EXHIBIT 2.1.1
AMENDMENT TO AGREEMENT AND PLAN OF MERGER
AMENDMENT TO AGREEMENT AND PLAN OF MERGER, dated as of January 31, 1996 (the
"Amendment"), by and among XXXXX HOTELS & CASINO RESORTS, INC., a Delaware
corporation ("THCR"), TAJ MAHAL HOLDING CORP., a Delaware corporation ("Taj
Holding"), and THCR MERGER CORP., a Delaware corporation and a wholly owned
subsidiary of THCR ("Merger Sub"). Capitalized terms not otherwise defined
herein shall have the same meanings as ascribed to them in the Agreement and
Plan of Merger, dated as of January 8, 1996, by and among the parties hereto.
WHEREAS, THCR, Taj Holding and Merger Sub wish to amend the Merger
Agreement;
WHEREAS, the THCR Special Committee and the Board of Directors of THCR have
approved the Merger Transaction, the Merger Agreement and this Amendment;
WHEREAS, the Taj Holding Class B Directors and the Board of Directors of Taj
Holding have approved the Merger, the Merger Agreement and this Amendment; and
WHEREAS, the Board of Directors of Merger Sub has approved this Amendment
and THCR, as the sole stockholder of Merger Sub, has approved and adopted this
Amendment.
NOW THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein and in
the Merger Agreement, the parties hereto agree to amend the Merger Agreement,
in accordance with Section 11.03 thereof, as follows:
1. The first recital in the Merger Agreement immediately following the
preamble is hereby deleted in its entirety and amended to read as follows:
WHEREAS, Taj Holding and certain of its affiliates and THCR and certain
of its affiliates desire to effect the Merger Transaction, which includes
(a) the merger of Merger Sub with and into Taj Holding upon the terms and
subject to the conditions set forth herein (the "Merger"); (b) consummation
of the offering by THCR (the "THCR Offering") of up to $140 million (which
amount may be increased at THCR's discretion) of Common Stock of THCR, par
value $.01 per share ("THCR Common Stock"), and the offering by THCR
Atlantic City Holdings ("AC Holdings") and its wholly owned finance
subsidiary, THCR Atlantic City Funding, Inc. (the "Mortgage Note
Offering"), of up to $1.2 billion aggregate principal amount of mortgage
notes (the "Mortgage Notes"), the aggregate proceeds of which will be used,
together with available cash, to (i) pay cash, pursuant to this Merger
Agreement, to those holders of Class A Common Stock of Taj Holding, par
value $.01 per share (the "Taj Holding Class A Common Stock"), electing to
receive cash in the Merger, (ii) redeem (the "Bond Redemption") Xxxxx Xxx
Xxxxx Funding, Inc.'s outstanding 11.35% Mortgage Bonds, Series A due 1999
(the "Bonds"), (iii) redeem the outstanding shares of Class B Common Stock
of Taj Holding, par value $.01 per share (the "Taj Holding Class B Common
Stock"), as required in connection with the Bond Redemption, (iv) retire,
by purchasing and/or defeasing, the outstanding 10 7/8% Mortgage Notes due
2001 of Xxxxx Plaza Funding, Inc. (the "Plaza Note Purchase," and, together
with the Mortgage Note Offering and the Bond Redemption, the "Debt
Refinancing"), (v) satisfy the indebtedness of Xxxxx Xxx Mahal Associates
("Taj Associates") under its loan agreement with National Westminster Bank
USA, (vi) purchase certain real property (collectively, the "Specified
Parcels") used in the operation of the Xxxxx Xxx Xxxxx Casino Resort (the
"Taj Mahal") that is currently leased from Xxxxx Xxx Xxxxx Realty Corp.
("Realty Corp."), a corporation wholly owned by Xxxxxx X. Xxxxx ("Xxxxx"),
(vii) purchase certain real property used in the operation of Xxxxx Plaza
Casino Hotel and Casino that is currently leased from an unaffiliated third
party, (viii) make a payment to Bankers Trust Company ("Bankers Trust") to
obtain releases of the Liens (defined below) that Bankers Trust has with
respect to certain equity interests of Taj Associates and related
guarantees and (ix) pay related fees and expenses; (c) the contribution by
Xxxxx to AC Holdings (on behalf, and at the direction, of Xxxxx Hotels &
Casino Resorts Holdings, L.P., a subsidiary of THCR ("THCR Holdings")), of
all of his direct and indirect ownership interests in Taj Associates; and
(d) the contribution by THCR to AC Holdings (on behalf, and at the
direction, of THCR Holdings) of all its indirect ownership interests in Taj
Associates acquired in the Merger;
2. The words "THCR Holdings and Taj Holdings LLC" in part (a) of the second
recital in the Merger Agreement are hereby deleted in their entirety and
replaced with the following term: "AC Holdings."
3. Section 1.01 of the Merger Agreement is hereby amended to add the
following defined terms to the terms contained therein:
"AC Holdings" shall have the meaning set forth in the Recitals.
"Consent Solicitation" shall mean the consents and waivers to be
solicited from the holders of the Senior Notes to modify, in connection
with the Merger Transaction, certain provisions of the indenture pursuant
to which the Senior Notes were issued.
"Debt Refinancing" shall have the meaning set forth in the Recitals.
"Mortgage Note Offering" shall have the meaning set forth in the
Recitals.
"Mortgage Notes" shall have the meaning set forth in the Recitals.
"Plaza Note Purchase" shall have the meaning set forth in the Recitals.
"Senior Notes" shall mean the $155 million aggregate principal amount of
15 1/2% Senior Notes of THCR Holdings and Xxxxx Hotels & Casino Resorts
Funding, Inc.
"Taj Associates Guarantee" shall mean the guarantee of Taj Associates
with respect to the Mortgage Notes.
4. Section 1.01 of the Merger Agreement is hereby further amended (i) to
delete the definitions of "Taj Funding Offering" and "Taj Holdings LLC" in
their entirety and (ii) to amend the definitions of "Merger Agreement" and
"Merger Transaction" to read as follows:
"Merger Agreement" shall have the meaning set forth in the Preamble and
shall also include any amendments pursuant to Section 11.03 hereof.
"Merger Transaction" shall have the meaning set forth in the Recitals;
provided, however, that for purposes of Section 7.03(a) and Paragraphs
(iii) and (iv) of Section 9.01 hereof, the term shall not include the Debt
Refinancing.
5. The clause in the third sentence of Section 3.06(a) of the Merger
Agreement that reads "dated January 8, 1996 (the "Rothschild Fairness
Opinion")" is hereby deleted in its entirety and amended to read as follows:
"dated January 31, 1996 (the "Rothschild Fairness Opinion")."
6. The term "Taj Funding Offering" in Sections 3.06(a), 3.06(c) and 3.07 of
the Merger Agreement is hereby deleted in its entirety and replaced with the
following term: "Taj Associates Guarantee."
7. Section 3.15 of the Merger Agreement is hereby amended by (i) replacing
the term "Taj Funding Offering" in the heading with the term "Mortgage Note
Offering" and (ii) deleting clause (b) in its entirety and replacing it with
the following language:
(b) the filing of a registration statement on Form S-1 with the SEC jointly
with the issuers of the Mortgage Note Offering to the extent required in
order to register the Taj Associates Guarantee (the "Debt S-1").
8. Section 3.16 of the Merger Agreement is hereby amended by replacing (i)
the term "THCR Offering" in the heading with the words "Debt S-1 and Equity S-
0," (xx) the words "will, at the time the Equity S-1" in the first sentence
with the words "and the Debt S-1 will, at the time each registration
statement" and (iii) the word "statement" in the second sentence with the word
"statements."
9. The clause in the third sentence of Section 4.06(a) of the Merger
Agreement that reads "dated January 8, 1996 (the "DLJ Fairness Opinion")" is
hereby deleted in its entirety and amended to read as follows: "dated January
31, 1996 (the "DLJ Fairness Opinion")."
10. The heading in Section 4.15 of the Merger Agreement is hereby deleted in
its entirety and amended to read as follows: "Section 4.15. Mortgage Note
Offering."
11. Section 9.01 of the Merger Agreement is hereby amended by (a) deleting
the word "and" in Paragraph (vii), (b) replacing the period at the end of
Paragraph (viii) with a semicolon and the word "and" and (c) inserting a new
Paragraph at the end of the Section to read as follows:
(ix) Taj Holding and THCR shall have received one or more solvency
opinions with respect to the Mortgage Note Offering and related guarantees
from a nationally recognized appraisal firm, in form and substance
reasonably satisfactory to Taj Holding and THCR.
12. Paragraph (i) of Section 9.02 of the Merger Agreement is hereby deleted
in its entirety and amended to read as follows: "(i) [intentionally omitted]."
13. Paragraph (iii) of Section 9.02 of the Merger Agreement is hereby
deleted in its entirety and amended to read as follows:
(iii) assuming consummation of the Merger Transaction, AC Holdings shall
have assumed the indemnification and other obligations of the Surviving
Corporation and TM/GP set forth in Section 7.04 hereof with the
understanding that any subsequent action on the part of AC Holdings
pursuant to Section 7.04(c) hereof shall not release AC Holdings of such
indemnification and other obligations;
14. Paragraph (ii) of Section 9.03 of the Merger Agreement is hereby deleted
in its entirety and amended to read as follows:
(ii) the THCR Offering, the Mortgage Note Offering, the Plaza Note
Purchase and the Consent Solicitation shall have been consummated on terms
acceptable to THCR;
15. Paragraph (v) of Section 9.03 of the Merger Agreement is hereby deleted
in its entirety and amended to read as follows:
(v) Xxxxx shall have contributed, or caused to be contributed, to AC
Holdings (on behalf, and at the direction, of THCR Holdings) all of his
direct and indirect ownership interests in Taj Associates on terms
acceptable to THCR;
Except as modified herein, the Merger Agreement shall remain unmodified and
in full force and effect. This Amendment may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
above written.
TAJ MAHAL HOLDING CORP.
/s/ R. Xxxxx XxXxx
-------------------------------------
By: R. Xxxxx XxXxx
Title: Assistant Treasurer and
Acting Chief Operating Officer
of Xxxxx Xxx Xxxxx Associates
XXXXX HOTELS & CASINO RESORTS, INC.
/s/ Xxxxxxxx X. Xxxxx
-------------------------------------
By: Xxxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
THCR MERGER CORP.
/s/ Xxxxxxxx X. Xxxxx
-------------------------------------
By: Xxxxxxxx X. Xxxxx
Title: President and Chief Executive
Officer
