Exhibit 2.1
FIRST AMENDMENT
TO
ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement is made as of September
30, 2002 by and among MEC Lone Star, L.P., a Delaware limited partnership
("Buyer"), Lone Star Race Park, Ltd., a Texas limited partnership ("Lone
Star"), and LSJC Development Corporation, a Texas corporation (together with
Lone Star, "Sellers"), and is made with reference to that certain Asset
Purchase Agreement dated as of March 6, 2002 among Buyer and Sellers (the
"Agreement"). Capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Agreement.
RECITALS
A. Buyer and Sellers have entered into the Agreement, whereby Sellers have
agreed to sell, and Buyer has agreed to purchase, substantially all of
the assets of Sellers.
B. Buyer and Sellers desire to amend certain terms of the Agreement as more
fully set forth herein.
AGREEMENT
The parties, intending to be legally bound, hereby agree as follows:
1. AMENDMENTS TO AGREEMENT
1.1 EXHIBIT A - ASSUMED CONTRACTS
Exhibit A to the Agreement shall be and is hereby replaced in its entirety
by Exhibit A attached hereto.
1.2 DEFINITIONS
For purposes hereof, "Assumed Health Plans" means only the Plans listed on
Exhibit B attached hereto.
1.3 EXCLUDED ASSETS
Section 2.1(b)(ix) of the Agreement shall be and is hereby deleted in its
entirety.
1.4 EXCLUDED LIABILITIES
Section 2.2(a)(v) of the Agreement shall be and is hereby amended in its
entirety to read as follows:
"(v) except as specified in this Agreement, any liabilities or obligations
to former or current officers, directors, employees or affiliates of
either Seller, including, without limitation, any liabilities or
obligations of either Seller in connection with Sellers' Long Term
Incentive Plan or any other employee benefit
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plans or pension plans (other than such liabilities or obligations
arising from Buyer's activities as plan sponsor after the Closing Date
under Sellers' 401(k) Plan and the Assumed Health Plans) or any
collective bargaining, labor or employment agreement or other similar
arrangement or obligations in respect of retiree health benefits and
including any fines, Taxes, penalties or related charges payable to any
person in connection with such employee benefit plans and pension plans
(other than such fines, Taxes, penalties or related charges arising from
Buyer's activities as plan sponsor after the Closing Date under Sellers'
401(k) Plan and the Assumed Health Plans);"
1.5 ASSUMED LIABILITIES
Section 2.2(b) of the Agreement shall be and is hereby amended by adding
the following after Section 2.2(b)(vii) thereof:
"(viii) all liabilities and obligations to former or current officers,
directors, employees or affiliates of either Seller arising from
Buyer's activities as plan sponsor after the Closing Date under
Sellers' 401(k) Plan and the Assumed Health Plans."
1.6 EMPLOYEE BENEFIT DELIVERABLES
Section 3.12(c) of the Agreement shall be and is hereby amended by adding
the following at the end thereof:
"(iv) all insurance policies purchased by or to provide benefits under
Sellers' 401(k) Plan and the Assumed Health Plans;
(v) all reports in possession of Sellers and submitted within the two years
preceding the date of this Agreement by third parties with respect to
Sellers' 401(k) Plan and the Assumed Health Plans;
(vi) the Form 5500 filed in each of the most recent three plan years with
respect to Sellers' 401(k) Plan and the Assumed Health Plans,
including all schedules thereto and the opinions of independent
accountants;
(vii) all notices that were given by Sellers or Sellers' 401(k) Plan or the
Assumed Health Plans to, or were received by Sellers or Sellers'
401(k) Plan or the Assumed Health Plans from, the IRS, the Pension
Benefit Guaranty Corporation, or any successor thereto (the "PBGC"),
or the Department of Labor within the four years preceding the date
of this Agreement;
(viii) all records concerning participation, vesting, accrual of benefits,
payment of benefits, and elective forms of benefits under Sellers'
401(k) Plan and the Assumed Health Plans and any other existing
information reasonably accessible to Sellers and reasonably
requested by Buyer that is necessary or appropriate for the
administration thereof; and
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(ix) the most recent determination letter for Sellers' 401(k) Plan."
1.7 EMPLOYEE BENEFIT REPRESENTATIONS AND WARRANTIES
Section 3.12(d) of the Agreement shall be and is hereby amended by adding
the following at the end thereof:
"(v) All filings required by ERISA, the IRC and any applicable state law as
to each Plan have been timely filed, and all notices and disclosures
to participants required thereby have been timely provided.
(vi) After the Closing Date, Buyer will not have any liability with respect
to any Plan of a pre-Closing Date ERISA Affiliate.
(vii) Each Assumed Health Plan can be terminated within thirty days,
without payment of any additional contribution or amount and without
the vesting or acceleration of any benefits promised by such Plan.
(viii) No event has occurred or circumstance exists that could result in a
material increase in premium costs of any Assumed Health Plan that
is insured, or a material increase in benefit costs of any such plan
that is self-insured.
(ix) Except for such defects that can be corrected without meaningful cost
or liability, Sellers' 401(k) Plan is qualified in form and operation
under IRC (S) 401(a); and each trust for Sellers' 401(k) Plan is
exempt from federal income tax under IRC (S) 501(a). No event has
occurred or circumstance exists that will or could give rise to
disqualification or loss of tax-exempt status of such Plan or any such
trust.
(x) Except to the extent required under ERISA (S) 601 et seq. and IRC (S)
4980B, Sellers do not provide health or welfare benefits for any
retired or former employee nor are they obligated to provide health or
welfare benefits to any active employee following such employee's
retirement or other termination of service.
(xi) Sellers have complied in all material respects with the provisions of
ERISA (S) 601 et seq. and IRC (S) 4980B.
(xii) No payment that is owed or may become due to any director, officer,
employee, or agent of Sellers will be non-deductible to Sellers or
subject to tax under IRC (S) 280G or (S) 4999; nor will Sellers be
required to "gross up" or otherwise compensate any such person
because of the imposition of any excise tax on a payment to such
person.
(xiii) Except to the extent a partial termination occurs under Sellers'
401(k) Plan, the consummation of the Contemplated Transactions will
not result
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in the payment, vesting, or acceleration of any benefit under the
Assumed Health Plans or Sellers' 401(k) Plan.
(xiv) There are no Proceedings pending or, to the Knowledge of Sellers,
threatened against any Assumed Health Plan or Sellers' 401(k) Plan,
other than routine claims for benefits, and to the Knowledge of
Sellers, no facts exist which could give rise to any such
Proceedings.
(xv) Sellers have made all required contributions to the Assumed Health
Plans and Sellers' 401(k) Plan."
1.8 EMPLOYEE BENEFIT COVENANT
Article 5 of the Agreement shall be and is hereby amended by adding the
following at the end thereof:
"5.12 EMPLOYEE BENEFITS
(a) As of the Closing Date, Buyer will assume sponsorship of Sellers'
401(k) Plan and the Assumed Health Plans and will be substituted for
Sellers as the plan sponsor thereunder. Sellers will make any
amendments thereto necessary to effect such substitution and will
provide any legally required notice of such change to all
participants and beneficiaries, and will provide notice of such
change to all persons providing services to the Assumed Health Plans
and Sellers' 401(k) Plan. As of the Closing Date, Buyer will adopt
such resolutions and take such other actions as are necessary to
effect assumption of Sellers' 401(k) Plan and the Assumed Health
Plans.
(b) Sellers will file with the appropriate Governmental Body on a timely
basis the annual reports on Form 5500 for Sellers' 401(k) Plan and
the Assumed Health Plans for which a Form 5500 is due for plan years
ending on or before the Closing Date. Buyer will file with the IRS
on a timely basis the annual report on Form 5500 for Sellers' 401(k)
Plan and the Assumed Health Plans for which a Form 5500 is due for
plan years ending after the Closing Date."
1.9 BUYER'S CLOSING CONDITIONS
Section 7.4 of the Agreement shall be and is hereby amended by adding the
following at the end thereof:
"(jj) a Luxury Suite Agreement Assignment in the form of Exhibit H attached
hereto with respect to each of the Persons listed on Exhibit G
hereto;
(kk) an Assignment, Assumption and Consent Agreement (Breeders' Cup
Agreement) in a form mutually acceptable to Buyer and Sellers;
(ll) a Racing License Assignment in form mutually acceptable to Buyer and
Sellers;
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(mm) an Assumption and Release (GPMURD) in form mutually acceptable to Buyer
and Sellers;
(nn) an Assignment and Assumption Agreement (GPISD Agreement) in form
mutually acceptable to Buyer and Sellers;
(oo) an Assignment, Assumption and Amendment Agreement (United Tote
Agreement) in form mutually acceptable to Buyer and Sellers; and
(pp) an Assignment of Interest (Lone Star Race Park Holdings, LLC) in a
form mutually acceptable to Buyer and Sellers."
1.10 OUTSIDE CLOSING DATE
Section 9.1(d) of the Agreement shall be and is hereby amended by deleting
the date "September 30, 2002" appearing therein and substituting therefor the
date "November 15, 2002."
2. GENERAL PROVISIONS
2.1 AGREEMENT NOT OTHERWISE AFFECTED
Except as expressly amended pursuant hereto, the Agreement shall remain
unchanged and in full force and effect and is hereby ratified and confirmed in
all respects.
2.2 FURTHER ASSURANCES
The parties agree (a) to furnish upon request to each other such further
information, (b) to execute and deliver to each other such other documents and
(c) to do such other acts and things, all as the other party may reasonably
request for the purpose of carrying out the intent of this First Amendment and
the documents referred to in this First Amendment.
2.3 WAIVER
Except as otherwise expressly provided in this First Amendment, the rights
and remedies of the parties to this First Amendment are cumulative and not
alternative. Neither the failure nor any delay by any party in exercising any
right, power, or privilege under this First Amendment or the documents
referred to in this First Amendment will operate as a waiver of such right,
power, or privilege, and no single or partial exercise of any such right,
power, or privilege will preclude any other or further exercise of such right,
power, or privilege or the exercise of any other right, power, or privilege.
To the maximum extent permitted by applicable law, (a) no claim or right
arising out of this First Amendment or the documents referred to in this First
Amendment can be discharged by one party, in whole or in part, by a waiver or
renunciation of the claim or right unless in writing signed by the other
party; (b) no waiver that may be given by a party will be applicable except in
the specific instance for which it is given; and (c) no notice to or demand on
one party will be deemed to be a waiver of any obligation of such party or of
the right of the party giving such notice or demand to take further action
without
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notice or demand as provided in this First Amendment or the documents referred
to in this First Amendment.
2.4 ENTIRE AGREEMENT AND MODIFICATION
This First Amendment, together with the Agreement, supersedes all prior
agreements between the parties with respect to its subject matter and
constitutes (along with the documents referred to in this First Amendment) a
complete and exclusive statement of the terms of the agreement between the
parties with respect to its subject matter. This First Amendment may not be
amended except by a written agreement executed by the party to be charged with
the amendment.
2.5 ASSIGNMENT, SUCCESSORS AND NO THIRD-PARTY RIGHTS
No party may assign any of its rights under this First Amendment without
the prior consent of the other parties. Subject to the preceding sentence,
this First Amendment will apply to, be binding in all respects upon, and inure
to the benefit of the successors and permitted assigns of the parties. Nothing
expressed or referred to in this First Amendment will be construed to give any
Person other than the parties to this First Amendment and the Indemnified
Persons any legal or equitable right, remedy, or claim under or with respect
to this First Amendment or any provision of this First Amendment. This First
Amendment and all of its provisions and conditions are for the sole and
exclusive benefit of the parties to this First Amendment and their successors
and assigns.
2.6 SEVERABILITY
If any provision of this First Amendment is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this First
Amendment will remain in full force and effect. Any provision of this First
Amendment held invalid or unenforceable only in part or degree will remain in
full force and effect to the extent not held invalid or unenforceable.
2.7 SECTION HEADINGS, CONSTRUCTION
The headings of Sections in this First Amendment are provided for
convenience only and will not affect its construction or interpretation. All
words used in this First Amendment will be construed to be of such gender or
number as the circumstances require. Unless otherwise expressly provided, the
word "including" does not limit the preceding words or terms.
2.8 GOVERNING LAW
This First Amendment will be governed by the laws of the State of Texas
without regard to conflicts of laws principles.
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2.9 COUNTERPARTS
This First Amendment may be executed in counterparts, each of which will be
deemed to be an original copy of this First Amendment and all of which, when
taken together, will be deemed to constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have executed and delivered this First
Amendment as of the date first written above.
MEC LONE STAR, L.P.,
a Delaware limited partnership
By: MEC TEXAS RACING, INC.,
a Delaware corporation, its general partner
By:
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Name:
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Title:
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LONE STAR RACE PARK, LTD.,
a Texas limited partnership
By: LONE STAR RACE PARK
MANAGEMENT CORPORATION,
a Texas corporation, its general partner
By:
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Name:
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Title:
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LSJC DEVELOPMENT CORPORATION,
a Texas corporation
By:
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Name:
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Title:
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