Exhibit 10.3
SECOND AMENDMENT dated as of April 5, 2001 (this "Amendment"),
to the Purchase Agreement dated as of October 30, 2000 and amended by a First
Amendment dated February 28, 2001 (the "Purchase Agreement"), among COLONY RIH
ACQUISITIONS, INC., a Delaware corporation, SUN INTERNATIONAL NORTH AMERICA,
INC., a Delaware corporation, and GGRI, INC., a Delaware corporation. Each
capitalized term used and not otherwise defined herein shall have the meaning
assigned to such term in the Purchase Agreement.
WHEREAS, pursuant to the Purchase Agreement, Buyer has agreed
to purchase (i) all of the outstanding shares of capital stock of RIH from
Seller and (ii) the Warehouse Assets and all of the outstanding shares of
capital stock of New Pier from Parent; and
WHEREAS, Parent and Seller have requested Buyer to modify the
Purchase Agreement in order to accelerate the date by which the transactions
contemplated by the Purchase Agreement must close, assuming the conditions to
closing set forth therein have been satisfied or waived; and
WHEREAS, Buyer is prepared to enter into a Credit Agreement,
among Buyer; the Guarantors party thereto; the Lenders named therein; Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, as sole lead
arranger and bookrunner; and Bankers Trust Company, as administrative agent (the
"Credit Agreement, and the lenders named therein, the "Lenders"), under which
Buyer expects to receive the proceeds of certain loans that will enable Buyer to
consummate the transactions contemplated by the Purchase Agreement, assuming the
other conditions to closing set forth in the Purchase Agreement shall have been
satisfied; and
WHEREAS, the Credit Agreement contemplates a funding by the
Lenders on or before April 27, 2001, subject to satisfaction of certain
conditions set forth therein.
NOW, THEREFORE, in consideration of the mutual agreements
herein contained and other good and valuable consideration, the sufficiency and
receipt of which are hereby acknowledged, the parties hereto agree as follows:
Section 1. Amendments to the Purchase Agreement.
(a) Exhibit A hereto is hereby attached to the Purchase
Agreement as Exhibit A.
(b) Exhibit B to the Purchase Agreement is hereby deleted and
Exhibit B hereto substituted therefor; and
(c) Exhibit C to the Purchase Agreement, excluding the
exhibits to such Exhibit C, is hereby deleted and Exhibit C hereto is
substituted therefor.
(d) Section 3.2 of the Purchase Agreement is hereby amended
and restated in its entirety to read as follows:
Section 3.2 Purchase Price. On the terms and subject
to the conditions set forth in this Agreement, Buyer shall pay to
Seller and Parent at the Closing an aggregate purchase price of
$140,000,000 plus interest thereon at 6% per annum from and including
September 30, 2000 to but excluding the Closing Date (the "Purchase
Price"). The Purchase Price shall be payable at Closing (i) by delivery
of a promissory note of Colony RIH Holdings, Inc., a Delaware
corporation, payable to Parent in the initial principal amount of
$17,500,000 in the form attached hereto as Exhibit A (the "Note"), and
(ii) by wire transfer of immediately available funds to Seller in an
amount equal to the difference between the Purchase Price and the
principal amount of the Note. At Parent's election, the Note may be
issued to an Affiliate of Parent, subject to regulatory approval and
provided that such election does not delay the Closing.
(e) Sections 9.1(b), 9.1(c) and 9.1(d) are hereby amended by
deleting all references to the date "July 31, 2001" in such sections and
replacing all such references with the date "April 30, 2001". Section 9.1(b) is
hereby further amended by deleting the proviso contained therein.
(f) Section 9.1(e) is hereby amended and restated in its
entirety to read as follows:
(e) by Buyer, Parent or Seller by written notice to
the other parties if the condition set forth in Section 7.2(j) shall
not be fulfilled by 12:01 A.M. EST on April 28, 2001 and at the time
Buyer, Parent or Seller elects to terminate this Agreement pursuant to
this Section 9.1(e), all of the other conditions set forth in Article
VII have been fulfilled or waived (or are capable of being fulfilled at
such time); provided, however, that no termination pursuant to this
Section 9.1(e) may occur prior to April 28, 2001; provided further,
however, that if this Agreement is terminated pursuant to this Section
9.1(e) on or after April 28, 2001, then Buyer shall pay Seller
liquidated damages in the amount of $2,500,000 within 10 Business Days
following the date of such termination.
(g) Notwithstanding anything to the contrary, Buyer
acknowledges that the Warehouse Assets were at the time of execution of the
Purchase Agreement owned by RIH. All representations and warranties in the
Purchase Agreement with respect to the Warehouse Assets are hereby deemed
restated to reflect ownership by RIH until March 27, 2000, and thereafter
ownership by Parent, and Buyer waives any claim of default or other rights or
remedies arising solely from the ownership of the Warehouse Assets by RIH until
March 27, 2000.
Section 2. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CHOICE
OF LAW PROVISIONS THEREOF.
Section 3. Headings. The headings of this Amendment are for purposes of
convenience only and shall affect the meaning or interpretation of this
Amendment.
Section 4. Counterparts. This Amendment may be executed (including by facsimile
transmission) with counterpart signature pages or in several counterparts, each
of which shall be deemed an original and all of which shall together constitute
one and the same instrument.
Section 5. Effect of Amendment. Except as expressly amended by this Amendment,
the Purchase Agreement shall remain in full force and effect as the same was in
effect immediately prior to the effectiveness of this Amendment. All references
in the Purchase Agreement to "this Agreement" shall be deemed to refer to the
Purchase Agreement as amended by this Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their respective authorized officers as of the
day and year first above written.
SUN INTERNATIONAL NORTH AMERICA, INC.,
as Parent,
By: /s/ Charles D. Adamo
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Name: Charles D. Adamo
Title: Executive Vice President and Secretary
GGRI, INC.,
as Seller
By: /s/ Charles D. Adamo
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Name: Charles D. Adamo
Title: Executive Vice President
COLONY RIH ACQUISITIONS, INC.,
as Buyer
By: /s/ Nicholas L. Ribis
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Name: Nicholas L. Ribis
Title: Vice President and Secretary