EXHIBIT 1.2
AMENDMENT NO. 1
TO THE
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
MHC T1000 TRUST
(f/k/a MHC THOUSAND TRAILS TRUST)
THOUSAND TRAILS ACQUISITION, INC.
KTTI HOLDING COMPANY, INC.
AND
THOUSAND TRAILS OPERATIONS HOLDING COMPANY, L.P.
This Amendment, dated as of September __, 2004 (this "AMENDMENT"), is
among MHC T1000 Trust (f/k/a MHC Thousand Trails Trust), Thousand Trails
Acquisition, Inc., KTTI Holding Company, Inc. and Thousand Trails Operations
Holding Company, L.P. The parties agree as follows:
1. Merger Agreement; Definitions. This Amendment amends the Agreement
and Plan of Merger dated as of August 2, 2004 among the parties hereto (as in
effect prior to giving effect to this Amendment, the "MERGER AGREEMENT"). Terms
defined in the Merger Agreement and not otherwise defined herein are used herein
with the meaning so defined.
2. Amendment of Merger Agreement. Effective as of the date hereof, the
Merger Agreement is hereby amended as follows:
2.1. Amendment of Section 1.2. Section 1.2 of the Merger Agreement
is amended and restated to read in its entirety as follows:
"1.2 Closing and Closing Date. Subject to the terms and conditions of
this Agreement, the closing of the Merger (the "CLOSING") shall take place
at the offices of Katten Muchin Zavis Rosenman, 525 West Monroe Street,
Suite 1600, Chicago, Illinois 60661, at 10:00 a.m. local time, on the
later of (a) the next business day after the last to be fulfilled or
waived of the conditions set forth in Article VII hereof, (b) the next
business day after the last of the permits and licenses set forth on
Schedule 1.2 ("EXTENSION PERMITS") have been obtained, but in no event
shall the Closing be extended beyond November 30, 2004 as a result of this
clause (b), or (c) at such other time, date or place as the Company and
MHC may agree in writing. The date on which the Closing occurs is referred
to herein as the "CLOSING DATE." The Parties hereby acknowledge and agree
that the
Closing shall be a standard "New York style" real estate transaction
without imposing additional substantive obligations on the Parties.
Notwithstanding anything contained herein to the contrary, if the Company
and Operations have received (in their sole and absolute discretion as
evidenced by a written notice provided by the Company and Operations to
MHC) verbal confirmation from the state regulators for (I) the states of
Arizona, Indiana, Nevada, North Carolina, Oregon, Pennsylvania, Texas,
Virginia and Washington that there is no deficiency in the application
submitted by Operations or any of its subsidiaries seeking permits to
market under the statutes regulating membership campgrounds in such states
that would preclude the issuance of the permits to market sought by
Operations or any of its subsidiaries and (II) each state where Operations
or any of its subsidiaries is seeking a broker of record or similar
license (or a transfer of any such license previously issued to the
Company or any of its subsidiaries) that there is no deficiency in the
application submitted by Operations or any of its subsidiaries seeking
such broker of record license under the statutes regulating membership
campgrounds in such states that would preclude the issuance or transfer of
the license sought by Operations or any of its subsidiaries, and the only
unsatisfied condition precedent contained in Sections 7.1 and 7.3 hereof
is the failure to obtain any of the Operations Authorizations set forth as
item 1 or 2 on Schedule 4.20(a), then MHC and Acquisition shall have the
right, at their option, exercised no later than November 21, 2004 by
written notice from MHC and Acquisition to the Company and Operations, to
consummate the Closing on December 1, 2004 (the "ACCELERATED CLOSING") and
the Company and Operations shall waive the satisfaction of such conditions
precedent contained in Section 7.3 hereof relating to items 1 and 2 of
Schedule 4.20(a).
2.2 Additional Payment in Respect of an Accelerated Closing.
Forty-five (45) days following the Accelerated Closing, MHC shall pay to
Operations by wire transfer of immediately available funds to an account
designated by Operations an amount equal to the per diem amount set forth on
Exhibit A hereto for the applicable state for each day following the Accelerated
Closing that an item set forth as item 1 or 2 on Schedule 4.20(a) has not been
obtained, up to a maximum of thirty (30) days for each state. "
2.3 Addition of Section 6.17. A new Section 6.17 is added to the
Merger Agreement as follows:
"6.17 Consents. If the Closing extends beyond December 1, 2004 as a result
of the failure to obtain any of (a) the consents, approvals and lien
releases set forth on Schedule 7.2(h), (b) the Conditional Use Permits
specified in Section 7.2(m) and Section 7.3(g) or (c) the Operations
Authorizations listed on Schedule 4.20(a) and the Accelerated Closing has
not occurred, the Parties shall, no later than December 30, 2004, attempt
to mutually agree upon an alternative arrangement which will, at no
additional material cost or detriment to MHC, Acquisition, the Company or
Operations, provide the Parties with the same rights and benefits the
Parties would have received had such consents, approvals, lien releases,
permits and authorizations been obtained. The conditions precedent
contained in
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Sections 7.2(h), 7.2(m) and 7.3(g) hereof shall be deemed satisfied and
fulfilled upon the Parties' mutual agreement to such alternative
arrangement."
2.4 Addition of Section 6.18. A new Section 6.18 is added to the
Merger Agreement as follows:
"6.18 Reciprocal Rights/Cross Marketing Agreement. MHC and Operations
hereby agree that, after the Closing, they will enter into a Reciprocal
Rights/Cross Marketing Agreement in a form mutually agreeable to both MHC
and Operations."
2.5 Amendment of Section 7.2(h). Section 7.2(h) of the Merger
Agreement is amended and restated to read in its entirety as follows:
"(h) Consents and Lien Releases. The Company shall have
obtained the consents, approvals and lien releases set forth on
Schedule 7.2(h)."
2.6 Amendment of Section 9.2(a). Section 9.2(a) of the Merger
Agreement is amended and restated to read in its entirety as follows:
"(a) the Merger shall not have been consummated by December 31, 2004; or"
2.7 Deletion of Section 7.2(i). Section 7.2(i) of the Merger
Agreement is amended and restated to read in its entirety as follows:
"(i) INTENTIONALLY OMITTED."
2.8 Deletion of Section 7.3(e). Section 7.3(e) of the Merger
Agreement is amended and restated to read in its entirety as follows:
"(e) INTENTIONALLY OMITTED."
3. Ground Lease. The Ground Lease attached hereto as Exhibit B shall
replace the Ground Lease attached to the Merger Agreement as Exhibit E and, as
of and following the date of this Amendment, the definition of Ground Lease
referred to in Section 7.2(g) of the Merger Agreement shall refer to the Ground
Lease attached hereto as Exhibit B.
4. Board Approval. The Board of Directors of MHC Inc. and the Board of
Directors of the Company have approved on or before the end of the day on August
3, 2004 the Merger Agreement, the Ground Lease, the other agreements to be
executed and delivered pursuant thereto, and the transactions contemplated
thereby. As a result, no Party shall have any termination rights under Section
9.3 of the Merger Agreement.
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5. iStar Amendment Delivery. The Company has obtained and delivered to
MHC the iStar Amendment. As a result, no Party shall have any termination rights
under Section 9.4 of the Merger Agreement.
6. Schedules to the Agreement. The Parties acknowledge that, in
accordance with Section 6.11 of the Merger Agreement, they have mutually agreed
to the Schedules and Exhibits to the Merger Agreement (except Exhibit D to the
Merger Agreement) and that such Schedules and Exhibits shall be in the form
attached hereto as Exhibit C; provided, however that the Parties acknowledge
that the foregoing is not intended to modify, amend or restrict the provisions
of Section 6.8 of the Merger Agreement.
7. General. The Merger Agreement as amended hereby (as so amended, the
"AMENDED MERGER AGREEMENT") is confirmed as being in full force and effect. The
Amended Merger Agreement constitutes the entire understanding of the parties
with respect to the subject matter hereof and thereof and supersede all prior
understandings and agreements, whether written or oral. This Amendment may be
executed in any number of counterparts, which together shall constitute one
instrument, and shall bind and inure to the benefit of the parties and their
respective successors and assigns. This Amendment shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, MHC, Acquisition, the Company and Operations have
caused this Amendment to be signed and delivered by their respective duly
authorized officers, all as of the date first written above.
MHC:
MHC T1000 TRUST (f/k/a MHC THOUSAND
TRAILS TRUST)
By:__________________________________________
Name:_____________________________________
Title:____________________________________
ACQUISITION:
THOUSAND TRAILS ACQUISITION, INC.
By:__________________________________________
Name:_____________________________________
Title:____________________________________
THE COMPANY:
KTTI HOLDING COMPANY, INC.
By:__________________________________________
Name: John Eastburn
Title: Vice President
OPERATIONS:
THOUSAND TRAILS OPERATIONS HOLDING
COMPANY, L.P.
By: KTTI GP, LLC, its general partner
By: KTTI HOLDING COMPANY, INC., its
sole member
By:__________________________________
Name: John Eastburn
Title: Vice President
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