and paid as follows:
(A)
WITHIN ONE (1) BUSINESS DAY AFTER THE DATE
OF THIS AGREEMENT, BUYER SHALL DEPOSIT WITH THE ESCROW AGENT (DEFINED HEREIN) AN
AMOUNT EQUAL TO TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000) (THE
"INITIAL DEPOSIT"), WHICH AMOUNT SHALL BE HELD SUBJECT TO THE TERMS OF THE
ESCROW AGREEMENT (DEFINED HEREIN);
(B)
ON THE DUE DILIGENCE DEADLINE (DEFINED
HEREIN), BUYER SHALL DEPOSIT WITH THE ESCROW AGENT AN ADDITIONAL AMOUNT EQUAL TO
TWO MILLION FIVE HUNDRED THOUSAND DOLLARS ($2,500,000) (THE "ADDITIONAL
DEPOSIT," AND TOGETHER WITH THE INITIAL DEPOSIT, THE "DEPOSIT"), WHICH AMOUNT
SHALL BE HELD BY THE ESCROW AGENT SUBJECT TO THE TERMS OF THE ESCROW AGREEMENT;
(C)
AT THE SPEAKEASY CLOSING, BUYER SHALL PAY
TO SELLER AN ADDITIONAL AMOUNT EQUAL TO FIFTEEN MILLION DOLLARS ($15,000,000)
(THE "INITIAL PURCHASE PRICE"); AND
(D)
IN ADDITION TO THE AMOUNTS SET FORTH ABOVE,
BUYER SHALL PAY TO SELLER THE ADDITIONAL PAYMENTS AS DETERMINED PURSUANT TO
SECTION 1.3 HEREOF (EACH AN "ADDITIONAL PURCHASE PRICE").
ALL AMOUNTS PAID PURSUANT TO THE FOREGOING SHALL BE PAID BY WIRE TRANSFER OF
IMMEDIATELY AVAILABLE FUNDS TO THE ESCROW AGENT OR TO AN ACCOUNT DESIGNATED BY
SELLER, AS APPLICABLE.
THE DEPOSIT, INITIAL PURCHASE PRICE AND THE ADDITIONAL
PURCHASE PRICE ARE COLLECTIVELY REFERRED TO HEREIN AS THE "PURCHASE PRICE."
Section 1.3
Additional Purchase Price.
On
the thirtieth (30th) day following the Adjustment Date (defined herein), Buyer
shall pay to Seller:
(A)
EBITDA ADJUSTMENT.
AN AMOUNT EQUAL TO FIVE
MILLION DOLLARS ($5,000,000), WHICH AMOUNT SHALL BE PAYABLE BY BUYER IF AND ONLY
IF (I) EBITDA FOR THE HOTEL/CASINO IS GREATER THAN ZERO FOR THE NINE MONTH
PERIOD IMMEDIATELY PRECEDING THE ADJUSTMENT DATE, OR (II) BUYER TERMINATES THE
JOINT OPERATING AGREEMENT PRIOR TO THE END OF THE TERM SET FORTH THEREIN;
(B)
LEASE NEGOTIATION ADJUSTMENT.
IN THE CASE
OF EITHER (X) A RENEGOTIATED LEASE (EACH SUCH LEASE, A "RENEGOTIATED LEASE") OR
(Y) A DEFINITIVE AGREEMENT TO EXTINGUISH SUCH LEASE AND PURCHASE THE EXISTING
FEE INTEREST SUBJECT TO SUCH LEASE (EACH SUCH PURCHASE AND BUYOUT, A "LEASE
BUYOUT"), AN AMOUNT (WHICH SHALL NOT EXCEED IN AGGREGATE FIVE MILLION DOLLARS
($5,000,000)) EQUAL TO THE DIFFERENCE BETWEEN THE INITIAL LEASE AMOUNT AND THE
FINAL LEASE AMOUNT MULTIPLIED BY 0.50.
(C)
LEASE BUYOUT. BUYER AND SELLER ACKNOWLEDGE
AND AGREE, THAT FOLLOWING THE DATE HEREOF, SELLER MAY ENGAGE IN CERTAIN LEASE
BUYOUTS.
WITH RESPECT TO EACH LEASE BUYOUT, IN THE EVENT THAT THE PURCHASE
PRICE NEGOTIATED BY SELLER FOR SUCH LEASE BUYOUT IS:
2
(I)
LESS THAN THE DISCOUNTED PRESENT VALUE
(COMPUTED USING A DISCOUNT RATE OF 10% PER ANNUM) OF THE REMAINING MONTHLY LEASE
PAYMENTS FOR THE LEASE SUBJECT TO THE LEASE BUYOUT, CALCULATED BY ASSUMING THAT
THE MONTHLY PAYMENT OF SUCH LEASE IS EQUAL TO THE MONTHLY PAYMENT AMOUNT SET
FORTH ON EXHIBIT E AND BY ASSUMING THAT ALL RENEWAL RIGHTS WILL BE EXERCISED AND
BY TAKING INTO ACCOUNT ANY ESCALATION OR OTHER ADJUSTMENT PROVISIONS, BUYER
SHALL BE OBLIGATED TO PAY AND OTHERWISE ASSUME RESPONSIBILITY FOR PAYMENT, IN
ACCORDANCE WITH THE DEFINITIVE