FIRST AMENDMENT TO PURCHASE AGREEMENT
EXHIBIT
1.1
FIRST AMENDMENT TO PURCHASE AGREEMENT
(this “Amendment”),is entered into as of October 22,
2009 by and among Columbia Properties New Orleans, L.L.C., a Louisiana
limited liability company (“Seller”), AB Casino
Acquisition LLC, a Delaware limited liability company (“Buyer”), and,
Peninsula Gaming Partners, LLC (“PGP”).
Background
A.
|
The
Seller, Buyer and PGP have entered into that certain Purchase
Agreement dated as of June 18, 2009 (as the same may be
amended, modified and/or supplemented from time to time, the “Purchase
Agreement”).
|
B.
|
The
Closing under the Purchase Agreement is occurring on the date of this
Amendment.
|
C.
|
The
Seller, Buyer and PGP desire to amend the Purchase Agreement pursuant to
this Amendment.
|
Agreement
NOW
THEREFORE, in consideration of the mutual covenants contained herein and the
Purchase Agreement and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Capitalized
Terms. Capitalized terms used herein but not otherwise defined
shall have the respective meanings set forth in the Purchase
Agreement.
2. Purchase
Price. Section 2.1 of the Purchase Agreement is amended and
restated in its entirety as follows:
Section
2.1 Purchase
Price. In consideration for the sale, transfer, conveyance and
delivery of the LLC Interests pursuant to Section 1.1, at the Closing Buyer
shall deliver, or cause to be delivered, subject to Section 2.2, by wire
transfer of immediately available funds to an account or accounts designated by
Seller prior to the Closing, an amount equal to (A) one hundred four million
dollars ($104,000,000), (B)(x) plus the Estimated Working Capital Excess (as
defined in Section 2.4 hereof, which in no event shall equal an amount greater
than three million dollars ($3,000,000)) or, as the case may be, (y) minus the
Estimated Working Capital Deficiency (as defined in Section 2.4 hereof), as
determined in accordance with Section 2.4 hereof, subject to subsequent final
adjustment using the Final Working Capital Adjustment as provided for in Section
2.5 hereof, which shall be payable pursuant to Section 2.5(c) hereof
(collectively, the “Purchase
Price”).
3. Indemnification
Obligations. The parties acknowledge and agree that the Seller
will not be liable, and will not indemnify Seller for, any penalties, fines or
other liabilities assessed by any Gaming Authority arising from the closure of
the Vessel from Tuesday evening, October 20 (to conduct the count) through the
date of reopening by Buyer following the Closing.
4. Audit
Expense. Buyer and Seller hereby agree to share one-half each
of the out-of-pocket fees, costs and expenses incurred in connection with the
preparation of the audit report for the stub period commencing January 1, 2009
and ending October 22, 2009 as required pursuant to applicable Gaming
Laws.
5. Ratification. Except
as modified in this Amendment, the Purchase Agreement shall remain in full force
and effect in accordance with its terms and conditions all of which are hereby
ratified and confirmed by the Sellers and the Buyer. The parties
acknowledge and agree that all of the conditions precedent to Closing have been
satisfied.
6. Governing
Law. This Amendment shall be governed by and construed and
enforced in accordance with the internal Laws of the State of New York without
giving effect to the principles of conflicts of law thereof.
7. Headings. The
headings contained in this Amendment are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Amendment.
8. Counterparts. This
Amendment may be executed in any number of counterparts, each of which may be an
original or telecopy, and all of which together shall constitute a single
document.
9. Amendments. This
Amendment may be amended, supplemented or modified only by a writing signed by
all of the parties hereto.
10. Effective
Date. The parties hereto have executed this Amendment as of
the date first written above.
[SIGNATURE
PAGE FOLLOWS]
IN
WITNESS WHEREOF, the undersigned have caused this Amendment to be signed by
their respective duly authorized officers as of the date first written
above.
Seller: Buyer:
COLUMBIA
PROPERTIES
NEW AB
CASINO ACQUISITION LLC
ORLEANS,
L.L.C.
By: /s/Xxxxxxxx
X.
Xxxxxxx By: /s/Xxxxxxxx
Xxxxx
Name: Xxxxxxxx
X.
Xxxxxxx
Name: Xxxxxxxx
Xxxxx
Its: Vice
President/CFO Its: C.O.O
PGP:
PENINSULA GAMING PARTNERS,
LLC
By: /s/Xxxxxxxx
Xxxxx
Name: Xxxxxxxx Xxxxx
Its: C.O.O.
KTBH:
4851-0370-3813, v. 3
[Signature
Page – First Amendment to Purchase Agreement]