Exhibit
10.1
EXECUTION VERSION
FIRST AMENDMENT
TO
ASSET PURCHASE
AGREEMENT
THIS FIRST AMENDMENT TO ASSET
PURCHASE AGREEMENT, dated as of October 28, 2008 (this “
Amendment ”), is made by and among Trump Marina
Associates, LLC, a New Jersey limited liability company (“
Seller ”), Trump Entertainment Resorts, Inc., a
Delaware corporation (“ Parent ”), Coastal
Marina, LLC, a New Jersey limited liability company (“
Buyer ”), and Coastal Development, LLC, a Delaware
limited liability company (“ Buyer Affiliate
”).
WHEREAS, Buyer, Seller, Parent and
Buyer Affiliate are parties to that certain Asset Purchase
Agreement dated as of May 28, 2008 (the “ Asset Purchase
Agreement ”; capitalized terms used in this Amendment
which are not defined herein shall have the respective meanings
assigned to them in the Asset Purchase Agreement); and
WHEREAS, the parties wish to amend
the Asset Purchase Agreement to modify certain of the terms and
conditions of the Asset Purchase Agreement as set forth herein;
and
WHEREAS, in consideration of the
amendments agreed to by Buyer and Seller herein, upon execution of
this Amendment, Buyer and Seller shall cause the Initial Deposit
(as defined pursuant to Section 4 of this Amendment), together with
any interest earned thereon, to be delivered to Seller;
and
WHEREAS, in consideration of the
amendments agreed to by Buyer and Seller herein, Buyer shall cause
the Subsequent Deposit (as defined pursuant to Section 4 of this
Amendment) to be delivered to the Escrow Agent pursuant to the
Subsequent Escrow Deposit Agreement (as defined pursuant to Section
4 of this Amendment).
NOW, THEREFORE, in consideration of
the premises and for Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and legal sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
1. In
consideration of the amendments agreed to by Buyer and Seller
herein, upon execution of this Amendment, Buyer and Seller agree to
cause the Initial Deposit (as defined pursuant to Section 4 of this
Amendment), together with any interest earned thereon, to be
delivered to Seller as provided herein. Simultaneously with the
execution of this Amendment, Buyer and Seller shall execute the
certificate attached hereto as Exhibit A in accordance with the terms of the Initial
Deposit Escrow Agreement (as defined pursuant to Section 4 of this
Amendment) and Buyer shall deliver the executed certificate to the
Escrow Agent.
2. In
consideration of the amendments agreed to by Buyer and Seller
herein, Seller hereby waives any deadline in Section 9.1(g) the Asset Purchase Agreement by which Buyer is
required to obtain the Commitment Letters and in connection
therewith, Seller waives the specific (i.e., 45-day, 170-day, etc.)
timing deadlines for Buyer’s filing or submission of all
applications and other documents in connection with obtaining
Governmental Approvals under applicable Gaming Laws and any filings
with the Casino Control Commission, in each case, provided for in
paragraphs (a) and (f) of Section 7.7 of the Asset Purchase Agreement. Notwithstanding
anything to the contrary however, (i) Buyer shall use commercially
reasonable
efforts to file all applications and
other documents in connection with obtaining Governmental Approvals
(including under applicable Gaming Laws) as promptly as reasonably
practical and (ii) Seller does not waive the deadline provided for
in Section
7.28 (as set forth in
Section 9 of this Amendment).
3.
Section 2.1 of the
Asset Purchase Agreement is hereby deleted in its entirety and the
following text is hereby inserted as a replacement
Section 2.1
.
“Section
2.1 Purchase Price . Upon the terms,
and subject to the satisfaction or, if permissible, waiver of the
conditions of this Agreement, in consideration for Contract
Transactions, at the Closing, Buyer shall deliver or cause to be
delivered by electronic transfer of immediately available funds to
an account designated by Seller (A) an amount in cash equal to
$270,000,000 (the “ Base Purchase Price ”), PLUS
OR MINUS (B) the Working Capital Adjustment, if any, as provided
for in Sections
2.4 and
2.5 hereof, MINUS (C) the CapEx Purchase Price
Adjustment, if any, as provided for in Section 7.4 , (collectively, the “ Purchase
Price ”). At Closing, in lieu of the final full Working
Capital Adjustment, the amount of the Purchase Price to be
delivered or caused to be delivered by Buyer at such time shall be
calculated using the Initial Working Capital Adjustment as
determined in accordance with Section 2.4 hereof, with subsequent final adjustment as
provided for in Section
2.5(c) hereof. For the
avoidance of doubt, in calculating the Purchase Price, if the
Working Capital Adjustment or Initial Working Capital Adjustment,
as applicable, shall (i) be a positive number then the amount
thereof shall be added to the Base Purchase Price or (ii) be a
negative number then the amount thereof shall be subtracted from
the Base Purchase Price.”
4.
Section 2.2(a) of the
Asset Purchase Agreement is hereby deleted in its entirety and the
following text is hereby inserted as a replacement
Section 2.2(a)
.
“(a) Simultaneously
with the execution and delivery of this Agreement, Buyer deposited
an amount in cash equal to $15,000,000 (such amount, including the
interest accrued thereon, the “ Initial Deposit
”) with Fidelity National Title Insurance Company, (the
“ Escrow Agent ”) pursuant to the escrow
agreement executed and delivered by Seller, Buyer and the Escrow
Agent as of May 28, 2008, which is annexed hereto as
Exhibit A (the “ Initial Deposit Escrow
Agreement ”). On October 29, 2008, Buyer shall deposit an
amount in cash equal to $2,000,000 (such amount, including the
interest accrued thereon, the “ Subsequent Deposit
” and together with the Initial Deposit, the “
Deposit ”) with the Escrow Agent pursuant to an escrow
agreement in the form of the Initial Deposit Escrow Agreement and
executed and delivered by Seller, Buyer and the Escrow Agent, (the
“ Subsequent Deposit Escrow Agreement ” and
together with the Initial Deposit Escrow Agreement, the “
Deposit Escrow Agreement ”).”
5.
Section 2.6 of the
Asset Purchase Agreement is hereby deleted in its entirety and the
following text is hereby inserted as a replacement
Section 2.6
: “Intentionally
Deleted”.
6.
Section 2.7 of the
Asset Purchase Agreement is hereby deleted in its entirety and the
following text is hereby inserted as a replacement
Section 2.7
: “Intentionally
Deleted”.
7.
Section 4.2(c) of the
Asset Purchase Agreement is hereby deleted in its entirety and the
following text is hereby inserted as a replacement
Section 4.2(c)
: “ Purchase Price .
Buyer shall deliver or cause to be delivered to Seller, in the
amount of the Purchase Price (less (A) the amount of the Subsequent
Deposit disbursed to Seller at the Closing pursuant to the
Subsequent Deposit Escrow Agreement and (B) the amount of the
Initial Deposit disbursed to Seller on October 29, 2008 pursuant to
the First Amendment, dated as of October 28, 2008, to this
Agreement (the “ First Amendment ”)) pursuant
to Section 2.1
hereof, cash in immediately
available funds by electronic transfer.
8.
Section 7.15(c) of the
Asset Purchase Agreement is hereby amended by substituting the
phrase “Subsequent Deposit” for the reference to
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