EXHIBIT 10.9
SECOND AMENDMENT TO PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AGREEMENT (this "Agreement") is made and
entered into this 5 day of May, 1998, by and among SPEAKEASY GAMING OF LAS
VEGAS, INC., a Nevada corporation ("Buyer"); BANTER, INC., a Nevada
corporation ("Banter"); and SOUTHWEST EXCHANGE CORPORATION, a Nevada
corporation ("Exchange Party").
RECITALS
Buyer and Banter entered into a Purchase Agreement (the "Original Purchase
Agreement") dated on or prior to the date of this Agreement relating to the
purchase and sale of, among other things, land and improvements located in
Xxxxx County, Nevada commonly known as the Cheyenne Hotel. Buyer and Banter
entered into a First Amendment to Purchase Agreement (the "First Amendment")
dated on or prior to the date of this Agreement. Buyer and Banter wish to
further amend and supplement the Original Purchase Agreement, as amended by
the First Amendment. The Original Purchase Agreement, as amended by the First
Amendment, is hereinafter sometimes referred to as the "Amended Purchase
Agreement." Unless otherwise defined herein, capitalized terms in this
Agreement have the meanings ascribed to them in the Original Purchase
Agreement, as amended by the First Amendment.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth, and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. EXCHANGE. Notwithstanding any provisions in the Amended Purchase
Agreement to the contrary, it is the overriding intent of Banter not to sell
but instead to exchange the Property (the "Relinquished Property") for other
property or properties (the "Replacement Property") so as to qualify such
exchange under Section 1031 of the Internal Revenue Code of 1986, as amended
(the "Code").
2. TAX CONSEQUENCES. Banter understands that the provisions of Section
1031 of the Code are complex and Banter's attempt to qualify the series of
transactions as a tax deferred exchange under Section 1031 of the Code
requires advice of competent tax counsel. Banter hereby acknowledges that
Banter is not relying on any representations that may be made by Exchange
Party or Buyer regarding the tax consequences of the transactions
contemplated by the parties to this Rider and Banter shall hold harmless
Exchange Party and Buyer from any adverse tax consequences to Banter
resulting from any and all provisions of this Second Amendment.
3. BUYER'S CONSENT. Buyer consents to Banter's assignment to Exchange
Party of Banter's rights under the
Agreement, but not the delegation of duties and such assignment in no way
relieves Banter of any of its obligations, covenants or warranties set forth
in the Amended Purchase Agreement. Furthermore, Buyer is entering into this
Second Amendment as an accommodation to Banter and shall not incur any costs
or expense as a result thereof.
4. ADDITIONAL DOCUMENTS. Banter, Buyer and Exchange Party shall execute
such additional documents and instructions to escrow not inconsistent with
the provisions of the Amended Purchase Agreement as may be reasonably
required to complete the exchange.
5. USE OF FUNDS. It is understood by Banter and Buyer that all funds
which Exchange Party obtains from Buyer upon or before its transfer of the
Relinquished Property to Buyer will be paid (through the closing escrow) to
and held by Exchange Party in accordance with that certain Exchange Agreement
between Banter and Exchange Party. Exchange Party hereby agrees to deposit
for Banter all sums it obtains from Buyer upon or before the transfer of the
Relinquished Property to Buyer in one or more financial institutions whose
accounts are insured by the Federal Deposit Insurance Corporation or as
otherwise directed by Banter.
6. FIRPTA WITHHOLDING ON BANTER. Exchange Party may choose, but shall
not be obligated, to comply with the provisions of Section 1445 of the Code
by withholding 10% of the value of the Relinquished Property and reporting
and paying over such amount to the Internal Revenue Service unless it
receives (i) a certification of non-foreign status from Banter in
substantially the form provided in Exhibit "A," or (ii) a qualifying
statement or withholding certificate from the Internal Revenue Service
stating that Banter's maximum tax liability is zero or a reduced amount.
7. EXCHANGE PARTY INDEMNIFICATION. Banter agrees to indemnify, defend
and hold Exchange Party harmless from any and all loss, claims, liabilities,
damages, fees, attorney's fees, or costs, including any taxes, interest and
penalties hereon, arising under or from the transactions contemplated hereby;
provided, however, that the indemnification and hold harmless covenant shall
not extend to any claims, liabilities, costs, etc., which result from
Exchange Party's gross negligence or willful misconduct. Banter further
agrees to indemnify, defend and hold Exchange Party harmless from any
federal, state, local or other taxes including interest and ownership or
transfer of any property pursuant to this Agreement.
8. DIRECT DEEDING. Notwithstanding anything contained herein to the
contrary, Exchange Party shall in-
2
struct closing agents for both the Relinquished Property and the Replacement
Property, to prepare and record a deed or deeds transferring title from
Banter directly to the Buyer in the case of the Relinquished Property, or
from the seller thereof directly to Banter in the case of the Replacement
Property. Said Direct Deeding shall be accomplished for convenience only and
shall in no way be construed as a circumvention of Exchange Party's interest
in and to either the Relinquished Property or the Replacement Property.
9. INDEMNIFICATION. Banter agrees to indemnify, defend and hold Buyer
harmless from any and all loss, claims, liabilities, damages, fees,
attorney's fees or costs, including any taxes, interest and penalties
thereon, arising under or from this Second Amendment; provided that the
foregoing indemnification and hold harmless covenant shall not extend to any
claims, liabilities, costs, etc., which result from Buyer's acts or
omissions. The indemnity provisions of this Section 9 of this Second
Amendment are limited to loss, claims, liabilities, damages, fees, attorney's
fees or costs that: (i) arise from claims or allegations against Buyer; and
(ii) would not have been incurred by Buyer but for the provisions of this
Second Amendment. Without limiting the generality of the preceding sentence,
the indemnity provisions of this Section 9 of this Second Amendment are not
intended and shall not be construed to cover any loss, claims, liabilities,
damages, fees, attorney's fees or costs that the Buyer would have suffered or
incurred if this Second Amendment had never been entered into and if Buyer
acquired the Property under the Original Purchase Agreement, as amended by
the First Amendment. Nothing in this Section 9 is intended or shall be
construed to abrogate or otherwise impair any of Buyer's rights to
indemnification for various matters under the Original Purchase Agreement, as
amended by the First Amendment.
10. SURVIVAL. The provisions of this Second Amendment relating to the
acquisition of property and all representations, warranties, covenants,
agreements and indemnities made and all other obligations to be performed
hereunder, to the extent not performed at or before the closing of any
escrow, shall survive the closing of such escrow and shall not be deemed to
merge with the deed to the Relinquished Property or the Replacement Property
upon delivery or acceptance thereof.
11. BINDING. This Second Amendment shall inure to the benefit of, and
shall be binding upon the parties hereto, their successors in interest and
assigns.
12. ASSIGNMENT. The rights under this Second Amendment may not be
assigned without the prior written
3
consent of the parties.
13. COUNTERPARTS. This Second Amendment may be executed in counterparts,
each of which when executed shall, irrespective of the date of its execution
and delivery, be deemed an original, and said counterparts together shall
constitute one and the same Agreement.
14. MISCELLANEOUS. Except as modified and supplemented by this Agreement,
all of the provisions of the Original Purchase Agreement, as amended by the
First Amendment, shall remain in full force and effect.
15. FACSIMILES. This Second Amendment may be executed by one or more
facsimile signatures and delivered by facsimile transmission. Facsimile
transmission of a copy of this Second Amendment that has been signed by an
authorized officer or agent of a party shall have the same force and effect
as physical delivery to the recipient of a manually signed copy of this
Agreement.
IN WITNESS WHEREOF, Buyer, Banter and Exchange Party have executed this
Agreement on this _____ day of ________, 1998.
BUYER:
SPEAKEASY GAMING OF LAS VEGAS, INC.,
a Nevada corporation
By:
---------------------------------
Xxxxx X. Xxxxxxxx, President
SELLER:
BANTER, INC.,
a Nevada corporation
By: Xxxxxxxxxxx X. Xxxxxx
---------------------------------
Its: Asst. V.P.
--------------------------------
SOUTHWEST EXCHANGE CORPORATION,
a Nevada corporation
By:
---------------------------------
Its:
--------------------------------
4
