Loan Parties’ Phase II Mall Release Certificate, the Construction
Consultant shall deliver the Construction Consultant’s Phase II Mall
Release Certificate to the other Phase II Mall Release Interested Parties.


 


(c)           Upon receipt by the Disbursement
Agent of the Construction Consultant’s Phase II Mall Release Certificate
approving the Loan Parties’ Phase II Mall Release Certificate, but no later
than three (3) days prior to the anticipated Phase II Mall Release
Date, the Disbursement Agent shall, subject to its determination that the
required documentation has been delivered in the form required by this
Agreement and executed by the appropriate parties, forward the same to Phase II
Mall Release Interested Parties.  The act
of forwarding such documentation shall be deemed to be the Disbursement Agent’s
confirmation that the required documentation has been delivered in the form
required by this Agreement.


 


(d)           On the Phase II Mall Release
Date:


 


(i)                    After
the Phase II Mall Agent has confirmed that the Phase II Mall Construction Loan
Obligations will be (after giving effect to the transactions to take place on
such day) indefeasibly paid and performed, the Disbursement Agent shall
withdraw any amounts remaining on deposit in the Phase II Mall Equity Account,
the Phase II Mall Loan Proceeds Account, the Phase II Mall Cash Management
Account and the Supplemental Mall Cash Account up to 125% of the Phase II Mall
Required Completion Amount and deposit the same in the Phase II Hotel/Casino
Equity Account, and the Disbursement Agent shall release any amounts remaining
after such transfers to an account or accounts specified in the Loan Parties’
Phase II Mall Release Certificate;


 


(ii)                   To
the extent that the amounts transferred to the Phase II Hotel/Casino Equity
Account under clause (i) above are less than 125% of the Phase II Mall Required
Completion Amount, then the Phase II Mall Lenders shall deposit or cause to be
deposited in the Phase II Hotel/Casino Equity Account the remaining undrawn
commitment under the Phase II Mall Construction Loan, up to an amount which,
when aggregated with the amounts deposited in the Phase II Mall Equity Account
under clause (i) above, is equal to 125% of the Phase II Mall Required
Completion Amount;


 


(iii)                  To
the extent the amounts transferred to the Phase II Hotel/Casino Equity Account
under clauses (i) and (ii) above are less than 125% of the Phase II Mall
Required Completion Amount, then LCR or the Phase II Mall Borrowers shall
deposit or cause to be deposited additional funds into the Phase II
Hotel/Casino Equity Account such that the aggregate amount deposited into such
Account pursuant to clauses (i), (ii) and (iii) of this Section 2.8 is
equal to 125% of the


 


23





















 


Phase
II Mall Required Completion Amount; provided, however, that, without affecting
or waiving any Event of Default which may occur hereunder as a result of the
failure by the LCR or the Phase II Mall Borrowers to make any such deposit,
such failure shall not affect the sale of the equity interests in Phase II Mall
Subsidiary by Phase II Mall Holding to the Phase II Mall Buyer and repayment of
the Phase II Mall Construction Loan if the Phase II Mall Buyer is obligated to
purchase such equity interests (or waives any unsatisfied conditions and
completes such purchase); and


 


(iv)                  After
making or causing to be made the deposit specified in clause (ii) above and
indefeasible payment of the Phase II Mall Construction Loan, the Phase II Mall
Agent and the Phase II Mall Lenders shall be released from all further
obligations hereunder other than those which survive the expiration of or
earlier termination of this Agreement. 
After making or causing to be made the deposit specified in
clause (iii) above (to the extent any such deposit is required) and
indefeasible payment of the Phase II Mall Construction Loan, the Phase II Mall
Borrowers shall be released from all further obligations hereunder other than
those which survive the expiration of or earlier termination of this Agreement.


 


(e)           From the Phase II Mall Release
Date through the Final Completion Date, all amounts which would, but for the
funding and release contemplated under Section 2.8(d), be required
to be provided by the Phase II Mall Lenders or withdrawn from the Phase II Mall
Equity Account, the Phase II Mall Loan Proceeds Account, the Phase II Mall Cash
Management Account or the Supplemental Mall Cash Account shall be satisfied
through withdrawals or advances from Phase II Hotel/Casino Funding Sources.


 


After
indefeasible payment of the Phase II Mall Construction Loan Obligations, the
Phase II Mall Agent and the Phase II Mall Lenders shall (at the Phase II Mall
Borrowers’ expense) execute, acknowledge and deliver to the Phase II Mall
Borrowers and the Disbursement Agent such documents and instruments, including
UCC-3 termination statements, as may reasonably be necessary to release such
Persons and their respective assets from any and all further obligations to,
and Liens in favor of, the Phase II Mall Agent under the Phase II Mall
Construction Loan Agreement and the Phase II Mall Security Documents.


 


2.9           Substantial Completion Date
Procedures.


 


(a)           No less than ten (10) days prior
to the anticipated Substantial Completion Date, LCR and (except after the Phase
II Mall Release Date) the Phase II Mall Borrowers shall deliver to the
Construction Consultant, the Disbursement Agent and the Funding Agents an
executed Substantial Completion Certificate with all attachments thereto.  The Substantial Completion Certificate shall
indicate the anticipated Substantial Completion Date and set forth all the
other information required thereby.


 


(b)           The Disbursement Agent and the
Construction Consultant shall review the Substantial Completion
Certificate.  In the event that the
Disbursement Agent or the Construction Consultant discovers any mathematical or
other minor errors therein they shall request and (except after the Phase II
Mall Release Date) the Phase II Mall


 


24


















 


Borrowers to revise and resubmit the certificate.  Within five (5) days after its receipt
of the Substantial Completion Certificate, the Construction Consultant shall
deliver to the Disbursement Agent, the Funding Agents, and LCR and (except
after the Phase II Mall Release Date) the Phase II Mall Borrowers, the
Construction Consultant’s Substantial Completion Certificate.


 


(c)           Within five (5) Banking Days
after receipt by the Disbursement Agent of the Construction Consultant’s
Substantial Completion Certificate approving the Substantial Completion
Certificate, the Disbursement Agent shall, subject to its determination that
the required documentation has been delivered in the form required by this
Agreement and executed by the appropriate parties, forward the same to LCR, the
Bank Agent and (except after the Phase II Mall Release Date) the Phase II Mall
Borrowers and the Phase II Mall Agent. 
The act of forwarding such documentation shall be deemed to be the
Disbursement Agent’s confirmation that the required documentation has been
delivered in the form required by this Agreement.


 


2.10         Final
Completion Procedures.  On the
Final Completion Date, the Disbursement Agent shall (a) withdraw all
remaining funds from the Bank Proceeds Account and deliver such funds to the
Bank Agent and (b) release to the account specified in the Final
Completion Certificate delivered by LCR and (except
after the Phase II Mall Release Date) the Phase II Mall Borrowers all other
amounts on deposit in the other Accounts.


 


2.11         No Approval
of Work.  The making of any
Advance shall not be deemed an approval or acceptance by the Disbursement
Agent, any Funding Agent or any Lender of any work, labor, supplies, materials
or equipment furnished or supplied with respect to the Phase II Project.


 


2.12         Security.  All funds advanced by the Bank Lenders or the
Phase II Mall Lenders hereunder to complete the Phase II Project or
to protect the rights and interests of the Bank Secured Parties and the Phase
II Mall Secured Parties under their respective Financing Agreements are deemed
to be obligatory advances and are to be added to the total indebtedness secured
by each of the respective Facilities’ Deeds of Trust.  All sums so advanced shall be secured by each
such Deed of Trust with the same priority of lien as the security for any other
obligations secured thereunder.


 


ARTICLE 3 -

CONDITIONS PRECEDENT


 


3.1           Conditions Precedent to the Effective
Date.  The effective date
of this Agreement (the “Effective Date”) is subject to the prior
satisfaction or waiver of each of the conditions precedent set forth in Section
4.1 of the Bank Credit Agreement and Section 3.1 of the Phase II Mall
Construction Loan Agreement and each of the conditions precedent hereinafter
set forth in this Section 3.1 in form and substance satisfactory to
each of the Bank Arranger, the Bank Agent and the Phase II Mall Agent in its
sole discretion.  Subject to Section
3.6, by executing this Agreement, each of the Bank Arranger, the Bank Agent
and the Phase II Mall Agent shall be deemed to have confirmed that each of the
conditions precedent described in the preceding


 


25





















 


sentence
has been satisfied (except to the extent expressly waived by the applicable
Persons) and that the Effective Date has occurred.


 


3.1.1        Effective Date Documents.  Delivery to each Funding Agent, the Bank
Arranger and the Disbursement Agent (with such number of originally executed
copies as they may reasonably request) of (a) true and correct copies of
each Effective Date Document, all of which shall be in form and substance
reasonably satisfactory to the Bank Arranger and each Funding Agent and shall
have been duly authorized, executed and delivered by the parties thereto, and
each such Effective Date Document shall be certified by an Authorized
Representative of LCR and the Phase II Mall Borrowers which are parties thereto
as of the Effective Date as being true, complete and correct and in full force
and effect, (b) evidence reasonably satisfactory to each Funding Agent and
the Bank Arranger that each such Effective Date Document is in full force and
effect and that no party to any such document is or, but for the passage of
time or giving of notice or both will be, in breach of any obligation
thereunder (including that no Phase II Mall Major Event or any other event that
could entitle the Phase II Mall Buyer to terminate the Phase II Mall Purchase
Agreement shall have occurred) (other than (i) 
any breaches which would not reasonably be expected to have a Material Adverse
Effect and (ii) any breaches by the Phase II Mall Buyer under the Phase II Mall
Purchase Agreement) and (c) true and correct copies of all payment and/or
performance bonds (if any) delivered to LCR pursuant to any Contracts or
Subcontracts then in effect.


 


3.1.2        Insurance.


 


(a)           Policies.  Insurance complying in all material respects
with the requirements of Exhibit O, Section 5.12 hereof and
Section 3.6 of the Phase II Mall Purchase Agreement shall be in place and in
full force and effect.


 


(b)           Insurance Certificates.  Delivery to each Funding Agent, the
Disbursement Agent and the Bank Arranger of (i) a certificate, in
substantially the form of Exhibit B-4 attached hereto and otherwise
in form and substance reasonably satisfactory to each Funding Agent and the
Bank Arranger from the insurance broker(s) for LCR and the Phase II Mall
Borrowers, dated as of the Effective Date and identifying underwriters, type of
insurance, insurance limits and policy terms, listing the special provisions
required as set forth in Exhibit O and in Section 3.6 of the Phase
II Mall Purchase Agreement, describing the insurance obtained and stating that
such insurance is in full force and effect and that all premiums then due
thereon have been paid and that, in the such insurance broker’s opinion, such
insurance complies with Exhibit O and Section 3.6 of the Phase II
Mall Purchase Agreement, and (ii) certified copies of all policies
evidencing such insurance (or a binder, commitment or certificates signed by
the insurer or a broker authorized to bind the insurer along with a commitment
to issue the policies within 45 days after the Effective Date) naming the
Disbursement Agent, the Funding Agents and the Lenders as additional insureds
and otherwise in form and substance reasonably satisfactory to each Funding
Agent and the Bank Arranger.


 


(c)           Insurance Advisor’s Certificate.  Delivery to each Funding Agent, the
Disbursement Agent and the Bank Arranger of the Insurance Advisor’s Effective
Date Certificate substantially in the form of Exhibit B-3, with the
Insurance Advisor’s report attached


 


26





















 


thereto in form and
substance reasonably satisfactory to each Funding Agent and the Bank Arranger.


 


(d)           Matters Relating to Flood Hazards.  Delivery to each Funding Agent, the
Disbursement Agent and the Bank Arranger of (i) evidence, which may be in the
form of a letter from an insurance broker, a municipal engineer or the surveyor
delivering the survey described in Section 3.1.13, as to whether the
Phase II Site, the Phase II Mall Space or any portion thereof is located in an
area designated by the Federal Emergency Management Agency as having special
flood or mud slide hazards and if so, whether the community in which the Phase
II Site, the Phase II Mall Space or any portion thereof is located participates
in the National Flood Insurance Program, (ii) if the Phase II Site, the Phase
II Mall Space or any portion thereof is located in an area designated by the
Federal Emergency Management Agency as having special flood or mud slide
hazards, written acknowledgement from LCR and the Phase II Mall Borrowers of
receipt of written notification from each Funding Agent and the Disbursement
Agent (A) that such property is located in a special flood hazard area and (B)
as to whether the community in which such property is located is participating
in the National Flood Insurance Program, and (c) in the event the Phase II
Site, the Phase II Mall Space or any portion thereof is located in a community
that participates in the National Flood Insurance Program, evidence that LCR
and the Phase II Mall Borrowers have obtained flood insurance in respect of
such property to the extent required under the applicable regulations of the
Board of Governors of the Federal Reserve System.


 


3.1.3        Project Security.  The Security Documents, in the form attached
to the applicable Facility Agreement (with such changes as are reasonably
satisfactory to the Funding Agents party thereto and (in the case of the Bank
Security Documents) the Bank Arranger), shall have been executed and delivered
to the Secured Parties thereunder and be in full force and effect and all
actions necessary or desirable, including all filings, in the reasonable
opinion of the Funding Agents party thereto and (in the case of the Bank
Security Documents) the Bank Arranger to perfect the security interests granted
therein as a valid security interest over the applicable Project Security
having the priority contemplated therefor by this Agreement, the Intercreditor
Agreement and the Security Documents shall have been completed.  All property, rights and assets then required
for the Phase II Project shall be free and clear of all Liens except Permitted
Liens.


 


3.1.4        Effective Date Certificates.  Delivery to each Funding Agent, the Bank
Arranger and the Disbursement Agent of the Effective Date Certificate
substantially in the form of Exhibit B-1, signed by an Authorized
Representative of LCR and each Phase II Mall Borrower, with all attachments,
exhibits and certificates required thereby.


 


3.1.5        Construction Consultant’s Certificate
and Report.  Delivery to each Funding
Agent, the Bank Arranger and the Disbursement Agent of the Construction
Consultant’s Effective Date Certificate substantially in the form of Exhibit
B-2, with the Construction Consultant’s Report attached thereto in form and
substance reasonably satisfactory to each Funding Agent and the Bank Arranger.


 


3.1.6        Project Budget.  Delivery to each Funding Agent, the Bank
Arranger, the Disbursement Agent and the Construction Consultant of a budget in
the form of Exhibit H (as


 


27





















 


amended from time to
time in accordance with the terms hereof, the “Project Budget”) for all
anticipated Project Costs (including, without limitation, Project Costs
incurred prior to, as well as after, the Effective Date, and Debt Service under
the Phase II Mall Construction Loan), which includes a drawdown schedule for
Advances necessary to achieve Final Completion and such other information as
any of the Bank Agent, the Phase II Mall Agent, the Bank Arranger, the
Disbursement Agent or the Construction Consultant may reasonably require,
together with a balanced statement of sources and uses of proceeds (and any
other funds necessary to complete the Phase II Project ), broken down by
Construction Component, Line Item Category and Line Item, which Project Budget
shall be satisfactory to the Construction Consultant, as and to the extent
certified to in the Construction Consultant’s Effective Date Certificate.


 


3.1.7        Project Schedule.  Delivery to each Funding Agent, the Bank
Arranger, the Disbursement Agent and the Construction Consultant of a schedule
for construction and completion of each Construction Component and the Phase II
Project as a whole in the form of Exhibit I (as amended from time
to time in accordance with the terms hereof, the “Project Schedule”)
which demonstrates that the Phase II Mall Substantial Completion will occur by
the Phase II Mall Outside Substantial Completion Date (as determined on the
date of delivery of such schedule) and that Substantial Completion of the Phase
II Project will occur on or before the Outside Completion Deadline and which is
otherwise reasonably satisfactory to the Construction Consultant, as certified
to in the Construction Consultant’s Effective Date Certificate.


 


3.1.8        Events of Default.  No Event of Default or Potential Event of
Default shall have occurred and be continuing and an Authorized Representative
of each of LCR and the Phase II Mall Borrowers shall have delivered a
certificate to the Funding Agents and the Disbursement Agent to such effect.


 


3.1.9        Permits.


 


(a)           All material Permits described in Exhibit M
as required to have been obtained by LCR, the Phase II Mall Borrowers or any
other Person by the Effective Date shall have either (a) been received and
shall be in full force and effect, and all applicable waiting periods with
respect thereto shall have expired without any action being taken by any
applicable authority or (b) been received pending the expiration of any such
applicable waiting period and shall be reasonably expected to be obtained upon
the termination of such waiting period, and all further such approvals to be
obtained between the Effective Date and the anticipated Substantial Completion
Date and the Phase II Mall Substantial Completion Date are reasonably expected
to be obtained without material difficulty prior to the time that it becomes
required; and


 


(b)           With respect to any of the Permits
described in Exhibit M as not yet required to be obtained,
(i) each such Permit (except approval by the applicable Governmental
Instrumentalities under Nevada subdivision law of the creation of the separate
parcels which are to comprise the Phase II Mall Air Parcel) is of a type
that is routinely granted following application and (ii) no facts or
circumstances exist which indicate that any such Permit will not be obtainable
prior to the time that it becomes required.


 


28





















 


3.1.10      Phase II Mall Purchase Agreement.  Delivery to each of the Phase II Mall Agent
and the Bank Agent of (a) a true and correct copy of the Phase II Mall
Purchase Agreement, the Phase II Mall PA Assignment Agreement and any
supplements or amendments thereto, all of which shall be in form and substance
satisfactory to the Phase II Mall Agent, the Bank Agent and the Bank Arranger
and shall have been duly authorized, executed and delivered by the parties
thereto, and shall be certified by an Authorized Representative of each of the
Phase II Mall Borrowers and LCR as being true, complete and correct and in full
force and effect and (b) evidence satisfactory to each of the Phase II
Mall Agent, the Bank Agent and the Bank Arranger that no party to the Phase II
Mall Purchase Agreement is, or but for the passage of time or giving of notice
or both will be, in breach of any obligation thereunder.


 


3.1.11      Availability of Services, Materials and
Utilities.  The Construction
Consultant shall have become satisfied, as certified to in the Construction
Consultant’s Effective Date Certificate, that arrangements, which are reflected
accurately in the Project Budget, shall have been or will be made on
commercially reasonable terms for the provision of all services, materials and
utilities necessary for the construction, operation and maintenance of the
Phase II Project as contemplated by the Operative Documents and the Final Plans
and Specifications.


 


3.1.12      Establishing of Accounts.  Each of the Accounts shall have been
established pursuant to this Agreement and the Collateral Account Agreements.


 


3.1.13      A.L.T.A. Surveys.  The Disbursement Agent and each Funding Agent
shall have received A.L.T.A. surveys of the Phase II Site, the Walgreen’s
Air Space, the Phase II Site Easements, and the Walgreen’s Air Space
Easements, each satisfactory in form and substance to the Title Insurer, each
Funding Agent and the Bank Arranger, reasonably current and certified to each
such Person by a licensed surveyor satisfactory to each such Person, showing
(a) as to the Phase II Site and the Walgreen’s Air Space, the exact
location and dimensions thereof, including the location of all means of access
thereto and all easements relating thereto and showing the perimeter within
which all foundations are or are to be located; (b) as to the Phase II
Site Easements and the Walgreen’s Air Space Easements, the exact location and
dimensions thereof to the extent capable of being described, including the
location of all means of access thereto, and all improvements or other
encroachments in or on the Phase II Site Easements and the Walgreen’s Air
Space Easements, respectively; (c) the existing utility facilities (if
any) that service or will service the Phase II Project (including water,
electricity, gas, telephone, sanitary sewer and storm water distribution and
detention facilities); (d) that such existing improvements do not encroach
or interfere with adjacent property or existing easements or other rights
(whether on, above or below ground), and that there are no gaps, gores,
projections, protrusions or other survey defects other than Permitted
Encumbrances; (e) whether the Phase II Site, the Walgreen’s Air Space or
any portion thereof is located in a flood hazard zone; and (f) that there are
no other matters that could reasonably be expected to be disclosed by a survey
constituting a defect in title other than Permitted Encumbrances.


 


3.1.14      Title Policies.  LCR shall have delivered to the Bank Agent a
lender’s A.L.T.A. policy of title insurance, or a commitment to issue such
policy, in the amount of $1,010,000,000, and the Phase II Mall Borrowers shall
have delivered to the Phase II Mall Agent a lender’s A.L.T.A. policy of
title insurance, or a commitment to issue such policy, in the amount of
$250,000,000.  Each such policy or
commitment shall (i) include such endorsements as are


 


29





















 


required by the
applicable Funding Agent and, with respect to the $1,010,000,000 title policy,
the Bank Arranger, (ii) be reinsured by such reinsurance as is
satisfactory to the applicable Funding Agent and, with respect to the
$1,010,000,000 title policy, the Bank Arranger, (iii) be issued by the
Title Insurer in form and substance satisfactory to the applicable Funding
Agent and, with respect to the $1,010,000,000 title policy, the Bank Arranger,
and (iv) insure (or agree to insure) that:


 


(A)          LCR has a good and marketable fee
simple title to the Phase II Site and the Phase II Site Easements, in each case
free and clear of liens, encumbrances or other exceptions to title except those
exceptions specified on Exhibit N-1 (“LCR Permitted Encumbrances”);
and Phase II Mall Subsidiary has good and marketable fee simple title to the
portions of the Phase II Mall Space which are separate parcels and all rights
with respect to the leasehold estate created by the Phase II Mall Air Space
Lease and to the Phase II Mall Easements, in each case free and clear of all
liens, encumbrances and other exceptions to title except those exceptions
specified in Exhibit N-2 (“Phase II Mall Subsidiary Permitted Encumbrances”);
and


 


(B)           each Deed of Trust is (or will be
when recorded) a valid lien on the Trust Estate (as defined in each Deed of
Trust) entitled to the priority described therein, free and clear of all liens,
encumbrances and exceptions to title whatsoever, other than (i) LCR
Permitted Encumbrances, in the case of the Bank Deed of Trust (Phase II) and
the Bank Deed of Trust (Phase I/IA) and (ii) Phase II Mall Subsidiary Permitted
Encumbrances, in the case of the Phase II Mall Deed of Trust and the Phase II
Mall Intercompany Loan Deed of Trust.


 


3.1.15      Other Documents.  The Disbursement Agent, the Bank Arranger and
each Funding Agent shall have received such other documents and evidence
as each such Person may reasonably request in connection with the transactions
contemplated hereby.


 


3.1.16      Plans and Specifications.  LCR and the Phase II Mall Borrowers shall
have delivered to the Construction Consultant Plans and Specifications for each
Construction Component which (x) include the Phase II Hotel/Casino Initial
Construction Plans and Specifications, the Phase II Mall Initial Plans and the
Phase II Mall Initial Construction Plans and Specifications to the extent
already agreed upon with the Phase II Mall Buyer pursuant to the
Phase II Mall Purchase Agreement, (y) otherwise comply with the
requirements of the Phase II Mall Purchase Agreement and (z) are otherwise in
form and substance reasonably satisfactory to the Construction Consultant, as
certified to in the Construction Consultant’s Effective Date Certificate.  Subject to (a)(i) finalizing the Plans and
Specifications in a manner consistent with the standards set forth on Exhibit
J and (ii) agreeing with the Phase II Mall Buyer on the Phase II Mall
Initial Construction Plans and Specifications and finalizing them such that
they become the Phase II Mall Final Construction Plans and Specifications and
(b) submission of the finalized Plans and Specifications to the proper
Governmental Instrumentality for any required approval, such Plans and
Specifications shall constitute Final Plans and Specifications.


 


3.1.17      Lien Releases.  LCR and the Phase II Mall Borrowers shall
have delivered or caused to be delivered to the Disbursement Agent, each
Funding Agent, the Bank Arranger and the Title Company:


 


30





















 


(a)           Unconditional Releases.  Duly executed acknowledgments of payments and
unconditional releases of mechanics’ and materialmen’s liens in the form of Exhibit
Q or otherwise in form and substance reasonably satisfactory to each
Funding Agent from each Contractor and Subcontractor performing work and/or
providing services or materials with a value or contract price in excess of
$1,500,000 (subject to an aggregate limit of $50,000,000, after which
acknowledgements and releases shall be provided from each Contractor and
Subcontractor regardless of the value or contract price of the work, services
or materials being performed or provided by such Person) for all work, services
and materials, including equipment and fixtures of all kinds, done, performed
or furnished for the construction of the Phase II Project through the
calendar month ended at least 30 days prior to the calendar month in which the
Effective Date occurs, except for such work, services and materials the payment
for which (i) is being disputed in good faith, by appropriate means and (ii) as
applicable, LCR or the Phase II Mall Borrowers have provided appropriate
reserves either through funds on deposit in the Lien Protection Account or an
allocation in the Anticipated Cost Report which in the aggregate with all other
amounts so reserved shall not exceed $20,000,000; and


 


(b)           Conditional Releases.  Duly executed acknowledgments of payments and
releases of mechanics’ and materialmen’s liens in the form of Exhibit R
or otherwise in form and substance reasonably satisfactory to each Funding
Agent from each Contractor and Subcontractor performing work and/or providing
services or materials with a value or contract price in excess of $1,500,000
(subject to an aggregate limit of $50,000,000, after which acknowledgements and
releases shall be provided from each Contractor and Subcontractor regardless of
the value or contract price of the work, services or materials being performed
or provided by such Person) for all work, services and materials, including
equipment and fixtures of all kinds, done, performed or furnished for the
construction of the Phase II Project through the calendar month ended
immediately prior to the calendar month in which the Effective Date occurs,
conditioned only upon receiving payment of a specified amount, except for such
work, services and materials the payment for which (i) is being disputed in
good faith, by appropriate means and (ii) as applicable, LCR or the Phase II
Mall Borrowers have provided appropriate reserves either through funds on
deposit in the Lien Protection Account or an allocation in the Anticipated Cost
Report which in the aggregate with all other amounts so reserved shall not
exceed $20,000,000.


 


3.1.18      Litigation.  No action, suit or proceeding of any kind
shall have been instituted or, to the knowledge of LCR and the Phase II Mall
Borrowers, pending or threatened, including actions or proceedings of or before
any Governmental Instrumentality, to which any Loan Party, the Phase II Project
or, to the knowledge of LCR and the Phase II Mall Borrowers, any other party to
a Contract which is a Material Project Document, is a party or is subject, or
by which any of them or any of their properties or the Phase II Project are
bound that could reasonably be expected to have a Material Adverse Effect and
no injunction or other restraining order shall have been issued and no hearing
to cause an injunction or other restraining order to be issued shall be pending
or noticed with respect to any action, suit or proceeding if the same is
reasonably expected to have a Material Adverse Effect.


 


3.1.19      Environmental
Report.  The Funding Agents shall
have received a report in form, scope and substance reasonably satisfactory to
them regarding the environmental matters pertaining to the Phase II Site which
report includes (x) a “Phase I” environmental site


 


31





















 


assessment and (y) a current compliance audit setting forth an
assessment of the Phase II Site, current and past compliance with the
Environmental Laws and an estimate of the cost of rectifying any non-compliance
with the Environmental Laws.  The Funding
Agents shall have received, with respect to items (x) and (y) above, a reliance
letter in connection therewith running to the benefit of the Agents and the
Lenders.


 


3.2           Conditions Precedent to Equity
Advances Prior to Initial Loan Advances.  Prior to the Initial Bank Advance Date, LCR
may, from time to time, cause cash equity contributions to be deposited into
the Phase II Hotel/Casino Equity Account, the Disbursement Account and/or the
Phase II Hotel/Casino Cash Management Account. 
Prior to the Initial Mall Advance Date, the Phase II Mall Borrowers may,
from time to time, cause cash equity contributions to be deposited into the
Phase II Mall Equity Account, the Disbursement Account and/or the Phase II Mall
Cash Management Account.  The conditions
to Advances set forth in this Section 3.2 apply to Advances from (a) the
Phase II Hotel/Casino Equity Account, the Phase II Hotel/Casino Cash Management
Account and the Disbursement Account (with respect to funds deposited therein
by LCR), in each case, at any time prior to the Initial Bank Advance Date and
(b) the Phase II Mall Equity Account, the Phase II Mall Cash Management Account
and the Disbursement Account (with respect to funds deposited therein by the
Phase II Mall Borrowers), in each case, at any time prior to the Initial Mall
Advance Date.  Accordingly, with respect
to each Advance to which this Section applies, upon the request of LCR and the
Phase II Mall Borrowers, the Disbursement Agent shall release the requested
funds from the applicable Account notwithstanding the fact that the conditions
set forth in Section 3.5 (other than Sections 3.5.4 and 3.5.15)
have not been satisfied.  Notwithstanding
any other items required to be set forth in an Advance Request, any Advance
Request submitted by LCR and the Phase II Mall Borrowers with respect to
Advances under this Section 3.2 needs only to include the date of the
requested Advance from the applicable Account, the amount of such Advance, the
payees and/or Accounts to which such Advance shall be paid and/or transferred
and a certification to the effect that the conditions set forth in Section
3.5.15 are satisfied)).  Each of LCR,
Phase II Mall Holding and Phase II Mall Subsidiary acknowledge, however, that
any inability on its or their part to satisfy the conditions set forth in Section
3.5 shall not affect its and their obligation to satisfy all such
conditions at such time that an Advance is requested from any Facility in
accordance with Section 3.3, 3.4 or 3.5.  Further, in the event funds are disbursed to
Phase II Mall Subsidiary from the Phase II Mall Equity Account, the
Disbursement Account and/or the Phase II Mall Cash Management Account or to LCR
from the Phase II Hotel/Casino Equity Account, the Disbursement Account and/or
the Phase II Hotel/Casino Cash Management Account without satisfying the
conditions set forth in Section 3.5, any funds so released and expended
will only be taken into consideration for purposes of Sections 3.3.2, 3.4.2
or 3.5.17 to the extent such funds have been applied to pay Project
Costs in accordance with the Project Budget and the Plans and Specifications,
as confirmed by the Construction Consultant in the Construction Consultant’s
Advance Certificate.


 


3.3           Conditions Precedent to Initial
Mall Advance.  The
obligation of each Phase II Mall Lender to make the initial Advance under
the Phase II Mall Construction Loan pursuant to this Agreement (the “Initial
Mall Advance”) is subject to the prior satisfaction of each of the
conditions precedent set forth in the Phase II Mall Construction Loan Agreement
and hereinafter set forth in this Section 3.3, in each case as
reasonably determined by the Phase II Mall Agent unless otherwise waived by the
Phase II Mall Agent (in its sole discretion) pursuant to Section 3.7.


 


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3.3.1        Conditions Precedent to Each Advance
Satisfied.  The conditions set forth
in Sections 3.1 and 3.5 shall have been satisfied (or waived in
accordance with Section 3.7), as certified by LCR and the Phase II Mall
Borrowers in the initial Advance Request for the Initial Mall Advance.


 


3.3.2        Funding of Equity.  Delivery to the Phase II Mall Agent of
evidence reasonably satisfactory to the Phase II Mall Agent and the
Construction Consultant that the Phase II Mall Intercompany Loan has been
applied (or will be applied on the Initial Mall Advance Date) to the payment of
Project Costs (exclusive of costs related to the acquisition and/or leasing of
any portion of the Phase II Mall Air Space where any Loan Party is the tenant
or the Phase II Hotel/Casino Retail Store Space) allocated pursuant to the
Project Budget to the Phase II Mall, as certified to by the Construction
Consultant in the Construction Consultant’s Advance Certificate.


 


3.3.3        Phase II Mall Air Parcel.  The Phase II Mall Borrowers shall have
completed the actions contemplated in Section 5.11(b) with respect to
the  Lido Air Space and the combined
value of the Lido Air Space (which shall be a separate lot) and the Walgreen’s
Air Space and the Vagabond Air Space (which shall be separate leasehold
estates) shall be no less than $27,000,000 as shown in a FIRREA appraisal.  The Bank Agent shall deliver a subordination
agreement substantially in the form of Exhibit X-1 for recording against
the Phase II Site pursuant to which the Liens held by the Bank Agent shall be
subject and subordinate to the Phase II Mall Air Space Lease.


 


3.3.4        Project Documents.  Delivery to the Disbursement Agent, the Phase
II Mall Agent and the Construction Consultant, each in form and substance
reasonably satisfactory to the Disbursement Agent and the Phase II Mall Agent
(all in consultation, where applicable, with the Construction Consultant), of
executed copies of:


 


(a)           all Contracts with a contract price (or value) in
excess of $10,000,000 then in
effect, which Contracts shall be consistent with the Project Budget, the
Project Schedule and the Plans and Specifications, as certified in the Advance
Request delivered by the Phase II Mall Borrowers and the Construction
Consultant’s Advance Certificate;


 


(b)           the
Subguard Insurance Policy (as amended to name the Disbursement Agent as the
loss payee), or payment and performance bonds reasonably acceptable to the
Phase II Mall Agent, shall be in full force and effect; and


 


(c)           each
Initial Bank Advance Document then available, conforming with the requirements
of Section 3.4.3.


 


3.3.5        A.L.T.A.
Surveys.  The Disbursement Agent and
each Funding Agent shall have received A.L.T.A. surveys of the Phase II Mall
Air Space and  the Phase II Mall Space
Easements related thereto, each satisfactory in form and substance to the Title
Insurer, each Funding Agent and the Bank Arranger, reasonably current and
certified to each such Person by a licensed surveyor satisfactory to each such
Person, showing (a) as to the Phase II Mall Air Space, the exact location and
dimensions thereof, including the location of all means of access thereto and
all easements relating thereto and showing the perimeter within which all
foundations are or are to be located; (b) as to such Phase II Mall Space
Easements, the exact location and


 


33





















 


dimensions thereof to the extent capable of being described, including
the location of all means of access thereto, and all improvements or other
encroachments in or on  such Phase II
Mall Space Easements, respectively; (c) the existing utility facilities (if
any) that service or will service the Phase II Project (including water,
electricity, gas, telephone, sanitary sewer and storm water distribution and
detention facilities); (d) that such existing improvements do not encroach or
interfere with adjacent property or existing easements or other rights (whether
on, above or below ground), and that there are no gaps, gores, projections,
protrusions or other survey defects other than Permitted Encumbrances; (e) whether
the Phase II Mall Air Space or any portion thereof is located in a flood hazard
zone; and (f) that there are no other matters that could reasonably be expected
to be disclosed by a survey constituting a defect in title other than Permitted
Encumbrances.


 


3.3.6        Phase II Mall Recognition Agreement.  The Phase II
Mall Agent and the Bank Agent shall have received executed counterparts from
the Phase II Mall Buyer, LCR and the Phase II Mall Borrowers of a recognition
agreement with respect to the Phase II Mall Purchase Agreement which conforms
to the requirements of Section 5.13 of the Phase II Mall Construction Loan
Agreement (as the same may be amended, amended and restated, supplemented or
otherwise modified from time to time in accordance with the terms hereof, the “Phase
II Mall Recognition Agreement”) and any supplements or amendments thereto,
all of which shall have been duly authorized, executed and delivered by the
parties thereto, and shall be certified by an Authorized Representative of each
of the Phase II Mall Borrowers and LCR as being true, complete and correct and
in full force and effect.


 


3.4           Conditions Precedent to Initial
Bank Advance.  The
obligation of each Bank Lender to make the initial Advance under the Bank
Facilities pursuant to this Agreement (the “Initial Bank Advance”) is
subject to the prior satisfaction of each of the conditions precedent
hereinafter set forth in this Section 3.4, in each case as
reasonably determined by the Bank Agent unless otherwise waived by the Bank
Agent (in its sole discretion) pursuant to Section 3.7.  Any confirmation or approval required to be delivered by the Bank
Arranger in connection with the satisfaction of any condition precedent set
forth in this Sections 3.4 or 3.5 shall be in writing.


 


3.4.1        Conditions Precedent to Each Advance
Satisfied.  The conditions set forth
in Section 3.1 and Section 3.5 shall have been satisfied (or
waived in accordance with Section 3.7), as certified by LCR and the
Phase II Mall Borrowers in the initial Advance Request.


 


3.4.2        Funding of Equity.  Delivery to the Bank Agent of evidence
reasonably satisfactory to the Bank Agent and the Construction Consultant that
cash in the aggregate amount of Five Hundred and Fifty-Two Million Dollars
($552,000,000)  has been
irrevocably and unconditionally contributed to LCR and that such contributions
have been applied by LCR to payment of Project Costs (exclusive of costs
related to the acquisition of any portion of the Phase II Site or the Phase II
Mall Site) allocated pursuant to the Project Budget to the Phase II
Hotel/Casino, as certified to by the Construction Consultant in the
Construction Consultant’s Advance Certificate.


 


3.4.3        Initial Bank Advance Documents.  Delivery to
each Funding Agent, the Bank Arranger, the Construction Consultant and the
Disbursement Agent (with such number of originally executed copies as they may
reasonably request) of (a) true and correct copies of each


 


34





















 


Initial
Bank Advance Document, all of which shall be in form and substance reasonably
satisfactory to the Disbursement Agent, the Bank Agent and the Bank Arranger’s
Counsel and (in the case of the Cooperation Agreement, the COREA and the Phase
II HVAC Services Agreements) the Phase II Mall Agent and the Bank Arranger (all
in consultation, where applicable, with the Construction Consultant), and shall
have been duly authorized, executed and delivered by the parties thereto, and
each such Initial Bank Advance Document shall be certified by an Authorized Representative
of LCR and the Phase II Mall Borrowers as of the Initial Bank Advance Date as
being true, complete and correct and (to the best of LCR’s knowledge with
respect Persons that are not Loan Parties) in full force and effect, (b)
evidence satisfactory to the Disbursement Agent, the Bank Agent and the Bank
Arranger’s Counsel and (in the case of the Cooperation Agreement, the COREA and
the Phase II HVAC Services Agreements) the Phase II Mall Agent and the Bank
Arranger that each such Initial
Bank Advance Document is in full force and effect and no
party to any such document is or, but for the passage of time or giving of
notice or both will be, in breach of any obligation thereunder (including that
no Phase II Mall Major Event or any other event that could entitle the Phase II
Mall Buyer to terminate the Phase II Mall Purchase Agreement shall have
occurred) (other than (i) 
any breaches which would not reasonably be expected to have a Material
Adverse Effect, and (ii) any breaches by the Phase II Mall Buyer under the
Phase II Mall Purchase Agreement), and (c) true
and correct copies of all payment and/or performance bonds delivered to LCR
pursuant to any Contracts or Subcontracts.


 


3.4.4        A.L.T.A. Surveys.  If the Bank Agent did not approve in writing
the A.L.T.A. surveys described in Section
3.3.5, then the Disbursement Agent and the Bank Agent shall have received the
A.L.T.A. surveys and conforming to the requirements of Section
3.3.5.


 


3.4.5        Title Policy and Endorsement.  If a commitment to issue title insurance was
delivered pursuant to Section 3.1.14, the policy of title insurance
conforming with the requirements of Section 3.1.14 shall be delivered to
the Bank Agent and a commitment
from the Title Insurer, attached to the initial Advance Request with respect to
the Bank Facilities, evidencing the Title Insurer’s unconditional commitment to
issue an endorsement to each of the Bank Agent’s and the Phase II Mall Agent’s
Title Policy in the form satisfactory to the Funding Agents and the Bank
Arranger insuring the continuing priority of the Lien of each Deed of Trust
with respect to the collateral covered thereby, including, without limitation,
the Cooperation Agreement (as amended to cover the relationship between the
Phase II Hotel/Casino and the Phase II Mall) and the COREA.


 


3.5           Conditions Precedent to Each Advance.  Except as set forth in Section 3.2,
the obligations of each Funds Provider to make any Advances hereunder
(including the Initial Mall Advance in accordance with Section 3.3 and
the Initial Bank Advance in accordance with Section 3.4) are subject to
the prior satisfaction of each of the following conditions precedent or waiver
of conditions precedent pursuant to Section 3.7:


 


3.5.1        Operative Documents.  Each Financing Document shall be in full force
and effect and each Project Document shall be in full force and effect, without
amendment since the respective date of its execution and delivery, and in a
form which was approved by the Bank Agent, the Phase II Mall Agent, the Bank
Arranger, the Bank Arranger’s Counsel and/or the Disbursement Agent, under Section
3.1, 3.3 or 3.4 (in each case to the extent approval was
required under such sections), except (a) as permitted pursuant to Section 6.1,
and (b) to the


 


35





















 


extent the applicable
Loan Party has entered into a replacement Operative Document to the extent
permitted by Section 7.1.6 or if pursuant to such Section the
applicable Loan Party is not required to enter into a replacement Operative
Document, and each certificate delivered by LCR and/or the Phase II Mall
Borrowers with respect to any such document shall be true and correct in all
material respects, as certified by such Person(s) in the relevant Advance
Request.  If
the Master Lease has been executed and delivered by LCR and the Phase II Mall
Subsidiary, the Bank Agent shall have delivered the non-disturbance agreement
in the form of Exhibit X-2 which shall be in full force and effect.


 


3.5.2        Representations and Warranties.  Each representation and warranty of
(a) LCR and the Phase II Mall Borrowers and each other Loan Party set
forth in Article 4 or in any of the other Financing Agreements and
Material Project Documents to which it is a party shall be true and correct in
all material respects as if made on such date (except that any representation
and warranty that relates expressly to an earlier date shall be deemed made
only as of such earlier date), and (b) LCR and the Phase II Mall
Borrowers’ knowledge, of each other party to a Material Project Document set
forth in any of Financing Agreements or Material Project Documents shall be
true and correct in all material respects as if made on such date (except that
any representation and warranty that relates expressly to an earlier date shall
be deemed made only as of such earlier date) unless in the case of
representations referred to in clause (b) the failure of any such
representation and warranty to be true and correct could not reasonably be
expected to have a Material Adverse Effect, in each case, as certified by LCR
and the Phase II Mall Borrowers in the relevant Advance Request.


 


3.5.3        Events of Default.  No Event of Default or Potential Event of
Default shall have occurred and be continuing or could reasonably be expected
to result from such Advance, as certified by LCR and the Phase II Mall
Borrowers in the relevant Advance Request.


 


3.5.4        Advance Request and Certificate.  LCR and the Phase II Mall Borrowers shall
have delivered to the Disbursement Agent, the Funding Agents and the Construction
Consultant an executed Advance Request for the requested Advance in accordance
with Section 2.4.1(a), with all attachments, exhibits and
certificates required thereby.  Such
Advance Request shall request an Advance in an amount sufficient to pay all amounts
due and payable for work performed on the Phase II Project through the last day
of the period covered by such Advance Request.


 


3.5.5        Construction Consultant’s Advance
Certificate.  Delivery to the
Disbursement Agent of the Construction Consultant’s Advance Certificate with
respect to the requested Advance as and when required by Section 2.4.1(c),
substantially in the form of Exhibit C-2, approving (subject to the
proviso in Section 2.4.1(c)) the corresponding Advance Request.


 


3.5.6        Lien Releases.  The Disbursement Agent and the Title Company
shall have received:


 


(a)           Unconditional Releases.  Duly executed acknowledgments of payments and
unconditional releases of mechanics’ and materialmen’s liens, in the form of Exhibit
Q or otherwise in form and substance reasonably satisfactory to the
Disbursement Agent,


 


36





















 


from each Contractor and
Subcontractor performing work and/or providing services or materials with a
value or contract price in excess of $1,500,000 (subject to an aggregate limit
of $50,000,000, after which acknowledgements and releases shall be provided
from each Contractor and Subcontractor regardless of the value or contract
price of the work, services or materials being performed or provided by such
Person) for all work, services and materials, including equipment and fixtures
of all kinds, done, performed or furnished for the construction of the Phase II
Project through the last day covered by the immediately preceding Advance
Request, except for such work, services and materials the payment for which (i)
is being disputed in good faith, by appropriate means and (ii) as applicable,
LCR or the Phase II Mall Borrowers have provided appropriate reserves either
through funds on deposit in the Lien Protection Account or an allocation in the
Anticipated Cost Report which in the aggregate with all other amounts so
reserved shall not exceed $20,000,000 (or such larger amount as may be
reasonably approved from time to time by the Funding Agents).


 


(b)           Conditional Releases.  Duly executed acknowledgments of payments and
releases of mechanics’ and materialmen’s liens, in the form of Exhibit R
or otherwise in form and substance reasonably satisfactory to the Disbursement
Agent, from each Contractor and Subcontractor performing work and/or providing
services or materials with a value or contract price in excess of $1,500,000
(subject to an aggregate limit of $50,000,000, after which acknowledgements and
releases shall be provided from each Contractor and Subcontractor regardless of
the value or contract price of the work, services or materials being performed
or provided by such Person) for all work, services and materials, including
equipment and fixtures of all kinds, done, performed or furnished for the construction
of the Phase II Project from the last day covered by the immediately preceding
Advance Request through the last day covered by the current Advance Request,
conditioned upon receiving payment from the proceeds of the requested Advance,
except for work, services or materials the payment for which (i) is being
disputed in good faith, by appropriate means and (ii) as applicable, LCR or the
Phase II Mall Borrowers have provided appropriate reserves either through funds
on deposit in the Lien Protection Account or an allocation in the Anticipated
Cost Report which in the aggregate with all other amounts so reserved shall not
exceed $20,000,000 (or such larger amount as may be reasonably approved from
time to time by the Funding Agents).


 


3.5.7        Title Policy Endorsement.  The Disbursement Agent shall have received a
commitment from the Title Insurer, attached to the Advance Request, evidencing
the Title Insurer’s unconditional commitment to issue an endorsement to each of
the Bank Agent’s and the Phase II Mall Agent’s Title Policy in the form of a
122 CLTA Endorsement insuring the continuing priority of the Lien of each
Deed of Trust as security for the requested Advance and confirming and/or
insuring that (i) since the previous disbursement from the Disbursement
Account, there has been no change in the condition of title unless permitted by
the Financing Agreements, and (ii) there are no intervening liens or
encumbrances which may then or thereafter take priority over the respective
Liens of the Deeds of Trust (other than the Permitted Encumbrances and such
intervening liens or encumbrances securing amounts the payment of which are
being disputed in good faith by LCR or Phase II Mall Subsidiary, as applicable,
so long as the Disbursement Agent has received confirmation from the applicable
Funding Agents that the Title Insurer has delivered to such Funding Agents any
endorsement to the respective Title Policies required or desirable to assure against loss to the Secured Parties due to
the priority of such lien or encumbrance).


 


37





















 


3.5.8        Permits.  LCR and the Phase II Mall Borrowers shall
have certified in their Advance Request (and, as set forth in the Construction
Consultant’s certificate related to such Advance Request, the Construction
Consultant shall not have become aware of any inaccuracies therein) that:


 


(a)           all material Permits described in Exhibit M
as required to have been obtained by LCR, the Phase II Mall Borrowers or any
other Person by the date of such Advance shall have been issued and be in full
force and effect and not subject to current legal proceedings or to any
unsatisfied conditions (that are required to be satisfied by the date of the
relevant requested Advance) that could reasonably be expected to lead to
material modification or revocation, and all applicable appeal periods with
respect thereto shall have expired; and


 


(b)           With respect to any of the material
Permits described in Exhibit M as not yet required to be obtained,
(i) each such Permit (except approval by the applicable Governmental
Instrumentalities under Nevada subdivision law of the creation of the separate
parcels which are to comprise the Phase II Mall Air Parcel) is of a type
that is routinely granted following application and (ii) no facts or
circumstances exist which indicate that any such Permit will not be obtainable
prior to the time that it becomes required.


 


3.5.9        Additional Documents.  With respect to any Contracts that are
Material Project Documents entered into or obtained, transferred or required
(whether because of the status of the construction or operation of the Phase II
Project or otherwise) since the date of the most recent Advance, the
Disbursement Agent shall have received (a) a Consent in the form of Exhibit S
or otherwise in form and substance reasonably satisfactory to the Bank Agent
(and, if either or both of the Phase II Mall Borrowers are party to such
Contract, then the Disbursement Agent shall also receive a Consent in the form
of Exhibit I to the Phase II Mall Construction Loan Agreement), and (b) to the
extent that the Disbursement Agent has not received the Subguard Insurance
Policy acceptable to the Funding Agents (and, if prior to the Initial Bank
Advance, the Bank Arranger), then the Disbursement Agent shall have received
payment and performance bonds with respect to such Contract in form and
substance reasonably satisfactory to the Funding Agents (and, if prior to the
Initial Bank Advance, the Bank Arranger).


 


3.5.10      Plans and Specifications.  The Disbursement Agent and the Construction
Consultant shall have received copies of all Plans and Specifications which, as
of the date of the requested Advance Date, constitute Final Plans and
Specifications subject, until such time as all Plans and Specifications have
been prepared and completed by the Architect, to (a) agreeing with the
Phase II Mall Buyer on the Phase II Mall Initial Construction Plans and
Specifications and finalizing them such that they become the Phase II Mall
Final Construction Plans and Specifications in a manner consistent with the
standards set forth in the Phase II Mall Purchase Agreement (unless the Phase
II Mall Buyer consents to any inconsistency) and Exhibit J (or as
otherwise approved with a Required Scope Change Approval) (b) submission
of the Phase II Mall Final Construction Plans and Specifications to the proper
Governmental Instrumentality for any required approval (c) finalizing the Phase
II Hotel/Casino Initial Construction Plans and Specifications such that they
become Phase II Hotel/Casino Final Construction Plans and Specifications  in a manner consistent with the standards set
forth in Exhibit J (or as otherwise


 


38





















 


approved with a Required
Scope Change Approval) and (d) the submission of the Phase II Hotel/Casino
Final Construction Plans and Specifications to the proper Governmental
Instrumentality for any required approval.


 


3.5.11      Cash Management Accounts.  With respect to any Advance Request which
requests that funds be deposited in the Phase II Hotel/Casino Cash
Management Account or the Phase II Mall Cash Management Account, LCR and
the Phase II Mall Borrowers each shall have substantiated to the Construction
Consultant’s satisfaction (as set forth in the Construction Consultant’s
certificate), in the manner contemplated by the Advance Request, that (x) the
amounts previously drawn by LCR from the Phase II Hotel/Casino Cash Management
Account have been used to pay Project Costs allocable to the Phase II
Hotel/Casino in accordance with the Project Budget and this Agreement and (y)
the amounts previously drawn by the Phase II Mall Borrowers from the Phase II
Mall Cash Management Account have been used to pay Project Costs allocable to
the Phase II Mall in accordance with the Project Budget and this
Agreement.  After giving effect to the
requested Advance, (from and after the Initial Bank Advance Date) the balance
in the Phase II Hotel/Casino Cash Management Account will not exceed
$6,500,000 and (from and after the Initial Mall Advance Date) the balance in
the Phase II Mall Cash Management Account will not exceed $2,500,000.


 


3.5.12      Proceeds.  LCR and the Phase II Mall Borrowers shall be
in compliance with Sections 5.1.1 and 5.5, and no demands
for funds shall be outstanding under Section 5.5.


 


3.5.13      Fees and Expenses.  LCR and the Phase II Mall Borrowers shall
have paid, or arranged for payment out of the requested Advance of, all fees,
expenses and other charges then due and payable by it under this Agreement or
under the other Financing Agreements or under any agreements between LVSI, VCR,
LCR and/or the Phase II Mall Borrowers  and
any of the Independent Consultants to which LCR or a Phase II Mall Borrower is
a party.


 


3.5.14      Insurance.  Insurance complying in all material respects
with the requirements of Exhibit O, Section 5.12 and Section
3.6 of the Phase II Mall Purchase Agreement shall be in place and in full force
and effect.


 


3.5.15      Project Security.  All of the Security Documents shall continue
to be in full force and effect and all actions necessary or desirable
(including all filings) in the reasonable opinion of the Disbursement Agent and
the Funding Agents party thereto to perfect the security interests granted
therein as a valid security interest over the applicable Project Security
thereunder having the priority contemplated therefor by this Agreement and the
Security Documents shall have been taken or made.  All property, rights and assets then required
for the Phase II Project shall be free and clear of all encumbrances except for
Permitted Liens and Permitted Encumbrances.


 


3.5.16      Litigation.  No action, suit or proceeding of any kind
shall have been instituted or, to the knowledge of LCR and the Phase II Mall
Borrowers, pending or threatened, including actions or proceedings of or before
any Governmental Instrumentality, to which any Loan Party, the Phase II Project
or, to the knowledge of LCR and the Phase II Mall Borrowers, any other party to
a Contract which is a Material Project Document, is a party or is subject, or
by


 


39





















 


which any of them or any
of their properties or the Phase II Project are bound, that could reasonably be
expected to have a Material Adverse Effect and no injunction or other
restraining order shall have been issued and no hearing to cause an injunction
or other restraining order to be issued shall be pending or noticed with
respect to any action, suit or proceeding if the same could reasonably be
expected to have a Material Adverse Effect.


 


3.5.17      In Balance Requirement.  The Phase II Project shall be In Balance.


 


3.5.18      No Restriction.  No order, judgment or decree of any
applicable court, arbitrator or governmental authority shall purport to enjoin
or restrain any Funds Provider from making the Advances to be made by it on the
requested Advance Date.


 


3.5.19      Violation of Certain Regulations.  The making of
the requested Advance shall not violate any law including Regulation  T,
Regulation U or Regulation X of the Board of Governors of the Federal
Reserve System.


 


3.5.20      Subdivision of the Phase II Site.  Until such time as the Phase II Mall Air
Parcel has been created and the Phase II Mall Air Parcel Creation Date has
occurred, the Phase II Mall Borrowers shall (a) take all actions and do all
things in accordance with Section 5.11(b) as may be reasonably necessary
(i) to cause the Walgreen’s Air Space and the Vagabond Air Space to become
separate legal parcels and (ii) to obtain the approval by the Clark County
Planning Commission of the tentative map contemplated by NRS § 278.326 for
each of the Walgreen’s Air Space and the Vagabond Air Space, (b) satisfy the
conditions in Section 5.11(b) with respect to any separate legal parcels
which have been subdivided prior to each Advance Date and (c) submit or cause
the submission of all technical studies required under said statute; provided,
however, aggregate Advances of the Phase II Mall Construction Loan shall not
exceed $25,000,000 until the approval required under item (ii) of clause (a)
has been obtained and the submission required under clause (c) has been
completed; and further provided, however, that in no event shall any Advances
of the Phase II Mall Construction Loan be made after April 29, 2005 until
the approval required under item (ii) of clause (a) has been obtained and the
submission required under clause (c) has been completed.


 


3.6           No
Waiver or Estoppel.


 


3.6.1        None
of the execution of this Agreement, the occurrence of the Effective Date or the
making of any Advance hereunder shall preclude any Funding Agent from later
asserting that (and enforcing any remedies it may have if) any representation,
warranty or certification made or deemed made by any Loan Party in connection
with such Advance was not true and accurate when made.  No course of dealing or waiver by any Funding
Agent or Secured Party in connection with any condition precedent to any
Advance under this Agreement or any Facility Agreement shall impair any right,
power or remedy of any such Funding Agent or Secured Party with respect to any
other condition precedent, or be construed to be a waiver thereof; nor shall
the action of any Funding Agent or Secured Party in respect of any Advance
affect or impair any right, power or remedy of such Funding Agent or any other
Funding Agent or Secured Party in respect of any other Advance.


 


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3.6.2        Unless
otherwise notified to LCR or the Phase II Mall Borrowers, as applicable by
their Funding Agents or Secured Party and without prejudice to the generality
of Section 3.6.1, the right of any Funding Agent or Secured Party
to require compliance with any condition under this Agreement or its respective
Facility Agreement which may be waived by such Funding Agent or Secured Party
in respect of any Advance is expressly preserved for the purpose of any
subsequent Advance.  


 


3.7           Waiver
of Conditions.


 


3.7.1        From
the Initial Mall Advance Date through the Phase II Mall Release Date, the Phase
II Mall Agent (acting in accordance with the Phase II Mall Construction Loan
Agreement) shall be entitled to waive the conditions precedent to Advances set
forth in Sections 3.3 and 3.5 with respect to Advances to be made
from the Phase II Mall Funding Sources, without the consent of the Bank Agent
or any other Person.


 


3.7.2        From
and after the Initial Bank Advance Date, the Bank Agent (acting pursuant to the
Bank Credit Agreement) shall be entitled to waive the conditions precedent to
Advances set forth in Sections 3.4 and 3.5 with respect to
Advances to be made from the Phase II Hotel/Casino Funding Sources, without the
consent of the Phase II Mall Agent or any other Person.


 


ARTICLE 4 - REPRESENTATIONS AND WARRANTIES


 


LCR makes all of the following representations
and warranties as to itself to and in favor of the Bank Agent, the Bank Lenders
and the Disbursement Agent as of the Effective Date and the date of each
Advance, except as to such representations which relate to the Phase II Mall
Borrowers or to an earlier date.  The
Phase II Mall Borrowers make all of the following representations and
warranties as to themselves to and in favor of the Phase II Mall Agent, the
Phase II Mall Lenders and the Disbursement Agent as of the Effective Date and
the date of each Advance, except as to such representations which relate to LCR
or to an earlier date.  All of these
representations and warranties shall survive the Effective Date and the
Advances until, with respect to each Funding Agent and each Lender, the
Obligations under such Funding Agent’s and Lender’s respective Facilities have
been repaid in full and their respective Facility Agreements and the other
respective Financing Agreements terminated.


 


4.1           Permits.  There
are no material Permits that are required or will become required for the
ownership, construction, financing or operation of the Phase II Project, other
than the Permits described in Exhibit M.  Exhibit M accurately states the
stage in construction by which each such Permit is required to be
obtained.  Each material Permit described
in Exhibit M as required to be obtained by the date that this
representation is deemed to be made by such Person is in full force and effect
and is not at such time subject to any appeals or further proceedings or to any
unsatisfied material condition (that is required to be satisfied by the date
that this representation is deemed to be made) that would reasonably be
expected to lead to material modification or revocation.  The granting of each Permit described in Exhibit M
as not required to have been obtained by the date that this representation is
deemed to be made is of a type that is routinely granted, and the Person making
this representation has no knowledge of any facts or circumstances which
indicate that any such Permit will not be obtained prior to the time that it


 


41





















 


becomes
required.  The Person making this
representation is not in violation of any condition in any Permit applicable to
it the effect of which could reasonably be expected to have a Material Adverse
Effect.


 


4.2           Security
Interests.


 


(a)           The security interests granted to (x)
the Bank Secured Parties pursuant to the Bank Security Documents in Bank
Security (to the extent that this representation is being made by LCR) and (y)
the Phase II Mall Secured Parties pursuant to the Phase II Mall Security
Documents in Phase II Mall Security (to the extent that this representation is
being made by the Phase II Mall Borrowers) (i) constitute and, with
respect to subsequently acquired property included in such Project Security,
will constitute, a valid and perfected security interest under the UCC and/or
other applicable law, (ii) have and, with respect to such subsequently
acquired property, will have been created and perfected under the UCC and/or
other applicable law as aforesaid and (iii) have and, with respect to such
subsequently acquired property, will have (A) as among the applicable
Secured Parties, the priority contemplated thereby and (B) as between the
applicable Secured Parties and any third Persons, superior priority and rights
than the rights of any such third Persons now existing or hereafter arising
whether by way of mortgage, lien, security interests, encumbrance, assignment
or otherwise, subject to the rights and priorities of Permitted Liens.  All such action as is necessary has been
taken by LCR to establish and perfect the Bank Secured Parties’ rights in and
to the Bank Security and by the Phase II Mall Borrowers to establish and
perfect the Phase II Mall Secured Parties’ rights in and to the Phase II Mall
Security, including any recording, filing, registration, giving of notice or
other similar action.  As of the
Effective Date, no filing, recordation, re-filing or re-recording other than
those listed on Exhibit P is necessary to perfect and maintain the
perfection of the interest, title or Liens of the Security Documents, and on
the Effective Date all such filings or recordings will have been made.  LCR has properly delivered or caused to be
delivered to the Bank Agent all Bank Security that requires perfection of the
Lien and security interest described above by possession.  The Phase II Mall Borrowers have properly
delivered or caused to be delivered to the Phase II Mall Agent all Phase II
Mall Security that requires perfection of the Lien and security interest
described above by possession.


 


(b)           No authorization, approval or other
action by, and no notice to or filing with, any Governmental Instrumentality is
required for either (i) the pledge or grant by any of the Loan Parties of
the Liens purported to be created in favor of the  applicable Secured Parties pursuant to any of
the Security Documents to which such Loan Party is a party or (ii) the
exercise by the Disbursement Agent and the other Secured Parties of any rights
or remedies in respect of any Project Security (whether specifically granted or
created pursuant to any of the Security Documents or created or provided for by
applicable law), except for filings or recordings contemplated by
Section 4.2(a) above or as set forth on Exhibit P or (with respect
to the exercise of rights or remedies) authorizations and approvals related to
Nevada Gaming Laws and Nevada Gaming Authorities.


 


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(c)           Except such as may have been filed in
favor of the applicable Funding Agent as contemplated by Section 4.2(a)
above or as set forth on Exhibit P, no effective UCC financing statement,
fixture filing or other instrument similar in effect covering all or any part
of the Project Security for the benefit of such Funding Agent is on file in any
filing or recording office.


 


(d)           All information supplied to the
Disbursement Agent and the Funding Agents by or on behalf of LCR and the Phase
II Mall Borrowers with respect to any of the Project Security owned or leased
by such Person is accurate and complete in all material respects.


 


4.3           Existing
Defaults.  There is no
Potential Event of Default or Event of Default under any of the Operative
Documents.


 


4.4           Availability of Services, Materials and
Utilities.  All services, materials
and utilities necessary for the construction, operation and maintenance of the
Phase II Project for its intended purposes and as contemplated by the Financing
Agreements are or will be available at the Phase II Site or the Phase II Mall
Space, as applicable, as and when required under the Project Schedule on
financial terms consistent with the Project Budget.


 


4.5           In Balance Requirement.  As of the Effective Date and each Advance
Date (both before and after giving effect to the requested Advance), the Phase
II Project is In Balance.


 


4.6           Sufficiency of Interests and
Project Documents.


 


4.6.1        LCR
owns the Phase II Site and the Phase II Site Easements in fee simple
subject to no Liens other than Permitted Liens and Permitted Encumbrances.  Phase II Mall Subsidiary has good and
marketable fee simple or leasehold title in the Phase II Mall Space and the
Phase II Mall Easements subject to no Liens other than Permitted Liens and
Permitted Encumbrances.  Other than those
services to be performed and materials to be supplied that can be reasonably
expected to be commercially available when and as required, LCR owns (or holds
under lease) all of the property interests and has entered into all documents
and agreements necessary to develop, construct, complete, own and operate the
Phase II Hotel/Casino on the Phase II Site and Phase II Mall
Subsidiary owns (or holds under lease) all of the property interests and has
entered into all documents and agreements necessary to develop, construct and
complete the Phase II Mall on the Phase II Mall Space, each in accordance
with all Legal Requirements and the Project Schedule and as contemplated in the
Financing Agreements to which they are a party.


 


4.6.2        Each
of the Funding Agents and the Bank Arranger has received a true, complete and
correct copy of each of the Contracts in effect or required to be in effect as
of the date this representation is made or deemed made (including all exhibits,
schedules, side letters and disclosure letters referred to therein or delivered
pursuant thereto, if any).  A list of all
Contracts entered into as of the Effective Date is attached hereto as Exhibit
U.


 


4.6.3        All
conditions precedent to the obligations of the respective parties (other than
LCR and the Phase II Mall Borrowers) under the Project Documents to which LCR
or the Phase II Mall Borrowers are a party have been satisfied, except for such
conditions precedent


 


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(a) the failure of which to be satisfied could not reasonably be
expected to have a Material Adverse Effect or (b) which by their terms
cannot be met until a later stage in the construction or operation of the Phase
II Project, and such Person has no reason to believe that any such condition
precedent (the failure of which to be satisfied could reasonably be expected to
have a Material Adverse Effect) cannot be satisfied on or prior to the
appropriate stage in the construction or operation of the Phase II Project.


 


4.7           Project
Budget; Summary Anticipated Cost Report.


 


4.7.1        The
Project Budget (a) is, to the knowledge of LCR and the Phase II Mall
Borrowers as of the Effective Date, based on reasonable assumptions as to all
legal and factual matters material to the estimates set forth therein,
(b) as of the Effective Date is consistent in all material respects with
the provisions of the Operative Documents and the Financing Agreements to which
such Person is a party, (c) has been and will be prepared in good faith
and with due care, (d) as of the Effective Date sets forth, for each Line
Item, the total costs anticipated to be incurred through Final Completion,
(e) fairly represents the expectations of LCR and the Phase II Mall
Borrowers with respect to all Project Costs anticipated to be incurred through
Final Completion, (f) as of the Effective Date sets forth a total amount
of Project Costs allocated pursuant to the Project Budget to the Phase II Mall
and identifies the Required Phase II Mall Contingency, which together are not
more than to the Available Phase II Mall Funds and (g) as of the Effective Date
sets forth a total amount of Project Costs allocated pursuant to the Project
Budget to the Phase II Hotel/Casino and identifies the Required Phase II
Hotel/Casino Contingency, which together are not more than the Available Phase
II Hotel/Casino Funds.


 


4.7.2        The
Summary Anticipated Cost Report (as in effect from time to time):


 


(a)           sets forth in column 3 thereof the
amount allocated to each Line Item Category pursuant to the Project Budget then
in effect;


 


(b)           sets forth in column 8 thereof,
for each Line Item Category, an aggregate amount no less than the aggregate
amount set forth for such Line Item Category in the Project Budget then in
effect less Realized Savings obtained with respect to such Line Item Category
(and not reflected in the Project Budget);


 


(c)           fairly represents the expectations of
LCR and the Phase II Mall Borrowers with respect to all Project Costs
anticipated to be incurred through Final Completion; and


 


(d)           is true and correct in all material
respects.


 


4.7.3        The Component
Specific Anticipated Cost Reports accurately reflect the detail underlying the
Summary Anticipated Cost Report, segregated by each Construction Component
described therein.


 


4.7.4        The Anticipated Cost Report (as in effect from time to
time) (a) sets forth in column 8 thereof, for each Line Item other than the
“unallocated Phase II Hotel/Casino contingency” and “unallocated Phase II Mall
contingency” Line Items, an amount no less than the total anticipated costs to
be incurred by LCR and/or the Phase II Mall Borrowers from the


 


44





















 


commencement through the completion of the work contemplated by such
Line Item and (b) fairly represents the expectations of LCR and the Phase II
Mall Borrowers with respect to all Project Costs anticipated to be incurred
through Final Completion, each as determined by such Person and approved by the
Construction Consultant in the Construction Consultant’s certificate dated the
date on which this representation is made or deemed made.


 


4.8           Project Schedule.  To the knowledge of LCR and the Phase II Mall
Borrowers, the Project Schedule accurately specifies in summary form the work
that such Person and the Construction Manager propose to complete in each
calendar quarter from the Effective Date through the Final Completion of the
Phase II Project, all of which can be expected to be achieved.


 


4.9           Proper Subdivision.  The Phase II Site and the Phase II Mall
Space (other than the Phase II Hotel/Casino Retail Store Space and, prior to
the Phase II Mall Air Parcel Creation Date, the Phase II Mall Air Space) have
each been properly subdivided or entitled to exception therefrom, and for all
purposes the Phase II Site, the Phase II Mall Space and, after the Phase
II Mall Air Parcel Creation Date, the Phase II Mall Air Space may each be
mortgaged, conveyed and otherwise dealt with as separate legal lots or
parcels.  The parties acknowledge that
this Agreement contemplates the creation of one
or more separate legal parcels for the Phase II Mall Air Space.


 


ARTICLE 5 - AFFIRMATIVE COVENANTS


 


Each of LCR (with and for the benefit of the
Bank Agent, the Bank Lenders and the Disbursement Agent) and each of Phase II
Mall Holding and Phase II Mall Subsidiary (with and for the benefit of the
Phase II Mall Agent, the Phase II Mall Lenders and the Disbursement Agent)
covenants and agrees that, until this Agreement is terminated pursuant to Section
10.19, it will.


 


5.1           Use
of Proceeds; Repayment of Indebtedness.


 


5.1.1        Proceeds.  Deposit (a) all amounts required
pursuant to Section 2.2.3(b) into the Bank Proceeds Account or the
Phase II Hotel/Casino Equity Account, as applicable, (b) all amounts
required pursuant to Section 5.5 into the Phase II
Hotel/Casino Equity Account, the Phase II Mall Equity Account, the
Supplemental Hotel/Casino Cash Account, the Free Cash Flow Sub-Account or
the Supplemental Mall Cash Account, as applicable, (c) all Loss Proceeds
and all amounts released from the Lien Protection Account into the Phase II
Hotel/Casino Equity Account or the Phase II Mall Equity Account, in accordance
with Section 5.13, (d) all funds received by LCR, Phase II Mall Holding
or Phase II Mall Subsidiary prior to the Final Completion Date (other than
those permitted or required to be deposited elsewhere) (i) to the extent
related to property and assets secured on a first-priority basis by the Bank
Security Documents, into the Phase II Hotel/Casino Equity Account and (ii) to
the extent related to property and assets secured on a first-priority basis by
the Phase II Mall Security Documents, into the Phase II Mall Equity Account,
and (e) all damages, liquidated or otherwise, and all other amounts paid
to LCR prior to the Final Completion Date pursuant to the Construction
Management Agreement and the other Project Documents into (i) with respect to
such amounts allocated pursuant to the Project Budget to the Phase II
Hotel/Casino, the Phase II Hotel/Casino


 


45





















 


Equity Account, (ii)
with respect to such amounts allocated pursuant to the Project Budget to the
Phase II Mall, the Phase II Mall Equity Account and (iii) with respect to such
amounts not specifically allocated pursuant to the Project Budget, to the Phase
II Hotel/Casino Equity Account and the Phase II Mall Equity Account,
respectively, pro rata based on
the aggregate amount of total anticipated costs set forth in column 8 of the
Summary Anticipated Cost Report as in effect from time to time for Line Items
allocated to the Phase II Hotel/Casino compared to Line Items allocated to the
Phase II Mall.


 


5.1.2        Project Costs.  Apply all proceeds described in Section 5.1.1
above and all other amounts in the Accounts only to pay Project Costs
(including, subject to Section 2.2.3(b), to fund deposits related
to the FF&E Component) in accordance with the terms of this Agreement.  Without limiting the generality of the
foregoing, LCR and Phase II Mall Subsidiary, as applicable, shall
(a) apply the proceeds of FF&E Financings and the Phase II
Hotel/Casino Funding Sources (to the extent set forth in Section 2.2.3(b))
only to the payment of Project Costs allocated to the FF&E Component,
(b) apply amounts in the Phase II Hotel/Casino Cash Management
Account and the Phase II Mall Cash Management Account only to pay Project
Costs allocated to the Phase II Hotel/Casino and the Phase II Mall,
respectively, as set forth in the Project Budget, (c) apply the proceeds of
Phase II Hotel/Casino Funding Sources only to Project Costs for the Phase II
Hotel/Casino and (d) apply the proceeds of Phase II Mall Funding Sources only
to Project Costs for the Phase II Mall.


 


5.2           Diligent Construction of the Phase II
Project.  Take or cause to be taken
all action, make or cause to be made all contracts, pay all Project Costs and
do or cause to be done all things necessary to construct the Phase II Project
diligently in accordance with the Construction Management Agreement, the Plans
and Specifications, the Financing Agreements and the other Operative Documents
(and, in any event, to cause Substantial Completion to occur no later than the
Outside Completion Deadline and to cause the Phase II Mall Substantial
Completion Date to occur no later than the Phase II Mall Outside Substantial
Completion Date).


 


5.3           Reports;
Cooperation.


 


5.3.1        Prior
to the Final Completion Date, deliver to the Funding Agents, the Construction
Consultant and the Disbursement Agent within thirty (30) days following
the end of each calendar month a monthly status report describing in reasonable
detail the progress of the construction of each Construction Component and the
Phase II Project as a whole since the immediately preceding report hereunder,
including without limitation, the cost incurred to the end of such month, an
estimate of the time and cost required to complete each Construction Component
and the Phase II Project as a whole and such other information which any
Funding Agent or the Disbursement Agent may reasonably request including
information and reports reasonably requested by the Construction Consultant.


 


5.3.2        Promptly
after its receipt thereof, deliver to the Funding Agents, the Construction
Consultant and the Disbursement Agent any progress reports provided by the
Construction Manager pursuant to the Construction Management Agreement and such
additional information as the Funding Agents or the Disbursement Agent may
reasonably request.


 


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5.4           Notices.  Promptly,
upon acquiring notice or giving notice, or obtaining knowledge thereof, as the
case may be, provide to the Disbursement Agent, the Construction Consultant and
the Funding Agents written notice of:


 


5.4.1        Any
Event of Default or Potential Event of Default of which it has knowledge,
specifically stating that an Event of Default or Potential Event of Default has
occurred and describing such Event of Default or Potential Event of Default and
any action being taken or proposed to be taken with respect to such Event of
Default or Potential Event of Default.


 


5.4.2        Any
event, occurrence or circumstance which reasonably could be expected to cause
the Phase II Project to not be In Balance or render (a) LCR incapable of, or
preventing it from (i) achieving the Substantial Completion Date on or
before the Outside Completion Deadline or (ii) meeting any material
obligation of LCR under the Material Project Documents to which it is a party
as and when required thereunder or (b) the Phase II Mall Borrowers incapable
of, or preventing them from (i) achieving the Phase II Mall Substantial
Completion Date on or before the Phase II Mall Outside Substantial Completion
Date or (ii) meeting any material obligation of the Phase II Mall
Borrowers under the Material Project Documents to which they are a party as and
when required thereunder.


 


5.4.3        Any
termination or event of default or notice thereof under any Material Project
Document.


 


5.4.4        Any
change in the Authorized Representatives of LCR or either of the Phase II Mall
Borrowers, and such notice shall include a certified specimen signature of any
new officer or director so appointed and, if requested by any Funding Agent or
the Disbursement Agent, satisfactory evidence of the authority of such new
Authorized Representative.


 


5.4.5        Any
proposed material change in the nature or scope of the Phase II Project or
the business or operations of LCR or either of the Phase II Mall Borrowers.


 


5.4.6        Any
notice of any schedule delay delivered under the Construction Management
Agreement and all remedial plans and updates thereof.


 


5.4.7        Any
other event or development which could reasonably be expected to have a
Material Adverse Effect.


 


5.4.8        (a)
Any proposed change to the Plans and Specifications requested by the Phase II
Mall Buyer under the Phase II Mall Purchase Agreement which are not otherwise
expressly permitted thereunder, (b) any objection to the proposals by the Phase
II Mall Buyer related to items to be agreed under the Phase II Mall Purchase
Agreement (including pursuant to Sections 2.1(c), 2.2(c), 2.3(b) or 3.2 of
the Phase II Mall Purchase Agreement) which are not resolved by agreement of
the parties to the Phase II Mall Purchase Agreement within fifteen (15) days of
such objection, (c) any failure of the parties to the Phase II Mall Purchase
Agreement to agree on the Phase II Mall Initial Plans, the Phase II Mall
Initial Construction Plans and Specifications, the Phase II Mall Final
Construction Plans and Specifications, the Initial Demising Wall Plan, the
Final Demising Wall Plan or the As-Built Floor Area (as each such term is
defined in the Phase II Mall Purchase Agreement) within the time periods
required for


 


47





















 


each by the Phase II Mall Purchase Agreement and (d) any dispute
subject to the dispute resolution process in Section 9.2 of the Phase II Mall
Purchase Agreement.


 


5.5           In Balance
Deposits.


 


5.5.1         At
such times, if ever, as the Phase II Project shall not be In Balance, deposit
or cause to be deposited amounts in cash sufficient so that the Phase II
Project is In Balance into (a) if the failure to be In Balance is pursuant to clause
(a) of the definition of “In Balance,” by the Phase II Mall Borrowers
(i) prior to the Initial Mall Advance Date, at the Phase II Mall
Borrower’s election, the Disbursement Account, the Phase II Mall Equity
Account and/or the Phase II Mall Cash Management Account and
(ii) thereafter, into the Phase II Mall Equity Account or, at the Phase II
Mall Borrowers’ election, the Supplemental Mall Cash Account; provided that
amounts on deposit in the Supplemental Mall Cash Account shall at no time exceed
Twenty-Five Million Dollars ($25,000,000) and (b) if the failure to be In
Balance is pursuant to clause (b) of the definition of “In Balance,” by LCR
(i) prior to the Initial Bank Advance Date, at LCR’s election, the
Disbursement Account, the Phase II Hotel/Casino Equity Account and/or the
Phase II Hotel/Casino Cash Management Account and (ii) thereafter,
into the Phase II Hotel/Casino Equity Account or, at LCR’s election, the
Supplemental Hotel/Casino Cash Account; provided that amounts on deposit in the
Supplemental Hotel/Casino Cash Account (exclusive of amounts from time to time
deposited in the Free Cash Flow Sub-Account pursuant to Section 5.5.2)
shall at no time exceed Forty Million Dollars ($40,000,000).


 


5.5.2        Within
five (5) Banking Days after the end of the applicable three-month period,
deposit or caused to be deposited in the Free Cash Flow Sub-Account, in cash,
the Free Cash Flow Credit Amount for such three-month period (or such lesser
amount as may be necessary for the Phase II Project to be In Balance without
relying on any Free Cash Flows from any other three-month period other than
prior Free Cash Flow Credit Amounts already on deposit).


 


5.6           Indemnification; Costs and Expenses.  Pay all amounts required to be paid by LCR,
Phase II Mall Holding or Phase II Mall Subsidiary pursuant to Section 10.15.


 


5.7           Project Documents and Permits.  Deliver to the Disbursement Agent, the
Funding Agents and the Construction Consultant promptly, but in no event later
than ten (10) days after the receipt thereof by LCR or either of the Phase
II Mall Borrowers, copies of (a) all Material Project Documents and
material Permits obtained or entered into by LCR after the Effective Date,
(b) any amendment, supplement or other modification to any Permit received
by LCR after the Effective Date and (c) all notices relating to the Phase
II Project or received by or delivered to LCR, Phase II Mall Holding or Phase
II Mall Subsidiary from any Governmental Instrumentality.


 


5.8           Security Interest in Newly Acquired
Property.  At any time from and after
the earlier of the Initial Mall Advance Date and the Initial Bank Advance Date,
if LCR or a Phase II Mall Borrower shall acquire (or shall have acquired since
the Effective Date) any interest in property not covered by the Security Documents
(other than property in which, pursuant to the applicable Financing Agreements,
such Person is not required to grant a security interest in favor of any Bank
Secured Party or Phase II Mall Secured Party, as applicable) or enter into a
Project


 


48





















 


Document,
promptly upon such acquisition or execution, execute, deliver and record a
supplement to the Security Documents, reasonably satisfactory in form and
substance to each Funding Agent, if any, who, pursuant to the Financing
Agreements, is entitled to have a security interest in such property,
subjecting such interests to the lien and security interests created by the
applicable Security Documents (with the priority contemplated thereby in favor
of each applicable Secured Party) and (as to all Project Documents that are
Material Project Documents) deliver to the Bank Agent and the Disbursement
Agent, on behalf of the Secured Parties, consents to assignment, substantially
in the form of Exhibit S (and, if either or both of the Phase II
Mall Borrowers are party to such Contract, then the Disbursement Agent shall
also receive Consent in the form of Exhibit I to the Phase II Mall Construction
Loan Agreement) (in each case with such changes thereto as are reasonably
acceptable to the Disbursement Agent) of any such Project Document.


 


5.9           Plans and Specifications.  Provide to the Disbursement Agent and the
Construction Consultant copies of, and maintain at the Existing Casino Resort,
the Phase II Site or the Phase II Mall Space a complete set of Plans and
Specifications, as in effect from time to time.


 


5.10         Construction
Consultant.


 


(a)           Cooperate and take reasonable steps
to cause the Construction Manager and each other Contractor to cooperate with
the Construction Consultant in the performance of the Construction Consultant’s
duties hereunder and under the Construction Consultant Engagement
Agreement.  Without limiting the
generality of the foregoing, LCR and the Phase II Mall Borrowers shall and
shall take reasonable steps to cause the Construction Manager and each other
Contractor to:  (i) communicate with
and promptly provide all invoices, documents, plans and other information
reasonably requested by the Construction Consultant, (ii) authorize the
Subcontractors to communicate directly with the Construction Consultant
regarding the progress of the work, (iii) provide the Construction
Consultant with access to the Phase II Site and the Phase II Mall Space and,
subject to required safety precautions, the construction areas,
(iv) provide the Construction Consultant with reasonable working space and
access to telephone, copying and telecopying equipment and (v) otherwise
facilitate the Construction Consultant’s review of the construction of the
Phase II Project and preparation of the certificates required hereby.


 


(b)           Pay or cause to be paid to the
Construction Consultant out of the Advances made hereunder all amounts required
under the Construction Consultant Engagement Agreement, which amounts shall be
allocated pro rata based on ratio
of 85:15 between Phase II Hotel/Casino Funding Sources and Phase II Mall
Funding Sources.


 


(c)           In addition to any other consultation
required hereunder, following the end of each quarter, upon the reasonable
request of any Funding Agent, consult with any such Person regarding any
adverse event or condition identified in any report prepared by the
Construction Consultant.


 


49





















 


(d)           Deliver to the Construction Consultant, no less than
every calendar month, an updated Anticipated Cost Report.


 


5.11         Preserving
the Project Security.


 


(a)           Subject to Sections 5.11(b)
and 5.11(c), undertake all actions which are necessary or appropriate in
the reasonable judgment of the Funding Agents to (i) maintain the Secured
Parties’ respective security interests under the Security Documents in the
Project Security in full force and effect at all times (including the priority
thereof), and (ii) preserve and protect the Project Security and protect
and enforce each applicable Loan Party’s rights and title and the respective
rights of the Secured Parties to the Project Security, including, without
limitation, the making or delivery of all filings and recordations, the
payments of taxes, fees and other charges, the issuance of supplemental
documentation, the discharge of all claims or other liens other than Permitted
Liens adversely affecting the respective rights of the Secured Parties to and
under the Project Security and the publication or other delivery of notice to
third parties.


 


(b)           Take all actions and do all
things as may be reasonably necessary to cause the entire Phase II Mall Air
Space to become one or more separate legal parcels (collectively, the “Phase
II Mall Air Parcel”) under Nevada Revised Statutes, Chapter 278 as promptly
as practicable.  The Phase II Mall
Borrowers shall, upon creation of, or the subdivision of any portion of, the
Phase II Mall Air Parcel now subject to the Phase II Mall Air Space Lease, deliver
a notice to such effect to the Disbursement Agent, and the Funding Agents.  Promptly after each such legal parcel has
been created (and in any event no later than 10 days thereafter), at Phase II
Mall Subsidiary’s sole cost and expense, in substantially concurrent
transactions:


 


(i)                    LCR
shall, in accordance with the Phase II Mall Air Space Lease, transfer all of
its right, title and interest in and to such legal parcel (and, after all such
legal parcels have been created, to the entire Phase II Mall Air Parcel) to
Phase II Mall Subsidiary by executing, delivering and recording at the Clark
County, Nevada, Recorder’s Office a grant, bargain and sale deed substantially
in the form of Exhibit V;


 


(ii)                   the
Phase II Mall Deed of Trust and the Phase II Mall Intercompany Loan Deed of
Trust shall each be amended (A) to spread the Lien thereof to encumber Phase II
Mall Subsidiary’s fee ownership of such legal parcel (and, after all such legal
parcels have been created, to the entire Phase II Mall Air Parcel) and (B)
after all such legal parcels have been created, to release the Phase II Mall
Air Space Lease from the Liens thereof, and in each case shall be re-recorded
at the Clark County, Nevada Recorder’s Office;


 


(iii)                  the
Bank Agent shall deliver confirmation that the Liens held by the Bank Agent for
the benefit of the Bank Lenders do not encumber any portion of the legal
parcels that have been created in respect of the Phase II Mall Air Parcel
(other than by the collateral assignment of the Phase II Mall Intercompany Loan
Deed of Trust); and


 


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(iv)                  LCR
and Phase II Mall Subsidiary shall terminate the Phase II Mall Air Space Lease
as to such legal parcel (and, after all such legal parcels have been created,
to the entire Phase II Mall Air Space).


 


(c)           Substantially concurrently with the
foregoing, and as a condition precedent thereto, the Phase II Mall Borrowers
shall deliver to each Funding Agent: 
(A) a legal opinion from counsel reasonably acceptable to each
Funding Agent to the effect that (1) each legal parcel that has been
created as described in clause (b) of this Section 5.11 (and, after all
such legal parcels have been created, to the entire Phase II Mall Air
Parcel) has been legally created as one or more separate legal parcels under
Nevada Revised Statutes, Chapter 278 and (2) that each Deed of Trust,
as amended or re-recorded, is enforceable in accordance with its terms and is
effective to create the security interests described therein, and (3) such
other legal opinions as each Funding Agent may reasonably request, each in form
and substance reasonably satisfactory to each such Funding Agent, and
(B) endorsements, or commitments by the Title Insurer to issue
endorsements, in each case, in form and substance satisfactory to each Funding Agent,
to each Funding Agent’s respective Title Policies, insuring the continuing
perfection and priority of the respective Liens on the Project Security (after
giving effect to the amendments, re-recordations and the other matters
contemplated by Section 5.11(b)).


 


5.12         Insurance.  (a) Until the Phase II Mall Release Date,
comply in all material respects with the insurance requirements of Exhibit O
(including maintaining in full force and effect the Subguard Insurance Policy
or payment and performance bonds complying with the requirements of Section
3.5.9) and Section 3.6 of the Phase II Mall Purchase Agreement and (b) from
and after the Phase II Mall Release Date, comply in all material respects with
the insurance requirements set forth in the Cooperation Agreement.


 


5.13         Application of Insurance and
Condemnation Proceeds.  If
any Event of Loss shall occur with respect to the Phase II Project or any part
thereof, each of the Phase II Mall Borrowers and LCR shall (a) promptly
upon discovery or receipt of notice thereof provide written notice thereof to
the Disbursement Agent, each Funding Agent and, if required under the Phase II
Mall Purchase Agreement, the Phase II Mall Buyer and (b) diligently pursue
all its rights to compensation against all relevant insurers, reinsurers and/or
Governmental Instrumentalities, as applicable, in respect of such event and
(c) comply with the applicable provisions of the Phase II Mall Purchase
Agreement and (to the extent applicable) the obligations under Articles X
and XI of the Cooperation Agreement.  All
amounts and proceeds (including instruments) in respect of any Event of Loss,
including the proceeds of any insurance policy required to be maintained by
LCR, Phase II Mall Holding or Phase II Mall Subsidiary hereunder (collectively,
“Loss Proceeds”) shall be applied as provided in this Section 5.13
and, to the extent such Loss Proceeds are allocable to the Phase II Mall, in
accordance with Article 18 of the Phase II Mall Purchase Agreement.  Loss Proceeds shall be allocated pro rata between the Phase II Hotel/Casino
and the Phase II Mall based on the respective losses or damages related to each
in respect of which such Loss Proceeds have been received.  All Loss Proceeds shall be paid by the insurers,
reinsurers, Governmental Instrumentalities or other payors directly to the
Disbursement Agent for deposit in (x) with respect to Loss Proceeds
allocated to the Phase II Hotel/Casino, the Phase II Hotel/Casino Equity
Account and (y) with respect to Loss Proceeds allocated to the
Phase II Mall, the Phase II Mall Equity Account.  If any Loss Proceeds are paid directly to
LCR,


 


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any Affiliate of LCR,
any Funding Agent or any Lender by any insurer, reinsurer, Governmental
Instrumentality, “Trustee” (pursuant to and as defined in the Cooperation
Agreement) or such other payor, (i) such Loss Proceeds shall be received
in trust for the Disbursement Agent, (ii) such Loss Proceeds shall be
segregated from other funds of LCR or such other Person, and (iii) LCR or
such other Person shall pay (or, if applicable, LCR shall cause such of its
Affiliates to pay) such Loss Proceeds over to the Disbursement Agent in the
same form as received (with any necessary endorsement) for deposit in the
Accounts specified in clauses (x) and (y) above.  In the event that either (A) for a period of
ninety (90) days after any Loss Proceeds are deposited in such Accounts,
LCR and the Phase II Mall Borrowers are not permitted pursuant to the terms
hereof to obtain Advances of any portion of such Loss Proceeds or (B) for so
long as the Mortgage Notes Indenture shall be in effect, any such Loss Proceeds
are not permitted to be used to rebuild, restore, repair or replace the Phase
II Project pursuant to Section 4.11 of the Mortgage Notes Indenture, then
(I) with respect to Loss Proceeds allocated to the Phase II
Hotel/Casino, LCR shall cause such proceeds to be used make prepayments in
accordance with the Bank Credit Agreement and (II) with respect to Loss
Proceeds allocated to the Phase II Mall, the Phase II Mall Borrowers shall
use such proceeds in accordance with the Phase II Mall Construction Loan
Agreement.


 


5.14         Construction within Lot Lines.  Construct or cause to be constructed the
Phase II Hotel/Casino within the Phase II Site and the Phase II
Mall within the Phase II Mall Space.


 


5.15         Compliance with Material Project
Documents.  LCR and each of the Phase
II Mall Borrowers shall comply duly and promptly, in all material respects,
with its obligations, and enforce all of its or their respective rights under
all Material Project Documents, except where the failure to comply or enforce
such rights, as the case may be, could not reasonably be expected to have a
Material Adverse Effect.


 


5.16         Utility Easement Modifications.  LCR and the Phase II Mall Borrowers  shall immediately commence and diligently
proceed to cause all utility or other easements that would materially interfere
with the construction or maintenance of the improvements within the
Phase II Project to be removed as expeditiously as possible.  In any event, LCR and the Phase II Mall
Borrowers  shall remove such
easements before they interfere in any material respect with the prosecution in
accordance with the Project Schedule of the work involved with the
Phase II Project.  In the event such
easements are not removed prior to such time as reasonably determined by the
Construction Consultant, and LCR fails to provide title insurance to the Bank
Lenders or the Phase II Mall Borrowers fail to provide title insurance to the
Phase II Mall Lenders, each in form reasonably satisfactory to them insuring
over any loss such Lenders may suffer as a result of LCR or the Phase II Mall
Borrowers’  failure to so remove
such easements, then LCR and the Phase II Mall Borrowers, as applicable
(a) agree that the Disbursement Agent shall have the right to authorize
such advances as it deems appropriate in order to remove or insure over the
utility easements as exceptions to the title insurance policies in favor of the
applicable Lenders, and (b) hereby grants to the Disbursement Agent an
irrevocable power of attorney to take such further steps in the name of each
such Person as the Construction Consultant determines are appropriate in order
to remove or insure over such easements.


 


5.17         Phase II Mall Recognition Agreement.  On or prior to January 29, 2005 (time being
of the essence), the Phase II
Mall Agent and the Bank Agent shall have received executed


 


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counterparts
from the Phase II Mall Buyer, LCR and the Phase II Mall Borrowers of the Phase
II Mall Recognition Agreement and any supplements or amendments thereto, all of
which shall (a) have been duly authorized, executed and delivered by the
parties thereto, (b) be in form and substance reasonably satisfactory to the
Funding Agents and the Bank Arranger, and (c) be certified by an Authorized
Representative of each of the Phase II Mall Borrowers and LCR as being true,
complete and correct and in full force and effect.


 


ARTICLE 6 - NEGATIVE COVENANTS


 


Each
of LCR (with and for the benefit of the Bank Agent, the Bank Lenders and the
Disbursement Agent) and each of Phase II Mall Holding and Phase II Mall
Subsidiary (with and for the benefit of the Phase II Mall Agent, the Phase II
Mall Lenders and the Disbursement Agent) covenants and agrees that, until this
Agreement is terminated pursuant to Section 10.19, it shall not:


 


6.1           Waiver,
Modification and Amendment.


 


6.1.1        Directly
or indirectly enter into, amend, modify, terminate (except in accordance with
its terms), supplement or waive a right or permit or consent to the amendment,
modification, termination (except in accordance with its terms), supplement or
waiver of any of the provisions of, or give any consent under (a) any
Permit, the effect of which could reasonably be expected to have a Material
Adverse Effect or result in a breach under the Phase II Mall Purchase
Agreement, or (b) any Material Project Document (except with respect to
Contracts to the extent in accordance with Section 6.1.2 or Section 6.1.3
below), in each case, without obtaining the prior written consent of each
Funding Agent (which consent shall not be unreasonably withheld).


 


6.1.2        Notwithstanding
Section 6.1.1, LCR and the Phase II Mall Borrowers may enter into
Contracts constituting Material Project Documents consistent with the Plans and
Specifications, the Project Schedule and the Project Budget, as each is in
effect from time to time.  Each such
Contract shall be in writing and shall become effective when and only when:  (i) the parties thereto have executed
and delivered the Contract (with the effectiveness thereof subject only to
satisfaction of the conditions in clauses (ii), (iii), (iv), (v) and (vi)
below); (ii) LCR and the Phase II Mall Borrowers have submitted to the
Disbursement Agent an Additional Contract Certificate together with all
exhibits, attachments and certificates required thereby (including the
Construction Consultant’s Certificate), each duly completed and executed;
provided, however, that such submission of an Additional Contract Certificate
shall not be required for any Contract with a contract price or value less than
$25,000,000; (iii) if entering into such Contract will result in an
amendment to the Project Budget or extension of the Outside Completion
Deadline, LCR and the Phase II Mall Borrowers have complied with the
requirements of Section 6.3; provided, however, the Phase II Mall
Outside Completion Date shall not be extended without the prior consent of the
Phase II Mall Buyer to the extent, if any, such consent is required;
(iv) if entering into such Contract will have the effect of a Scope
Change, LCR and the Phase II Mall Borrowers have complied with the provisions
of Section 6.2; provided, however, no such Scope Change shall be
permitted without the prior consent of the Phase II Mall Buyer (unless such
consent is not required under the Phase II Mall Purchase Agreement);
(v) if entering into such Contract will cause the Phase II Project not to
be In


 


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Balance, LCR and the Phase II Mall Borrowers, as applicable, have
complied with the requirements of Section 5.5; and (vi) the
Disbursement Agent has acknowledged receipt of the materials referenced in
clause (ii) above, as contemplated in the Additional Contract Certificate
(which the Disbursement Agent agrees to promptly do upon receipt of said
material).


 


6.1.3        Notwithstanding
Section 6.1.1, LCR and the Phase II Mall Borrowers may, from time
to time, amend the Construction Management Agreement or any other Contract to
change the scope of the work, the payment obligations of LCR and/or the Phase
II Mall Borrowers thereunder or any other provision thereof.  Any such amendment shall be in writing and
shall identify with particularity all changes being made.  Each such amendment shall be effective when
and only when:  (i) the parties to
such amendment have executed and delivered the contract amendment (with the
effectiveness thereof subject only to satisfaction of the conditions in
clauses (ii), (iii), (iv), (v), (vi) and (vii) below); (ii) LCR and
the Phase II Mall Borrowers have submitted to the Disbursement Agent a Contract
Amendment Certificate together with all exhibits, attachments and certificates
required thereby each duly completed and executed; provided, however, that such
submission of a Contract Amendment Certificate shall not be required in
connection with any individual change order to a Contract where the change
order has a value of less than $2,500,000 or for any series of related change
orders with an aggregate value of less than $2,500,000; (iii) if such
amendment will result in an amendment to the Project Budget or extension of the
Outside Completion Deadline, LCR and the Phase II Mall Borrowers have complied
with the requirements of Section 6.3; provided, however, the Phase
II Mall Outside Completion Date shall not be extended without the prior consent
of the Phase II Mall Buyer to the extent, if any, such consent is required;
(iv) if such amendment will change the scope of work or otherwise will
have the effect of a Scope Change, the Phase II Mall Borrowers has complied
with the provisions of Section 6.2; provided, however, no such
Scope Change shall be permitted without the prior consent of the Phase II Mall
Buyer (unless such consent is not required under the Phase II Mall Purchase
Agreement); (v) if such amendment will cause the Phase II Project not to
be In Balance, LCR and the Phase II Mall Borrowers have complied with the
requirements of Section 5.5; (vi) such amendment could not
reasonably be expected to have a Material Adverse Effect or otherwise result in
a breach of the Phase II Mall Purchase Agreement and (vii) the
Disbursement Agent has acknowledged its receipt of the materials referenced in
clause (ii) above, as contemplated in the Contract Amendment Certificate
(which the Disbursement Agent agrees to promptly do upon receipt of said
materials).


 


6.2           Scope Changes.


 


6.2.1        Without
obtaining the Required Scope Change Approval, direct, consent to or enter into
any Scope Change if such Scope Change:


 


(a)           will increase the amount of Project
Costs, unless LCR and/or the Phase II Mall Borrowers comply with the
requirements of Section 5.5 and/or amend the Project Budget as provided in
Section 6.3.1 so that, after giving effect to the proposed Scope
Change, the Phase II Project shall be In Balance; or


 


(b)           in the reasonable judgment of the
Construction Consultant (based on its experience, familiarity and review of the
Phase II Project and representations provided by LCR and the Phase II Mall
Borrowers, the Contractors and


 


54





















 


Subcontractors), (i) is not a Safe Harbor Scope
Change; (ii) has a reasonable likelihood of delaying the Substantial Completion
Date beyond the Outside Completion Deadline or the Phase II Mall Substantial
Completion Date beyond the Phase II Mall Outside Substantial Completion Date;
(iii) has a reasonable likelihood of delays resulting in any material adverse
modification or material impairment of the enforceability of any material
warranty under the Construction Management Agreement or any other Contract;
(iv) is not permitted by a Project Document and such breach has a reasonable
likelihood of materially adversely impacting the Phase II Hotel/Casino or the
Phase II Mall or the obligations of the parties under the Phase II Mall
Purchase Agreement; (v) is inconsistent with or not permitted by the Phase II
Mall Purchase Agreement (and has not been consented to by the Phase II Mall
Buyer), (vi) has a reasonable likelihood of presenting a significant risk of
the revocation or material adverse modification of any material Permit; or
(vii) in the reasonable judgment of the Construction Consultant, has a
reasonable likelihood of causing the Phase II Project not to comply with Legal
Requirements (provided that the Construction Consultant shall be entitled to
determine that no violation of any Legal Requirement will occur on the basis of
a certification by LCR and the Phase II Mall Borrowers to such effect unless
the Construction Consultant is aware of any inaccuracies in such
certification).  Prior to implementing
any Scope Change, LCR and the Phase II Mall Borrowers shall submit an
Additional Contract Certificate or Contract Amendment Certificate and otherwise
comply with the provisions of Section 6.1.2 or 6.1.3, as
applicable.


 


6.3           Project
Budget and Project Schedule Amendment.  Directly or indirectly, amend, modify,
allocate, re-allocate or supplement or permit or consent to the amendment,
modification, allocation, re-allocation or supplementation of, any of the Line
Items, Line Item Categories or other provisions of the Project Budget or modify
or extend the Outside Completion Deadline, except as follows:


 


6.3.1        Permitted Budget Amendments.


 


(a)           Concurrently with the implementation
of any Scope Change permitted hereunder, LCR and the Phase II Mall Borrowers
shall submit a Project Budget/Schedule Amendment Certificate and amend the
Project Budget in accordance with the provisions of Section 6.3.1(b)
to the extent necessary so that the amount set forth therein for each Line Item
shall reflect all Scope Changes that have been made to such Line Item.  LCR and the Phase II Mall Borrowers may from
time to time amend the Project Budget in accordance with the provisions of Section 6.3.1(b)
in order to increase, decrease or otherwise reallocate amounts allocated to
specific Line Items or Line Item Categories; provided that, after giving effect
to such adjustment, the Phase II Project shall be capable of being completed in
accordance with the Plans and Specifications and no such adjustment shall
modify any of LCR or the Phase II Mall Borrowers’ respective obligations to
complete the Phase II Project in accordance with the Plans and Specifications.


 


(b)           (i)            LCR
and the Phase II Mall Borrowers shall implement any amendment to the Project
Budget by delivering to the Disbursement Agent a Project Budget/Schedule Amendment Certificate together
with all exhibits,


 


55


















 


attachments and certificates required thereby, each
duly completed and executed.  Such
Project Budget/Schedule Amendment Certificate shall describe with particularity
the Line Item, or Line Item Category increases, decreases, contingency
allocations, and other proposed amendments to the Project Budget and shall
otherwise conform to the requirements of this Agreement.


 


(ii)           Increases to the aggregate amount
budgeted for any Line Item Category allocated in the Project Budget to the
Phase II Hotel/Casino will only be permitted to the extent of
(A) allocation of Realized Savings obtained in a different Line Item
Category allocated in the Project Budget to the Phase II Hotel/Casino,
(B) allocation of previously “unallocated Phase II Hotel/Casino contingency” (so long as after giving effect to
such allocation the Unallocated Phase II Hotel/Casino Contingency Balance will
equal or exceed the Required Phase II Hotel/Casino Contingency), or
(C) allocation of new or previously unallocated Available Phase II Hotel/Casino
Funds.


 


(iii)          Increases to the aggregate amount
budgeted for any Line Item Category allocated in the Project Budget to the
Phase II Mall will only be permitted to the extent of (A) allocation of
Realized Savings obtained in a different Line Item Category allocated in the
Project Budget to the Phase II Mall, (B) allocation of previously “unallocated Phase II Mall contingency”
(so long as after giving effect to such allocation the Unallocated Phase II
Mall Contingency Balance will equal or exceed the Required Phase II Mall
Contingency), or (C) allocation of new or previously unallocated Available
Phase II Mall Funds.


 


(iv)          Decreases to any Line Item Category
will only be permitted upon obtaining Realized Savings in such Line Item
Category.


 


(v)           Increases
and decreases to particular Line Items shall be permitted to the extent not
inconsistent with the foregoing provisions of this Section 6.3.1;
provided that (A) increases to the “unallocated
Phase II Hotel/Casino contingency” Line Item shall only be permitted to
the extent of (x) allocation of Realized Savings obtained in any Line Item
Category allocated in the Project Budget to the Phase II Hotel/Casino or
(y) an increase in Available Phase II Hotel/Casino Funds and (B) increases
to the “unallocated Phase II Mall
contingency” Line Item shall only be permitted to the extent of
(x) allocation of Realized Savings obtained in any Line Item Category
allocated in the Project Budget to the Phase II Mall or (y) an increase in
Available Phase II Mall Funds.


 


6.3.2        Permitted Schedule Amendments.  If an Event of Loss or an Event of Force
Majeure occurs, LCR and the Phase II Mall Borrowers may, from time to time,
amend the Project Schedule to extend the Outside Completion Deadline, but not beyond twelve (12) months after the Outside
Completion Deadline in effect on the Effective Date by delivering to the
Disbursement Agent a Project Budget/Schedule Amendment Certificate
(a) containing a revised Project Schedule reflecting the new Outside
Completion Deadline, (b) complying with the provisions of Section 6.3.1(b)
with respect to the changes in the Project Budget that will result from the
extension of the Outside Completion Deadline; and (c) containing a
certification by LCR and the Phase II Mall Borrowers, confirmed by the Construction
Consultant in a certificate


 


56





















 


attached thereto, that
the proposed extension is reasonably necessary to overcome any delays caused by
the Event of Loss or Event of Force Majeure, provided, however, in no event
shall the foregoing amendment affect the Phase II Mall Outside Substantial
Completion Date unless expressly permitted under the Phase II Mall Purchase
Agreement or otherwise consented to by the Phase II Mall Buyer.


 


6.3.3        Amendment Certificates.  Upon submission of the Project
Budget/Schedule Amendment Certificate to the Disbursement Agent, together with
all exhibits, attachments and certificates required pursuant thereto, each duly
completed and executed, such amendment shall become effective hereunder, and
the Project Budget for the Phase II Project and, if applicable, the Project
Schedule and the Outside Completion Deadline, shall thereafter be as so
amended.


 


6.4           Limitation on Liens.  Create, assume or suffer to exist any Lien,
securing a charge or obligation on the Phase II Hotel/Casino or the
Phase II Mall Project or on any of the Project Security, real or personal,
whether now owned or hereafter acquired, except Permitted Liens and Permitted
Encumbrances.


 


6.5           Opening. 
Cause or permit the Phase II Hotel/Casino Opening Date to occur unless
each of the Phase II Hotel/Casino Opening Conditions has been satisfied (or
waived by each of the Bank Agent and the Bank Arranger in their sole
discretion, provided that the conditions set forth in clauses (f), (j) and (k)
of the definition of “Phase II Hotel/Casino Opening Date Conditions” shall not
be waivable and must be satisfied) and LCR has delivered to the Disbursement
Agent a certificate substantially in the form of Exhibit W-5 (with
all attachments and exhibits thereto) and the Construction Consultant has
delivered to the Disbursement Agent a certificate substantially in the form of Exhibit W-6;
provided, however, that the garage and/or the meeting complex areas within the
Phase II Hotel/Casino contemplated by the Plans and Specifications may be
opened (in their entirety or in one or more phases) without satisfying the
Phase II Hotel/Casino Opening Conditions, so long as such portion of the Phase
II Hotel/Casino is permitted to be open under applicable Legal Requirements.


 


6.6           Phase II
Hotel/Casino Retail Store Space. 
Cause or permit the Phase II Hotel/Casino Retail Store Space
described in the Master Lease (a) to exceed 65,000  square
feet or (b) to be located other than approximately within the area shown on Exhibit T-4,
without in each case the prior written approval of the Funding Agents and the
Bank Arranger (such approval not to be unreasonably withheld or delayed);
provided, however, that LCR and the Phase II Mall Borrowers shall have the
right, subject to the consent of the Funding Agents and the Bank Arranger
(which consent shall not be required so long as LCR and the Phase II Mall
Borrowers are in compliance with Sections 3.5.17, 4.5, 6.2
and 6.3 of this Agreement), to add to the Phase II Hotel/Casino Retail
Store Space all or any portion of the restaurant space on the casino level of
the Phase II Hotel/Casino (the “Casino Level Restaurant Space”).  If any Casino Level Restaurant Space is added
to the Phase II Hotel/Casino Retail Store Space pursuant to the proviso clause
of the preceding sentence, then, notwithstanding any other provision of this
Agreement, the Project Costs allocable to the Casino Level Restaurant Space
shall be transferred in the Project Budget from the Phase II Hotel/Casino to
the Phase II Mall and, if any such Project Costs have previously been paid (any
such amounts, the “Previously Paid Restaurant Costs”), the next Advances
to pay Project Costs allocable to the Phase II Hotel Casino shall be funded by


 


57





















 


Phase II Mall Funding Sources in
an amount equal to the amount of such Previously Paid Restaurant Costs.


 


6.7           Title Insurer Escrow Agreement.  Enter into
any Title Insurer Escrow Agreement without the prior written approval of the
Funding Agents (such approval not to be unreasonably withheld or delayed).


 


ARTICLE 7 - EVENTS OF DEFAULT


 


7.1           Events of
Default.  The occurrence
of any of the following events shall constitute an event of default (“Event
of Default”) hereunder:


 


7.1.1        Other Financing Documents.  The occurrence of an “Event of Default” under
and as defined in the Bank Credit Agreement or the Phase II Mall Construction
Loan Agreement.


 


7.1.2        Failure to Demonstrate Balancing.  The failure, from time to time after the
earlier of (a) the Initial Mall Advance in accordance with Section 3.3
and (b) the Initial Bank Advance, of the Phase II Project to be In Balance, if
such failure shall continue for 30 consecutive days without being cured or
waived.


 


7.1.3        Inability to Deliver Certificates.  The failure, for 60 consecutive days, of LCR
and the Phase II Mall Borrowers each to submit an Advance Request which is
approved, unless each such Person demonstrates to the reasonable satisfaction
of the Disbursement Agent, after consultation with the Construction Consultant,
that the Phase II Project shall be In Balance.


 


7.1.4        Covenants.


 


(a)           LCR or either of the Phase II Mall
Borrowers shall fail to perform or observe any of its obligations under Sections 5.1.2,
or 5.12 or Article 6;


 


(b)           LCR or either of the Phase II Mall
Borrowers shall fail to perform or observe any of its obligations under Section 5.1.1,
where such failure shall continue for five (5) Banking Days without being
cured; or


 


(c)           LCR or either of the Phase II Mall
Borrowers shall fail to perform or observe any of its obligations under Article 5
or any other obligation under this Agreement (other than those listed in Section 7.1.4(a)
or (b)) where such default shall not have been remedied within
thirty (30) days after notice of such failure; provided, however,
if such default is of a nature such that it cannot reasonably be remedied
within such thirty (30) day period, but is susceptible to cure within a
longer period, an Event of Default shall not result therefrom so long as
(i) LCR and the Phase II Mall Borrowers, as applicable, has, promptly upon
discovery thereof, given written notice to the Funding Agents of such default,
(ii) LCR and the Phase II Mall Borrowers, as applicable, as promptly as
practicable commences action reasonably designed to cure such default and
continues diligently to pursue such action until cured (but in no event longer
than


 


58





















 


ninety (90) days in the aggregate), and
(iii) such default does not have a Material Adverse Effect.


 


7.1.5        Breach of Contracts.  Any Loan Party or any other party thereto
shall breach or default under any term, condition, provision, covenant,
representation or warranty contained in any Contract, if the effect of such breach
or default could reasonably be expected to have a Material Adverse Effect and
such breach or default shall continue unremedied for thirty (30) days
after notice received by LCR or the Phase II Mall Borrowers from their
respective Funding Agent; provided, however, that in the case of any such
Contract, (a) if the breach or default is by a Loan Party and is
reasonably susceptible to cure within ninety (90) days but cannot be cured
within such thirty (30) days despite the applicable Loan Party’s good faith
and diligent efforts to do so, the cure period shall be extended as is
reasonably necessary beyond such thirty (30) day period (but in no event
longer than ninety (90) days) if remedial action reasonably likely to
result in cure is promptly instituted within such thirty (30) day period
and is thereafter diligently pursued until the breach or default is corrected
and (b) if the breach is by a party other than LCR, Phase II Mall Holding
or Phase II Mall Subsidiary, then no Event of Default shall be deemed to have
occurred as a result of such breach if LCR and the Phase II Mall Borrowers
provide written notice to the Funding Agents immediately upon (but in no event
more than two (2) Banking Days after) LCR, Phase II Mall Holding or Phase
II Mall Subsidiary’s becoming aware of such breach that such Loan Party intends
to replace such Contract (or that replacement is not necessary) and
(i) the applicable Loan Party obtains a replacement obligor or obligors
reasonably acceptable to the Disbursement Agent (in consultation with the
Construction Consultant) for the affected party (if in the reasonable judgment
of the Disbursement Agent (in consultation with the Construction Consultant) a
replacement is necessary), (ii) the applicable Loan Party enters into a replacement
Contract in accordance with Section 6.1 on terms reasonably similar
to the applicable Loan Party and the applicable Lenders in any material respect
than the Contract so terminated within sixty (60) days of such termination
(if in the reasonable judgment of the Disbursement Agent (in consultation with
the Construction Consultant) a replacement is necessary), and (iii) such
termination, after considering any replacement obligor and replacement Contract
and the time required to implement such replacement, has not had and would not
reasonably be expected to have a Material Adverse Effect.


 


7.1.6        Termination or Invalidity of
Contracts; Abandonment of Phase II Project.


 


(a)           Any Contract that is a Material
Project Document shall have terminated, become invalid or illegal, or otherwise
ceased to be in full force and effect, provided that no Event of Default shall
be deemed to have occurred as a result of such termination if LCR and the Phase
II Mall Borrowers provide written notice to the Funding Agents immediately upon
(but in no event more than two (2) Banking Days after) any such Person
becoming aware of such Contract ceasing to be in full force or effect that such
Persons intend to replace such Contract (or that replacement is not necessary)
and (i) such Persons obtain a replacement obligor or obligors reasonably
acceptable to the Disbursement Agent (in consultation with the Construction
Consultant), for the affected party (if in the reasonable judgment of the
Disbursement Agent (in consultation with the Construction Consultant) a
replacement is necessary), (ii) such Persons enter into a replacement
Contract in accordance with Section 6.1, on terms


 


59





















 


reasonably similar no less beneficial to LCR, the
Phase II Mall Borrowers and the Lenders in any material respect than the
Contract so terminated, within sixty (60) days of such termination (if in
the reasonable judgment of the Disbursement Agent (in consultation with the
Construction Consultant) a replacement is necessary), and (iii) such
termination, after considering any replacement obligor and replacement Contract
and the time required to implement such replacement, has not had and would not
reasonably be expected to have a Material Adverse Effect;


 


(b)           (i) LCR shall cease to own the
Phase II Site and all parcels and subdivisions comprising thereof or
located thereon (other than the Phase II Mall Air Space to the extent
permitted by Section 5.11), the Improvements situated on the Phase
II Site (other than Phase II Mall Improvements owned by Phase II Mall
Subsidiary or tenants in the Phase II Mall) or the Phase II Site Easements
for the purpose of developing and constructing the Phase II Hotel/Casino
and the Phase II Mall in the manner contemplated by the Operative Documents or
(ii) Phase II Mall Subsidiary shall cease to own or lease the Phase II Mall
Space and all parcels and subdivisions comprising thereof or located thereon,
the Phase II Mall Improvements (other than Phase II Mall Improvements owned by
tenants in the Phase II Mall) or the Phase II Mall Space Easements for the
purpose of owning or leasing the Phase II Mall in the manner contemplated by
the Operative Documents;


 


(c)           (i) LCR shall abandon the
Phase II Hotel/Casino or otherwise cease to pursue the construction of the
Phase II Hotel/Casino in accordance with Section 5.2 or shall sell
or otherwise dispose of its interest in the Phase II Hotel/Casino or
(ii) Phase II Mall Subsidiary shall abandon the Phase II Mall or
otherwise cease to pursue the construction of the Phase II Mall in
accordance with Section 5.2 or shall sell or otherwise dispose of its
interest in the Phase II Mall unless each of the Phase II Mall Release
Conditions shall have been satisfied.


 


7.1.7        Permits.  Any Permit necessary for the ownership,
construction, maintenance, financing or operation of the Phase II Project
shall be modified, revoked or cancelled, or a notice of violations is issued
under any Permit, by the issuing agency or other Governmental Instrumentality
having jurisdiction or any proceeding is commenced by any Governmental
Instrumentality for the purpose of modifying, revoking or canceling any Permit
and the effect of such modification, revocation or loss of such Permit or
notice of violations is reasonably likely to have a Material Adverse Effect.


 


7.1.8        Schedule; Substantial Completion.


 


(a)           Projected Failure to Achieve
Substantial Completion as Scheduled. 
The Construction Consultant shall reasonably determine (based on its
experience, familiarity and review of the Phase II Project and information and
schedule provided by LCR, the Phase II Mall Borrowers and the Construction
Manager) at any time during the construction of the Phase II Project that the
Substantial Completion Date is likely to occur no earlier than seventy-five (75) days after the
Outside Completion Deadline or that Phase II Mall Substantial Completion is
likely not to occur by the Phase II Mall Outside Substantial Completion Date;
or


 


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(b)           Actual Failure to Achieve
Substantial Completion as Scheduled. 
Failure to achieve the Substantial Completion Date on or before the
Outside Completion Deadline or failure to achieve Phase II Mall Substantial
Completion by the Phase II Mall Outside Substantial Completion Date.


 


7.1.9        FF&E Proceeds.  LCR shall fail to deposit into the Bank
Proceeds Account and/or the Phase II Hotel/Casino Equity Account, as applicable
in accordance with Section 2.2.3(b), within ten Banking Days of the
receipt thereof, the proceeds of draws under the FF&E Financings with
respect to FF&E Component items for which one or more Advances have been
made pursuant to Section 2.2.3(b).


 


7.1.10      Breach of the Phase II Mall Purchase
Agreement.  Any material breach by
the parties under the Phase II Mall Purchase Agreement (other than the Phase II
Mall Buyer) beyond the expiration of applicable grace, notice and cure periods.


 


7.2           Remedies.  Upon the occurrence and during the
continuation of an Event of Default, the Lenders and the Disbursement Agent
may, without further notice of default, presentment or demand for payment,
protest or notice of non-payment or dishonor, or other notices or demands of
any kind, all such notices and demands being waived (to the extent permitted by
applicable law), exercise (subject, except in the case of clause (a)
below, to the provisions of the Financing Agreements relating to the exercise
of rights and remedies) any or all rights and remedies at law or in equity (in
any combination or order that the Lenders may elect, subject to the foregoing),
including without limitation or prejudice to the Lenders’ other rights and
remedies, the following:


 


(a)           refuse, and the Lenders shall not be
obligated, to make any Advances or make any payments from any Account or other
funds held by the Disbursement Agent by or on behalf of LCR or the Phase II
Mall Borrowers or suspend or terminate the Commitments; and


 


(b)           exercise any and all rights and
remedies available to them under any of the Financing Agreements.


 


ARTICLE 8 - CONSULTANTS AND REPORTS


 


8.1           Removal and Fees.  The Funding
Agents, acting together, in their sole discretion may remove from time to time
the Independent Consultants and, subject to Section 10.15.1, appoint
replacements as such parties may choose in consultation with LCR and the Phase
II Mall Borrowers (unless an Event of Default shall have occurred and be
continuing, in which case such parties shall not be required to consult with
LCR or the Phase II Mall Borrowers); provided that, in all cases, any such
replacement Independent Consultant shall not be an Affiliate of any party
hereto and shall be qualified to perform its obligations hereunder.  Notice of any replacement Independent
Consultant shall be given to the Disbursement Agent, LCR, the Phase II Mall
Borrowers and the Independent Consultant being replaced.  All reasonable fees and expenses of the
Independent Consultants (whether the original ones or replacements) shall,
subject to the limitations set forth in Section 10.15.1 hereof, be paid
by LCR and the Phase II Mall Borrowers.


 


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8.2           Duties.  Each
Independent Consultant shall be contractually obligated to the Disbursement
Agent and each Funding Agent to carry out the activities required of it in this
Agreement and in its engagement agreement  and
as otherwise requested by such Funding Agents. 
Each of LCR, Phase II Mall Holding and Phase II Mall Subsidiary
acknowledges that, except as provided in the Construction Consultant’s
Engagement Agreement with respect to the Construction Consultant, it will not
have any cause of action or claim against any Independent Consultant resulting
from any decision made or not made, any action taken or not taken or any advice
given by such Independent Consultant in the due performance in good faith of
its duties.


 


ARTICLE 9- THE DISBURSEMENT AGENT


 


9.1           Appointment and Acceptance.  Subject to and
on the terms and conditions of this Agreement, the Funding Agents hereby
jointly and irrevocably appoint and authorize the Disbursement Agent to act as
their agent hereunder and as their agent. 
The Disbursement Agent accepts such appointment and agrees to exercise
commercially reasonably efforts and utilize commercially prudent practices in
the performance of its duties hereunder consistent with those of similar
institutions administering construction loans and disbursing disbursement
control funds.


 


9.2           Duties
and Liabilities of the Disbursement Agent Generally.


 


9.2.1        Meetings; Inspections.  Commencing upon execution and delivery
hereof, the Disbursement Agent shall have the right (but shall not be
obligated) to meet periodically at reasonable times upon three (3) Banking
Days’ notice, with representatives of LCR, the Phase II Mall Borrowers, the
Construction Consultant, the Construction Manager, the Architect and such other
employees, consultants or agents as the Disbursement Agent shall reasonably
request to be present for such meetings. 
The Disbursement Agent may perform such inspections and tests of the
Phase II Project as it deems reasonably appropriate in the performance of its
duties hereunder.  In addition, the
Disbursement Agent shall have the right at reasonable times upon prior notice
to review (or to cause the Construction Consultant to review) all information
(including Contracts) supporting the amendments to the Project Budget,
amendments to any Contracts, Advance Requests and any certificates in support
of any of the foregoing, to inspect materials stored on the Phase II Site or
the Phase II Mall Space then owned by LCR, Phase II Mall Holding or Phase II
Mall Subsidiary, to review the insurance required pursuant to the terms of the
Financing Agreements, to confirm receipt of endorsements from the Title Insurer
insuring the continuing priority of the liens of the Deeds of Trust as security
for each Advance hereunder, and to examine the Plans and Specifications and all
shop drawings relating to the Phase II Project. 
The Disbursement Agent is authorized to contact any Contractor for
purposes of confirming receipt of progress payments.  The Disbursement Agent shall be entitled to
examine, copy and make extracts of the books, records, accounting data and
other documents of LCR, Phase II Mall Holding or Phase II Mall Subsidiary,
including without limitation bills of sale, statements, receipts, conditional
and unconditional lien releases, contracts or agreements, which relate to any
materials, fixtures or articles incorporated into the Phase II Project.  From time to time, at the request of the
Disbursement Agent, LCR and the Phase II Mall Borrowers shall make the Project
Schedule available to the Disbursement Agent and the Construction
Consultant.  LCR and the Phase II Mall
Borrowers agree to cooperate with the Disbursement Agent in assisting the


 


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Disbursement Agent to
perform its duties hereunder and to take such further steps as the Disbursement
Agent reasonably may request in order to facilitate such performance.


 


9.2.2        Powers, Rights and Remedies.  The Disbursement Agent is authorized to take
such actions and to exercise such powers, rights and remedies under this
Agreement as are specifically delegated or granted to Disbursement Agent by the
terms hereof, together with such powers, rights and remedies as are reasonably
incidental thereto.  The Disbursement
Agent agrees to act in accordance with the instructions of the Funding Agents
and in the absence of such instructions shall take such actions or refrain from
acting as it deems reasonable subject to any express requirements of this
Agreement.


 


9.2.3        Notice of Defaults.  If the Disbursement Agent (a) notifies any
Funding Agent or Lender that an Event of Default or Potential Event of Default
known to it (or as to which it has received notice from any Funding Agent) has
occurred (which has not been cured or waived) or (b) receives notice from any
Funding Agent or Lender that an Event of Default or Potential Event of Default
has occurred (which has not, at the time of such notice, been cured or waived
in accordance with the terms of the Facility Agreements), then in each case the
Disbursement Agent shall provide prompt notice to each Funding Agent of the
same.


 


9.2.4        No Risk of Own Funds.  None of the provisions of this Agreement
shall require the Disbursement Agent to expend or risk its own funds or otherwise
to incur any personal financial liability in the performance of any of its
duties hereunder or in the exercise of any of its rights or powers if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.


 


9.2.5        No Imputed Knowledge.  Notwithstanding anything to the contrary in
this Agreement, if the entity acting as the Disbursement Agent also serves as a
collateral agent or Funding Agent under the Financing Agreements, and except if
such functions shall be performed by the same individuals within such entity,
to the maximum extent permitted by law the Disbursement Agent shall not be
deemed to have any knowledge of any fact known to such entity in its capacity
as the collateral Agent or Funding Agent by reason of the fact that the
Disbursement Agent and the collateral agent or Funding Agent, as the case may
be, are the same entity.  Except as
aforesaid, no knowledge of the collateral agent or any Funding Agent shall be
attributed to the Disbursement Agent. 
The Disbursement Agent’s duties and functions under this Agreement shall
in no way impair or affect any of the rights and powers of, or impose any
duties or obligations upon the Disbursement Agent in its capacity as Bank Agent
or Phase II Mall Agent or as a Lender. 
With respect to its participation in the extensions of credit under the
Bank Credit Agreement and the Phase II Mall Construction Loan Agreement, if
any, the Disbursement Agent shall have the same rights and powers hereunder as
any other Funding Agent or Lender and may exercise the same as though it were
not performing its duties and functions hereunder.  The Funding Agents acknowledge that The Bank
of Nova Scotia has an existing relationship with LVSI and certain of its
Affiliates.  The Disbursement Agent and
its Affiliates may accept deposits from, lend money to and generally engage in
any kind of banking, trust, financial advisory or other business with LCR,
Phase II Mall Holding or Phase II Mall Subsidiary or any of their Affiliates as
if it were not performing the duties specified herein, and may accept fees and
other consideration from LCR, Phase II Mall Holding or Phase II Mall Subsidiary
for services in connection with this Agreement and otherwise without having to
account for the same


 


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to the Lenders.  Each party hereto acknowledges that, as of
the Effective Date, The Bank of Nova Scotia, in addition to acting as the
Disbursement Agent hereunder, is also acting as the Bank Agent, the Phase II
Mall Agent and Trustee (as defined in the Cooperation Agreement) and is a Bank
Lender and a Phase II Mall Lender and is an agent and/or lender under other
credit facilities with LVSI and/or certain of its Subsidiaries.


 


9.3           Particular
Duties and Liabilities of the Disbursement Agent.


 


9.3.1        Reliance on Instructions.  The Disbursement Agent may, from time to
time, in the event that any matter arises as to which specific instructions are
not provided herein, request directions from the Funding Agents with respect to
such matters and may refuse to act until so instructed and shall be fully
protected in acting or refusing to act in accordance with such instructions.


 


9.3.2        Reliance Generally.  The Disbursement Agent may rely and shall be
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval or other paper or document believed by it on reasonable grounds to be
genuine and to have been signed or presented by the proper party or
parties.  Notwithstanding anything else
in this Agreement to the contrary, in performing its duties hereunder,
including approving any Advance Requests, making any other determinations or
taking any other actions hereunder, the Disbursement Agent shall be entitled to
rely on certifications from LCR and/or the Phase II Mall Borrowers (and, where
contemplated herein, certifications from third parties, including and LVSI,
VCR, the Construction Manager, the Architect and the Construction Consultant)
as to satisfaction of any requirements and/or conditions imposed by this
Agreement.  The Disbursement Agent shall
not be required to conduct any independent investigation as to the accuracy,
veracity or completeness of any such items or to investigate any other facts or
circumstances to verify compliance by any of LVSI, VCR, LCR or the Phase II
Mall Borrowers with their obligations hereunder.


 


9.3.3        Court Orders.  The Disbursement Agent is authorized, in its
exclusive discretion, to obey and comply with all writs, orders, judgments or
decrees issued by any court or administrative agency affecting any money,
documents or things held by the Disbursement Agent.  The Disbursement Agent shall not be liable to
any of the parties hereto, their successors, heirs or personal representatives
by reason of the Disbursement Agent’s compliance with such writs, orders,
judgments or decrees, notwithstanding whether such writ, order, judgment or
decree is or may later be reversed, modified, set aside or vacated.


 


9.3.4        Responses to Requests.  Any request, direction, order or demand of
LCR, Phase II Mall Holding or Phase II Mall Subsidiary mentioned herein shall
be sufficiently evidenced (unless other evidence in respect thereof be herein
specifically prescribed) by an instrument signed by one of its Authorized
Representatives, and any resolution of LCR, Phase II Mall Holding or Phase II
Mall Subsidiary may be evidenced to the Disbursement Agent by a copy thereof
certified by the Secretary or an Assistant Secretary of such Person.


 


9.3.5        Reliance on Opinions of Counsel.  The Disbursement Agent may consult with
counsel and any opinion of counsel confirmed in writing shall be full and
complete


 


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authorization and
protection in respect of any action taken or omitted by it hereunder in good
faith and in accordance with such opinion of counsel.


 


9.3.6        Action through Agents or Attorneys.  The Disbursement Agent may execute any of the
trusts or powers hereunder or perform any duties hereunder either directly or
by or through agents or attorneys appointed with due care, and the Disbursement
Agent shall not be responsible for any act on the part of any agent or attorney
so appointed.


 


9.3.7        Disagreements.


 


(a)           In the event of any disagreement
between the Funding Agents or between a Funding Agent and any Loan Party or any
other Person or Persons whether or not named herein, and adverse claims or
demands are made in connection with or for any of the investments or amounts
held pursuant to this Agreement, the Disbursement Agent shall be entitled at
its option to refuse to comply with any such claim or demand so long as such
disagreement shall continue, and in so doing, the Disbursement Agent shall not
be or become liable for damages or interest to such Funding Agent or any Loan
Party or any other Person or Persons for the Disbursement Agent’s failure or
refusal to comply with such conflicting or adverse claims or demands.  The Disbursement Agent shall be entitled to
continue so to refrain and refuse so to act until:


 


(i)                    the
rights of the adverse claimants have been fully adjudicated in the court
assuming and having jurisdiction of the claimants and the investments and
amounts held pursuant to this Agreement; or


 


(ii)                   all
differences shall have been adjusted by agreement, and the Disbursement Agent
shall have been notified thereof in writing by all persons deemed by the
Disbursement Agent, in its sole discretion, to have an interest therein.


 


(b)           In addition, the Disbursement Agent,
in its sole discretion, may file a suit in interpleader for the purpose of
having the respective rights of all claimants adjudicated, and may deposit with
the court all of the investments and amounts held pursuant to this
Agreement.  LCR and the Phase II Mall
Borrowers each severally agree to pay all costs and reasonable counsel fees
incurred by the Disbursement Agent in such action, said costs and fees to be included
in the judgment in any such action.


 


(c)           Notwithstanding anything in this Section 9.3.7
to the contrary, if such disagreement between any Loan Party (or any other
Person) and the Funding Agents relates to the existence of a Potential Event of
Default or an Event of Default, the Disbursement Agent shall nevertheless
continue to comply with the instructions of the Funding Agents regardless of
the existence of such disagreement.


 


9.4           Segregation of Funds and Property Interest.  Except as otherwise expressly provided in the
Financing Agreements, monies and other property received by the Disbursement
Agent shall, until used or applied as herein provided, be held for the purposes
for which they were received, and shall be segregated from other funds except
to the extent required herein or


 


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by
law.  To the extent that the Disbursement
Agent also acts as securities intermediary, (a) the Disbursement Agent shall
note in its records that all funds and other assets in the Phase II
Hotel/Casino Equity Account, the Bank Proceeds Account, the Disbursement
Account, the Phase II Hotel/Casino Cash Management Account, the
Supplemental Hotel/Casino Cash Account and the Free-Cash Flow Sub-Account have
been pledged to the Bank Secured Parties and that the Disbursement Agent is
holding such items for the Bank Secured Parties and (b) the Disbursement Agent
shall note in its records that all funds and other assets in the Phase II
Mall Equity Account, the Phase II Mall Loan Proceeds Account, the Phase II
Mall Cash Management Account and the
Supplemental Mall Cash Account have been pledged to the Phase II Mall
Secured Parties and that the Disbursement Agent is holding such items for the
Phase II Mall Secured Parties. 
Accordingly, all such funds and assets shall not be within the
bankruptcy “estate” (as such term is used in 11 U.S.C. § 541) of
the Disbursement Agent.  The Disbursement
Agent shall not be under any liability for interest on any monies received by
it hereunder, except as otherwise specified in this Agreement.  The Disbursement Agent hereby expressly
waives any right of set-off or similar right it may have against or in relation
to the Accounts, the Lien Protection Account and any monies, Permitted
Investments or other amounts on deposit therein.


 


9.5           Compensation and Reimbursement of the
Disbursement Agent.  LCR and the
Phase II Mall Borrowers each severally covenant and agree to pay to the
Disbursement Agent from time to time, and the Disbursement Agent shall be
entitled to, the fees set forth in that certain letter agreement between LCR,
the Phase II Mall Borrowers and the Disbursement Agent, and LCR and the Phase
II Mall Borrowers will further pay or reimburse the Disbursement Agent upon its
request for all reasonable expenses, disbursements and advances incurred or
made by the Disbursement Agent in accordance with any of the provisions of the
Financing Agreements or the documents constituting or executed in connection
with the Project Security (including the reasonable compensation and the
reasonable expenses and disbursements of its counsel and of all persons not
regularly in its employ).  The
obligations of LCR and the Phase II Mall Borrowers under this Section 9.5
to compensate the Disbursement Agent and to pay or reimburse the Disbursement
Agent for reasonable expenses, disbursements and advances shall constitute
additional indebtedness (and shall be deemed permitted indebtedness under each
Financing Agreement) hereunder and shall survive the satisfaction and discharge
of this Agreement.


 


9.6           Qualification of the Disbursement
Agent.  The Disbursement Agent
hereunder shall at all times be (a) The Bank of Nova Scotia (or any
successor thereto by merger or operation of law) or (b) a corporation with
offices in New York City, New York which (i) is authorized to exercise
corporation trust powers, (ii) is subject to supervision or examination by
the applicable Governmental Instrumentality, (iii) shall have a combined
capital and surplus of at least Five Hundred Million Dollars ($500,000,000),
(iv) shall have a long-term credit rating of not less than A- or A3,
respectively, by S&P or Moody’s (provided that any such bank with a
long-term credit rating of A- or A3 shall not cease to be eligible to act as
Disbursement Agent upon a downward change in either such rating of no more than
one category or grade of such minimum rating, as the case may be).  With respect to any replacement of the Person
acting as Disbursement Agent as of the Effective Date, such Person shall be
acceptable to each Funding Agent (and, provided no Event of Default or
Potential Event of Default has occurred and is continuing, LCR and the Phase II
Mall Borrowers).  In case at any time the
Disbursement Agent shall cease to be eligible in accordance with the provisions
of this Section 9.6, the Disbursement Agent shall resign
immediately in the manner and with the effect specified in Section 9.7.


 


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9.7           Resignation and Removal of the Disbursement
Agent.  Either Funding Agent shall
have the right should it reasonably determine that the Disbursement Agent has
breached or failed to perform its obligations hereunder or has engaged in
willful misconduct or gross negligence, upon the expiration of thirty (30)
days following delivery of written notice of substitution to the Disbursement
Agent, LCR and the Phase II Mall Borrowers, to cause the Disbursement Agent to
be relieved of its duties hereunder and to select a substitute disbursement
agent to serve hereunder.  The Disbursement
Agent may resign at any time upon thirty (30) days’ written notice to all
parties hereto.  Upon selection of a
substitute disbursement agent meeting the requirements of Section 9.6 and
consented to by the Funding Agents (and, provided no Potential Event of Default
or Event of Default has occurred and is continuing, LCR and the Phase II Mall
Borrowers), the Funding Agents, LCR and the Phase II Mall Borrowers and the
substitute disbursement agent shall enter into an agreement substantially
identical to this Agreement and, the Disbursement Agent shall transfer to the
substitute disbursement agent upon request therefor originals of all books,
records, and other documents in the Disbursement Agent’s possession relating to
this Agreement.


 


9.8           Merger or Consolidation of the Disbursement
Agent.  Any corporation into which
the Disbursement Agent may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Disbursement Agent shall be a party, or any corporation
succeeding to the corporate trust business of the Disbursement Agent, shall, if
eligible hereunder, be the successor of the Disbursement Agent hereunder;
provided, that such corporation shall be eligible under the provisions of Section 9.6
without the execution or filing of any paper with any party hereto or any
further act on the part of any of the parties hereto except where an instrument
of transfer or assignment is required by law to effect such succession,
anything herein to the contrary notwithstanding.


 


9.9           Statements; Information.  The Disbursement Agent shall provide to the
Bank Arranger (until the Initial Bank Advance), the Funding Agents, LCR and the
Phase II Mall Borrowers a monthly statement of all deposits to, and
disbursements from, each account maintained with it and interest and earnings
credited to each account established and maintained hereunder and under the
other Operative Documents by the Disbursement Agent.  The Disbursement Agent shall forward to the
Bank Arranger (until the Initial Bank Advance) and the Funding Agents any such
statements delivered to it by the securities intermediaries under the
Collateral Account Agreements.


 


9.10         Limitation
of Liability.  The
Disbursement Agent’s responsibility and liability under this Agreement shall be
limited as follows:  (a) the
Disbursement Agent does not represent, warrant or guaranty to the Bank
Arranger, the Funding Agents or the Lenders the performance by LCR, the Phase
II Mall Borrowers, the Construction Manager, the Architect or any other
Contractor of their respective obligations under the Operative Documents and
shall have no duty to inquire whether a Potential Event of Default or an Event
of Default has occurred and is continuing; (b)  the Disbursement Agent
shall have no responsibility to LCR, the Phase II Mall Borrowers, the Bank
Arranger, the Funding Agents or the Lenders as a consequence of performance by
the Disbursement Agent hereunder except for any bad faith, fraud, gross
negligence or willful misconduct of the Disbursement Agent; (c) each of
LCR and Phase II Mall Subsidiary shall remain solely responsible for all
aspects of its business and conduct in


 


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connection with the
Phase II Project, including but not limited to the quality and suitability of
the Plans and Specifications, the supervision of the work of construction, the
qualifications, financial condition and performance of all architects,
engineers, contractors, subcontractors, suppliers, consultants and property managers,
the accuracy of all applications for payment, and the proper application of all
disbursements; and (d) the Disbursement Agent is not obligated to
supervise, inspect or inform LCR or the Phase II Mall Borrowers of any aspect
of the ownership, development, construction or operation of the Phase II
Project or any other matter referred to above. 
The Bank Arranger, each Funding Agent and Lender has made its own
independent investigation of the financial condition and affairs of LCR and the
Phase II Mall Borrowers in connection with the making of the extensions of
credit contemplated by the Financing Agreements and has made and shall continue
to make its own appraisal of the creditworthiness of LCR and the Phase II Mall
Borrowers.  Except as specifically set
forth herein, the Disbursement Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to make any such investigation or
any such appraisal on behalf of the Funding Agents or Lenders or to provide any
Funding Agent or Lender with any credit or other information with respect
thereto.  The Disbursement Agent shall
not have, by reason of this Agreement, a fiduciary relationship in respect of
the Bank Arranger or any Funding Agent or any Lender; and nothing in this
Agreement, expressed or implied, is intended to or shall be so construed as to
impose upon the Disbursement Agent any obligations in respect of this Agreement
except as expressly set forth herein or therein.  The Disbursement Agent shall have no duties
or obligations hereunder except as expressly set forth herein, shall be
responsible only for the performance of such duties and obligations and shall
not be required to take any action otherwise than in accordance with the terms
hereof.  The provisions of this Article 9
are solely for the benefit of the Disbursement Agent and none of the Bank
Arranger, the Funding Agents, the Lenders, LCR or the Phase II Mall Borrowers
shall have any rights as a third party beneficiary of any of the provisions
hereof.  In performing its functions and
duties under this Agreement, the Disbursement Agent does not assume and shall
not be deemed to have assumed any obligation towards or relationship of agency
or trust with or for LCR or the Phase II Mall Borrowers or any of their
Affiliates.  Neither the Disbursement
Agent nor any of its officers, directors, employees or agents shall be in any
manner liable or responsible for any loss or damage arising by reason of any
act or omission to act by it or them hereunder or in connection with any of the
transactions contemplated hereby, including, but not limited to, any loss that
may occur by reason of forgery, false representations, the exercise of its
discretion, or any other reason, except for any bad faith, fraud, gross
negligence or willful misconduct of the Disbursement Agent.


 


9.11         Safekeeping of
Accounts.


 


9.11.1      Application of Funds in Accounts.  Amounts deposited in the Accounts shall be
applied exclusively as provided in this Agreement and the other Financing
Agreements, and the Disbursement Agent shall at all times act and direct the
Financial Institution under the Collateral Account Agreements so as to
implement the application of funds provisions and procedures herein set
forth.  The Disbursement Agent is hereby
authorized to direct Financial Institution to reduce to cash any Permitted
Investment (without regard to maturity) in any account in order to make any
application required hereunder.  No
amount held in any Account shall be disbursed except in accordance with the
provisions hereof or as required by law.


 


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9.11.2      Event of Default.  Notwithstanding anything to the contrary in
this Agreement, upon the occurrence and during the continuance of any Potential
Event of Default or Event of Default of which it has notice, the Disbursement
Agent shall not in any such event deposit or cause to be deposited any amounts
into the Disbursement Account, the Phase II Hotel/Casino Cash Management
Account, the Phase II Mall Cash Management Account or the Lien Protection
Account or release or cause to be released any amounts to LCR or the Phase II
Mall Borrowers unless instructed to the contrary by (i) with respect to the
Lien Protection Account, each Funding Agent, (ii) with respect to the Phase II
Hotel/Casino Equity Account, the Bank Proceeds Account, the Phase II
Hotel/Casino Cash Management Account, the Supplemental Hotel/Casino Cash
Account and the Free Cash Flow Sub-Account, the Bank Agent, (iii) with respect
to all funds from time to time on deposit in the Disbursement Account
constituting proceeds of the Phase II Hotel/Casino Funding Sources (until such
funds are transferred from the Disbursement Account to pay Project Costs or
otherwise in accordance with the terms hereof), the Bank Agent,  (iii) with respect to the Phase II Mall
Equity Account, the Phase II Mall Loan Proceeds Account, the Phase II Mall Cash
Management Account and the
Supplemental Mall Cash Account, the Phase II Mall Agent and (iv) with
respect to all funds from time to time on deposit in the Disbursement Account
constituting proceeds of the Phase II Mall Funding Sources (until such funds
are transferred from the Disbursement Account to pay Project Costs or otherwise
in accordance with the terms hereof), the Phase II Mall Agent.  The Disbursement Agent is hereby irrevocably
authorized by LCR and the Phase II Mall Borrowers to apply, or cause to be
applied, amounts in any Account and any other sums held by the securities
intermediary under any Collateral Account Agreement to the payment of interest,
principal, fees, costs, charges or other amounts due or payable to any of the
Bank Secured Parties or the Phase II Mall Secured Parties, as applicable, in
respect of such account.


 


9.11.3      Liens.  The Disbursement Agent shall take such actions
within its control that it customarily takes in the conduct of its business to
protect the Accounts and all cash, funds, Permitted Investments from time to
time deposited therein, as well as any proceeds or income therefrom
(collectively, the “Account Collateral”) free and clear of all liens,
security interests, safekeeping or other charges, demands and claims of any
nature whatsoever now or hereafter existing, in favor of anyone other than the
Secured Parties (or the Disbursement Agent, as agent for the Secured Parties)
(collectively, the “Third Party Claims”); it being understood, however,
that the foregoing shall in no way be deemed to be a guaranty or other
assurance by the Disbursement Agent that Third Party Claims will not arise.


 


9.11.4      Perfection.  The Disbursement Agent shall take any steps
from time to time requested by any Funding Agent to confirm or cause the
securities intermediaries under the Collateral Account Agreements to confirm
and maintain the priority of their respective security interests in the Account
Collateral.


 


9.11.5      Accounts.  Notwithstanding any other provision hereof,
the parties hereto acknowledge and agree that (a) except as provided in the
Intercreditor Agreement, the security interest granted by LCR in the Phase II
Hotel/Casino Equity Account, the Bank Proceeds Account, the Phase II
Hotel/Casino Cash Management Account, the Supplemental Hotel/Casino Cash
Account and the Free Cash Flow Sub-Account (including any Permitted Investments
held in each such Account) pursuant to the Bank Collateral Account Agreement is
for the sole and exclusive benefit of the Bank Agent and the Bank Lenders and
only the Bank Agent shall have


 


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the right to direct the
Disbursement Agent with respect to each such Account, (b) the security interest
granted by Phase II Mall Subsidiary in the Phase II Mall Equity Account,
the Phase II Mall Loan Proceeds Account, the Phase II Mall Cash
Management Account and the
Supplemental Mall Cash Account (including any Permitted Investments held
in each such Account) pursuant to the Phase II Mall Collateral Account
Agreement is for the sole and exclusive benefit of the Phase II Mall Agent and
the Phase II Mall Lenders and only the Phase II Mall Agent shall have the right
to direct the Disbursement Agent with respect to each such Account, (c) all
funds from time to time on deposit in the Disbursement Account constituting
proceeds of the Phase II Hotel/Casino Funding Sources (until such funds are
transferred from the Disbursement Account to pay Project Costs or otherwise in
accordance with the terms hereof) shall be the sole and exclusive property of
LCR and shall be subject to the sole and exclusive security interest of the
Bank Agent on behalf of the Bank Secured Parties and (d) all funds from time to
time on deposit in the Disbursement Account constituting proceeds of the Phase
II Mall Funding Sources (until such funds are transferred from the Disbursement
Account to pay Project Costs or otherwise in accordance with the terms hereof)
shall be the sole and exclusive property of the Phase II Mall Borrowers and
shall be subject to the sole and exclusive security interest of the Phase II
Mall Agent on behalf of the Phase II Mall Secured Parties.


 


ARTICLE 10 - MISCELLANEOUS


 


10.1         Addresses.  Any communications
between the parties hereto or notices provided herein to be given may be given
to the following addresses:


 


	
  If to LCR:

  	
  Lido Casino Resort, LLC

  
	
   

  	
  3355 Las Vegas Boulevard South

  
	
   

  	
  Las Vegas, Nevada 89109

  
	
   

  	
  Attn: General Counsel

  
	
   

  	
  Telephone No.: (702) 414-4409

  
	
   

  	
  Facsimile No.: (702) 414-4421

  
	
   

  	
   

  
	
  with a copy to:

  	
  Paul, Weiss, Rifkind, Wharton & Garrison LLP

  
	
   

  	
  1285 Avenue of the Americas

  
	
   

  	
  New York, New York 10019-6064

  
	
   

  	
  Attn: Harris Freidus

  
	
   

  	
  Telephone No.: (212) 373-3000

  
	
   

  	
  Facsimile No.: (212) 492-0064

  
	
   

  	
   

  
	
  If to the Phase II Mall

  	
  Phase II Mall Holding, LLC

  
	
  Borrowers:

  	
  Phase II Mall Subsidiary, LLC

  
	
   

  	
  3355 Las Vegas Boulevard South

  
	
   

  	
  Las Vegas, Nevada 89109

  
	
   

  	
  Attn: General Counsel

  
	
   

  	
  Telephone No.: (702) 414-4409

  
	
   

  	
  Facsimile No.: (702) 414-4421

  



 


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  with a copy to:

  	
  Paul, Weiss, Rifkind, Wharton & Garrison LLP

  
	
   

  	
  1285 Avenue of the Americas

  
	
   

  	
  New York, New York 10019-6064

  
	
   

  	
  Attn: Harris Freidus

  
	
   

  	
  Telephone No.: (212) 373-3000

  
	
   

  	
  Facsimile No.:  (212) 492-0064

  
	
   

  	
   

  
	
  If to the Bank Agent:

  	
  The Bank of Nova Scotia

  
	
   

  	
  580 California Street, 21st Floor

  
	
   

  	
  San Francisco, CA 94104

  
	
   

  	
  Attn: Alan Pendergast

  
	
   

  	
  Telephone No.: (415) 616-4155

  
	
   

  	
  Facsimile No.:  (415) 397-0791

  
	
   

  	
   

  
	
  If to the Bank Arranger:

  	
  Goldman Sachs Credit Partners L.P.

  
	
   

  	
  85 Broad Street

  
	
   

  	
  New York, NY 10004

  
	
   

  	
  Attn: Elizabeth Fischer

  
	
   

  	
  Telephone No.: (212) 902-1021

  
	
   

  	
  Facsimile No.: (212) 902-3000

  
	
   

  	
   

  
	
  with a copy to

  	
  Latham & Watkins LLP

  
	
  Bank Arranger’s Counsel:

  	
  600 West Broadway, Suite 1800

  
	
   

  	
  San Diego, CA 92101

  
	
   

  	
  Attn: Sony Ben-Moshe

  
	
   

  	
  Telephone No.: (619) 238-2933

  
	
   

  	
  Facsimile No.: (619) 696-7419

  
	
   

  	
   

  
	
  If to the Phase II Mall

  	
  The Bank of Nova Scotia

  
	
  Agent:

  	
  580 California Street, 21st Floor

  
	
   

  	
  San Francisco, CA 94104

  
	
   

  	
  Attn: Alan Pendergast

  
	
   

  	
  Telephone No.: (415) 616-4155

  
	
   

  	
  Facsimile No.: (415) 397-0791

  
	
   

  	
   

  
	
  If to the Disbursement

  	
  The Bank of Nova Scotia

  
	
  Agent:

  	
  580 California Street, 21st Floor

  
	
   

  	
  San Francisco, CA 94104

  
	
   

  	
  Attn: Alan Pendergast

  
	
   

  	
  Telephone No.: (415) 616-4155

  
	
   

  	
  Facsimile No.: (415) 397-0791

  



 


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  with a copy to:

  	
  The Bank of Nova Scotia

  
	
   

  	
  Loan Administration

  
	
   

  	
  600 Peachtree Street, NE

  
	
   

  	
  Atlanta, GA 30308

  
	
   

  	
  Attn: Hilma Gabbidon and Vicki Gibson

  
	
   

  	
  Telephone No.:  (404) 877-1525

  
	
   

  	
  Facsimile No.:   (404)
  888-8998

  
	
   

  	
   

  
	
  with an additional copy to:

  	
  The Bank of Nova Scotia

  
	
   

  	
  Real Estate Gaming and Leisure

  
	
   

  	
  One Liberty Plaza, 25th Floor

  
	
   

  	
  New York, New York 10008

  
	
   

  	
  Attn: Mary Ann Duca

  
	
   

  	
  Telephone No.:  (212) 225-5487

  
	
   

  	
  Facsimile No.:   (212) 225-5156

  



 


All
notices or other communications required or permitted to be given hereunder
shall be in writing and shall be considered as properly given (a) if
delivered in person, (b) if sent by reputable overnight delivery service,
(c) in the event overnight delivery services are not readily available, if
mailed by first class mail, postage prepaid, registered or certified with
return receipt requested or (d) if sent by prepaid telex, or by telecopy
with correct answer back received. 
Notice so given shall be effective upon receipt by the addressee, except
that communication or notice so transmitted by telecopy or other direct written
electronic means shall be deemed to have been validly and effectively given on
the day (if a Banking Day and, if not, on the next following Banking Day) on
which it is validly transmitted if transmitted and received before
4:00 p.m., recipient’s time, and if transmitted after that time, on the
next following Banking Day; provided, however, that if any notice is tendered
to an addressee and the delivery thereof is refused by such addressee, such
notice shall be effective upon such tender. 
Any party shall have the right to change its address for notice
hereunder to any other location by giving of no less than twenty (20)
days’ notice to the other parties in the manner set forth hereinabove.


 


10.2         Further Assurances.  From time to time LCR and the Phase II Mall
Borrowers shall execute and deliver, or cause to be executed and delivered,
such additional instruments, certificates or documents, and take all such
actions, as the Funding Agents or the Disbursement Agent may reasonably request
for the purposes of implementing or effectuating the provisions of this
Agreement and the other Financing Documents, or of more fully perfecting or
renewing the rights of the Funding Agents and the Lenders with respect to their
respective Project Security (or with respect to any additions thereto or
replacements or proceeds or products thereof or with respect to any other
property or assets hereafter acquired by LCR or a Phase II Mall Borrower or any
other Subsidiary of LVSI which may be deemed to be part of the Bank Security or
the Phase II Mall Security) pursuant hereto or thereto.  Upon the exercise by the Funding Agents, the
Disbursement Agent or any Lender of any power, right, privilege or remedy
pursuant to this Agreement or the other Financing Documents which requires any
consent, approval, recording, qualification or authorization of any
Governmental Instrumentality, LCR and the Phase II Mall Borrowers shall, or
shall cause the applicable Subsidiary of LVSI to, execute and deliver, or will
cause the execution and delivery of, all applications, certifications,
instruments and other documents and papers that such Funding Agent, the
Disbursement Agent or such Lender may


 


72





















 


reasonably
request from LCR or the applicable Phase II Mall Borrower or the applicable
Subsidiary of LVSI in connection with such governmental consent, approval,
recording, qualification or authorization.


 


10.3         Delay and Waiver.  No delay or omission to exercise any right,
power or remedy accruing upon the occurrence of any Potential Event of Default
or Event of Default or any other breach or default of LCR or the Phase II Mall
Borrowers under this Agreement shall impair any such right, power or remedy of
the Bank Arranger, the Funding Agents, the Lenders, the Disbursement Agent or
any other Secured Party nor shall it be construed to be a waiver of any such
breach or default, or an acquiescence therein, or in any similar breach or
default thereafter occurring, nor shall any waiver of any single Potential
Event of Default, Event of Default or other breach or default be deemed a
waiver of any other Potential Event of Default, Event of Default or other
breach or default theretofore or thereafter occurring.  Any waiver, permit, consent or approval of
any kind or character on the part of any of the Bank Arranger, the Funding
Agents, the Lenders, the Disbursement Agent or any other Secured Party, of any
Potential Event of Default, Event of Default or other breach or default under
this Agreement or any other Financing Agreement, or any waiver on the part of
any of the Bank Arranger, the Funding Agents, the Lenders, the Disbursement
Agent or any other Secured Party, of any provision or condition of this
Agreement or any other Operative Document, must be in writing and shall be
effective only to the extent in such writing specifically set forth.  All remedies, either under this Agreement or
any other Financing Agreement or by law or otherwise afforded to any of the
Bank Arranger, the Funding Agents, the Lenders, the Disbursement Agent or any
other Secured Party, shall be cumulative and not alternative.


 


10.4         Additional Security; Right to Set-Off.  Any deposits or other sums at any time
credited or due from any Bank Secured Party and any securities or other
property of LCR in the possession of any Bank Secured Party may at all times be
treated as collateral security for the payment of the Bank Facility
Obligations, and as security for the payment of the Bank Facility Obligations,
LCR hereby pledges to the Disbursement Agent for the benefit of the Bank
Secured Parties and grants the Disbursement Agent a security interest in and to
all such deposits, sums, securities or other property of LCR on deposit or in
the possession of the Bank Secured Parties. 
Any deposits or other sums at any time credited or due from any Phase II
Mall Secured Party and any securities or other property of the Phase II Mall Borrowers
in the possession of any Phase II Mall Secured Party may at all times be
treated as collateral security for the payment of the Phase II Mall
Construction Loan Obligations, and as security for the payment of the Phase II
Mall Construction Loan Obligations, the Phase II Mall Borrowers hereby pledge
to the Disbursement Agent for the benefit of the Phase II Mall Secured Parties
and grant the Disbursement Agent a security interest in and to all such
deposits, sums, securities or other property of each Phase II Mall Borrower on
deposit or in the possession of the Phase II Mall Secured Parties.  At any time after the occurrence and during
the continuance of any Event of Default, regardless of the adequacy of any other
collateral, (a) any Bank Secured Party may execute or realize on the Bank
Secured Parties’ security interest in any such deposits or other sums credited
by or due from any such Person to LCR, may apply any such deposits or other
sums to or set them off against LCR’s obligations to the Bank Secured Parties
under this Agreement and the other Financing Agreements at any time after the
occurrence and during the continuance of any Event of Default and (b) any Phase
II Mall Secured Party may execute or realize on the Phase II Mall Secured
Parties’ security interest in any such deposits or other sums credited by or
due from any such


 


73





















 


Person
to Phase II Mall Holding or Phase II Mall Subsidiary, may apply any such
deposits or other sums to or set them off against Phase II Mall Holding and
Phase II Mall Subsidiary’s respective obligations to the Phase II Mall Secured
Parties under this Agreement and the other Financing Agreements.


 


10.5         Entire Agreement.  This Agreement and any agreement, document or
instrument attached hereto or referred to herein integrate all the terms and
conditions mentioned herein or incidental hereto and supersede all oral
negotiations and prior writings in respect to the subject matter hereof, all of
which negotiations and writings are deemed void and of no force and effect.


 


10.6         Governing Law.  This Agreement shall be governed by the laws
of the State of New York of the United States of America and shall for all
purposes be governed by and construed in accordance with the laws of such state
without regard to the conflict of law rules thereof other than Section 5-1401
of the New York General Obligations Law, provided, however, that to the extent
any terms of this Agreement are incorporated in and made part of any other
Financing Agreement, any such term so incorporated shall for all purposes be
governed by and construed in accordance with the law governing the Financing
Agreement into which such term is so incorporated.


 


10.7         Severability. 
In case any one or more of the provisions contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and the parties hereto shall enter into good faith
negotiations to replace the invalid, illegal or unenforceable provision.


 


10.8         Headings. 
Paragraph headings have been inserted in this Agreement as a matter of
convenience for reference only and it is agreed that such paragraph headings
are not a part of this Agreement and shall not be used in the interpretation of
any provision of this Agreement.


 


10.9         Limitation on Liability; Waiver.  NO CLAIM SHALL BE MADE BY ANY PARTY HEREUNDER
OR ANY OF THEIR AFFILIATES AGAINST ANY OTHER PERSON HEREUNDER OR ANY OF THEIR
RESPECTIVE AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (WHETHER OR NOT THE CLAIM
THEREFOR IS BASED ON CONTRACT, TORT OR DUTY IMPOSED BY LAW), IN CONNECTION
WITH, ARISING OUT OF OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT OR THE OTHER OPERATIVE DOCUMENTS OR ANY ACT OR OMISSION OR EVENT
OCCURRING IN CONNECTION THEREWITH; AND EACH PARTY HERETO HEREBY WAIVES,
RELEASES AND AGREES NOT TO SUE UPON ANY SUCH CLAIM FOR ANY SUCH DAMAGES,
WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN THEIR
FAVOR.


 


10.10       Waiver of Jury Trial.  EACH OF THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS


 


74





















 


AGREEMENT
OR ANY OTHER OPERATIVE DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF ANY OTHER PARTY
HEREUNDER.  THIS PROVISION IS A MATERIAL
INDUCEMENT FOR PARTIES TO ENTER INTO THIS AGREEMENT.


 


10.11       Consent to Jurisdiction.  Any legal action or proceeding involving this
Agreement or the rights and/or obligations of the parties hereunder may be
brought in or removed to the courts of the State of New York, in and for the
County of New York, or of the United States of America for the Southern
District of New York.  By execution and
delivery of this Agreement, each of the parties hereto, accepts, for itself and
in respect of its property, generally and unconditionally, the jurisdiction of
the aforesaid courts for legal proceedings arising out of or in connection with
this Agreement and irrevocably consents to the appointment of the Corporation
Service Company, whose offices are currently located at 80 State Street, Albany, New York 12207  as its agent to receive service of process in New York, New
York.  Nothing herein shall affect the
right to serve process in any other manner permitted by law or any right to
bring legal action or proceedings in any other competent jurisdiction,
including judicial or non-judicial foreclosure of real property interests which
are part of the Bank Security or the Phase II Mall Security.  Each of the parties hereto further agrees
that the aforesaid courts of the State of New York and of the United States of
America for the Southern District of New York shall have exclusive jurisdiction
with respect to any claim or counterclaim of each such Person based upon the
assertion that the rate of interest charged by or under this Agreement, or
under the other Financing Agreements is usurious.  Each of the parties hereto hereby waives any right
to stay or dismiss any action or proceeding under or in connection with any or
all of the Phase II Project, this Agreement or any other Operative Document
brought before the foregoing courts on the basis of forum
non-conveniens.


 


10.12       Successors and Assigns.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns. 
Notwithstanding the foregoing, none of LCR, Phase II Mall Holding or
Phase II Mall Subsidiary may assign or otherwise transfer any of its rights
under this Agreement.


 


10.13       Reinstatement.  This Agreement shall continue to be effective
or be reinstated, as the case may be, if at any time payment and performance of
any of LCR, Phase II Mall Holding and Phase II Mall Subsidiary’s respective obligations
hereunder or under the other Financing Agreements, or any part thereof, is,
pursuant to applicable law, rescinded or reduced in amount, or must otherwise
be restored or returned by the Secured Parties. 
In the event that any payment or any part thereof is so rescinded,
reduced, restored or returned, such obligations shall be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or
returned.


 


10.14       No Partnership;
Etc.  The Bank Secured
Parties and LCR intend that the relationship between them shall be solely that
of creditor and debtor.  The Phase II
Mall Secured Parties and the Phase II Mall Borrowers intend that the
relationship between them shall be solely that of creditor and debtor.  Nothing contained in this Agreement or in any
of the other Financing Agreements shall be deemed or construed to create a
partnership, tenancy-in-common, joint tenancy, joint venture or co-ownership by
or between the Bank Secured Parties and LCR, , the Phase II Mall Borrowers or
any other Person or by or between the Phase II Mall Secured Parties


 


75





















 


and the Phase II Mall Borrowers or any other Person.  The Secured Parties shall not be in any way
responsible or liable for the debts, losses, obligations or duties of LCR, the
Phase II Mall Borrowers or any other Person with respect to the Phase II
Project or otherwise.  All obligations to
pay real property or other taxes, assessments, insurance premiums, and all
other fees and charges arising from the ownership, operation or occupancy of
the Phase II Project and to perform all obligations under the agreements and
contracts relating to the Phase II Project shall be the sole responsibility of
LCR or the Phase II Mall Borrowers, as applicable.


 


10.15       Costs and
Expenses


 


10.15.1            Reimbursement of Costs.  Subject to the limitations set forth herein
and, with respect to each Funding Agent, in the Financing Agreements to which
such Funding Agent is a party, LCR shall pay
the Bank Agent, the Bank Arranger and the Disbursement Agent, and the Phase II
Mall Borrowers shall pay the Phase II Mall Agent and the Disbursement Agent,
for the
legal, engineering and other professional fees and costs of consultants and
advisors to such Persons and the reasonable travel expenses and other
out-of-pocket costs incurred by each of them in connection with the
preparation, negotiation, execution and delivery, and where appropriate,
registration of the Operative Documents (and all matters incidental thereto), the
syndication of the Loans, the administration of the transactions contemplated
by the Operative Documents (including, without limitation, the administration
of this Agreement, the other Operative Documents and the Security Documents)
and the preservation or enforcement of any of their respective rights or in
connection with any amendments, waivers or consents required under the
Financing Agreements or the Operative Documents.  The Bank Arranger and the Funding Agents will
reasonably consult with LCR and the Phase II Mall Borrowers on a regular basis
with respect to on-going costs of such Persons’ consultants and advisors.


 


10.15.2            Indemnity.  LCR and the Phase II Mall Borrowers shall
each severally  indemnify, defend
and hold harmless the Insurance Advisor, the Construction Consultant, the
Disbursement Agent and, in each case, their respective affiliates and each of
their respective officers, directors, partners, trustees, employers,
affiliates, shareholders, advisors, agents, attorneys, attorneys-in-fact, representatives
and “controlling persons” (within the meaning of the Securities Act of 1933, as
amended, and the Securities Exchange Act of 1934, as amended), (collectively,
the “Indemnitees”) from and against and reimburse the Indemnitees for
any and all present and future claims, expenses, obligations, liabilities,
losses, damages, injuries (to person, property, or natural resources),
penalties, stamp or other similar taxes, actions, suits, judgments, reasonable
costs and expenses including any reasonable legal or other expenses reasonably
incurred by them in connection with the investigating, preparing to defend or
defending, or providing evidence in or preparing to serve or serving as witness
with respect to, any lawsuits, investigations, claims or other proceedings
(whether or not such Indemnitee is a formal party thereto) of whatever kind or
nature, whether or not well founded, meritorious or unmeritorious, demanded,
asserted or claimed against any such Indemnitee including any liability
resulting from any delay or omission to pay any such tax (collectively, “Claims”)
arising in any manner out of or in connection with this Agreement, the
Operative Documents, the use of proceeds therefrom, the development,
construction, ownership and operation of the Phase II Project the transactions
contemplated by this Agreement or any other Operative Document, any other
transaction related hereto or thereto of any claim, litigation, investigation
or proceeding relating to any of the foregoing (regardless of whether any Indemnitee
is a party hereto or


 


76





















 


thereto) including
without limitation any and all Claims arising in connection with the release or
presence of any Hazardous Materials at the Phase II Site, the Phase II Mall
Space or the Phase II Project, whether foreseeable or unforeseeable, including
all costs of removal and disposal of such Hazardous Materials, all reasonable
costs required to be incurred in (i) determining whether the Phase II
Project is in compliance and (ii) causing the Phase II Project to be in
compliance, with all applicable Legal Requirements (including, without
limitation, all Environmental Laws and all Permits issued under or otherwise
relating to applicable Legal Requirements), all costs associated with claims
for damages to persons or property, and attorneys’ and consultants’ fees and
court costs.   No Indemnitee shall be
liable for any damages arising from the use by unauthorized Persons of
information or other materials sent through electronic telecommunication or
other information transmission systems that are intercepted by other Persons.


 


10.15.3            Fraud.  The respective indemnity obligations of each
of LCR and the Phase II Mall Borrowers pursuant to this Section 10.15
shall not apply with respect to an Indemnitee, to the extent arising as a
result of the fraud, bad faith, gross negligence or willful misconduct of such
Indemnitee (in each case as finally judicially determined by a court of
competent jurisdiction), but shall continue to apply to other Indemnitees.


 


10.15.4            Unenforceability.  To the extent that the undertaking in the
preceding paragraphs of this Section 10.15 may be unenforceable due to
any law or public policy, LCR or the Phase II Mall Borrowers, as applicable
will contribute the maximum portion that they are permitted to pay and satisfy
under applicable law to the payment and satisfaction of such undertakings.


 


10.15.5            Foreclosure.  The provisions of this Section 10.15
shall survive foreclosure of the Security Documents and satisfaction or
discharge of LCR and the Phase II Mall Borrowers’ respective obligations
hereunder, and shall be in addition to any other rights and remedies of any
Indemnitee.


 


10.15.6            Payment Due Dates.  Any amounts payable by LCR or the Phase II
Mall Borrowers pursuant to this Section 10.15 shall be payable within
the later to occur of (i) ten (10) Banking Days after LCR or the
Phase II Mall Borrowers, as applicable, receives an invoice for such amounts
from any applicable Indemnitee or (ii) five (5) Banking Days prior to
the date on which such Indemnitee reasonably expects to pay such costs on
account of which LCR or the Phase II Mall Borrowers’ indemnity hereunder is
payable, and if not paid by such applicable date shall bear interest at the
highest default rate set forth in any of the Financing Agreements from and
after such applicable date until paid in full.


 


10.15.7            Actions; Counsel.  In case any action, suit or proceeding shall
be brought against any Indemnitee, such Indemnitee shall notify LCR and/or the
Phase II Mall Borrowers, as applicable, of the commencement thereof.  LCR and/or the Phase II Mall Borrowers, as
applicable, shall be entitled, at its expense, acting through counsel
reasonably acceptable to such Indemnitee, to participate in and, to the extent
that such Person desires, to assume and control the defense thereof.  Upon assumption by such Person of the defense
of any such action, suit or proceeding, the Indemnitee shall have the right to
participate in such action, suit or proceeding and to retain its own counsel
but such Person shall not be liable for any legal


 


77





















 


fees and expenses of
other counsel or the fees and disbursements of other providers of professional
services subsequently incurred by such Indemnitee in connection with the
defense thereof unless (a) such Person has agreed to pay such fees and
expenses or (b) such Person shall have failed to employ counsel reasonably
satisfactory to the Indemnitee in a timely manner. Notwithstanding the
foregoing, LCR and/or the Phase II Mall Borrowers, as applicable, shall not be
entitled to assume and control the defenses of any such action, suit or
proceedings if and to the extent that, in the reasonable opinion of such
Indemnitee and its counsel (which counsel shall be reasonably acceptable to
such Person), such action, suit or proceeding involves the potential imposition
of criminal liability upon such Indemnitee or a conflict of interest between
such Indemnitee and such Person or between such Indemnitee and another
Indemnitee (unless such conflict of interest is waived in writing by the
affected Indemnitees), and in such event (other than with respect to disputes
between such Indemnitee and another Indemnitee) LCR and/or the Phase II Mall
Borrowers, as applicable, shall pay the reasonable expenses of such Indemnitee
in such defense.


 


10.15.8            Reports.  LCR and/or the Phase II Mall Borrowers, as
applicable, shall report to such Indemnitee on the status of such action, suit
or proceeding as material developments shall occur and from time to time as
requested by such Indemnitee.  LCR and/or
the Phase II Mall Borrowers, as applicable, shall deliver to such Indemnitee a
copy of each document filed or served on any party in such action, suit or
proceeding, and each material document which LCR and/or the Phase II Mall
Borrowers, as applicable, possesses relating to such action, suit or
proceeding.


 


10.15.9            Unconditional Release.  LCR and/or the Phase II Mall Borrowers, as
applicable, shall not consent to the terms of any compromise or settlement of
any action defended by LCR and/or the Phase II Mall Borrowers, as applicable,
in accordance with the foregoing without the prior consent of the Indemnitee
(which consent shall not be unreasonably withheld), unless such compromise or
settlement (i) includes an unconditional release of the Indemnitee from
all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act by or on behalf of the Indemnitee.


 


10.15.10          Settlement.  Any Indemnitee against whom any Claim is made
shall be entitled, after consultation with LCR and/or the Phase II Mall
Borrowers, as applicable, and upon consultation with legal counsel wherein such
Indemnitee is advised that such Claim is reasonably meritorious, to compromise
or settle any such Claim if such Indemnitee determines in its reasonable
discretion that failure to compromise or settle such Claim is (taking into
account LCR and the Phase II Mall Borrowers’ respective indemnification
obligations under this Section 10.15) reasonably likely to have a
material adverse effect on such Indemnitee, LCR, the Phase II Mall Borrowers,
the Phase II Project or such Indemnitee’s interest in the Phase II Project. Any
such compromise or settlement shall be binding upon LCR and/or the Phase II
Mall Borrowers, as applicable, for purposes of this Section 10.15.


 


10.15.11          Subrogation.  Upon payment of any Claim by LCR or the Phase
II Mall Borrowers, as applicable, pursuant to this Section 10.15 or
other similar indemnity provisions contained herein to or on behalf of an
Indemnitee, LCR or the Phase II Mall Borrowers, as applicable, without any
further action, shall be subrogated to any and all claims


 


78





















 


that
such Indemnitee may have relating thereto, and such Indemnitee shall at the
request and expense of LCR or the Phase II Mall Borrowers, as applicable,
cooperate with such Person and give at the request and expense of such Person
such further assurances as are necessary or advisable to enable such Person to
vigorously to pursue such claims.


 


10.16       Agreements
Among Funding Agents and Other Secured Parties.


 


10.16.1            Each Funding Agent agrees with each
of the other Funding Agents that it will, upon request, provide such
information to the other Funding Agents and the Disbursement Agent as may be
necessary to enable them to make any calculation required under the Financing
Agreements.  However, notwithstanding any
other provision of this Agreement, in no event shall any Phase II Mall Secured
Party have any duty (fiduciary or otherwise), liability or obligation to LCR or
any Bank Secured Party and in no event shall any Bank Secured Party have any
duty (fiduciary or otherwise), liability or obligation to the Phase II Mall
Borrowers or any Phase II Mall Secured Party.


 


10.16.2            In the event that the Bank Agent
forecloses or assumes the rights and obligations of LCR with respect to any
Contract that provides for the design, development and/or construction of the
Phase II Mall, the Bank Agent and the Phase II Mall Agent agree to act in good
faith and negotiate and enter into arrangements in respect of the
administration of such Contract and the payment of costs related thereto to
ensure the performance by the Contractor thereunder with respect to the design,
development and/or construction, as applicable, of the Phase II Hotel/Casino
and the Phase II Mall.  Neither the Bank
Agent nor any Bank Secured Party shall have any obligations under any Contract
unless and until such Person exercises its rights under the Bank Security
Documents to assume the rights and obligations of LCR under such Contract
(other than any rights to sue to collect damages or other amounts owed under
such Contract).


 


10.17       Counterparts. 
This Agreement may be executed in one or
more duplicate counterparts and when signed by all of the parties listed below
shall constitute a single binding agreement.


 


10.18       Confidentiality.  Each of the
Funding Agents agrees not to disclose to any third party any Confidential
Information (as defined below), except that any of the Funding Agents may
disclose such information (a) in connection with any litigation between
such Funding Agent and LVSI or any Affiliate of either of them, (b) upon the
order, request or demand of any Governmental Instrumentality or if otherwise
required by applicable law, (c) in connection with the exercise of any
right or remedy hereunder or under any Facility Agreement or Financing
Agreement after the occurrence of an Event of Default or Potential Event of
Default, (d) to those of its employees, accountants, attorneys, agents and
other advisors, directors, officers, shareholders, partners, members and other
principals who are working on, or are consulted in connection with, the
transactions contemplated by the Facility Agreements or Financing Agreements
(provided that the applicable Funding Agent may be liable in the event any such
Person breaches the confidentiality obligations of this paragraph with respect
to such Confidential Information) or (e) in the case of the Bank Agent, to
any actual or potential participant, assignee, lender, agent or servicer that
agrees to be bound by the provisions of this Section 10.18.  “Confidential Information” shall mean
any information relating to the business of


 


79





















 


Adelson, LVSI or any of their Affiliates which
is delivered by Adelson, LVSI or any of their Affiliates to any Funding Agent
or relating to the Loans, the Advances, the Facility Agreements or the
Financing Agreements; provided, that “Confidential Information” shall not
include information (i) that is or becomes generally available to the
public, other than as a result of the disclosure by any Funding Agent in breach
of this provision, (ii) that is or becomes available to any Funding Agent
from any source other than Adelson, LVSI or such Affiliates unless the party
supplying such information shall have advised the Funding Agent that such
source is subject to a confidentiality agreement that covers the information in
question or (iii) that is already in the possession of any Funding Agent
on the date hereof and that is not otherwise “Confidential Information” as
defined herein.  In the event that any
Funding Agent is required or demanded by legal process (e.g., depositions,
interrogatories, requests for information or documents, subpoena, civil
investigation demand or similar process) to disclose any of the Confidential
Information, such Funding Agent shall give prompt written notice to LCR and the
Phase II Mall Borrowers of such request or demand so that LCR and the Phase II
Mall Borrowers may, should any of them elect to do so, within ten (10)
Banking Days of receipt of such notice, seek a protective order or other appropriate
remedy to challenge or contest such request (and give such Funding Agent notice
thereof), and during the pendency of any such action by LCR or the Phase II
Mall Borrowers, such  Funding Agent shall
not, to the extent permitted by applicable law, disclose such Confidential
Information.


 


10.19       Termination. 
This Agreement shall, subject to Section
10.13 and to the next sentence, terminate and be of no further force or
effect upon completion of the transfer and release of funds contemplated by Section 2.10.  The provisions of Article 9 and Section
10.15 shall survive the termination of this Agreement.


 


10.20       Liability
of Loan Parties.  


 


10.20.1            Joint and Several Liability.  Each Phase II Mall Borrower shall be jointly
and severally liable for all Phase II Mall Construction Loan Obligations,
regardless of which Person actually receives any Loans or other extensions of
credit under the Phase II Mall Construction Loan Agreement, the amount received
by any such Person or the manner in which any such Person or the Disbursement
Agent, the Phase II Mall Agent or any Phase II Mall Lender accounts for such
Loans and other extensions of credit.


 


10.20.2            Nature of Obligations.  The parties acknowledge and agree that LCR
and the Phase II Mall Borrowers are not co-borrowers, co-guarantors or
co-obligors under this Agreement or the other Facility Agreements, and no
Obligations shall be joint and several between LCR and the Phase II Mall
Borrowers.  The sole recourse of the Bank
Agent and the other Bank Secured Parties (in such capacities) under this
Agreement shall be to LCR and its assets and properties.  The sole recourse of the Phase II Mall Agent
and the other Phase II Mall Secured Parties (in such capacities) under this
Agreement shall be to Phase II Mall Borrowers and their assets and
properties.  In no event shall the Phase
II Mall Borrowers be deemed to have any obligations to the Bank Secured Parties
(in such capacities) under this Agreement, and in no event shall LCR be deemed
to have any obligations to the Phase II Mall Secured Parties (in such
capacities) under this Agreement.


 


[SIGNATURE
PAGE FOLLOWS]


 


80





















 


IN WITNESS WHEREOF, the parties have caused this
Disbursement Agreement to be duly executed by their officers thereunto duly
authorized as of the day and year first above written.


 


LIDO CASINO RESORT, LLC,


a Nevada limited liability company


 


	
  By: 

  	
  Lido Intermediate Holding Company, LLC, its managing
  member

  
	
   

  	
  By:

  	
  Venetian Casino Resort, LLC, its sole member

  
	
   

  	
   

  	
  By:

  	
  Las Vegas Sands, Inc., its managing member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Harry Miltenberger

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Harry Miltenberger

  
	
   

  	
   

  	
   

  	
  Title: 

  	
  VP Finance Secretary &

  Chief Accounting Officer

  
									



 


PHASE II MALL HOLDING, LLC,


a Nevada limited liability company


 


	
  By: 

  	
  Lido Casino Resort Holding Company, LLC, its manager

  
	
   

  	
  By:

  	
  Lido Intermediate Holding Company, LLC, its managing
  member

  
	
   

  	
   

  	
  By:

  	
  Venetian Casino Resort, LLC, its sole member

  
	
   

  	
   

  	
   

  	
  By:

  	
  Las Vegas Sands, Inc., its managing member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Harry Miltenberger

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Harry Miltenberger

  
	
   

  	
   

  	
   

  	
  Title: 

  	
  VP Finance Secretary &

  Chief Accounting Officer

  
									



 


PHASE II MALL SUBSIDIARY, LLC,


a Delaware limited liability company


 


	
  By: 

  	
  Phase II Mall Holding, LLC, its sole member

  
	
   

  	
  By:

  	
  Lido Casino Resort Holding Company, LLC, its manager

  
	
   

  	
   

  	
  By:

  	
  Lido Intermediate Holding Company, LLC, its managing
  member

  
	
   

  	
   

  	
   

  	
  By:

  	
  Venetian Casino Resort, LLC, its sole member

  
	
   

  	
   

  	
   

  	
  By:

  	
  Las Vegas Sands, Inc., its managing member

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Harry Miltenberger

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Harry Miltenberger

  
	
   

  	
   

  	
   

  	
  Title: 

  	
  VP Finance Secretary &

  Chief Accounting Officer

  
														



 


[Signature Page to
Disbursement Agreement]


 





















 


BANK AGENT:


 


THE BANK OF NOVA SCOTIA,


a Canadian chartered bank


 


 


	
  By: 

  	
  /s/ Alan Pendergast

  	
   

  
	
   

  	
  Name: 

  	
  Alan Pendergast

  
	
   

  	
  Title: 

  	
  Managing Director

  
				



 





















 


PHASE II MALL AGENT:


 


THE BANK OF NOVA SCOTIA,


a Canadian chartered bank


 


 


	
  By: 

  	
  /s/ Alan Pendergast

  	
   

  
	
   

  	
  Name: 

  	
  Alan Pendergast

  
	
   

  	
  Title: 

  	
  Managing Director

  
				



 





















 


BANK ARRANGER:


 


GOLDMAN SACHS CREDIT PARTNERS L.P.,


a Bermuda limited partnership


 


 


	
  By: 

  	
  /s/ William W. Archer

  	
   

  
	
   

  	
  Name: 

  	
  William W. Archer

  
	
   

  	
  Title: 

  	
  Managing Director

  
				



 





















 


DISBURSEMENT AGENT:


 


THE BANK OF NOVA SCOTIA,


a Canadian chartered bank


 


 


	
  By: 

  	
  /s/ Alan Pendergast

  	
   

  
	
   

  	
  Name: 

  	
  Alan Pendergast

  
	
   

  	
  Title: 

  	
  Managing Director