Exhibit 10.4
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Plan") dated as of the 22nd
day of December, 2000 is between Xxxxx Xxx Xxxxx Associates, a New Jersey
partnership ("Taj Associates" or the "Surviving Entity") and Xxxxx Casino
Services, L.L.C., a New Jersey limited liability company ("TCS").
WITNESSETH
WHEREAS, the respective partners and members of each of Taj Associates
and TCS have approved and declared advisable the merger of TCS with and into Taj
Associates (the "Merger") and have approved the Merger under the terms and
conditions set forth herein;
WHEREAS, this Plan has been adopted by the partners of Taj Associates
and the members of TCS.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties and agreements contained herein, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions set
forth in this Agreement and in accordance with the New Jersey Uniform
Partnership Law, as amended (the "NJUPL"), and the New Jersey Limited Liability
Company Act, as amended (the "NJLLCA"), at the Effective Time (as defined in
Section 1.3 below) TCS shall be merged with and into Taj Associates and the
separate existence of TCS shall thereupon cease. Taj Associates shall be the
surviving entity in the Merger, and the separate existence of Taj Associates
with all of its rights, privileges, immunities, powers and franchises shall
continue unaffected by the Merger.
1.2 Effects of the Merger. The Merger shall have the effects
specified in the NJUPL and the NJLLCA. All of the rights, privileges and powers
of TCS, and all property, real, personal and mixed, and all debts due to TCS, as
well as all other things and causes of action belonging to TCS, shall be vested
in the Surviving Entity, and shall thereafter be the property of the Surviving
Entity, and the title to any real property vested by deed or otherwise in TCS
shall not revert or be in any way impaired by reason of the Merger. All rights
of creditors and all liens upon any property of TCS shall be preserved
unimpaired and all debts, liabilities and duties of TCS shall attach to the
Surviving Entity and may be enforced against it to the same extent as if the
debts, liabilities and duties had been incurred or contracted by it.
1.3 Closing. The closing of the Merger (the "Closing") shall take
place at the offices of Taj Associates, 0000 Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx
Xxxxxx 00000 on the date that is (i) no sooner than December 13, 2000 and no
later than January 4, 2001, or (ii) at such other place and time and/or on such
other date as Taj Associates and TCS may agree in writing (the "Closing Date").
1.4 Effective Time. As soon as practicable following the Closing,
Taj Associates and TCS will cause a Certificate of Merger to be executed and
filed with the Department of Treasury of the State of New Jersey as provided in
Section 42:1-49c of the NJUPL and Section 42:2B-20c of the NJLLCA. The Merger
shall become effective at the time when the Certificate of Merger has been duly
filed with the Department of Treasury of the State of New Jersey or, if
otherwise agreed by Taj Associates and TCS, such later date or time as is
established by the Certificate of Merger (the "Effective Time").
1.5 Further Assurances. If, at any time after the Effective Date,
the Surviving Entity shall consider or be advised that any bills of sale,
assignments or assurances or any other acts or things are necessary, desirable
or proper (i) to vest, perfect or confirm, of record or otherwise, in the
Surviving Entity, its right, title and interest in, to or under any of the
rights, privileges, powers, franchises, properties or assets of TCS or (ii) to
otherwise carry out the purposes of this Agreement, the Surviving Entity and its
proper officers or partners or their designees shall be authorized to execute
and deliver, in the name and on behalf of TCS, all such bills of sale,
assignments and assurances and to do, in the name and on behalf of TCS, all
other acts and things as may be necessary, proper or desirable to vest, perfect
or confirm the Surviving Entity's right, title and interest in, to and under any
of the rights, privileges, powers, franchises, properties or assets of TCS, in
accordance with the purposes of this Agreement.
ARTICLE II
PARTNERSHIP AGREEMENT OF SURVIVING ENTITY
At the Effective Time, each membership interest in TCS shall be
cancelled. Each partnership interest in Taj Associates shall not be changed or
converted and shall continue to be issued and outstanding. The partnership
agreement of Taj Associates as in effect immediately prior to the Effective Time
shall be the partnership agreement of the Surviving Entity, until duly amended
as provided therein or by applicable law.
ARTICLE III
OFFICERS OF SURVIVING ENTITY
The officers of Taj Associates immediately prior to the Effective Time
shall, from and after the Effective Time, be the officers of the Surviving
Entity until their successors have been duly elected or appointed and qualified
or until their earlier death, resignation or removal.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of TCS. TCS represents and
warrants to Taj Associates that:
(a) Organization and Good Standing. TCS is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of New Jersey and has all requisite limited liability company power
and authority to own and operate its properties and assets and to carry on its
business as presently conducted.
(b) Authority and Approval. TCS has the limited liability
company power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by TCS and the consummation by TCS of the transactions
contemplated hereby have been duly authorized by all necessary limited liability
company action on the part of TCS. This Agreement has been duly executed and
delivered by TCS and (assuming the valid authorization, execution and delivery
of this Agreement by Taj Associates) constitutes the valid and binding agreement
of TCS enforceable against TCS in accordance with its terms, except that
enforceability may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights.
(c) Governmental Filings and Approvals. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby do not require any material consent, waiver or
authorization or approval of any governmental or regulatory authority except as
to filings with and approvals required under the New Jersey Casino Control Act
and rules and regulations promulgated thereunder.
4.2 Representations and Warranties of Taj Associates. Taj Associates
represents and warrants to TCS that:
(a) Organization and Good Standing. Taj Associates is a
limited liability company duly organized, validly existing and in good standing
under the laws of the State of New Jersey and has all requisite partnership
power and authority to own and operate its properties and assets and to carry on
its business as presently conducted.
(b) Authority and Approval. Taj Associates has the partnership
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by Taj Associates and the consummation by Taj Associates of the
transactions contemplated hereby have been duly authorized by all necessary
partnership action on the part of Taj Associates. This Agreement has been duly
executed and delivered by Taj Associates and (assuming the valid authorization,
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execution and delivery of this Agreement by TCS) constitutes the valid and
binding agreement of Taj Associates enforceable against Taj Associates in
accordance with its terms, except that enforceability may be limited by
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights.
(c) Governmental Filings and Approvals. The execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby do not require any material consent, waiver or
authorization or approval of any governmental or regulatory authority except as
to filings with and approvals required under the New Jersey Casino Control Act
and rules and regulations promulgated thereunder.
ARTICLE V
CONDITIONS
5.1 Conditions to the Obligations of Each Party. The respective
obligations of each party to effect the Merger are subject to the satisfaction
at or prior to the Effective Time of each of the following conditions, any or
all of which may be waived in whole or in part to the extent permitted by
applicable law:
(a) Regulatory Consents. All filings required to be made prior
to the Effective Time with, and all consents, approvals and authorizations
required to be obtained prior to the Effective Time from, governmental and
regulatory authorities (including, without limitation, the New Jersey Casino
Control Commission) in connection with the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby shall
have been made or obtained.
(b) Litigation. No court or governmental or regulatory
authority of competent jurisdiction (including, without limitation, the New
Jersey Casino Control Commission) shall have enacted, issued, promulgated,
enforced or entered any statute, rule, regulation, judgment, decree, injunction
or other order (whether temporary, preliminary or permanent) or taken any action
that prohibits the consummation of the transactions contemplated by this
Agreement.
5.2 Conditions to the Obligations of Taj Associates. The obligation
of Taj Associates to effect the Merger is subject to the satisfaction at or
prior to the Effective Time of the following condition, which may be waived in
whole or in part to the extent permitted by applicable law:
(a) Representations and Warranties. Each of the
representations and warranties of TCS contained in this Agreement shall have
been true and correct when made and shall be true and correct in all material
respects at and as of the Effective Time.
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5.3 Conditions to the Obligations of TCS. The obligation of TCS to
effect the Merger is subject to the satisfaction at or prior to the Effective
Time of the following condition, which may be waived in whole or in part to the
extent permitted by applicable law:
(a) Representations and Warranties. Each of the
representations and warranties of Taj Associates contained in this Agreement
shall have been true and correct when made and shall be true and correct in all
material respects at and as of the Effective Time.
ARTICLE VI
TERMINATION
6.1 Termination. This Agreement may be terminated and the Merger may
be abandoned at any time prior to the Effective Time:
(a) by mutual written consent of Taj Associates and TCS;
(b) by Taj Associates if any of the conditions specified in
Section 5.2 have not been satisfied or waived by Taj Associates;
(c) by TCS if any of the conditions specified in Section 5.3
have not been satisfied or waived by TCS; or
(d) by either party if the Merger has not been consummated on
or before January 15, 2001.
6.2 Effect of Termination. In the event of termination of this
Agreement pursuant to this Article VI, this Agreement shall forthwith terminate
without any liability hereunder on the part of Taj Associates or TCS; provided,
however, that nothing contained in this Section 6.2 shall relieve any party from
any liability for the willful breach of this Agreement.
ARTICLE VII
MISCELLANEOUS
7.1 Amendment. Any provision of this Agreement may be amended by the
parties hereto by written agreement executed or delivered at any time prior to
the Effective Time.
7.2 Waiver. At any time prior to the Effective Time, Taj Associates
and TCS may, unless otherwise set forth in this Agreement, (a) extend the time
for the performance of any agreement of the other party hereto, (b) waive any
accuracy and the representations and warranties contained herein or (c) waive
compliance with any agreement or condition of the other party contained herein.
Any agreement on the part of any party to any such extension or waiver shall be
effective only if set forth in a writing signed on behalf of such party and
deliver to the other party. No failure or delay by any party in exercising any
right, power or privilege
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hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other right, power or privilege.
7.3 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including the facsimile or similar writing)
and shall be given:
(a) If to Taj Associates:
Xxxxx Xxx Xxxxx Associates
0000 Xxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Vice President, Legal Affairs
(b) If to TCS:
Trump Casino Services, L.L.C.
Xxxxx Xxxxxx xxx Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxx
or such other address as may be designated in writing by the party to receive
such notice as provided above.
7.4 No Assignment. This Agreement shall not be assignable by
operation of law or otherwise.
7.5 Governing Law. This Agreement shall be construed in accordance
with and governed by the internal laws of the State of New Jersey without regard
of principals of conflict of laws.
7.6 Gaming Laws. Each of the provisions of this Merger Agreement is
subject to and shall be enforced in compliance with the New Jersey Casino
Control Act and all rules and regulations promulgated thereunder.
7.7 Entire Agreement. This Agreement embodies the entire agreement
and understanding among the parties hereto and supercedes all prior agreements
and understandings relating to the subject matter hereof.
7.8 No Third Party Beneficiaries. This Agreement is not intended to
confer upon any other person or entity any rights or remedies hereunder.
7.9 Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in
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accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof and any court of the United States or any state
having jurisdiction, this being an addition to any other remedy to which they
are entitled at law or in equity.
7.10 Captions. The captions contained in this Agreement are for
reference purposes only and shall not effect in any way the meaning or
interpretation of this Agreement.
7.11 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as the
signatures thereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the date first written above.
XXXXX XXX XXXXX ASSOCIATES
By: Xxxxx Atlantic City Corporation,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Executive Vice President
XXXXX CASINO SERVICES, L.L.C.
By: Xxxxx Atlantic City Corporation,
Member
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Executive Vice President
