Exhibit 10.2B
FIRST AMENDMENT TO
REAL PROPERTY PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO REAL PROPERTY PURCHASE AND SALE AGREEMENT
("First Amendment") is made as of July 15, 1999 by and between HARBOR COMMUNITY
INVESTMENT, L.C., an Iowa limited liability company ("Seller"), and AB CAPITAL,
LLC, a Delaware limited liability company, or its permitted designee ("Buyer"),
with reference to the following facts:
A. Buyer and Seller have heretofore entered into that certain Real
Property Purchase and Sale Agreement dated as of January 15, 1999 (the "Real
Property Agreement"), pursuant to which Seller has agreed to sell and Buyer has
agreed to purchase certain real property described therein.
B. Concurrently with the execution and delivery of the Agreement, Buyer
entered into an Asset Purchase and Sale Agreement (the "Asset Agreement") with
Greater Dubuque Riverboat Entertainment Company, L.C. ("GDREC") pursuant to
which, among other things, Buyer agreed to purchase from GDREC, and GDREC agreed
to sell to Buyer certain assets of GDREC, the purchase and sale of which is a
condition of closing the transactions contemplated by the Asset Agreement.
NOW THEREFORE, in consideration of the foregoing, the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Buyer and Seller agree as follows:
1. Any defined terms set forth in this First Amendment shall, unless
otherwise provided herein, have the same meanings as the defined terms set forth
in the Real Property Agreement.
2. Buyer and Seller agree that, at any time prior to January 15,
2001 (the "Transfer Period"), Buyer or Buyer's designee shall have the absolute
right, in its sole and absolute discretion, to direct Seller, by written notice
(the "Transfer Notice") to Seller in accordance with the notice provisions
contained in the Asset Agreement, to transfer title to all or a portion of the
parcels of real property described on Exhibit A attached hereto and hereby
incorporated herein (the "Additional Property") directly to the City of Dubuque
("City") or to a third party designated by the City. Such transfer shall take
place upon Seller, not later than (30) thirty days from receipt by Seller of any
such Transfer Notice, delivering to the City or its designee one or more general
warranty deeds executed by Seller in favor of the City with respect to the
Additional Property described in such Transfer Notice, subject to any easements,
restrictions or covenants of record. In respect of the period commencing on the
date hereof and terminating on the earlier to occur of (i) the date of Seller's
receipt of a Transfer Notice and (ii) the expiration of the Transfer Period,
Buyer agrees to reimburse Seller for the applicable portion of real property
taxes, special assessments, liability insurance premiums for general liability
insurance, general maintenance costs and other out of pocket costs and expenses
reasonably incurred by Seller, consistent with past practices and in respect of
the Additional Property. In the event a Transfer Notice is not delivered to
Seller by
Buyer on or prior to the expiration of the Transfer Period, this First Amendment
shall be deemed terminated and of no further force and effect. Notwithstanding
any provision to the contrary set forth herein, Buyer shall not have any
obligation to acquire Additional Property or to direct Seller to transfer
Additional Property to the City or its designee.
3. Seller makes no representations or warranties regarding the
condition of the Additional Property, and the City or other transferee hereunder
shall take the Additional Property "as is - where is," with all fault and
defects, including environmental defects or concerns, if any. Seller shall
reserve the right to note this provision on the face of any such deed.
4. The provisions of this First Amendment shall survive the Closing
Date and the transfer of properties and assets to be sold pursuant to the Real
Property Agreement and the Asset Agreement.
5. Except as specifically set forth herein, the Real Property
Agreement, as amended by this First Amendment, remains in full force and effect.
6. This First Amendment may be executed in any number of
counterparts. Each counterpart shall be deemed an original instrument, but all
such counterparts together shall constitute one agreement. This First Amendment
shall be effective upon receipt by Buyer and/or Seller from the other party
hereto of a facsimile transmission of the signatures required to execute this
First Amendment. If either Buyer or Seller executes this First Amendment
utilizing a facsimile transmission, such party shall mail executed copies of
this First Amendment not later than one (1) business day after facsimile
transmission of signatures.
IN WITNESS WHEREOF, Buyer and Seller have executed this First
Amendment as of the day and year set forth above.
BUYER: SELLER:
HARBOR COMMUNITY INVESTMENT, PENINSULA GAMING COMPANY, LLC
L.C., an Iowa limited liability company (f/k/a AB CAPITAL, LLC), a Delaware
limited liability company
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxx Xxxxxxx, Manager Xxxxxxx X. Xxxxxx
