Exhibit 10.1
SECOND AMENDMENT TO ASSET
PURCHASE AGREEMENT
This Second
Amendment to Asset Purchase Agreement, dated as of August 8, 2007
(this “ Second Amendment ”), is by and between
Hedwigs Las Vegas Top Tier, LLC, a Delaware limited liability
company, (“ Purchaser ”) and 155 East Tropicana,
LLC, a Nevada limited liability company, (“ Seller
”).
RECITALS
A.
Purchaser and Seller entered into that certain Asset Purchase
Agreement dated April 30, 2007 (the “Agreement”).
B.
Purchaser and Seller entered into that certain First Amendment to
Asset Purchase Agreement dated May 7, 2007 (the “First
Amendment”).
C.
As consideration for the First Amendment, Purchaser paid the sum of
One Million dollars ($1,000,000) to Seller (the “Initial
Payment”), which sum was a non-refundable earnest money
deposit that was fully earned on the date of payment.
D.
Purchaser and Seller desire to further amend the Agreement as set
forth below.
AGREEMENT
NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereby amend the
Agreement as follows:
1.
Defined Terms . Unless otherwise defined herein, all
capitalized terms used in this Second Amendment shall have the
meaning given such terms in the Agreement. Unless the context
otherwise indicates, all references herein to the Agreement shall
include this Second Amendment.
2.
Consideration. As consideration for this Second
Amendment, Purchaser has or shall pay (1) the sum of Five Hundred
Thousand dollars ($500,000) (the “Second Payment”) to
Seller in good funds by 12:00 noon, PST, on August 14, 2007, and
(2) the sum of One Million Five Hundred Thousand dollars
($1,500,000) (the “Third Payment” and collectively with
the Initial Payment and the Second Payment, the
“Non-Refundable Deposits”) to Seller in good funds by
5:00 p.m., PST, on November 15, 2007. The parties agree that
the Second Payment and the Third Payment are non-refundable earnest
money deposits that are fully earned on the date of payment.
If the Closing occurs, the Non-Refundable Deposits shall be applied
to the Cash Purchase Price as set forth in amended Section 1.6 of
the Agreement below.
3.
Purchase Price. Section 1.5 of the Agreement is
deleted and replaced with the following:
The consideration of
the sale and transfer of the Purchased Assets to Purchaser shall
consist of the Cash Purchase Price and the assumption by Purchaser
of the Assumed Liabilities. The Cash Purchase Price shall be
(i) Ninety-Five Million dollars ($95,000,000) plus (ii) the cash
amount of the Accrued Royalty, plus (iii) any obligations under any
notes executed by Seller under the Lease Agreement (including
accrued interest and penalties) and shall be subject to adjustment
as provided in Section 1.8.
4.
Purchase Price Payable at Closing . Section 1.6 of the
Agreement is deleted and replaced with the following:
At the Closing, and
subject to the terms and conditions of this Agreement, Purchaser
shall pay to Seller at the Closing in cash by wire transfer of
immediately available funds to one or more accounts designated by
each Seller in writing at least two (2) Business Days before the
Closing Date, an amount equal to the sum of (i) Eighty-Five million
dollars ($85,000,000), plus (ii) the cash amount of the Accrued
Royalty, minus (iii) the sum of the Non-Refundable
Deposits.
5.
Closing. Section 1.10 of the Agreement is deleted and
replaced with the following:
Seller shall as
promptly as possible notify Purchaser, and Purchaser shall as
promptly as possible notify Seller, when the conditions set forth
in ARTICLE V to such party’s obligations to complete the
Transactions have been satisfied or waived. Subject to
Section 7.1(a)(iv), the closing of the Transactions (the
“Closing”) shall take place at the offices of Kummer
Kaempfer Bonner Renshaw & Ferrario on the second Business Day
following the satisfaction or waiver of the conditions set forth in
Article V, or at such other time, date and place as Seller and
Purchaser may agree in writing. If the Closing occurs, it
shall be deemed to have occurred at the Cutoff Time. The date
on which the Closing occurs is referred to herein as the
“Closing Date.”
6.
Exclusivity. Section 4.13 of the Agreement is deleted
and replaced with the following:
Prior to the receipt of
the Third Payment, Seller may directly or indirectly through any
representative, employee or agent, solicit, initiate, or encourage
the submission of any proposal or offer from any Person relating to
the acquisition of all or substantially all of the Interests or the
assets of Seller (including any
acquisition structured
as a merger, consolidation, or share exchange) or authorize any
person to do any of the foregoing. Notwithstanding the
foregoing, unless and until this Agreement is terminated in
accordance with the provisions of ARTICLE VII, Seller shall not (i)
provide non-public information of t
