EXHIBIT 10.52
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREE MENT AND JOINT
ESCROW INSTRUCTIONS (this "AMENDMENT") is made and entered into as of October 6,
1999, by and between HBR REALTY COMPANY, INC., a Nevada corporation ("HBR"), and
IOWA WEST RACING ASSOCIATION, NONPROFIT CORPORATION, an Iowa nonprofit
corporation ("IWRA").
R E C I T A L S
A. HBR and IWRA have entered into that certain Purchase and
Sale Agreement and Joint Escrow Instructions, dated as of August 31, 1999 (the
"PURCHASE AGREEMENT"). All capitalized terms used but not otherwise defined
herein shall have the meanings set forth for the same in the Purchase Agreement.
B. The parties now desire to amend the Purchase Agreement in
accordance with the terms and conditions hereof.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, HBR and IWRA hereby
agree as follows:
A G R E E M E N T
1. LEASE.
The parties hereby acknowledge that, at the request of the
Gaming Commission, certain changes were made to the Lease and such changes are
mutually acceptable to HBR and IWRA. EXHIBIT "C" (Form of Lease) attached to the
Pur chase Agreement shall be deleted in its entirety and the revised Lease,
attached hereto as new EXHIBIT "C" shall be inserted in lieu thereof.
2. ALLOCATION OF THE CONSIDERATION.
The parties hereby agree that Section 2.4 of the Purchase
Agreement shall be deleted in its entirety and the following shall be
substituted in its place:
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"2.4 ALLOCATION OF THE CONSIDERATION. The
Consideration (less any payments required under Section 2.2 hereof) shall be
allocated among the Property in accordance with section 1060 of the Internal
Revenue Code of 1986, as amended (the "CODE"), and the Treasury regulations
promulgated thereunder. On or before the sixtieth (60th) day after the Closing
Date, HBR shall allocate the Consideration (less any payments required under
Section 2.2 hereof) among the Property and deliver such schedule to IWRA (the
"ALLOCATION SCHEDULE"). Such Allocation Schedule shall be reasonably acceptable
to IWRA. HBR and IWRA agree to file their respective United States federal and
state income "Tax Returns" (as defined below), including Internal Revenue
Service Form 8594, in a manner consistent with the Allocation Schedule, as it
may be adjusted, from time to time."
3. TRANSFERRED EMPLOYEES.
Notwithstanding any provision to the contrary contained in the
Purchase Agreement, HBR and IWRA hereby agree that HBR shall take such steps as
may be necessary to assume, effective immediately following the Closing Date,
the health and welfare benefit programs currently in place for the Transferred
Employees (the "PROGRAMS") at substantially the same levels of coverage provided
to such Transferred Employees prior to the Closing Date and IWRA shall continue
to be responsible for and shall indemnify and hold HBR harmless with respect to
any costs and excess liability incurred under such Programs with respect to
claims incurred on or prior to the Closing Date by or on behalf of such
Transferred Employees and their beneficiaries and dependents. As soon as
practicable following the Closing Date, HBR shall use commercially reasonable
efforts to cover the Trans ferred Employees with its own health and welfare
benefit program in accordance with the terms of the Purchase Agreement. HBR
specifically does not assume any contracts, liabilities or obligations with
respect to the IWRA 401(k). The provisions of this Section 3 shall survive the
Closing.
4. LICENSES.
Schedule 6.1.13 of the Purchase Agreement shall be amended to
read as follows:
"All liquor licenses, sales and use tax permits, elevator
permits, food service permits, occupancy permits and any other governmental
licenses or permits relating to the Property that by their terms or applicable
law are not transferrable."
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5. LITIGATION.
Schedule 9.3 of the Purchase Agreement shall be amended to add
the following:
"IWRA has entered into the Stipulated Agreement with the
Administrator of the Iowa Racing and Gaming Commission with respect to certain
modifica tions that need to be made to the exterior entrances of the Property to
minimize the potential entry into gaming areas by underage individuals."
6. STIPULATED AGREEMENT.
Subject to the representation and warranty of IWRA contained
in Section 9.35 of the Purchase Agreement, HBR agrees that it will be
responsible, at its own cost, for taking the actions necessary to comply with
the Stipulated Agreement, or such other actions as are necessary to satisfy the
Gaming Commission with respect thereto. The provisions of this Section 8 shall
survive the Closing.
7. PROPERTY REPORT.
HBR has elected to proceed to Closing notwithstanding the
matters disclosed and recommendations made in that certain "Pre-Purchase
Assessment of The Bluffs Run Casino in Council Bluffs, Iowa For Harveys Casino
Resorts, Las Vegas, Nevada" dated September 28, 1999 (WJE No. 991892), prepared
by Wiss, Janney, Elstner Associates, Inc., and attachments thereto.
8. ASSIGNMENT OF LICENSE.
IWRA hereby covenants that after the Closing, IWRA shall use
its best efforts to grant to HBR substantially the same rights IWRA holds
pursuant to Sections b, g, and l of that certain Non-Exclusive License
Agreement, executed on October 4, 1999, by and among Xxxxxxx X. Xxxxxxxxxx,
Alabama-Iowa Management, Inc., and IWRA, a copy of which is attached hereto as
SCHEDULE 1. The provisions of this Section 8 shall survive the Closing.
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9. MISCELLANEOUS.
a. EFFECT OF AMENDMENT. In the event of any inconsistency
between the terms of the Purchase Agreement and the terms of this Amendment,
the terms of this Amendment shall prevail.
b. RATIFICATION. Except as otherwise expressly modified
hereby, the Purchase Agreement shall remain in full force and effect, and all of
the terms and provisions of the Purchase Agreement, as herein modified, are
hereby ratified and reaffirmed.
c. COUNTERPARTS. This Amendment may be executed in as many
counterparts as may be deemed necessary and convenient, and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed an original, but all such counterparts shall constitute one and the
same instrument. Additionally, the parties hereby covenant and agree that, for
purposes of facilitating the execution of this Amendment, a facsimile signature
shall be deemed to be an original signature and a telecopy delivery (i.e., the
transmission by any party of its signature on an original or any copy of this
Amendment via telecopy or fax machine) shall be deemed to be the delivery of
such party's original signature.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first above written.
HBR:
HBR REALTY COMPANY, INC.
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
IWRA:
IOWA WEST RACING ASSOCIATION,
NONPROFIT CORPORATION,
an Iowa nonprofit corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Secretary
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EXHIBIT "C"
[REVISED EXHIBIT]
FORM OF LEASE
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SCHEDULE 1
Copy of Non-Exclusive License Agreement,
executed on October 4, 1999, by and among
Xxxxxxx X. Xxxxxxxxxx, Alabama-Iowa
Management , Inc., and IWRA.
PLEASE SEE THE ATTACHED.
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