Exhibit 10.1


 


THIRD AMENDMENT TO ASSET PURCHASE AGREEMENT


 


This
Third Amendment to Asset Purchase Agreement, dated as of June 2, 2008
(this “Third Amendment”), is by and between Hedwigs Las Vegas Top Tier,
LLC, a Delaware limited liability company (“Purchaser”), and 155 East
Tropicana, LLC, a Nevada limited liability company (“Seller”).


 


RECITALS


 


A.                                   Purchaser and
Seller entered into that certain Asset Purchase Agreement dated April 30,
2007 (the “Agreement”).


 


B.                                     Purchaser and
Seller entered into that certain First Amendment to Asset Purchase Agreement
dated May 7, 2007 (the “First Amendment”).


 


C.                                     Purchase and
Seller entered into that certain Second Amendment to Asset Purchase Agreement
dated August 8, 2007 (the “Second Amendment”).


 


D.                                    As
consideration for the First Amendment, Purchaser paid the sum of One Million
dollars ($1,000,000) to Seller (the “Initial Payment”), which sum is a
non-refundable earnest money deposit that was fully earned on the date of
payment.


 


E.                                      As
consideration for the Second Amendment, Purchaser paid to Seller (a) the
sum of Five Hundred Thousand dollars ($500,000) (the “Second Payment”) and (b) the
sum of One Million Five Hundred Thousand dollars ($1,500,000) (the “Third
Payment”), which sums are non-refundable earnest money deposits that were fully
earned on the dates of payment.


 


F.                                      Pursuant to the
Second Amendment, on December 31, 2007, January 31, 2008, February 29,
2008, March 31, 2008 and April 30, 2008 Purchaser paid extension fees
(the “Extension Fees”) of Five Hundred Thousand dollars ($500,000) each to
Seller, which extended the Agreement to 5:00 p.m., PDT, on June 2,
2008.  The Extension Fees are
non-refundable and were fully earned on the dates of payment.


 


G.                                     Purchaser and
Seller desire to further amend the Agreement as set forth below.


 


AGREEMENT


 


NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree that the
Recitals are true and correct and the parties hereby amend the Agreement as follows:


 


1.                                             Defined Terms.  Unless otherwise defined herein, all
capitalized terms used in this Third Amendment shall have the meaning given
such terms in the Agreement.  Unless the
context otherwise indicates, all references herein to the Agreement shall include
this Third Amendment.


 

















 


2.                                            Consideration. 
As consideration for this Third Amendment, Purchaser has or shall pay
the sum of Five Hundred Thousand dollars ($500,000) (the “Fourth Payment”) to
Seller in good funds by 5:00 p.m., PDT, on June 6, 2008, which shall
be non-refundable and fully earned on the date of payment.


 


3.                                            Non-Refundable Deposits.  The Initial Payment, the
Second Payment, the Third Payment, the Fourth Payment, the Extension Fees and
any payment made pursuant to amended Section 4.15 as set forth in this
Third Amendment are collectively referred to as the “Non-Refundable Deposits.”  If the Closing occurs, the Non-Refundable
Deposits shall be applied to the Cash Purchase Price as set forth in amended Section 1.6
of the Agreement.


 


4.                                            Purchase Price. 
Section 1.5 of the Agreement is deleted and replaced with the
following:


 


The consideration of the sale and
transfer of the Purchased Assets to Purchaser shall consist of the Cash
Purchase Price and the assumption by Purchaser of the Assumed Liabilities.  The Cash Purchase Price shall be (i) Ninety-Eight
Million dollars ($98,000,000) plus (ii) the cash amount of the Accrued
Royalty, plus (iii) any obligations under any notes executed by Seller
under the Lease Agreement (including accrued interest and penalties) and shall
be subject to adjustment as provided in Section 1.8.


 


5.                                            Exclusivity. 
Section 4.13 of the Agreement is deleted and replaced with the
following:


 


Seller may directly or indirectly
through any representative, employee or agent, solicit, initiate, or encourage
the submission of any proposal or offer from any Person relating to the
acquisition of all or substantially all of the Interests or the assets of
Seller (including any acquisition structured as a merger, consolidation, or share
exchange) or authorize any person to do any of the foregoing.  Notwithstanding the foregoing, unless and
until this Agreement is terminated in accordance with the provisions of ARTICLE
VII, Seller shall not (i) provide non-public information of the Seller,
with the exception of updated financial statements, to any such Person or (ii) enter
into any agreement, binding or not, relating to the acquisition of all or
substantially all of the Interests or the assets of Seller (including any
acquisition structured as a merger, consolidation, or share exchange) with any
such Person.


 


6.                                            Additional Deposits if Closing is Deferred.  Section 4.15 of the Agreement is deleted
and replaced with the following:


 

















 


If the Closing has not occurred on
or before June 30, 2008 and this Agreement has not been terminated as
provided in ARTICLE VII, Purchaser may, but shall not be required to, extend
this Agreement until July 31, 2008 by paying to Seller before 5:00 p.m.,
PDT, on June 30, 2008 the sum of One Million dollars ($1,000,000) (the “July Payment”),
which shall be non-refundable and fully earned on the date of payment.  If the Closing has not occurred on or before July 31,
2008 and this Agreement has not been terminated as provided in ARTICLE VII,
Purchaser may, but shall not be required to, extend this Agreement until August 31,
2008 by paying to Seller before 5:00 p.m., PDT, on July 31, 2008 the
sum of Two Million dollars ($2,000,000) (the “August Payment”), which
shall be non-refundable and fully earned on the date of payment. Any payment
made pursuant to this Section 4.15 shall be considered a Non-Refundable
Deposit and as such shall be applied to the Cash Purchase Price if the Closing
occurs, as set forth in Section 1.6 of this Agreement.


 


7.                                            Termination. 
Section 7.1 of the Agreement is deleted and replaced with the
following:


 


(a)                      This Agreement may be terminated and the Transactions may be abandoned at
any time prior to the Closing:


 


(i)                         by mutual written Consent of the Purchaser and the Seller;


 


(ii)                      by Purchaser at any time; or


 


(iii)                   by Seller
or Purchaser if any court of competent jurisdiction or other Governmental
Authority shall have issued an Order permanently restraining, enjoining or
otherwise prohibiting the Transactions, and such Order shall have become final
and nonappealable;


 


(b)                     This
Agreement shall be terminated and the Transactions shall be abandoned, whether
or not Seller has made any filing in connection with the Transactions under the
HSR Act:


 


(i)                         if the consideration provided for in this Third Amendment is not made
within the time period provided in this Third Amendment;


 


(ii)                      if the Closing does not occur on or before June 30, 2008 


 

















 


and Seller is not then in material
breach of any of its representations, warranties or covenants in this Agreement;
provided, however, that this Agreement shall be extended until July 31,
2008 if Purchaser makes the July Payment as provided in Section 4.15;


 


(iii)                   if the
Closing does not occur on or before July 31, 2008 and Seller is not then
in material breach of any of its representations, warranties or covenants in
this Agreement; provided, however, that this Agreement shall be extended until August 31,
2008 if Purchaser makes the August Payment as provided in Section 4.15;
or


 


(iv)                  if the
Closing does not occur on or before September 1, 2008.


 


(c)                      The party desiring to terminate this Agreement pursuant to this Article VII
shall give written notice of such termination to the other party hereto.


 


8.                                            Inconsistencies; No Other Changes; No Default.  In the event of any inconsistency
between the terms and provisions of this Third Amendment and the terms and
provisions of the Agreement, the terms and provisions hereof shall
control.  Purchaser and Seller agree that
there are no other changes to the Agreement, and the Agreement, as amended
hereby, remains in full force and effect. 
Purchaser and Seller hereby acknowledge that, to their respective
knowledge, the other party is not in default under the Agreement.


 


9.                                            Effectiveness. 
This Third Amendment shall be effective upon mutual execution and
delivery.


 


10.                                      Counterparts.  This Third Amendment may be
executed in counterparts, each of which shall be fully effective as an
original, and all of which together shall constitute one and the same
instrument.


 


[Signature Page Follows]


 

















 


IN WITNESS WHEREOF, the parties
hereto have caused this Third Amendment to be duly executed as of the date
first above written.


 


 


	
   

  	
   

  	
  HEDWIGS LAS VEGAS TOP TIER, LLC,

  
	
   

  	
   

  	
  a Delaware limited liability company

  



 


 


	
   

  	
  By:

  	
  Hedwigs Las Vegas GP, LLC,

  
	
   

  	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
  Its Managing Member

  



 


 


	
   

  	
  By:

  	
  NTH Advisory Group, LLC

  
	
   

  	
   

  	
  a California limited liability

  
	
   

  	
   

  	
  company

  
	
   

  	
   

  	
  Its managing member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   /s/ Richard Bosworth

  
	
   

  	
   

  	
  Name:  Richard
  Bosworth

  
	
   

  	
   

  	
  Title:  Managing
  Member

  



 


 


	
   

  	
  155 EAST TROPICANA, LLC

  
	
   

  	
  a Nevada limited liability company

  



 


 


	
   

  	
  By:

  	
  /s/
  Michael Hessling

  
	
   

  	
   

  	
  Name:
  Michael Hessling

  
	
   

  	
   

  	
  Title:
  President