EXHIBIT 10.8
5/4/98
FIRST AMENDMENT TO PURCHASE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (this "Agreement") is made
and entered into this 5 day of May, 1998, by and between SPEAKEASY GAMING OF
LAS VEGAS, INC. a Nevada corporation ("Buyer"), and BANTER, INC., a Nevada
corporation ("Banter").
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 wish to amend and supplement the Original Purchase Agreement. Unless
otherwise defined herein, capitalized terms in this Agreement have the
meanings ascribed to them in the Original Purchase Agreement.
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. To the extent of any conflict or inconsistency between the
provisions of this Agreement and the provisions of the Original Purchase
Agreement, the provisions of this Agreement shall control.
2. Cheyenne Hotel & Casino, Inc., a Nevada corporation ("Cheyenne"),
is hereby eliminated as a party to the Original Purchase Agreement, as
amended by this Agreement. All references to the party "Cheyenne" shall be
deemed to refer only to Banter. All references to the Seller shall be deemed
to refer only to Banter. All references in the Original Purchase Agreement to
Speakeasy Gaming of Nevada, Inc., a Nevada corporation, as the Buyer are
hereby amended to refer to Speakeasy Gaming of Las Vegas, Inc. All references
to the Buyer shall be deemed to refer only to Speakeasy Gaming of Las Vegas,
Inc., a Nevada corporation.
3. The first sentence of Paragraph D of the Recitals to the Original
Purchase Agreement is hereby deleted in its entirety. The parties understand
that the gaming license formerly held by Desert Gaming, Inc. has expired and
was not renewed.
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4. In Paragraph F of the Recitals, the following parenthetical
comment is hereby added immediately after the phrase "chases in action":
"(with the sole exception of the fifty percent (50%) interest in certain
future net proceeds of the Condemnation Action, as hereinafter defined)."
5. In the definition of the term "Property" in Section 1 of the
Original Purchase Agreement: (i) the phrase "the condemnation, as defined in
Section 6(bb), below" is hereby deleted; and (ii) the following sentence is
hereby added at the end of the definition: "The Property also includes a
fifty percent (50%) interest in the "net proceeds" (as hereinafter defined)
in excess of $50,000 realized by Banter on or after April 28, 1998 in the
action commenced in the District Court by the State of Nevada, on relation of
its Department of Transportation, on or about September 9, 1997 as Case
Number A 378187 (the "Condemnation Action")."
6. The phrase "of the Property's Property Manager" in Section 2(b)
of the Original Purchase Agreement is hereby deleted.
7. All references to Exhibit E-1 in the Original Purchase Agreement
are hereby amended to be references to Exhibit "E."
8. Section 5(a) of the Original Purchase Agreement is hereby amended
and restated in its entirety to read as follows: "The Purchase Price for the
Property shall be the sum of $5,349,449 payable at Closing. This statement of
the Purchase Price is not intended and shall not be construed to affect the
rights of Seller or Buyer to the prorations and any other monetary
adjustments specifically provided in the Original Purchase Agreement, as
amended by this Agreement."
9. Section 5(b) of the Original Purchase Agreement is hereby amended
and restated in its entirety to read as follows: "(b) On the Closing Date,
Buyer shall cause a wire transfer to be made to Nevada Title Company, as
Escrow Agent, of immediately available federal funds in an amount equal to
the cash required to close (the "Closing Funds"). The Closing Funds shall be
increased or decreased as appropriate to reflect Buyer's share of prorations
and expenses. The Closing Funds shall include, in addition to the Purchase
Price, all sums payable by Buyer pursuant to Section 13(c)(vii) of the
Original Purchase Agreement. The Closing Funds shall not be reduced or set
off against any sums payable by Banter to any third party, including, without
limitation, sums payable to Xxxxxxxxx, LLC, without the express written
consent of Banter to the set off or reduction. Banter's execution or approval
of escrow
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instructions or a settlement statement indicating that sums are due or
payable to a third party out of the proceeds of the Closing shall not be
construed as an authorization by Banter for the Buyer to make payment
arrangements directly with the third party or to set off any payments made by
Buyer pursuant to any "side" payment arrangements against Closing Funds.
10. The phrase "fee simple title to" in Section 6(a) is hereby
deleted.
11. Section 6(c) of the Original Purchase Agreement is hereby
deleted in its entirety.
12. The word "legally" is hereby inserted immediately before the
word "suitable" in Section 6(b) of the Original Purchase Agreement. The Buyer
acknowledges, in connection with this representation and warranty, Buyer's
understanding that the eligibility of the Real Property for a non-restricted
gaming operation will not remain in effect unless a non-restricted gaming
license is issued to Buyer or Buyer's successors or assigns within a
specified "grandfather" period.
13. Section 6(l) is hereby amended and restated in its entirety to
read as follows: "Exhibit E attached hereto represents a true and complete
schedule of all Contracts but not any agreements with Day's Inn of America,
Inc. or any affiliates of Day's Inn of America, Inc. (all of which affiliates
together with Day's Inn of America, Inc. are hereinafter collectively
referred to as "Day's Inn"). On or prior to the Recordation Date, Seller
shall notify all parties to the Contracts that the Property is being or has
been sold and that the relevant Contract is being terminated. Notwithstanding
such notice of termination, Buyer agrees to permit the thirty to ninety day
notice periods required for the Contracts identified in Exhibit E-1 attached
hereto to commence on the Recordation Date and to pay any sums accruing at
regular rates (as distinguished from any termination charge or other sanction
imposed as a result of termination of a Contract) during the thirty to ninety
day periods to the third parties identified in Exhibit E-1. To the extent any
payments are due and payable as a result of the termination of any of the
Contracts identified in Exhibit E other than continuing payments during the
notice periods referred to in the preceding sentence, Seller shall make such
payments. Sums payable during the thirty to ninety day periods referred to
above shall be subject to proration.
14. Buyer acknowledges Buyer's understanding that road widening
and/or realignments in the neighborhood of the Property have resulted in the
prior expropriation of one
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or more areas of land that were formerly part of the Real Property.
15. Section 6(bb) of the Original Purchase Agreement is hereby
deleted in its entirety.
16. The reference to "Paragraph 6" in Section 9(g) of the Original
Purchase Agreement is hereby amended to refer to "Section 7."
17. The reference to "Paragraph 4" in Section 10 of the Original
Purchase Agreement is hereby amended to refer to "Section 5."
18. Section 10 of the Original Purchase Agreement is hereby
supplemented by adding the following paragraphs:
"At the Closing, Buyer shall pay the sum of $35,683.48
to Young Electric Sign Company ("YESCO") in payment of all
sums due and to become due under the agreement with
YESCO dated June 16, 1996.
"All sums payable by Buyer pursuant to Section 10 of the
Original Purchase Agreement, as amended hereby, and all sums
payable by Buyer pursuant to Section 13(c)(vii) of the
Original Purchase Agreement, shall be in addition to the
Purchase Price.
"Buyer shall extend reasonable cooperation, offer access to
the Property on reasonable terms and offer a reasonable
opportunity to remove their property on and after the
Recordation Date to parties whose Contracts are being
terminated in connection with the Closing and who have
items of personal property on the Real Property."
"Buyer shall extend reasonable cooperation, offer access to
the Property on reasonable terms and offer a reasonable
opportunity to remove its property to Day's Inn. In addition,
Buyer agrees that Buyer will not operate the Property as a
"Day's Inn," use any trademarks or other proprietary rights
or materials owned or controlled by Day's Inn, or hold itself
or the Property out as part of any Day's Inn "System" or as
having any affiliation or contractual arrangement with Day's
Inn. In addition, Buyer will remove or cause to be removed
all signs and other items
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on the Property that refer to "Day's Inn" or contain any
trademarks or service marks owned or controlled by Day's
Inn and/or its licensees. Finally, Buyer will undertake
commercially reasonable efforts to promptly paint over or
remove any distinctive trade dress, color schemes and
architectural features that are distinctive to members of
the Day's Inn "System." As between Seller and Buyer, Buyer
shall not have an obligation to take an action or refrain
from taking an action that would otherwise be required
under this subparagraph if and to the extent Day's Inn
waives the requirement and the waiver applies to Seller
and Cheyenne Hotel & Casino, Inc. as well as to Buyer.
19. Section 11(f) of the Original Purchase Agreement is hereby
deleted in its entirety.
20. Section 12 of the Original Purchase Agreement is hereby
supplemented by adding the following:
"(d) Buyer shall have approved Building Expenditures (as
defined in Section 13(c)(vii) of the Original Purchase
Agreement) in the aggregate amount of $100,000.
"(e) Seller shall have approved the form and substance
of any settlement statement and any joint instructions
to be provided to Nevada Title Company.
21. The "April 29, 1998" date in Section 13(a) is hereby amended to
read "May 4, 1998." No party shall have any right or obligation to proceed if
the Recordation Date does not occur on or before May 5, 1998. Time is of the
essence in the provisions of Section 13(a) and in the provisions of this
Paragraph 21.
22. The phrase "the Franchise Agreement" is hereby deleted in
Section 24(a)(ii) of the Original Purchase Agreement.
23. Section 24(c) of the Original Purchase Agreement is hereby
supplemented by adding, before the period at the end thereof, the following:
"other than the Contracts."
24. Section 24 of the Original Purchase Agreement is hereby
supplemented by adding a new subsection (f) at the end thereof reading as
follows:
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"(f) Notwithstanding any other provision of the Original Purchase
Agreement or this Agreement to the contrary, Seller is not
indemnifying Buyer against any Claims of or arising from Day's
Inn."
25. Buyer understands that Seller intends to exchange the Property
for other property or properties under Section 1031 of the Internal Revenue
Code of 1986, as amended (the "1031 Exchange"). Buyer shall not have any
obligation to take any administrative action in connection with the 1031
Exchange following the Closing under the Original Purchase Agreement, as
amended, unless Buyer is specifically requested to do so by Seller. In the
event Seller makes any such post closing requests, Seller shall pay or
reimburse Buyer for all reasonable costs and expenses incurred by Buyer in
accommodating Seller's requests including, without limitation, reasonable
attorney's fees and disbursements incurred by Buyer in connection with such
requests and the accommodation thereof.
26. The text following the signature blank for Seller and preceding
the signature blanks for Desert Gaming, Inc. and American International Trade
and Development, Inc. is hereby amended and restated in its entirety to read
as follows:
"DGI and AITD hereby acknowledge receipt and delivery of the
foregoing Agreement and are executing this Agreement below for
the limited purpose of joining in the representations and
warranties set for in Section 6(g), 6(k), 6(m), 6(v) and 6(y)."
27. Except as modified and supplemented by this Agreement, all of
the provisions of the Original Purchase Agreement shall remain in full force
and effect.
28. This First 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.
29. This Agreement may be executed by one or more facsimile
signatures and delivered by facsimile transmission. Facsimile transmission of
a copy of this Agreement 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 and Seller have signed
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this Agreement on the day and year first above written.
BUYER:
SPEAKEASY GAMING OF LAS VEGAS, INC.
a Nevada corporation
By:
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Xxxxx X. Xxxxxxxx, President
SELLER:
BANTER, INC.,
a Nevada corporation
By: /s/ Xxxxxxxxxxx X. Xxxxxx
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Its: Assistant Vice President
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