Ex. 10.45.1
Amended and Restated Option Agreement
This Option Agreement is made as of the 16th day of June, 1994 among
ACFH Inc., a Delaware corporation ("ACFH"), CHEMICAL BANK, a New York banking
corporation ("Chemical"), and DONALD J. TRUMP (the "Buyer").
ACFH, Chemical and the Buyer have previously entered into an Option
Agreement dated as of December 17, 1993 (the "Original Option Agreement").
These parties now desire to amend and restate the Original Option Agreement in
its entirety, and agree that the Original Option Agreement shall be deemed to be
replaced by, and fully amended and restated to, the following:
Preliminary Statement
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A. ACFH is the owner of certain property located in Atlantic City,
New Jersey which is described in the Agreement of Purchase and Sale attached as
Exhibit A to this Agreement (the "Purchase Agreement"), and which includes the
property known as the Trump Regency Hotel.
B. Chemical, as successor by merger to Manufacturers Hanover Trust
Company ("MHT"), is the holder of the following promissory notes:
(i) Revolving Credit Note dated as of July 20, 1987 made by the
Buyer to the order of MHT, as amended by First Allonge to Note dated
January 30, 1989, and as further amended by Second Allonge to Note dated as
of August 8, 1990 (as amended, the "NYP Note");
(ii) Interest Equalization Note dated as of August 8, 1990 made by
the Buyer to the order of MHT (the "Interest Equalization Note");
(iii) Term Note dated as of August 8, 1990 made by the Buyer to the
order of MHT (the "Term Note");
(iv) Note dated as of July 20, 1987, in the original principal
amount of $80,000,000, made by the Buyer to the order of MHT, as amended by
First Allonge to Note dated as of November 16, 1988 and as further amended
by Second Allonge to Note dated as of August 8, 1990 (as amended, the
"Hyatt Note").
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(v) Mortgage Note dated as of January 31, 1973, made by LBREC Realty
Inc. to Morris Green, as trustee under the will of Dora Green, deceased and
Joyce Cheney, as such note was assigned to MHT by that certain Assignment
dated April 13, 1983, made by Morris Green, as trustee under the will of
Dora Green, deceased, Joyce Cheney, as trustee under the will of Dora
Green, deceased, and Joyce Cheney to MHT which Assignment was recorded in
the Office of the City Register, New York County (the "City Register's
Office") on April 27, 1983 in Reel 682, Page 585, as such note was amended
by that certain Agreement dated April 22, 1983 recorded on April 27, 1983
in the City Register's Office in Reel 682, Page 587 between MHT and the
Buyer, and as further amended by those certain letter agreements dated May
7, 1986, March 11, 1988 and April 17, 1989 and by Note Modification
Agreement dated as of August 8, 1990 each between MHT and the Buyer (as
amended, the "CPS Note").
The NYP Note, the Interest Equalization Note, the Term Note, and the
CPS Note are collectively referred to in this Agreement as the "Property Notes".
The Property Notes are intended to include the debt owing by the Buyer and any
entity owned by the Buyer to Chemical relating to the Premises referred to in
the Settlement Agreement (as defined below). The Property Notes and the Hyatt
Note are collectively referred to in this Agreement as the "Notes".
C. The Notes are secured by the mortgages, pledge and security
agreements and other collateral documents described on Exhibit B to this
Agreement (collectively, the "Collateral Documents").
D. ACFH is willing to grant to the Buyer an option to purchase the
Property (as defined in the Purchase Agreement), and Chemical is willing to
grant to the Buyer options to purchase the Notes, all in accordance with the
terms of this Agreement and the Purchase Agreement.
E. The Buyer acknowledges that he is the maker of the Notes, that he
or his wholly owned affiliates own the collateral which is encumbered by the
Collateral Documents, and that his wholly owned affiliate previously owned the
Property, and that therefore the Buyer is completely familiar with all matters
concerning the Notes, the Collateral Documents and, up to the date of transfer
to ACFH, the Property. ACFH and Chemical are unwilling to make any
representations regarding the Notes, the Collateral Documents and the Property
except for the limited representations contained in this Agreement and the
Purchase Agreement, and the Buyer is willing to enter into this Agreement based
on such limited representations.
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F. The Buyer and Chemical desire to settle all outstanding matters
relating to the Notes and the Collateral Documents, and in furtherance of such
settlement, Chemical and ACFH are granting the options in accordance with the
terms of this Agreement, and the Buyer has executed and delivered to Chemical
the release by the Buyer and certain of his wholly owned affiliates of any and
all claims they may have against Chemical.
Agreement
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In consideration of the foregoing recitals and other good and valuable
consideration, Chemical, ACFH and the Buyer agree as follows:
1. Grant of Options. (a) ACFH hereby grants to the Buyer an option
to purchase the Property, and Chemical hereby grants to the Buyer an option to
purchase the Hyatt Note, all strictly in accordance with the terms of this
Agreement. The options granted by this paragraph (a) are referred to
collectively as the "First Option".
(b) Chemical hereby grants to the Buyer an option to purchase the
Property Notes, strictly in accordance with the terms of this Agreement. The
option granted by this paragraph (b) is referred to in this Agreement as the
"Second Option". (The "First Option" and the Second Option are referred to
collectively as the "Options").
2. Term of the Options; Performance Obligations. (a) The term
of the First Option shall commence upon the date of this Agreement and continue
until 5:00 P.M. on September 30, 1994 (the "First Option Period"). The term of
the Second Option (the "Second Option Period") shall commence on the date of
this Agreement and continue until September 30, 1994, provided that, if the
Buyer has exercised the First Option during the First Option Period in
accordance with the terms of this Agreement, and is not in default under the
terms of this Agreement or the Purchase Agreement, then the term of the Second
Option shall be extended to May 31, 1995.
(b) Notwithstanding the term of the Options set forth in paragraph (a)
above, Chemical and ACFH shall have the right to terminate the Options upon the
occurrence of any of the following:
(i) the Buyer shall fail to obtain, by August 1, 1994 (time being
of the essence), all necessary approvals from the Casino Control Commission
of the State of New Jersey for the lease of a portion of the East Hall of
the Atlantic City Convention Center as contemplated by the letter agreement
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dated April 18, 1994 between Trump Oceanview, Inc. and the New Jersey
Sports and Exposition Authority.
(ii) the Buyer shall fail to file with the Securities and Exchange
Commission on or prior to August 1, 1994 time being of the essence) a
registration statement relating to the offering of securities in an
aggregate principal amount sufficient to pay the purchase price as provided
in Section 6 below and to pay the costs and expenses listed on Exhibit C.
(iii) the Buyer shall fail to file the notification and report
required pursuant to Section 12 of this Agreement on or prior to August 1,
1994 (time being of the essence);
(iv) the Buyer, Park South Associates, The Trump Corporation, The
East 61st. Company, Plaza Consulting Corp. or B. Plaza Realty Corp. shall
breach any covenant or other obligation set forth in Sections 5.1, 5.2, 5.3
or 5.4 of the Settlement Agreement dated December 17, 1993, as amended,
among the Buyer, the foregoing entities and Chemical (the "Settlement
Agreement"), provided that in the case of a breach of the covenant set
forth in Section 5.3, such breach must be material; or any representation
or warranty made by the Buyer or any of the foregoing entities in the
Settlement Agreement or which is contained in any certificate, document or
financial or other statement furnished at any time under or in connection
with the Settlement Agreement shall prove to have been inaccurate in any
material respect on or as of the date made and the Buyer or such entity had
actual knowledge of such inaccuracy and made such representation
notwithstanding such knowledge; or The Trump Corporation, The East 61st.
Company or Park South Associates shall fail to deposit the Rents (as
defined in the Settlement Agreement) in the accounts designated pursuant to
subsection 8.2 of the Settlement Agreement or to apply funds released from
such accounts to the payment of Qualified Business Expenses (as defined in
the Settlement Agreement), except to the extent that there is a bona fide
dispute regarding expenditures made by The Trump Corporation, the East
61st. Company or Park South Associates, as applicable, provided that the
Trump Corporation, the East 61st Company or Park South Associates, as
applicable, acted in good faith in believing that such disputed expenditure
was a Qualified Building Expense; or
(v) the Buyer shall be in default under the terms of this Agreement
or the Purchase Agreement.
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The Buyer acknowledges that time shall be of the essence with respect to the
Buyer's obligations to obtain the approvals described in clause (i) above and to
make the filings referred to in clauses (ii) and (iii) above by the respective
dates set forth in each such clause (each such date, a "Performance Date"). If
Chemical and ACFH shall elect to terminate the Options pursuant to this
paragraph (b), then Chemical and ACFH shall have no further obligations or
liability to the Buyer under this Agreement. In the event that the Buyer
exercises all of the Options pursuant to Section 3 of this Agreement, the Buyer
shall have no further obligation to perform under clauses (i) through (iii)
above to the extent that the applicable Performance Date will occur after the
date on which the Options are so exercised; provided, however, that upon the
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occurrence of an event specified in clause (iv) or (v) above, Chemical and ACFH
shall have the right to terminate this Agreement and the Purchase Agreement and
upon such termination shall have no further obligations or liabilities to the
Buyer under this Agreement or the Purchase Agreement.
3. Exercise of the Options. The First Option may be exercised by
the Buyer only by written notice of such exercise in the form set forth in
Exhibit D (the "First Option Notice") given by the Buyer to ACFH and Chemical
prior to the termination of the First Option Period in accordance with the
provisions of Section 14 below. The Second Option may be exercised by the Buyer
only by written notice of such exercise in the form set forth in Exhibit E (the
"Second Option Notice") given by the Buyer to Chemical prior to the termination
of the Second Option Period in accordance with the provisions of Section 14
below. Time shall be of the essence with respect to the giving of the First
Option Notice and the Second Option Notice. The Buyer must exercise the options
granted under paragraph (a) of Section 1 above together, and shall not have the
right to exercise either of the options granted under such paragraph (a)
independently of the other. Any attempt by the Buyer to exercise one of such
options without the other shall be void and of no effect. If the Buyer fails to
exercise either of the Options during the relevant Option Period as provided
above, such Option shall terminate and ACFH and Chemical shall have no further
obligations or liability to the Buyer under this Agreement relating to such
Option. Notwithstanding any other provision of this Agreement, the Buyer shall
not have the right to exercise the Second Option unless the Buyer has previously
exercised the First Option or exercises both Options simultaneously.
4. The Purchase Agreement. Upon the valid exercise of the First
Option by the Buyer in accordance with Section 3 above, the Purchase Agreement
shall conclusively be deemed to have been executed and delivered by the Buyer
and ACFH and to be
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in full force and effect without the need for any further action by either of
such parties.
5. Option Payment. (a) The total consideration to be paid by the
Buyer for the granting of the Options shall be $1,250,000, which has been paid
in full.
(b) The Buyer shall have the right to terminate this Agreement, and
if entered into, the Purchase Agreement, and to receive a refund of payments
made as consideration for the granting of the Options, only upon the occurrence
of either of the following: (i) Chemical and ACFH do not have the requisite
power and authority to assign the Notes and convey the Property as contemplated
by this Agreement and the Purchase Agreement, or (ii) ACFH shall be unable to
convey title to the Property as required by this Agreement and the Purchase
Agreement as a result of a breach by ACFH of the covenant set forth in Section
13(b) of this Agreement.
6. Purchase Price. (a) Upon the exercise of the First Option, the
aggregate purchase price to be paid by the Buyer for the Hyatt Note and the
Property shall be $60,000,000, to be wired at the First Closing (as defined
below) in immediately available funds in accordance with instructions given at
such Closing by ACFH and Chemical. The Buyer shall receive a credit against
this purchase price of the $1,250,000 paid as consideration for the granting of
the Options. Apportionments or adjustments to the purchase price with respect
to the Property shall be as provided in Section 8 of the Purchase Agreement.
There shall be no apportionments or adjustments to the purchase price with
respect to the Hyatt Note.
(b) Upon exercise of the Second Option, the purchase price for the
Property Notes shall be $20,000,000, to be wired at the Second Closing (as
defined below) in immediately available funds in accordance with instructions
given at such Closing by Chemical. Apportionments or adjustments to the
purchase price with respect to the Property Notes shall be as provided in
Section 7(c) below.
7. Closing. (a)(i) Upon exercise of the First Option, the Hyatt
Note and the Property shall be transferred to the Buyer, and the relevant
purchase price shall be paid, at a closing (the "First Closing") on a date to be
specified by the Buyer in the First Option Notice, which closing date shall be
not less than 5 or more than 14 days after the date that the First Option Notice
is given. If the First Option Notice given by the Buyer does not specify a
closing date as provided in the preceding sentence, it shall be void and of no
effect as if such First Option Notice had never been given. Time shall be of
the
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essence with respect to Chemical's and the Buyer's obligations to close on the
date specified in the First Option Notice for such Closing, and any failure by
the Buyer to comply with such obligations on that date shall, at ACFH's and
Chemical's option, result in a termination of the Options, after which the Buyer
shall have no further rights under this Agreement or under the Purchase
Agreement. The transfer of the Hyatt Note and the transfer of the Property
must occur simultaneously and each such closing is conditioned upon the other
closing being completed at the same time. The Buyer expressly agrees that he
will not have the right to complete the purchase of the Hyatt Note without
simultaneously completing the purchase of the Property.
(ii) Upon the exercise of the Second Option, the Property Notes shall
be transferred to the Buyer, and the relevant purchase price paid, at a closing
(the "Second Closing") on a date to be specified by the Buyer in the Second
Option Notice, which closing date shall be not less than 5 nor more than 14 days
after the date that the Second Option Notice is given. If the Second Option
Notice given by the Buyer does not specify a closing date as provided in the
preceding sentence, it shall be void and of no effect as if such Second Option
Notice had never been given. Time shall be of the essence with respect to the
Buyer's obligations to close on the date specified in the Second Option Notice
for such Closing, and any failure by the Buyer to comply with such obligations
on such date shall, at Chemical's option, result in a termination of the
Options, after which the Buyer shall have no further rights under this Agreement
or the Purchase Agreement. Notwithstanding any other provision of this
Agreement, Chemical shall not be obligated to complete the Second Closing and
assign the Property Notes unless the First Closing has been, or is
simultaneously being, completed.
(b)(i) At the First Closing, in addition to the delivery of any
documents required by the Purchase Agreement: i) Chemical shall deliver to the
Buyer (A) a duly executed and acknowledged assignment of all of Chemical's
right, title and interest in the Hyatt Note, the Collateral Documents relating
to the Hyatt Note (including appropriate UCC assignments), and all claims under
the Override Agreement dated as of August 8, 1990 among the Buyer and various
other parties, all of the above without recourse, representation, or warranty of
any kind except as expressly provided in this Agreement or in such assignment,
which assignment shall be in the form set forth in Exhibit F; and ii) each party
shall also deliver at the Closing a reaffirmation of its representations and
warranties as of such Closing, as provided in Section 8 below. Notwithstanding
the forgoing, to the extent the Hyatt Note is secured by a mortgage or any
property or other interests relating to 100 Central Park South, New York, New
York or the property known as Trump Plaza located
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at 61st Street and Third Avenue, New York, New York or any other property
covered by the Settlement Agreement, such collateral shall not be assigned to
Buyer, in connection with the First Option, and the collateral documents shall,
prior to assignment, be amended as appropriate to exclude any such collateral.
(ii) At the Second Closing, (i) Chemical shall deliver to the Buyer a
duly executed and acknowledged assignment of all of Chemical's right, title and
interest in the Property Notes and the Collateral Documents relating to the
Property Notes, all without recourse, representation or warranty of any kind
except as expressly provided in this Agreement or in such assignment, which
assignment shall be in the form set forth in Exhibit F; and (ii) each party
shall also deliver at the Closing a reaffirmation of its representations and
warranties as of such Closing, as provided in Section 8 below.
(c) Pursuant to the Settlement Agreement, all Rents from the
properties which are the subject of the Settlement Agreement have been assigned
to, and are being deposited into accounts owned by, Chemical and are being
disbursed to the extent required to pay Qualified Building Expenses. Chemical
is entitled to all Rents in excess of Qualified Building Expenses through the
Closing pursuant to the Second Option. Accordingly the following shall be
apportioned and adjusted between Chemical and the Buyer as of midnight of the
day preceding the Second Closing pursuant to the exercise of the Second Option
("Adjustment Date"):
(i) rents and additional rents under or in respect of the Leases
(as defined in the Settlement Agreement), as, when and to the extent
actually collected; the first rents so collected shall be applied to rents
up to 60 days delinquent as of such Closing, then to bring rents current,
and then to other past due rents (except that Meyer rents collected which
are attributable to the period before June 24, 1993 shall belong to Buyer);
(ii) real estate and other taxes, assessments and charges, and
other municipal and state charges, license and permit fees, if any, on the
basis of the fiscal period for which assessed or charged, provided,
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however, that any rebates of taxes, assessments or charges received after
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the Adjustment Date (i) which are attributable to taxes, assessments or
charges incurred or paid prior to the Adjustment Date shall be delivered to
Chemical and (ii) which are attributable to taxes, assessments or charges
in part incurred or paid prior to the Adjustment Date shall be apportioned
between Chemical and the Buyer as of the Adjustment Date.
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(iii) water and sewer rents and charges on the basis of the fiscal
period for which assessed or charged;
(iv) water, electric, gas, steam and other utility charges except
that no apportionment shall be made for any of such items as are furnished
and charged by the utility company furnishing such service directly to any
tenants under the Leases;
(v) fuel, if any, and all taxes thereon, on the basis of a reading
taken as late as possible prior to the Adjustment Date, at the price then
charged by the supplier thereof, including any taxes;
(vi) charges under service contracts on the basis of the annual or
monthly charges or fees payable thereunder; and
(vii) such additional adjustments as are normally made in
connection with the sale of residential and commercial property in New York
City. Except as otherwise specifically provided, the "Customs in Respect
to Title Closing" adopted by the Real Estate Board of New York, Inc. shall
apply to the apportionments.
8. Representations. (a) Chemical represents and warrants to the
Buyer that: (i) it has all necessary authority to enter into this Agreement and
to complete the transactions contemplated by this Agreement; (ii) neither
Chemical nor MHT has at any time assigned, transferred, conveyed, pledged or
otherwise encumbered its interest in the Notes or the Collateral Documents.
Chemical represents and warrants to the Buyer (but not to any other person or
entity) that it is the owner of the Notes. The Buyer specifically acknowledges
that Chemical is making no representation or warranty whatsoever regarding the
validity or enforceability of the Notes or the Collateral Documents, and all of
Buyer's obligations under this Agreement and the Purchase Agreement shall remain
in full force and effect regardless of the validity or enforceability (or lack
thereof) of the Notes or the Collateral Documents.
(b) ACFH represents and warrants to the Buyer that it is a corporation
which is duly organized, validly existing and in good standing under the laws of
the State of Delaware and is qualified to do business in, and in good standing
under, the laws of the State of New Jersey, that it has all necessary power and
authority to enter into this Agreement and to complete the transactions
contemplated by this Agreement, and, to the best of its knowledge, it has not
received written notice of any pending condemnation of the Property.
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(c) Except as specifically provided in this Agreement or in the
Purchase Agreement, neither ACFH nor Chemical is making, or shall be deemed to
have made, any covenant, representation or warranty of any nature whatsoever,
express or implied, regarding the Notes, the Collateral Documents, the Property,
or any other matter relating in any way to this Agreement or any of the
obligations of ACFH or Chemical under this Agreement, including, without
limitation, the condition or status of the Property. The Buyer agrees that he
is entering into this Agreement, and, if he should exercise either of the
Options, will be exercising those Options with the express and specific
understanding that no such covenants, representations or warranties are being
made by ACFH or Chemical.
(d) The Buyer represents and warrants that the Notes are valid and
binding obligations of the makers thereof and are in full force and effect, that
he has all the necessary power and authority to enter into this Agreement and to
complete all of the transactions contemplated by this Agreement, and that the
execution and delivery of this Agreement, and the purchase of the Notes and the
Property as contemplated by this Agreement, will not require the consent or
approval of any governmental authority or other party, and will not result in a
default under or otherwise violate, any contract or agreement to which the
Buyer, or any entity in which the Buyer has any direct or indirect interest, is
a party or any order, law or regulation to which the Buyer or any such affiliate
may be subject except in each case such approvals and consents as shall be
obtained by Buyer before the relevant Closing.
(e) All of the representations and warranties of ACFH, Chemical and
the Buyer set forth in this Section 8 shall be true and correct as of each
Closing, and each party shall expressly reaffirm such representations and
warranties at each Closing.
9. Operation of the Property. During the First Option Period and,
if the First Option is exercised, during the period until the earlier of (i) the
First Closing and (ii) a termination by the Buyer under this Agreement or the
Purchase Agreement, ACFH agrees that (a) it will not make any material
structural alterations to the Property, (b) it will maintain substantially the
same insurance coverage as is presently in effect for the Property, (c) it will
not operate the Property for any purpose other than as a hotel and
entertainment, theater, dining and other incidental uses and (d) it will not
sell, dispose of or otherwise remove from the Property furniture, fixtures,
equipment or other personal property used in the operations of the Property
having an aggregate value of more than $100,000. Notwithstanding the foregoing,
ACFH may, in its discretion, at any time cease operating the Property as a
hotel.
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ACFH may, in the ordinary course of business, enter into, or cause to be entered
into, any contract or agreement relating to the operation of the Property,
including, without limitation, any lease or supply or services contract, or may
amend or terminate, or cause to be amended or terminated, any existing contract
or agreement, provided that (A) any contract or agreement entered into after the
date of this Agreement shall be terminable on not more than thirty days notice
without penalty or premium, unless a longer period (up to 90 days) is necessary
and (B) no amendment which extends the term of an agreement shall extend the
term to a date more than 30 days after the date of the First Closing, unless a
longer period (up to 90 days) is required.
10. Right of Inspection of the Property. Upon reasonable notice to
ACFH, and provided that neither the Options nor the Purchase Agreement have been
terminated, the Buyer or his authorized representatives shall have the right to
enter upon and inspect the Property subject to the following conditions:
(a) the Buyer shall not interfere with the conduct of business on the
Property;
(b) the Buyer shall make such inspections in good faith, and all
inspection fees and other costs and expenses of any kind incurred by the
Buyer relating to such inspections will be the sole expense of the Buyer;
(c) the Buyer shall not conduct any Phase II environmental assessment,
test or audit of the Property or any portion thereof, including, but not
limited to, any inspection that involves any testing or an underground
storage tank, if any, or any drilling, coring or boring on the Property
(whether or not such activity is referred to as a Phase II environmental
assessment, test or audit), without the prior written consent of ACFH,
which consent may be refused, withheld or delayed by ACFH for any or no
reason in its sole and absolute discretion, which shall be final and
conclusive;
(d) the Buyer shall have no right whatsoever to alter the condition of
the Property or any portion thereof without the prior written consent of
ACFH, which consent may be refused, withheld or delayed by ACFH for any or
no reason in its sole and absolute discretion, which shall be final and
conclusive, and without in any way constituting ACFH's consent to an
alteration of the condition of the Property, ACFH and the Buyer agree that
in the event of any alteration of the Property or portion thereof by the
Buyer, the Buyer shall immediately restore the Property to its condition
prior to the Buyer's entry thereon;
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(e) the Buyer or his authorized representative shall be accompanied at all
times by a representative of ACFH; and
(f) the Buyer agrees to indemnify and hold ACFH and its agents,
contractors, lessees and representatives harmless from and against any and
all liens, claims, liabilities or damages (including, but not limited to,
reasonable attorneys' fees) sustained by any of them which result from or
arise out of any inspections of the Property made or conducted by the Buyer
or its inspectors, appraisers, engineers, employees or contractors. Such
Indemnity and Hold Harmless Agreement shall survive the First Closing or
any termination of this Agreement or, if entered into, the Purchase
Agreement and shall not be merged therein.
11. No Brokers. (a) Chemical and ACFH will pay any broker's fee,
finder's fee, commission or similar payments which may be due to any broker,
finder or other person or entity employed by Chemical or ACFH in connection with
the negotiation of this Agreement or the conveyance of the Property. Chemical
and ACFH agree to indemnify and hold the Buyer harmless from and against any
loss, claim, damage, cost and expense, including reasonable attorneys' fees and
expenses, resulting from any broker's, finder's or other person's or entity's
claiming to be owed a broker's fee, commission, finder's fee or any similar
payment as a result of any dealing with or for Chemical or ACFH. The terms of
this paragraph shall survive the Closing or earlier termination of this
Agreement or, if entered into, the Purchase Agreement.
(b) The Buyer represents and warrants to Chemical and ACFH that it has
not and at the time of the Closing will not have dealt with any person or entity
to whom a broker's fee, finder's fee, commission or any similar payment may be
due in connection with the negotiation of this Agreement or the conveyance of
the Property. The Buyer agrees to indemnify and hold Chemical and ACFH harmless
from and against any loss, claim, damage, cost and expense, including reasonable
attorneys' fees and expenses, resulting from any broker's, finder's or other
person's or entity's claiming to be owed a broker's fee, commission, finder's
fee or any similar payment as a result of any dealings with or for the Buyer.
The terms of this paragraph shall survive the Closings or earlier termination of
this Agreement or, if entered into, the Purchase Agreement.
12. Antitrust Notification. As promptly as practicable and in any
event not later than August 1, 1994, the Buyer shall cause to be filed with the
Federal Trade Commission ("FTC") and the Department of Justice ("DOJ") pursuant
to the
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Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended, and applicable
rules and regulations thereunder ("HSR") the notification and report form
required for the transactions contemplated by this Agreement and shall, as
promptly as practicable, furnish any supplemental information which may be
requested by the FTC or the DOJ pursuant to HSR. The Buyer and ACFH shall use
their respective best efforts to cause the applicable HSR waiting period to be
terminated at the earliest possible time. Buyer shall pay any filing or similar
fees required to be paid in connection with HSR notification and report form.
Anything in this agreement to the contrary notwithstanding, the expiration of
the HSR waiting period and any extensions thereof shall be a condition precedent
to the Closing pursuant to the exercise of the First Option. If such Closing
fails to occur by the closing date due to a failure of this contingency, the
date for such Closing shall be automatically extended for a period not to exceed
thirty (30) days unless all of the parties to this Agreement agree to the
contrary; provided, however, that if such Closing fails to occur during such 30-
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day extension, ACFH and Chemical shall have the right, by notice to the Buyer,
to terminate this Agreement and the Purchase Agreement, and thereafter this
Agreement and the Purchase Agreement shall be void without recourse by either
party in law or in equity.
13. Title to Property. (a) The Buyer shall satisfy himself as to
the quality of ACFH's title to the Property prior to the Buyer's exercise of the
First Option. Upon exercise of the First Option, the Buyer shall thereby waive
its right to object to any aspect of ACFH's title to the Property existing at
the time of such exercise. The provisions of this paragraph (a) shall not
relieve ACFH of its covenant set forth in paragraph (b) below.
(b) ACFH covenants that at the First Closing the Property will not be
subject to any monetary lien (except as provided below in this paragraph (b)) or
material encumbrance created, or which came into existence after June 3, 1992,
except for the lien of real estate taxes and assessments not yet due and
payable. Monetary liens shall not violate this covenant to the extent that such
liens (i) result from labor or materials which were provided in connection with
construction or other work on the Property, or (ii) in addition to liens
contemplated by clause (i) above, do not exceed $2,250,000 in the aggregate;
provided that all such liens must, at the expense of ACFH, be appropriately
bonded, and the title policy obtained by Buyer in connection with the
acquisition of the Property must either (i) omit such liens as title exceptions
or (ii) provide affirmative insurance over such liens.
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14. Notices. Any notice shall be given in writing to the party for
whom it is intended, either (i) by personal delivery, (ii) by registered or
certified mail (return receipt requested and postage prepaid), or (iii) by a
nationally recognized overnight courier providing for signed receipt of
delivery, in each case at the following address, or such other address as may be
designated in writing by notice given in accordance with this Section:
(i) if to Chemical, at
380 Madison Avenue, 12th Floor
New York, New York 10017
Attn: Rick Peiser, Managing Director
with a copy to
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attn: Gary F. Mottola
(ii) if to ACFH, at
380 Madison Avenue, 12th Floor
New York, New York 10017
Attn: Edward C. Collins, Vice President
with a copy to
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attn: Gary F. Mottola
(iii) If to the Buyer, at
The Trump Organization
725 Fifth Avenue
New York, New York 10022
Attn: Donald J. Trump
with a copy to
Willkie Farr & Gallagher
One Citicorp Center
New York, New York 10022
Attn: Thomas M. Cerabino, Esq.
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Any notice given by any party shall be deemed to have been given only when
received by the party to whom it is addressed. Notices which are required to be
given to Chemical and ACFH shall not be deemed to have been given until received
by both Chemical and ACFH.
15. Assignment. (a) This Agreement shall be binding upon and insure
to the benefit of the heirs, successors, administrators, executors, and assigns
of the respective parties; provided, however, that, except as provided in
paragraph (b) below, neither this Agreement nor, if entered into, the Purchase
Agreement may be assigned by the Buyer, in whole or in part, to any other
individual or entity without the express written permission of ACFH and
Chemical, which permission may be withheld in the ACFH's and Chemical's sole
discretion and without regard to any commercial standard. Any attempted
assignment of this Agreement shall, at the ACFH's and Chemical's option, be
deemed a breach of the terms of this Agreement which results in the termination
of the Options and all of the Buyer's rights hereunder.
(b) Notwithstanding the provisions of paragraph (a) above, the Buyer
may (i) assign all or a portion of its interest in this Agreement or the
Purchase Agreement to an entity of which the Buyer has control and owns,
directly or indirectly, more than 50% of the equity interest or to a publicly-
registered and traded entity that directly or indirectly owns the Trump Plaza
Casino Hotel and (ii) direct Chemical to assign the Notes or any individual Note
or portions thereof to one or more of the Buyer's institutional lenders or to an
entity financing the properties securing such Notes or an entity controlled by
Buyer, and in which Buyer has at least 50% of the equity interest, which owns
such properties.
16. Confidentiality. Buyer understands, agrees and acknowledges that
the consideration being paid for the Options, and the price to be paid for the
Notes and the Property if the Options are exercised, is fair and reasonable and
reflects the fair value of the Options, the Notes and the Property. Buyer
further understands and acknowledges that Chemical and ACFH intend that the
granting of the Options, the sale of the Notes and the Property as contemplated
by this Agreement, and the other matters contained in this Agreement and in the
Purchase Agreement be kept as confidential as possible, and Buyer agrees that
any statements, whether oral or written, made by the Buyer relating to these
matters will be made in a manner consistent with the foregoing and that the
content of any such statements will also be consistent with the foregoing.
Chemical and ACFH understand that, to complete the transactions contemplated by
this Agreement, including a publicly-registered financing to raise the
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proceeds to pay for the Notes and the Property, Buyer will have to disclose this
Agreement to the New Jersey Casino Control Commission, the federal Securities
and Exchange Commission, his institutional lenders, and to other entities and
governmental agencies. Nevertheless, Buyer agrees that any such disclosure, and
any statements made by Buyer relating to this transaction, will be completed in
a professionally responsible manner consistent with good legal and business
practice. Buyer further agrees that, while Chemical and ACFH recognize the need
for disclosure considering Buyer's contemplated financing and use of the
Property, Buyer will make all such disclosures, and any other statements
relating to this Agreement and the transactions contemplated by this Agreement,
only to the extent reasonably and in good faith deemed by the Borrower and his
advisors to be necessary or desirable to complete such contemplated
transactions. The provisions of this Section shall survive the Closing and the
termination of this Agreement.
17. Costs and Expenses. Each party shall bear its own legal and
other professional costs and expenses in connection with the preparation,
negotiation and performance of this Agreement and, if entered into, the Purchase
Agreement.
18. Miscellaneous. (a) Except for filings with the Casino Control
Commission and the Securities and Exchange Commission, the Buyer shall not
otherwise record or file this Agreement or the Purchase Agreement or any copy or
memorandum of either with any public agency or land records, and any such
recording or filing shall, at ACFH's and Chemical's option, render this
Agreement and, if entered into, the Purchase Agreement null and void and shall
constitute a default of the Buyer's obligations under this Agreement resulting
in a termination of the Options and all of the Buyer's rights under this
Agreement and the Purchase Agreement. Except as provided in the Previous Hyatt
Option referred to below, the Buyer expressly acknowledges that the only rights
the Buyer has to purchase the Notes, the Collateral Documents and the Property
are as set forth in this Agreement and, if entered into, the Purchase Agreement
and that if this Agreement and the Purchase Agreement shall be terminated, then
the Buyer agrees that he has no further rights to purchase the Notes, the
Collateral Documents and the Property and shall have no claims against Chemical
or ACFH arising out of the Options granted by this Agreement. If,
notwithstanding the foregoing agreement, the Buyer shall assert any claims
against Chemical or ACFH, the Buyer will be fully liable for all costs and
expenses (including, without limitation, attorneys' fees and expenses) incurred
by Chemical or ACFH in defending any such claims or otherwise. Nothing
contained in this Agreement shall affect the Buyer's rights under the Agreement
dated June 24, 1993
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between the Buyer and Chemical relating to the Buyer's option to purchase the
Hyatt Note (the "Previous Hyatt Option").
(b) The acceptance by the Buyer of the Deed (as defined in the
Purchase Agreement) and the assignment of the Notes shall be deemed to
constitute a full performance and discharge of every condition, covenant and
obligation contained or expressed in this Agreement and in the Purchase
Agreement, except such as are, by the express terms of this Agreement or the
Purchase Agreement, to survive the Closing.
(c) This Agreement constitutes the entire agreement between the
parties and fully supersedes and cancels all prior agreements, arrangements or
understandings, whether oral or written, between them relating to the subject
matter hereof and no party shall be bound by any terms, conditions, statements,
or representations, oral or written, not herein contained. No modification of
this Agreement and, if entered into, the Purchase Agreement shall be valid or
binding unless such modification is in writing, duly dated and signed by the
party or parties against whom enforcement of such modification is sought.
(d) In the event that any one or more of the provisions of this
Agreement or, if entered into, the Purchase Agreement shall for any reason be
held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or, if entered into, the Purchase Agreement, but each shall be
construed as if such invalid, illegal or unenforceable provision had never been
included.
(e) This Agreement may not be executed in counterparts.
(f) This Agreement and, if entered into, the Purchase Agreement shall
be governed, construed, interpreted and enforced in accordance with the laws of
the State of New York, except to the extent that the terms and provisions relate
to the conveyance of real property in which event such terms and provisions
shall be governed by the laws of the State of New Jersey.
(g) Nothing expressed or implied in this Agreement or the Purchase
Agreement is intended or will be construed to confer upon or give any person or
entity other than the parties hereto any rights or remedies under or by reason
of this Agreement, the Purchase Agreement or any transactions contemplated by
this Agreement or the Purchase Agreement.
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(h) The headings in this Agreement and in the Purchase Agreement are
for purposes of reference only and shall have no meaning in construing this
Agreement or the Purchase Agreement.
(i) The Buyer shall not be entitled to any consequential, speculative,
punitive damages or any similar claim in any action relating to this Agreement.
If the Buyer shall have exercised either of the Options in accordance with this
Agreement, then upon any failure by the Buyer to pay the purchase price as
provided in this Agreement, Chemical shall have as its sole remedy under this
Agreement the right to retain all sums paid under this Agreement; provided,
however, that the foregoing limitation shall not modify, affect or qualify in
any manner any rights and remedies Chemical may have under the Settlement
Agreement or otherwise.
The parties have duly executed this Agreement.
ACFH INC.
By: /s/
-------------------------
Name: Gordon Tsou
Title: President
CHEMICAL BANK
By: /s/
-------------------------
Name: Richard Peiser
Title: Managing Director
/s/
----------------------------
DONALD J. TRUMP
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