\n\n
THIRD AMENDMENT TO ASSET AND LAND PURCHASE AGREEMENT
<\/b><\/p>\n\nTHIS THIRD AMENDMENT TO ASSET AND LAND PURCHASE AGREEMENT (\"Third Amendment<\/b>\") is executed as of the 22nd day of \nJune, 2000 by and among STARWOOD HOTELS & RESORTS WORLDWIDE, INC., SHERATON GAMING CORPORATION and SHERATON DESERT INN CORPORATION (collectively, \n\"Sellers<\/b>\") and VALVINO LAMORE, LLC (\"VL<\/b>\"), STEPHEN A. WYNN \n(\"WYNN<\/b>\"), RAMBAS MARKETING CO., LLC., a Nevada limited liability company (\"Rambas<\/b>\") and DESERT INN WATER \nCOMPANY, LLC, a Nevada limited liability company (\"DIWC<\/b>\"; together with Rambas, Wynn and VL, the \n\"Purchaser<\/b>\"). <\/p>\n\n
RECITALS <\/b><\/p>\n\n
A. Sellers \nand Purchaser executed that certain Asset and Land Purchase Agreement dated as of April 28, 2000 pursuant to which Sellers have agreed to sell and \nPurchaser has agreed to purchase The Desert Inn Hotel and Casino and other related assets (the \"Original Purchase Agreement<\/b>\"). <\/p>\n\n
B. The \nOriginal Purchaser Agreement was amended by a First Amendment to Asset and Land Purchase Agreement, executed as of May 26, 2000 (the \n\"First Amendment<\/b>\") and Purchaser's rights and obligations under the Original Purchase Agreement, as amended, were partially assigned to Rambas and DIWC \npursuant to Assignment and Assumption Agreements. <\/p>\n\n
C. The \nOriginal Purchase Agreement was further amended by a Second Amendment to Asset and Land Purchase Agreement, executed as of June 16, 2000 (the \n\"Second Amendment<\/b>\"). The Original Purchase Agreement as amended by the First Amendment and the Second Amendment and as partially assigned, is referred \nto herein as the \"Purchase Agreement<\/b>\"). <\/p>\n\n
D. Purchasers \nhave now received all Gaming Permits approvals necessary to consummate the transactions contemplated by the Agreement, as heretofore amended, and the parties \ntherefore intend to close this transaction on site at the Business effective as of 12:01 a.m., June 23, 2000. <\/p>\n\n
E. In \npreparation for the Closing, the parties have found themselves in dispute over a number of items which they wish to resolve fully and finally prior to Closing. <\/p>\n\n
NOW, \nTHEREFORE, in consideration of the foregoing Recitals, the covenants and agreements set forth below and for other good and valuable consideration, the receipt and sufficiency of \nwhich are hereby acknowledged, the parties hereby agree as follows: <\/p>\n\n
AMENDMENT <\/b><\/p>\n\n
1. Capitalized \nterms not otherwise defined herein shall have the meanings assigned to them in them in the Purchase Agreement. <\/p>\n\n
2. The \nPurchase Agreement is hereby amended by adding thereto new Section 1.4 as follows: <\/p>\n\n<\/pre>\n
“Section 1.4. (i) Sellers (ii) Sellers (iii) Purchaser (iv) Sellers 3. Section 1.5 (a) The (b) Current (c) Reserves (d) Purchaser (e) The 2<\/p>\n (f) For (g) As Subsection 4. Section 2.2 (i) Closing (ii) The (iii) Escrowee, (iv) Section 2.2(d)(i) is 5. Purchaser 3<\/p>\n 6. With 7. The 8. Section 11.1 (a) The “provided, (b) The “and 9. Sellers 10. Pursuant 11. The 4<\/p>\n IN 5<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8933],"corporate_contracts_industries":[9530],"corporate_contracts_types":[9623,9622],"class_list":["post-43267","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-starwood-hotels---resorts","corporate_contracts_industries-travel__lodging","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43267","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43267"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43267"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43267"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43267"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}
\nShort-Term Disability Claims. Sellers maintain a blanket short-term disability insurance policy for their employees through a self-funded
\nshort-term disability policy administered through Hartford Insurance Companies (“STD Policy<\/b>“). Sellers have advised Purchaser and Purchaser
\nhas agreed that it would not be practical to terminate the STD Policy as to the Business prior to June 30, 2000 (the “Term Date<\/b>“). Accordingly: <\/p>\n\n
\nshall receive a credit and Purchaser a debit as against the Purchase Price in the amount of $46,646.59, reflecting Sellers’ liability not reflected in the books
\nand records of SDIC for days of disability pay (“Disability Days<\/b>“) Sellers will be required to pay attributable on account of Disability Days from and
\nafter June 23, 2000, under currently pending claims under the STD Policy. <\/p>\n<\/ul>\n<\/ul>\n
\n\n
\n
\nwill be responsible (a) to administer all claims made on the STD Policy prior to the Term Date and (b) to pay, without reimbursement, for any
\nDisability Days occurring through June 22, 2000 for which claims are made within 90 days of the occurrence or purported occurrence giving rise to such claim; notwithstanding anything to
\nthe contrary contained in the Purchase Agreement, claims for such Disability Days shall not be deemed included in Assumed Liabilities; <\/p>\n
\nshall be responsible (a) to pay all Disability Days incurred from and after Closing, whether or not such Disability Days relate to a disability first
\noccurring or commencing before or after Closing and (b) to pay or, at Purchaser’s sole cost and expense, defend against claims for Disability Days occurring prior to June 23, 2000 which
\nwere not timely reported (i.e.<\/i> within 90 days of the occurrence or purported occurrence) and the liability therefor shall, in each case,
\nnotwithstanding any provision to the contrary, constitute and be included as an Assumed Liability. Sellers will invoice Purchaser in one or more installments for any such Disability Day, and Purchaser
\nshall, on presentation of appropriate back-up materials as required below, reimburse Sellers within ten (10) days of invoice therefor, or in the case of clause (b) commence,
\nat its costs, defense there against. Purchaser agrees that such invoices not paid when due shall bear interest at 10% per annum until paid. Sellers shall provide such reasonable back-up
\nmaterials as are necessary to allow Purchaser to evaluate the claims submitted, if any. Sellers have advised Purchaser of Sellers’ normal practice of invoicing individual properties covered under the
\nSTD Policy only after the end of each calendar year. Sellers reserve the right, at their sole discretion, to continue such practice or to invoice Purchaser periodically. <\/p>\n
\nshall cause the STD Policy to be terminated as to the Business for periods commencing from and after July 1, 2000 and Purchaser shall be solely
\nresponsible for its own short term disability policies from and after such date. <\/p>\n<\/ul>\n<\/ul>\n
\nof the Purchase Agreement, including without limitation all references therein to GAAP and or to consistency with “past practices”, is hereby deemed
\namended and modified to reflect each of the following agreements of the parties, which shall apply in the calculation of both the Estimated Closing Net Capital Working Amount and for the final
\ncalculations of the Closing Net Working Capital: <\/p>\n\n
\n“Capital Expenditure Adjustment Amount” is $16,097. <\/p>\n
\nliabilities shall be deemed to include only 35.565% (632, divided by 1,777) of the face amount of liabilities for chips and tokens outstanding on Sellers’ books
\nand records as of Closing. <\/p>\n
\nof 37% of face amounts of accounts receivable shall be conclusively deemed reasonable, consistent with SDIC’s past practices and the Reference Balance Sheet,
\nGAAP and sound accounting practices in the hotel and casino industry. Purchaser’s sole inquiry, pursuant to Section 1.5(b) of the Purchase Agreement and otherwise, with respect to the net
\namount of accounts receivable included in Closing Net Working Capital shall be to verify the existence of a marker, evidence of indebtedness or other documentation supporting the face amount of each
\naccount receivable. <\/p>\n
\nwill not acquire Sellers’ cash in bank or Rimtech cash and such items have therefore been excluded from current assets. <\/p>\n
\nEstimated Closing Net Working Capital Amount shall be conclusively $3,335,000, which amount is based on the SDIC balance sheet dated as of May 31, 2000,
\nadjusted as shown on the worksheet attached hereto as Schedule 1. <\/p>\n<\/ul>\n
\n\n<\/p>\n
\npurposes of determining Closing Net Working Capital, room receipts for rooms occupied during the night on which the Closing shall occur
\n(i.e.<\/i>, from the night of June 22, 2000 to the morning of June 23, 2000), shall be divided equally between Seller and Purchaser, with
\nSellers’ one half share being credited to the Closing Net Working Capital. <\/p>\n
\nPurchaser completes the initial “true-up” of current assets and current liabilities, including the initial results of pre-Closing\/Closing
\ncounts of inventory, cash on hand, chips and tokens, and accounts receivable, as well as general ledger, subledgers and final data concerning Sellers’ liability for the Starwood Preferred Guest
\nProgram, currently estimated at $47,000, Purchaser will promptly and in all events within fifteen (15) days following the Closing deliver to Sellers all relevant data and Backup Material
\nregarding such items. Upon receipt of all such data and Backup Material, Sellers shall have an additional fifteen (15) days within which to finalize and deliver to Purchaser Seller’s updated
\ncalculation of Estimated Net Closing Working Capital (the “Updated Calculation<\/b>“). Purchaser shall then have the balance of the original ninety
\n(90) day period contemplated by Section 1.5 (b) of the Purchase Agreement, to deliver to Sellers Purchaser’s calculation of Closing Net Working Capital and Backup Material. The
\nfailure of Purchaser to provide such calculation and such Backup Material shall be conclusively deemed Purchaser’s acceptance of the Updated Calculation if Sellers have submitted same, or of Sellers’
\ncalculation of Estimated Closing Net Working Capital ($3,335,000) if Sellers shall fail timely to submit the Updated Calculation. <\/p>\n<\/ul>\n
\n(g), above, shall not be construed to supersede the dispute resolution provisions set forth in Section 1.5 (c) of the Purchase Agreement. However, to the extent
\nof any inconsistency between the terms of this Section 3 and the terms of the Original Purchase Agreement and any prior amendment thereto, the terms of this Section 3 shall be
\ncontrolling. <\/p>\n
\nof the Purchase Agreement is hereby amended to reflect the following: <\/p>\n\n
\n
\nshall take place at the offices of the Business, The Desert Inn Resort & Casino, 3145 Las Vegas Boulevard South, Las Vegas, Nevada 89109, at
\n12:01 a.m., June 23, 2000. <\/p>\n
\nitems referred to in Section 2.2(b)(ii)-(iv) shall be accomplished by delivery to Escrowee of the documents referred to therein on or before the close
\nof business June 22, 2000, with all of which items and documents Sellers’ counsel and Purchaser’s counsel have acknowledged their satisfaction. <\/p>\n
\nthrough an authorized representative, shall attend the Closing, shall countersign Closing escrow instructions approved by Sellers and Purchaser, shall issue
\nan undertaking in favor of Purchaser and Sellers to disburse funds and record all recordable documents immediately upon the opening of business on June 23, 2000, and shall cause Escrowee’s
\nparent corporation, Commonwealth Land Title Insurance Company, to issue an insured closing letter in favor of Sellers which is satisfactory to Sellers in their sole discretion. <\/p>\n
\nhereby deleted in its entirety. <\/p>\n<\/ul>\n<\/ul>\n
\nacknowledges that from time to time since the date of the Original Purchase Agreement Sellers have, directly or through their counsel, advised Purchaser of
\nadditional facts, including litigation and additional contracts, not previously scheduled in the Original Purchase Agreement. Purchaser further acknowledges that with respect to those Contracts for
\nwhich consent is required in connection with the assignment thereof, Sellers have requested such consents, the majority of which requests have not been answered. Sellers make no representation or
\nwarranty as to the efficacy of any assignment or purported assignment of such Contracts. <\/p>\n
\n
\nrespect to Section 6.6 of the Purchase Agreement, the parties acknowledge that they have not yet received PUC approval for the transfer of the DIIC Shares.
\nAccordingly, solely for purposes of agreeing upon the form of documentation and to avoid the necessity of a subsequent closing, the parties are, concurrently with the Closing, depositing with Escrowee
\nundated lost certificate affidavits,
\nstock powers, assignment and assumption agreements and other documents, including undated resignations of certain officers and directors of DIIC and have instructed Escrowee to withhold from the
\nPurchase Price to be disbursed to Sellers at Closing the amount of the DIIC Shares Consideration, which monies shall not be disbursed to Sellers except upon lawful transfer of the DIIC Shares. The
\nparties agree that the DIIC Shares Consideration shall constitute that portion of the Purchase Price which is allocable to the DIIC Shares, which the parties agree is $17,500. <\/p>\n
\ndraft escrow settlement statement, attached hereto as Schedule 2, accurately reflects the Parties’ agreement as to allocation of the purchase price to Real
\nProperty Assets and the Starwood Timeshare Interests and the DI Timeshare Interests. <\/p>\n
\nof the Purchase Agreement is hereby amended as follows: <\/p>\n\n
\nprovision in Clause (r) of the definition of “Assets” set forth in Section 11.1 of the Purchase Agreement is amended to provide as follows: <\/p>\n\n
\n
\nhowever, an amount equal to 64.435% of the liabilities represented by the chips and tokens in circulation shall be excluded from the calculation of Closing Net Working Capital and the
\nobligation to redeem all chips and tokens shall be an Assumed Liability.” <\/p>\n<\/ul>\n<\/ul>\n
\ndefinition of Assumed Liabilities is amended by adding the following to the end of Subsection (i) thereof, prior to “;”: <\/p>\n\n
\n
\nkeno tickets” <\/p>\n<\/ul>\n<\/ul>\n<\/ul>\n
\nshall receive a credit at Closing for the sum of outstanding charges due under the Occupancy Agreement dated May 26, 2000 between SDIC on the one hand and
\nWynn and VL on the other hand, and subject to Section 3(g) of this Amendment, Purchaser shall receive a credit at Closing in the amount of $47,000 representing the liability under the Starwood
\nPreferred Guest Program. <\/p>\n
\nto Section 2.1(e) of the Purchase Agreement, Purchaser has notified Sellers of Purchaser’s objection to the lis pendens filed June 21, 2000, in
\nconnection with Case No. A415224 (the “Lis Pendens”) as an Unpermitted Exception. Sellers have accordingly caused Title Company to commit to issue the Title Policy without showing as an exception
\nthereto the Lis Pendens. <\/p>\n
\nPurchase Agreement, as modified by this Amendment, shall continue in full force and effect, and this Amendment shall constitute a part of the Purchase Agreement. All
\nreferences in the Purchase Agreement to itself shall be deemed references to the Purchase Agreement as amended hereby. <\/p>\n
\n
\nWITNESS WHEREOF, the parties have hereunto caused this Second Amendment to be duly executed as of the date first above written. <\/p>\n\n
\n <\/td>\n <\/td>\n STARWOOD HOTELS & RESORTS WORLDWIDE, INC.<\/td>\n<\/tr>\n \n \n <\/td>\n <\/td>\n \nBy:<\/td>\n <\/td>\n \n\/s\/ THOMAS M. SMITH <\/p>\n
<\/td>\n<\/tr>\n\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n Name:
\nTitle:<\/td>\n <\/td>\n Thomas Smith
\nSenior Vice President<\/td>\n<\/tr>\n\n \n <\/td>\n <\/td>\n SHERATON GAMING CORPORATION<\/td>\n<\/tr>\n \n \n <\/td>\n <\/td>\n \nBy:<\/td>\n <\/td>\n \n\/s\/ THOMAS M. SMITH <\/p>\n
<\/td>\n<\/tr>\n\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n Name:
\nTitle:<\/td>\n <\/td>\n Thomas Smith
\nVice President<\/td>\n<\/tr>\n\n \n <\/td>\n <\/td>\n SHERATON DESERT INN CORPORATION<\/td>\n<\/tr>\n \n \n <\/td>\n <\/td>\n \nBy:<\/td>\n <\/td>\n \n\/s\/ MARK LEFEVER <\/p>\n
<\/td>\n<\/tr>\n\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n Name:
\nTitle:<\/td>\n <\/td>\n Mark Lefever
\nCOO\/CFO, Vice President<\/td>\n<\/tr>\n\n \n <\/td>\n <\/td>\n VALVINO LAMORE, LLC<\/td>\n<\/tr>\n \n \n <\/td>\n <\/td>\n \nBy:<\/td>\n <\/td>\n \n\/s\/ STEPHEN A. WYNN <\/p>\n
<\/td>\n<\/tr>\n\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n Name:
\nTitle:<\/td>\n <\/td>\n Stephen A. Wynn
\nSole Member<\/td>\n<\/tr>\n\n \n <\/td>\n <\/td>\n \n\/s\/ STEPHEN A. WYNN <\/p>\n
Stephen A. Wynn, an individual<\/td>\n<\/tr>\n\n \n <\/td>\n <\/td>\n DESERT INN WATER COMPANY, LLC,
\nA NEVADA LIMITED LIABILITY COMPANY<\/td>\n<\/tr>\n\n \n <\/td>\n <\/td>\n \nBy:<\/td>\n <\/td>\n \n\/s\/ STEPHEN A. WYNN <\/p>\n
<\/td>\n<\/tr>\n\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n Name:
\nTitle:<\/td>\n <\/td>\n Stephen A. Wynn
\nSole Member<\/td>\n<\/tr>\n\n \n <\/td>\n <\/td>\n RAMBAS MARKETING CO., LLC,
\nA NEVADA LIMITED LIABILITY COMPANY LLC<\/td>\n<\/tr>\n\n \n <\/td>\n <\/td>\n \nBy:<\/td>\n <\/td>\n \nValvino Lamore<\/td>\n<\/tr>\n \n <\/td>\n <\/td>\n <\/td>\n <\/td>\n Its: Sole Member<\/td>\n<\/tr>\n \n \n <\/td>\n <\/td>\n \n <\/td>\n <\/td>\n \nBy:<\/td>\n <\/td>\n \n\/s\/ STEPHEN A. WYNN <\/p>\n
<\/td>\n<\/tr>\n\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n <\/td>\n Name:
\nTitle:<\/td>\n <\/td>\n Stephen A. Wynn
\nSole Member<\/td>\n<\/tr>\n<\/table>\n