EXHIBIT 1.3
FIRST AMENDMENT TO PURCHASE AGREEMENT
This Amendment to Purchase Agreement (the "Amendment") executed the
dates hereinbelow written, but effective the 1st day of January, 2002 by and
among BIM3 INVESTMENTS, a Louisiana partnership ("Seller"), THE OLD XXXXXXXXXX
XXXXX, X.X., a Louisiana limited liability company (the "Company") and OED
ACQUISITION, LLC, a Delaware limited liability company, as successor in interest
to PENINSULA GAMING PARTNERS, L.L.C., (the "Buyer").
RECITALS
Seller, Company and Buyer entered into a Purchase Agreement (the
"Purchase Agreement") on June 27, 2001, purchase to which Seller agreed to sell
to Buyer, and Buyer agreed to buy from Seller, Seller's Membership Interest and
Seller's one-half (1/2) interest in the Existing Mortgage Notes, as defined in
the Purchase Agreement, for the aggregate purchase price of Fifteen Million and
No/100 Dollars ($15,000,000.00).
The parties desire to amend the terms of the Purchase Agreement. All
capitalized terms used herein shall have the meanings set forth in the Purchase
Agreement.
AGREEMENT
NOW, THEREFORE, Seller, the Company and Buyer agree as follows:
MODIFICATIONS TO THE PURCHASE AGREEMENT
SUMMARY OF THE AMENDMENTS
The parties agree that the Purchase Agreement shall be modified as
follows:
(i) Upon execution of this Amendment, the Escrow Holder is
instructed to delivery the Deposit and the Interest Amount to Seller.
Buyer relinquishes any and all claims to the Deposit and Interest
Amount and acknowledges that they have been fully earned by Seller,
however, a sum equal to the amount of the Deposit ($500,000.00) shall
be applied toward the Purchase Price upon Closing. Buyer and Seller
release, acquit, and discharge the Escrow Holder from any and all
claims and obligations as the Escrow Holder.
(ii) As additional consideration for the agreement of Seller
to enter into this Amendment, Buyer has this day delivered to Seller
the cash sum of Two Hundred Twenty Thousand and No/100 Dollars
($220,000.00). Buyer acknowledges and agrees that this payment to
Seller is non-refundable under any condition.
(iii) The Closing of the purchase and sale of Seller's
Membership Interest and Seller's interest in the Existing Mortgage
Notes shall be held at the offices of Seller at 000 Xxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx at 10:00 a.m. on Friday, February 15,
2002, the Closing Date.
(iv) At the Closing, Buyer shall cause to be delivered to
Seller a cashier's check in the amount of Fourteen Million Five Hundred
Thousand and No/100 Dollars ($14,500,000.00).
(v) Buyer may extend the February 15, 2002 Closing Date to
March 15, 2002 by paying to Seller the cash sum of Five Hundred
Sixty-Five Thousand and No/100 Dollars ($565,000.00) on or before
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February 15, 2002 as consideration for the extension. Buyer
acknowledges and agrees that this $565,000.00 payment to Seller is
non-refundable under any condition and shall not be applied toward the
Purchase Price. At the extended Closing (i.e., on or before March 15,
2002), Buyer shall cause to be delivered to Seller a cashier's check in
the amount of Fourteen Million Five Hundred Thousand and No/100 Dollars
($14,500,000.00).
b. Specific Amendments
(i) Section 1(d) of the Purchase Agreement is deleted in
this entirety.
(ii) Section 2 of the Purchase Agreement is amended to be
and read:
"The closing (the "Closing") of the purchase and sale
of Seller's Membership Interest shall be held at the offices
of Seller at 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx,
Xxxxxxxxx at 10:00 a.m. on Friday, February 15, 2002 (subject
to the extension as set forth in Section 14(a)(iv), as
amended). The date on which the Closing shall occur is
hereinafter referred to as the "Closing Date". At the Closing,
Buyer shall cause to be delivered to Seller a cashier's check
in the amount of Fourteen Million Five Hundred Thousand and
No/100 ($14,500,000.00) dollars."
(iii) Section 8(a) of the Purchase Agreement is amended to
be and read as follows:
a. Buyer's Obligation
"The obligation of Buyer to purchase and pay for
Seller's Membership Interest is subject to Buyer's discretion.
Buyer and Seller agree that the Conditions to Closing of the
Buyer set forth in the original Purchase Agreement are hereby
deleted, so that Buyer may determine, in its discretion,
whether to close or not. This discretion provided to Buyer is
given in consideration for the non-refundable amounts paid to
Seller this date and/or to be paid on or before February 15,
2002 should Buyer extend the Closing Date."
(iv) Section 8(b)(v) shall be amended to be and read as
follows:
"(v) Seller shall have received the full Purchase
Price less the $500,000.00 to be applied to the purchase price
referenced in Section 2(a)(i) of this Amendment, paid in cash
simultaneously with or prior to the Closing."
(v) Section 14(a)(ii) of the Purchase Agreement is amended
to be and read as follows:
"(ii) by Seller if any of the conditions set forth in
Section 8(b), as amended, shall have become incapable of
fulfillment, and shall not have been waived by Seller."
(vi) Section 14(a)(iv) of the Purchase Agreement is amended
to be and read as follows:
"(iv) by either Buyer or Seller, if the Closing does
not occur on or prior to February 15, 2002; unless, the
Closing Date is extended to March 15, 2002, in which event, by
either Buyer or Seller, if the Closing does not occur on or
prior to March 15, 2002."
(vii) Section 14(b) of the Purchase Agreement is deleted in
its entirety.
(viii) Section 14(c)(ii) of the Purchase Agreement is amended
to be and read as follows:
"(ii) all confidential information received by Buyer
with respect to the business of the Company shall be treated
in accordance with the Confidentiality Agreement, which shall
remain in full force and effect notwithstanding the
termination of this Agreement; and"
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(ix) A new Section 14(c)(iii) is added to be and read as
follows:
"(iii) Seller shall be entitled to retain all monies
paid to Seller by Buyer as described in the First Amendment to
Purchase Agreement"
(x) The introductory paragraph of Section 18 of the Purchase
Agreement is amended to be and read as follows:
"All notices or other communications required or
permitted to be given hereunder shall be in writing and shall
be sent, postage prepaid, by registered, certified or express
mail, return receipt requested or by reputable national
overnight courier service guaranteeing next business day
delivery and shall be deemed given if received, three days
after mailing, and in the case of overnight courier service
(one business day after mailing), as follows."
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
BIM3 INVESTMENTS, a Louisiana Partnership
By:_____________________________________
Name: Xxxxx Xxxxx
Title: Managing Partner
THE OLD XXXXXXXXXX XXXXX, L.C.
By:_____________________________________
Name:
Title:
OED ACQUISITION, L.L.C.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President
