Exhibit 10.1
THIRD AMENDMENT TO ASSET
PURCHASE AGREEMENT
This Third Amendment to Asset Purchase
Agreement, dated as of June 2, 2008 (this “ Third
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.
Purchase and Seller
entered into that certain Second Amendment to Asset Purchase
Agreement dated August 8, 2007 (the “Second
Amendment”).
D.
As consideration for the
First Amendment, Purchaser paid the sum of One Million dollars
($1,000,000) to Seller (the “Initial Payment”), which
sum is a non-refundable earnest money deposit that was fully earned
on the date of payment.
E.
As consideration for the
Second Amendment, Purchaser paid to Seller (a) the sum of Five
Hundred Thousand dollars ($500,000) (the “Second
Payment”) and (b) the sum of One Million Five Hundred
Thousand dollars ($1,500,000) (the “Third Payment”),
which sums are non-refundable earnest money deposits that were
fully earned on the dates of payment.
F.
Pursuant to the Second
Amendment, on December 31, 2007, January 31, 2008,
February 29, 2008, March 31, 2008 and April 30, 2008
Purchaser paid extension fees (the “Extension Fees”) of
Five Hundred Thousand dollars ($500,000) each to Seller, which
extended the Agreement to 5:00 p.m., PDT, on June 2,
2008. The Extension Fees are non-refundable and were fully
earned on the dates of payment.
G.
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 agree that the Recitals are true
and correct and the parties hereby amend the Agreement as
follows:
1.
Defined
Terms .
Unless otherwise defined herein, all capitalized terms used in this
Third 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 Third
Amendment.
2.
Consideration . As consideration for this Third
Amendment, Purchaser has or shall pay the sum of Five Hundred
Thousand dollars ($500,000) (the “Fourth Payment”) to
Seller in good funds by 5:00 p.m., PDT, on June 6, 2008,
which shall be non-refundable and fully earned on the date of
payment.
3.
Non-Refundable
Deposits . The Initial Payment, the Second Payment, the
Third Payment, the Fourth Payment, the Extension Fees and any
payment made pursuant to amended Section 4.15 as set forth in
this Third Amendment are collectively referred to as the
“Non-Refundable Deposits.” 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.
4.
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-Eight Million dollars
($98,000,000) 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
