Ex. 10.45.2
First Amendment
to
Amended and Restated Option Agreement
This First Amendment to Amended and Restated Option Agreement dated as
of August 30, 1994 is made among ACFH Inc. ("ACFH"), Chemical Bank ("Chemical")
and Donald J. Trump (the "Buyer").
Preliminary Statement
---------------------
ACFH, Chemical and the Buyer have previously entered into an Amended
and Restated Option Agreement dated as of June 16, 1994 (the "Existing Option").
The parties now desire to amend the Existing Option as set forth in this
Amendment.
Agreement
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The parties agree as follows:
1. The Existing Option is amended as follows:
A. Paragraph 2(a) is deleted and the following substituted in its
place:
"(a) The term of the First Option shall commence upon the date of this
Agreement and continue until 5:00 P.M. on September 30, 1994 (the
"First Option Period"). The term of the Second Option shall commence
upon the date of this Agreement and continue until 5:00 P.M. on
September 30, 1994 (the "Second Option Period"). The First Option
Period and the Second Option period may be extended on a month by
month basis after September 30, 1994 until March 31, 1995 upon the
following terms and conditions: (i) prior to the then current
expiration date (time being of the essence), the Buyer shall give
notice to ACFH and Chemical of its election to extend the Options,
which notice shall state the month through which the Options shall be
extended (which shall not be beyond March 31, 1995), (ii)
simultaneously with the delivery of the notice described in clause (i)
(time being of the essence), the Buyer shall pay to ACFH and Chemical,
in immediately available funds, the applicable Option Extension Fee as
described below, and (iii) at the time of the Buyer's election to
extend, the Options shall not have previously terminated and no event
specified in clause (v) or (vi) of paragraph (b) below shall have
occurred. The Option Extension Fee
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shall be $50,000 per month for October, November and December of 1994,
and $150,000 per month for January, February and March of 1995. Under
no circumstances shall the Buyer have any right to extend the First
Option Period or the Second Option Period beyond March 31, 1995, time
being of the essence with respect to such final expiration date."
B. Clauses (i) and (ii) of Paragraph 2(b) are deleted.
C. In clause (iii) of Paragraph 2(b), the date "August 1, 1994" is
changed to "the date required by the terms of Section 12;".
D. The paragraph beginning at the bottom of page 4 and continuing
onto the top of page 5 is deleted, and the following is substituted in its
place:
"The Buyer acknowledges that time shall be of the essence with respect
to the Buyer's obligations to make the filing referred to in clause
(iii) above by the date set forth in such clause (the "Performance
Date"). If Chemical and ACFH elect to terminate the Options pursuant
to this paragraph (b), then Chemical and ACFH shall have no further
obligations or liability to the Buyer under this Agreement."
E. At the end of Paragraph 5(a), the following shall be added:
"In addition to the consideration in the previous sentence, the
applicable Option Extension Fee shall be paid in connection with any
extension of the term of the Options. Except as provided in paragraph
(b) below, the initial option payment of $1,250,000 and any Option
Extension Fees which are paid shall be non-refundable.
F. In Paragraph 6(a), in addition to the credit of $1,250,000 on
account of the initial option payment, the Buyer shall be given a credit
against the purchase price equal to the amount of any Option Extension Fees
actually paid by the Buyer.
G. The following shall be added at the end of Paragraph 9:
"Prior to September 30, 1994, the Buyer, at his expense, shall obtain
an extension of the right to use
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the name "Regency" in connection with the operation of the Property
for the period through December 31, 1995, which extension shall be in
substantially the same form as the current license. if the Buyer
fails to obtain the extension of the license required by the preceding
sentence, then the Buyer shall be liable to ACFH for all costs and
expenses incurred by ACFH in removing the "Regency" name from the
Property."
H. The existing Section 12 is deleted and the following substituted
in its place:
"12. Antitrust Notification. The Buyer shall cause to be filed with
the Federal Trade Commission ("FTC") and the Department of Justice
("DOJ") pursuant to the Hart-Scott-Rodino Antitrust Improvements Acts
of 1976, as amended, and applicable rules and regulations thereunder
("HSR"), the notification and report form required for the
transactions contemplated by this Agreement and shall, as promptly as
practicable, furnish any supplemental information which may be
requested by the FTC or the DOJ pursuant to HSR. The HSR filing shall
be made by the Buyer on or before such date as is necessary to insure
that the HSR waiting period will expire at least one day prior to the
date specified for the Closing in the First Option Notice delivered
pursuant to Section 3 above. The Buyer and ACFH shall use their
respective best efforts to cause the applicable HSR waiting period to
be terminated at the earliest possible time. Buyer shall pay any
filing or similar fees required to be paid in connection with the HSR
notification and report form. Anything in this Agreement to the
contrary notwithstanding, the expiration of the HSR waiting period and
any extensions thereof shall be a condition precedent to the Closing
pursuant to the exercise of the First Option. If such Closing fails
to occur by the Closing date specified in the First Option Notice due
to a failure to have the HSR waiting period terminated by that date,
then the date for such Closing shall be automatically extended for
thirty (30) days, time being of the essence, unless all parties to
this Agreement agree in writing to the contrary; provided, however,
that if such Closing fails to occur during such 30-day extension, time
being of the essence, ACFH and Chemical shall have the right, by
notice to the Buyer, to terminate this Agreement and the Purchase
Agreement, and thereafter this Agreement shall be void without
recourse by either party in law or in equity, the Buyer specifically
agreeing in such event that he shall have no right to purchase the
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Property whatsoever and claim of any kind whatsoever regarding the
Property, and further agreeing that in such event the Buyer shall not
be entitled to the return of any monies paid hereunder. The Buyer
specifically agrees that he shall have no further right to extend the
Closing date beyond the one 30-day extension provided for in the
previous sentence, and that a failure to have the HSR waiting period
terminated during such 30-day extension shall not in any way entitle
the Buyer to any further extension. The Buyer shall promptly upon
request furnish to ACFH information reasonably requested by ACFH in
connection with any amendment of ACFH's HSR filing."
2. The Buyer certifies that (i) the Existing Option, as modified by
this Amendment, remains in full force and effect and has not been modified or
amended except by this amendment, and (ii) neither Chemical nor ACFH are in
default under the terms of the Existing Option, as amended.
The undersigned have duly executed this Amendment.
Chemical Bank
By: /s/
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Name: RICHARD J. PEISER
Title: Managing Director
ACFH Inc.
By: /s/
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Name: GORDON TSOU
Title: President
/s/
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DONALD J. TRUMP
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