Exhibit 2.2
FIRST AMENDMENT
TO ASSET PURCHASE AGREEMENT
This FIRST AMENDMENT TO ASSET
PURCHASE AGREEMENT (this “ Amendment ”) is
made and entered into as of April 13, 2007, by and among Zia
Partners, LLC, a New Mexico limited liability company (“
Seller ”), Zia Park LLC, a Delaware limited liability
company (“ Buyer ”), and Penn National Gaming,
Inc., a Pennsylvania corporation (“ Parent Guarantor
”). Capitalized terms used but not defined in this
Amendment have the respective meanings set forth in the Purchase
Agreement (as defined below).
WHEREAS, on November 7, 2006,
Seller, Buyer, and (solely with respect to specific provisions
specified therein) Parent Guarantor entered into an Asset Purchase
Agreement (the “ Purchase Agreement ”);
and
WHEREAS, pursuant to Section 12.11
of the Purchase Agreement, Seller, Buyer and Parent Guarantor
desire to amend the Purchase Agreement as set forth in this
Amendment.
NOW, THEREFORE, the parties hereto,
in consideration of the premises and the covenants and agreements
contained herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound hereby, agree as follows:
ARTICLE I
AMENDMENTS
SECTION 1.1 Amendment of Section
4.1 . Section 4.1 of the Purchase Agreement is hereby
deleted in its entirety and replaced with the following:
Section
4.1
Closing . Unless this Agreement is earlier terminated
pursuant to ARTICLE IX hereof, the closing of the transactions
contemplated by this Agreement, including the purchase and sale of
the Purchased Assets (the “ Closing ”), shall
take place as soon as practicable following satisfaction or waiver
of the conditions set forth in ARTICLE VIII hereof (other than
those conditions to be satisfied or waived at the Closing), at such
time as the parties shall agree, at the offices of Skadden, Arps,
Slate, Meagher & Flom LLP, Four Times Square, New York, New
York 10036, unless another place is agreed to by the parties (the
“ Closing Date ”).
ARTICLE II
MISCELLANEOUS
SECTION 2.1 Effect of
Amendment . This Amendment shall not constitute an
amendment or modification of any provision of, or schedule or
exhibit to, the Purchase Agreement not expressly referred to in
this Amendment. Except as expressly amended or modified in
this Amendment, the provisions of the Purchase Agreement are and
remain in full force and effect. Whenever the Purchase
Agreement is referred to in the Purchase Agreement or in any other
agreement, document or instrument, such reference shall be deemed
to be to the Purchase Agreement, as amended by this Amendment,
whether or not specific reference is made to this
Amendment.
SECTION
2.2 Governing
Law; Consent to Jurisdiction; Waiver of Trial by
Jury
(a)
This Amendment, and all disputes between the parties under or
related to this Amendment or the facts and circumstances leading to
its execution, whether in contract, tort or otherwise, shall be
governed by and construed in accordance with the Laws of the State
of Delaware, applicable to contracts executed in and to be
performed entirely within the State of Delaware, without regard to
the conflicts of laws principles thereof.
(b)
Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and
