EXHIBIT 2.5
FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
This First Amendment, dated as of October 21, 1997 (this "Amendment"),
to that certain Agreement and Plan of Merger dated as of August 22, 1997 (the
"Merger Agreement") is entered into by and among Ladbroke Racing Corporation, a
Delaware corporation ("Parent"), CG&E Acquisition Corp., a Delaware corporation
("Purchaser"), and Colorado Gaming & Entertainment Co., a Delaware corporation
(the "Company"). Capitalized terms used herein without definition shall have
the meanings given to such terms in the Merger Agreement.
WHEREAS, Section 8.3 of the Merger Agreement provides that it may be
amended by the parties prior to the Effective Time pursuant to an instrument in
writing signed by the parties thereto;
WHEREAS, the parties have determined that it is in their best interest
to make certain amendments to the Merger Agreement and to provide for the
assignment by Parent of all of its rights and obligations under the Merger
Agreement.
In consideration of the promises, mutual covenants and agreements set
forth herein, the parties agree as follows:
AGREEMENT
1. AMENDMENTS. The Merger Agreement is hereby amended as follows:
1.1 Article III of the Merger Agreement is hereby amended to add
a new Section 3.21 to read as follows:
"SECTION 3.21 BANKRUPTCY PROCEEDINGS. Pursuant to an order
issued by the United States Bankruptcy Court for the Eastern District of
Louisiana, the First Amended Joint Plan of Reorganization of Xxxxxxxx
Enterprises Inc., BWBH, Inc., BWCC, Inc. and Millsite 27, Inc. (the "Plan") has
become effective; the order confirming the Plan is in full force and effect and
is not subject to any stay, motion for stay, appeal or other challenge; and
there is no default under the Plan or any obligation created or continued by the
Plan."
1.2 Article V of the Merger Agreement is hereby amended to add a
new Section 5.5 to read as follows:
"SECTION 5.5 COOPERATION AND BEST EFFORTS. The Company shall
cooperate with Parent and Purchaser in seeking, and shall use its best efforts
to obtain, prior to the Effective Time (i) any consents required to be obtained
as a result of the Merger under that certain Lease Agreement by and between
12596 Limited Partnership, as landlord, and the Company, as tenant, relating to
the Company's offices at 00000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx; (ii) the
acceptance by the United States Environmental Protection Agency on behalf of the
United States of America of (A) title to the Xxxxxxx Incline discharge
conveyance system as contemplated by that certain Special Warranty Deed dated
December 23, 1993, between the Blake Family Limited Partnership ("Blake") and
the United States of America, which is recorded in Book 556 at Page 321 in the
Office of the County Recorder for the County of Xxxxxx, State of Colorado (the
"Xxxxxx County Recorder), and (B) the Easement dated December 23, 1993 between
Blake and the United States of America, which is recorded in Book 556 at Page
324 in the Office of the Xxxxxx County Recorder; and (iii) acceptance, without
reservation of rights, by the insurance carriers whose policies cover any
Company liability with respect to the litigation disclosed in Section 3.10(i) of
the Disclosure Schedule."
1.3 Article VII, Section 7.3 of the Merger Agreement is hereby
amended to add new subsections (g) and (h) to read as follows:
"(g) That certain Registration Rights Agreement, dated as of June
7, 1996, by and among the
Company and the Initial Holders (as defined therein) shall have been
terminated or amended to the satisfaction of Parent so that, following the
Effective Time, the Surviving Corporation shall have no obligation to
register any securities or to maintain the effectiveness of any registration
statement thereunder or to keep current any prospectus prepared in connection
therewith.
(h) All consents which are, in the judgment of Parent, necessary
or appropriate to permit the consummation of the Merger without violating the
terms of, or causing a termination under, either (i) that certain Lease
Agreement by and among Xxxxx X. Xxxxx and Xxxxxx Xxxx Xxxxxx, as landlord, and
BWBH, Inc. (formerly H. P. Blackhawk, L.P.), as tenant, or (ii) that certain
Option to Purchase among the same parties and relating to the same real
property, shall have been obtained and shall be in full force and effect."
1.4 Article IX, Section 9.6 of the Merger Agreement is hereby
amended to read as follows:
"SECTION 9.6 ASSIGNMENT. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by any of the parties without
the prior written consent of the other parties, except that (i) Parent may
assign, in its sole discretion, any or all of its rights, interests and
obligations under this Agreement, including without limitation its ownership or
other rights with respect to Purchaser, to any direct or indirect wholly owned
subsidiary of Ladbroke Group plc ("Ladbroke Group"), and upon such assignment
all references in this Agreement to Parent shall be deemed to be references to
such assignee, and (ii) Purchaser may assign, in its sole discretion, any or all
of its rights, interests and obligations under this Agreement to Parent or to
any direct or indirect wholly owned subsidiary of Ladbroke Group, but no such
assignment shall relieve Purchaser of any of its obligations under this
Agreement. Parent shall give prompt written notice to the Company of any
assignment by Parent or Purchaser pursuant to this Section 9.6. Subject to the
preceding sentences, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by the parties hereto and their respective successors and
assigns."
1.5. Article IX, Section 9.1(a) of the Merger Agreement is
hereby amended to change the address to which notices shall be delivered to
Parent or Purchaser to read as follows:
"Ladbroke Racing Corporation
Plaza Two, Suite 500
0000 Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxx
Telecopier: (000) 000-0000"
1.6 Except as expressly provided in this Amendment, all terms
and conditions of the Merger Agreement remain in full force and effect, without
modification.
2. MISCELLANEOUS
2.1 COMPLETE UNDERSTANDING; MODIFICATION. This Amendment and
the Merger Agreement constitutes the full and complete understanding and
agreement of the parties with respect to the subject matter thereof and
supersede all prior understandings and agreements.
2.2 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware.
2.3 COUNTERPARTS. This Amendment may be executed in one or more
counterparts and by different parties in separate counterparts. All of such
counterparts, taken together, will constitute one and the same agreement and
shall become effective unless otherwise provided therein when one or more
counterparts have been signed by each party and delivered to the other parties.
IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this
Amendment to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
LADBROKE RACING CORPORATION
By: /s/ XXXX XXXX
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Name: Xxxx Xxxx
Title: President and Chief Operating Officer
CG&E ACQUISITION CORP.
By: /s/ XXXX XXXX
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Name: Xxxx Xxxx
Title: President
COLORADO GAMING & ENTERTAINMENT CO.
By: /s/ XXXXXXX X. XXXXXX, XX.
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Name: Xxxxxxx X. Xxxxxx, Xx.
Title: President
