SECOND AMENDMENT TO
PURCHASE AND SALE AGREEMENT
(WITH OPTION)
This Second Amendment to Purchase and Sale Agreement (With
Option) (the "Second Amendment") is made and entered into as of
August 30, 1998, by and between The Xxxxx Xxxx Companies, a
Nevada corporation ("Purchaser") and RZ Corporation, a Nevada
corporation ("Seller"), based upon the following:
RECITALS
A. The Parties hereto entered into a Purchase and Sale
Agreement (With Option) dated as of August 12, 1998, (the
"Agreement").
B. The Parties entered into a First Amendment to Purchase and
Sale Agreement (With Option) dated as of August 24, 1998, (the
"First Amendment") amending the Agreement.
C. The Parties hereto are desirous of further amending the
Agreement as amended by the First Amendment as hereinafter set
forth in this Second Amendment.
D. Terms used in this Second Amendment shall be defined as set
forth in the Agreement.
NOW, THEREFORE, based upon the foregoing and in
consideration of the mutual covenants hereinafter set forth, it
is agreed as follows:
1. The title of the Agreement is amended by striking the words
"("With Option")".
2. The definitions set forth in Sections 1.13 ("Estoppel
Certificate"); 1.17 ("Options"), 1.18 ("Option Closings"), 1.19
("Option Consideration"), and 1.20 ("Option Periods") are deleted.
3. The following language shall be added to the Agreement as a
new Section 1.17:
"Parcel II" shall be defined as meaning that certain real
property defined herein as the "Condemned Parcel", the legal
description of which is attached hereto on Exhibit F-1.
4. The following language is added to the Agreement as a new
Section 1.18:
"Parcel II Purchase Price" shall mean the sum of Four
Million Five Hundred Ninety-Six Thousand Five Hundred
Dollars ($4,596,500.00) to be paid to Seller by Purchaser
in consideration for Parcel II, subject to the conditions
and in accordance with the provisions set forth in Section
16 hereof.
EXHIBIT 10.6
5. Section 1.23 is amended by deleting the last sentence and
substituting therefore the following language:
"A legal description of the Property is attached hereto on
Exhibit F-1."
6. Section 2.3 ("Options") is deleted in its entirety.
7. The last sentence of Section 9.1.3 and all of Sections 9.1.8
and 9.1.9 are deleted and the following substituted at
Section 9.1.8:
The Board of County Commissioners of Xxxxx County, Nevada
shall have approved an agreement with Purchaser or any
affiliate of Purchaser, acceptable to Purchaser in its sole
discretion, specifically providing, inter alia, (i) that the
Xxxxxx Avenue extension to the west of the Strip shall not
be constructed upon or adjacent to Parcel II, but shall be
relocated to a public right-of-way located elsewhere upon
the Property or property belonging to an affiliate of
Purchaser, at a location acceptable to Purchaser in its
sole discretion, (ii) that the County shall not seek to
recover a refund of the Two Million Four Hundred Three
Thousand Five Hundred Dollars ($2,403,500.00) previously
paid to Seller in the Condemnation Proceeding; provided,
however, that the condition set forth in this Section 9.1.8.
shall be deemed satisfied or waived by Purchaser unless
Purchaser notifies Seller's counsel, Xxxx Xxxxxx, Esq.,
to the contrary, in writing, by facsimile and hand delivery
to Xx. Xxxxxx'x office no later than 5:00 p.m., Pacific
Time, Monday, August 31, 1998.
8. A new Section 17 is added to the Agreement as follows:
17. Purchase and Sale of Parcel II.
17.1 Conditioned upon the concurrent Closing of the sale
of the Property from Seller to Purchaser, Purchaser
also agrees to purchase from Seller, and Seller agrees
to sell to Purchaser Parcel II, together with Seller's
interest, if any, in any buildings and improvements
located thereon and all rights, licensing and
easements appurtenant thereto.
17.2 The closing of the purchase and sale of Parcel II (the
"Parcel II Closing") shall occur through escrow
utilizing the Escrow Agent. At the Parcel II Closing,
the Parcel II Purchase Price shall be paid to Seller
by Purchaser in immediately available United States
funds for disbursement pursuant to Seller's
instructions, subject to the same prorations as are
set forth with respect to the Property at Section 11
above.
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17.3 Parcel II shall be conveyed to Purchaser by Seller
free and clear of any liens, encumbrances, mortgages,
pledges, obligations, etc., imposed by Seller except
for the Condemnation Proceeding, by a grant, bargain
and sale deed in substantially the form of Exhibit
"B" hereto.
17.4 In the event that the same has not been dismissed, or
a stipulation has not been entered into for the
dismissal of the Condemnation Proceeding prior to
the Parcel II Closing, Seller shall assign and
transfer to Purchaser all of Seller's rights and
interests in the Condemnation Proceeding as they
relate to ownership of Parcel II; provided, however,
that Seller shall be entitled to retain the sum of
Two Million Four Hundred Three Thousand Five Hundred
Dollars ($2,403,500.00) previously received by Seller
in the Condemnation Proceeding, and Purchaser
covenants and agrees to indemnify, defend and hold
Seller harmless from any claims seeking a refund or
repayment of said amount or interest thereon. Seller
shall be solely responsible for payment of any fees or
expenses alleged to be owing or owed from Seller to
counsel engaged by Seller and relating to such
counsel's representation of Seller in the Condemnation
Proceeding.
17.5 The Parcel II Closing is subject to the Title Company
delivering to Purchaser a Title Policy dated on
the date of the Parcel II Closing, in the amount of
the Parcel II Purchase Price, ensuring Purchaser as
owner of fee title to Parcel II subject only to the
Permitted Exceptions, the Leases, and (if the same has
not previously been dismissed) the Condemnation
Proceeding.
17.6 The parties' respective conditions to the Parcel II
Closing shall be as set forth in Section 9 with
respect to the closing of the Escrow for the purchase
and sale of the Property.
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17.7 Seller's representations and warranties with respect
to Parcel II shall be limited to the representations
and warranties set forth in Sections 5.2 through 5.6
and (to the extent of operating revenues generated
from Parcel II) 5.16 hereof. Seller's representations
and warranties in this Section 17.7 shall survive
for thirty (30) months after the Parcel II Closing.
17.8 From and after the Parcel II Closing, subject to
Section 12.3, Seller shall indemnify, defend and hold
Purchaser harmless from any and all claims, demands,
liabilities, judgments or expenses (including, without
limitation, attorney's fees) arising out of or
resulting from Seller's breach of any of its represen-
tations, warranties or covenants set forth in this
Second Amendment. From and after the Parcel II
Closing, Purchaser shall indemnify, defend and hold
Seller harmless from any and all claims, demands,
liabilities, judgments or expenses (including, without
limitations, attorney's fees) arising out of or
resulting from Purchaser's breach of any of its repre-
sentations, warranties or covenants set forth herein.
9. Except as modified by the foregoing provisions of the Second
Amendment, all of the terms and conditions of the Agreement as
modified by the First Amendment shall remain in full force and
effect.
10. This Agreement may be signed in multiple counterparts, which
taken together shall constitute one and the same document.
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IN WITNESS WHEREOF, the parties hereto have caused this
Second Amendment to be executed as of the day and year first
mentioned above.
SELLER:
RZ Corporation, a Nevada corporation
By: A. XXXXXX XXXX
-----------------------------------
Xxxxxx Xxxx, President
PURCHASER:
The Xxxxx Xxxx Companies, a
Nevada corporation
By: XXXXXX X. XXX
-----------------------------------
Xxxxxx X. Xxx, Secretary/Treasurer
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