Exhibit 10.60


 


ASSIGNMENT AND ASSUMPTION OF AGREEMENT

AND

FIRST AMENDMENT TO AGREEMENT


 


This ASSIGNMENT AND ASSUMPTION OF AGREEMENT AND FIRST
AMENDMENT TO AGREEMENT (this “Agreement”), made this 30th day of
September, 2004, by and between LIDO CASINO RESORT, LLC, a Nevada limited liability company,
having an address at 3355 Las Vegas Boulevard South, Room 1C, Las Vegas, NV
89109 (“Assignor”), PHASE II
MALL HOLDING, LLC, a Nevada limited liability company, having an address
at 3355 Las Vegas Boulevard South, Room 1C, Las Vegas, NV 89109 (“Assignee”)
and GGP LIMITED PARTNERSHIP, a
Delaware limited partnership, with an address at 110 North Wacker Drive,
Chicago, Illinois 60606 (“Mall II Buyer”).


 


W I T N E S S E T H:


 


WHEREAS, Assignor, as Developer, and Mall II Buyer
entered into that certain Agreement dated as of April 12, 2004 (the “Phase
II Mall Sale Agreement”) whereby Assignor agreed to construct a mixed use
development on certain land in Las Vegas, Nevada and to convey a portion of
such development consisting of a proposed mall with retail shops and
restaurants to Mall II Buyer, all as more particularly described in the Phase
II Mall Sale Agreement;


 


WHEREAS, Assignor desires to assign to Assignee its
interest as Developer under the Phase II Mall Sale Agreement, and Assignee
desires to accept such assignment and assume Assignor’s obligations under the
Phase II Mall Sale Agreement, on and subject to the terms and conditions
hereinafter set forth;


 


WHEREAS, Mall II Buyer wishes to consent to such
assignment; and


 


WHEREAS, Assignor, Assignee and Mall II Buyer wish to
amend the Phase II Mall Sale Agreement on the terms and conditions set forth
herein.


 


NOW THEREFORE, in consideration of Ten Dollars
($10.00) paid by Assignee to Assignor and the mutual covenants and agreements
set forth herein, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:


 


ARTICLE I 
 DEFINITIONS


 


1.1           Capitalized terms used but not
otherwise defined herein shall have the respective meanings given to such terms
in the Phase II Mall Sale Agreement.


 





















 


ARTICLE II 

ASSIGNMENT AND ASSUMPTION OF PHASE II MALL SALE AGREEMENT


 


2.1           Assignor hereby assigns,
transfers, releases and sets over unto Assignee, its successors and assigns,
all of the right, title and interest of Assignor, as Developer in, to and under
the Phase II Mall Sale Agreement (as amended hereby) and that certain letter
agreement dated April 12, 2004 between Assignor and Mall II Buyer (the “Side
Letter”), to have and to hold the same unto Assignee, its successors and
assigns, from and after the date hereof, subject to the covenants, conditions
and other provisions contained therein (such assignment, transfer, release and
setting over, the “Assignment”). 
Assignee hereby accepts the Assignment and hereby assumes and agrees to
pay, perform, observe and discharge all of the covenants, conditions,
agreements, terms and conditions on the part of Developer (excluding the
Reserved Obligations (as defined below)) to be performed under the Phase II Mall
Sale Agreement and the Side Letter, in each case first arising from and after
the date hereof (collectively, and excluding the Reserved Obligations, the “Assigned
Obligations”).  “Reserved
Obligations” shall mean those rights and obligations under the Phase II
Mall Sale Agreement which are of such a nature that they can only be performed
by the entity that owns and develops the Phase II Hotel/Casino and which cannot
otherwise be performed by Assignee. 
Assignor covenants and agrees in favor of Assignee that it shall perform
the Reserved Obligations under the Phase II Mall Sale Agreement (and
acknowledges and confirms for the benefit of Mall II Buyer that it remains
liable to Mall II Buyer under the Phase II Mall Sale Agreement for performance
of the Reserved Obligations).


 


2.2           Mall II Buyer hereby consents to the
Assignment.  Such consent constitutes the
prior written consent to assignment required pursuant to Section 24.9 of the
Phase II Mall Sale Agreement.


 


2.3           Assignor and Assignee hereby agree,
as between themselves, that subject to performance by Assignor of its
obligations under Article III of this Agreement, Assignee shall be
solely responsible for the payment and performance of the Assigned Obligations
and shall indemnify and hold harmless Assignor from and against all claims,
expenses, losses, liabilities, damages, costs and expenses (including legal
fees) suffered or incurred in connection therewith.


 


2.4           Assignor shall be solely responsible
for any breaches under the Phase II Mall Sale Agreement and the Side Letter
arising prior to the date hereof, and for any breaches of any of the Reserved
Obligations, and shall indemnify and hold harmless Assignee from and against
all claims, expenses, losses, liabilities, damages, costs and expenses (including
legal fees) suffered or incurred in connection therewith.


 


ARTICLE III 

PERFORMANCE OF ASSIGNED OBLIGATIONS


 


3.1           Assignor and Assignee hereby agree,
as between themselves, that in consideration of the agreement by Assignee to
pay for the Mall Improvements (whether incurred on, before or after the date of
this Agreement), including the Common


 


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Elements and the Demising Walls located in
the Phase II Mall and the Build-Out of tenant spaces located in the Phase II
Mall, Assignor covenants and agrees to perform its obligations under Section
2.1.1 of the Master Disbursement Agreement of even date herewith by and among
Assignor, Assignee, Phase II Mall Subsidiary, LLC, The Bank of Nova Scotia as
the Bank Agent and as the Disbursement Agent and Goldman Sachs Credit Partners
L.P. as the Bank Arranger (whether or not such obligations are Assigned
Obligations), subject to and in accordance with the terms thereof.


 


3.2           Assignee and Assignor hereby agree,
as between themselves, that (a) all decisions in connection with the
design and construction of the Mall Improvements shall be made by Assignee and
Assignor subject to and in accordance with the Disbursement Agreement and
(b) if Mall II Buyer ever makes any claim that any of the Assigned
Obligations have not been performed in accordance with the Phase II Mall Sale
Agreement (as amended hereby), all decisions in connection with defending
against, responding to and/or settling such claim shall be made jointly by
Assignor and Assignee.


 


3.3           Assignor shall not be released by
reason of this Agreement or the Assignment from liability arising from any
failure by Assignee to perform any of the Assigned Obligations (“Assignee
Liability”).  All Assigned
Obligations shall constitute joint and several obligations of Assignee and
Assignor.  As between Assignor and
Assignee, Assignee agrees that it shall be solely responsible for any and all
Assignee Liability and shall indemnify and hold harmless Assignor from and
against all claims, expenses, losses, liabilities, damages, costs and expenses
(including legal fees) suffered or incurred in connection therewith other than
for a breach by Assignor under Section 3.1.  Assignor agrees that it shall be responsible
for any breaches by it under Section 3.1 and shall indemnify and hold
harmless Assignee from and against all claims, expenses, losses, liabilities,
damages, costs and expenses (including legal fees) suffered or incurred by
Assignee in connection therewith.


 


ARTICLE IV 

REPRESENTATIONS AND WARRANTIES


 


4.1           Assignor warrants and represents to
Assignee and Mall II Buyer that:


 


(a)           it
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Nevada and has all licenses necessary to
carry on its business as now being conducted therein;


 


(b)           it has all limited liability company power and authority to
execute and deliver this Agreement and to perform its obligations hereunder;


 


(c)           the execution and delivery of this Agreement and the performance
of its obligations hereunder and the consummation of the transactions
contemplated hereby have all been duly and validly authorized by all requisite
limited liability company action;


 


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(d)           this Agreement evidences the legal, valid, binding and
enforceable obligations of Assignor, subject to: (i) applicable bankruptcy,
insolvency and similar laws affecting the rights of creditors generally; and
(ii) general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or in law);


 


(e)           the
consummation of the transactions contemplated by this Agreement are being
conducted in the course of the duly authorized business activities of Assignor
and will not: (i) result in the breach of any term or provision of its
organizational documents; or (ii) result in the violation of any law, rule,
regulation, order, judgment or decree to which it or its property is subject;


 


(f)            no
consent, approval, authorization or order of any court or governmental agency
or any other Person is required for the execution, delivery and performance by
it of its obligations under this Agreement (other than consents, approvals and
authorizations of Government Authorities that have not yet been obtained but
that are reasonably expected to be obtained by dates that will permit all such
obligations to be performed when required); and


 


(g)           all
of the covenants, conditions, agreements, terms and conditions on the part of
Assignor to be performed under the Phase II Mall Sale Agreement arising prior
to the date hereof have been performed by Assignor in all material respects and
no act, condition or event exists thereunder which, with the giving of notice
and/or passage of time would constitute a breach by Assignor thereunder.


 


4.2           Assignee warrants and represents to
Assignor and Mall II Buyer that:


 


(a)           it
is a limited liability company duly organized, validly existing and in good
standing under the laws of the State of Nevada and has all licenses necessary
to carry on its business as now being conducted therein;


 


(b)           it has all limited liability company power and authority to
execute and deliver this Agreement and to perform its obligations hereunder;


 


(c)           the execution and delivery of this Agreement and the performance
of its obligations hereunder and the consummation of the transactions
contemplated hereby and thereby have all been duly and validly authorized by
all requisite limited liability company action;


 


(d)           this Agreement evidences the legal, valid, binding and
enforceable obligations of Assignee hereunder, subject to: (i) applicable
bankruptcy, insolvency and similar laws affecting the rights of creditors
generally; and (ii) general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or in law);


 


(e)           the consummation of the transactions contemplated by this
Agreement are being conducted in the course of the duly authorized business
activities of Assignee and will not: (i) result in the breach of any term or
provision of its


 


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organizational
documents; or (ii) result in the violation of any law, rule, regulation, order,
judgment or decree to which it or its property is subject; and


 


(f)            no
consent, approval, authorization or order of any court or governmental agency
or any other Person is required for the execution, delivery and performance by
it of its obligations under this Agreement (other than consents, approvals and
authorizations of Government Authorities that have not yet been obtained but
that are reasonably expected to be obtained by dates that will permit all such
obligations to be performed when required).


 


ARTICLE V 

AMENDMENTS TO PHASE II MALL SALE AGREEMENT


 


5.1           The Index of Defined Terms is hereby
amended to replace the reference to “Sch. 12” for the term “Substantial
Completion” in the Index of Defined Terms section of the Phase II Mall Sale
Agreement with a reference to “Sch. 11”.


 


5.2           The first sentence of Section 2.3(a)
of the Phase II Mall Sale Agreement is hereby amended and restated to read in
its entirety as follows:


 


“The Phase II Mall is intended to consist of 94,640
square feet of Floor Area of Leasehold Mall Space (the “Projected Leasehold
Floor Area”) and 346,500 square feet of Floor Area of Fee Mall Space (the “Projected
Fee Floor Area”).”


 


5.3           Each reference in Section 2.3(a) of
the Phase II Mall Sale Agreement to “95%” shall be deemed to be a reference to
“90%”.


 


5.4           The Leasing Plans that are part of
Exhibit A of the Phase II Mall Sale Agreement are hereby replaced in their
entirety with the Leasing Plans attached hereto and made a part hereof as
Exhibit A.


 


5.5           Section 14.7 of the Phase II Mall
Sale Agreement is amended by adding the words “by Developer” after “Closing
Instruments” in the fifth line.


 


5.6           Section 15.1(b) of the Phase II Mall
Sale Agreement is amended by adding the words “by Developer” after “Closing
Instruments” in the fourth line.


 


5.7           Section 10.1(f) of the Phase II Mall
Sale Agreement is hereby amended and restated to read in its entirety as
follows:


 


“All representations and warranties of Developer
(without reference to any modifications thereof contained in Developer’s
Representation Certificate) contained in this Agreement that are required to be
true, correct and complete as of the Closing Date shall be true, correct and
complete in all material respects subject, however, to matters known to Mall II
Buyer as of the date hereof; provided, however that if, as of the Closing Date,
there exists any outstanding judgments, orders, writs, injunction or decrees of
any Government Authority or pending Legal


 


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Proceedings against Developer in connection with the
Phase II Land or the Development that are not reasonably likely to have a
material adverse effect on the Phase II Mall, such state of facts shall not be
deemed a violation or breach of the representation and warranty made by
Developer in Section 15.1(c) hereof for purposes of this Section 10.1(f).  Nothing in this Section 11.1(f) shall limit
or abrogate in any way Developer’s obligations under Section 15.13 of this
Agreement.”


 


5.8           Section 15.1(e) of the Phase II Mall
Sale Agreement is amended by adding the words “and except as approved by Mall
II Buyer” after “Except as set forth on Schedule 18” in the first line.


 


5.9           Section 20.2(b)(1)(ii)(A) of the
Phase II Mall Sale Agreement is amended by adding the words “or by Developer
(which net aggregate amount may be a positive or negative number)” after the
words “Adjustment Payments made to Developer” in the second line of said
clause.


 


5.10         Section 20.2(c)(1)(ii)(A)
of the Phase II Mall Sale Agreement is amended by adding the words “or by
Developer (which net aggregate amount may be a positive or negative number)”
after the words “Adjustment Payments made to Developer” in the second line of
said clause.


 


5.11         Section 10.1(a) of the Phase II Mall
Sale Agreement is hereby amended and restated to read in its entirety as
follows:


 


“Developer shall have caused a commercial subdivision
of the Palazzo Casino Resort in order to cause the Fee Mall Space (excluding
the Casino Shops) to become one or more legal parcels which are separate and
distinct from the Phase II Land and capable of being conveyed in fee simple.”


 


5.12         Section 10.1(b) of the Phase II Mall
Sale Agreement is hereby amended and restated to read in its entirety as
follows:


 


“Developer shall have formed Mall II LLC and conveyed
Developer’s fee interest in the Fee Mall Space (excluding the Casino Shops) and
Developer’s leasehold in the Leasehold Mall Space to Mall II LLC.”


 


5.13         The definition of “Permitted
Encumbrances” in Section 1.1 of the Phase II Mall Sale Agreement is hereby
amended and restated to read in its entirety as follows:


 


““Permitted
Encumbrances” means, collectively, (i) the Encumbrances described in Schedule
“5”; (ii) mechanics liens insured over by the Title Insurer in a manner
reasonably satisfactory to Mall II Buyer or (if First American Title Insurance
Company is not the Title Insurer) that First American Title Insurance Company
would be willing to insure over in a manner reasonably satisfactory to Mall II
Buyer and (iii) any other


 


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Encumbrances
that the Title Insurer insures over, or provides affirmative coverage with
respect to, in a manner reasonably satisfactory to Mall II Buyer or (if First
American Title Insurance Company is not the Title Insurer) that First American
Title Insurance Company would be willing to insure over, or provide affirmative
coverage with respect to, in a manner reasonably satisfactory to Mall II Buyer
if it was the Title Insurer.”


 


5.14         Section 15.8 of the Phase II Mall Sale
Agreement is hereby amended and restated to read in its entirety as follows:


 


“Developer shall bond or otherwise discharge of
record, at Developer’s expense, any liens (excluding liens that are Permitted
Encumbrances) filed against the Phase II Mall before or after the Closing
by any contractor or subcontractor of Developer (or any other Persons claiming
through or under Developer).”


 


5.15         The first sentence of Section 16.2 of
the Phase II Mall Sale Agreement is hereby amended and restated to read in its
entirety as follows:


 


“Developer
shall bond or otherwise discharge of record, at Developer’s expense, any liens
(excluding liens that are Permitted Encumbrances) filed against the Building in
connection with the Landlord Build-Out or any contractor or subcontractor of
Developer (or any other Persons claiming through or under Developer).”


 


ARTICLE VI 

MISCELLANEOUS


 


6.1           This Agreement may be executed in one
or more counterparts which when taken together shall constitute but one
original.


 


6.2           This Agreement shall be binding on
and inure to the benefit of the parties hereto, their heirs, executors,
administrators, successors in interest and assigns.


 


6.3           As amended hereby, the Phase II Mall
Sale Agreement is ratified and confirmed in all respects.  Mall II Buyer has no knowledge of any breach
by Assignor of any of the Assigned Obligations as of the date hereof.  Assignor has no knowledge of any breach by
Mall II Buyer of any of Mall II Buyer’s obligations under the Phase II Mall
Sale Agreement as of the date hereof.


 


6.4           Each of Assignee and Assignor agrees
to execute, acknowledge (where appropriate) and deliver such other or further
instruments as the other may reasonably require to confirm the obligations of
Assignor and Assignee under this Agreement, or as may be otherwise reasonably
requested by the other to carry out the intent and purposes of the foregoing


 


6.5           This Agreement shall be governed by
the laws of Nevada (other than principles of conflicts of laws).


 


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[Signatures begin on the following page.]


 


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IN WITNESS WHEREOF, Assignor, Assignee and Mall II
Buyer have caused this Assignment and Assumption of Agreement and First
Amendment to Agreement executed as of the date and year first above set forth.


 


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
  LIDO CASINO RESORT, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Lido Intermediate Holding Company, LLC, its

  
	
   

  	
   

  	
  managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Venetian Casino Resort, 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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Signatures
  continue on the following page.]

  
								



 


 


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[ASSIGNMENT AND
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  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  PHASE II MALL HOLDING, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Lido Casino Resort Holding Company, LLC,

  
	
   

  	
   

  	
  its Manager

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Lido Intermediate Holding Company,

  
	
   

  	
   

  	
   

  	
  LLC, its managing member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Venetian Casino Resort, 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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Signatures
  continue on the following page.]

  
										



 


 


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[ASSIGNMENT AND
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  MALL II BUYER:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GGP LIMITED PARTNERSHIP

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  General
  Growth Partnership, Inc.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ JOEL
  BEYER

  	
   

  
	
   

  	
   

  	
   

  	
  Name: JOEL
  BEYER

  
	
   

  	
   

  	
   

  	
  Title:
  SENIOR VICE PRESIDENT

  
						



 


 


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[ASSIGNMENT
AND ASSUMPTION OF AGREEMENT AND FIRST AMENDMENT TO AGREEMENT]