EXHIBIT 4.6
DEUTSCHE BANK TRUST COMPANY AMERICAS
EXCHANGE AGENT AGREEMENT
May 31, 2002
Deutsche Bank Trust Company Americas
Corporate Trust and
Agency Group
Four Albany Street, 4th Floor
New York, NY 10006
Attention: Corporate Market Services
Ladies and Gentlemen:
Resorts International Hotel and Casino, Inc., a Delaware corporation
(the "Company"), is offering to exchange (the "Exchange Offer") an aggregate
principal amount of up to $180,000,000 of registered 11 1/2% First Mortgage
Notes due 2009 (the "New Notes") of the Company for an equal principal amount of
its unregistered 11 1/2 % First Mortgage Notes due 2009 (the "Old Notes" and,
together with the New Notes, the "Notes"), pursuant to a prospectus (the
"Prospectus") included in the Company's Registration Statement on Form S-4 (File
No. 333-87206) as amended (the "Registration Statement"), filed with the
Securities and Exchange Commission (the "SEC") and attached hereto as Exhibit A.
The Term "Expiration Date" shall mean 5:00 p.m., New York City time, on July 1,
2002, unless the Exchange Offer is extended as provided in the Prospectus, in
which case the term "Expiration Date" shall mean the latest date and time to
which the Exchange Offer is extended. Upon execution of this Agreement, Deutsche
Bank Trust Company Americas will act as the Exchange Agent for the Exchange
Offer (the "Exchange Agent"). Capitalized terms used and not otherwise defined
herein shall have the respective meanings ascribed thereto in the Prospectus.
A copy of each of the form of letter of transmittal (the "Letter of
Transmittal"), the form of the notice of guaranteed delivery (the "Notice of
Guaranteed Delivery"), the form of letter to brokers and the form of letter to
clients (collectively, the "Tender Documents") to be used by holders of Old
Notes in order to receive New Notes pursuant to the Exchange Offer are attached
hereto as Exhibit B.
Subject to the terms and conditions of this Agreement and the Exchange
Offer, the Company hereby appoints Deutsche Bank Trust Company Americas to act
as Exchange Agent in connection with the Exchange Offer and in such capacity is
authorized and directed to accept tender of the Old Notes. References
hereinafter to "you," "yours" and "your" shall refer to Deutsche Bank Trust
Company Americas. In carrying out your duties as Exchange Agent, you are to act
in accordance with the following provisions of this Agreement:
1. You are to mail the Prospectus and the Tender Documents to all of
the holders of Old Notes and participants on the day that you are notified by
the Company that the Registration Statement has become effective under the
Securities Act of 1933, as amended, or as soon as practicable thereafter, and to
make subsequent mailings thereof after the date thereof and to any persons who
become holders of Old Notes prior to the Expiration Date and to any persons
as may from time to time be requested by the Company. All mailings pursuant to
this Section 1 shall be by first class mail, postage prepaid, unless otherwise
specified by the Company. You shall also accept and comply with telephone
requests for information relating to the Exchange Offer provided that such
information shall relate only to the procedures for tendering Old Notes in (or
withdrawing tenders of Old Notes from) the Exchange Offer. All other requests
for information relating to the Exchange Offer shall be directed to the Company,
Attention: Joseph A. D'Amato, Resorts International Hotel and Casino, Inc., 1133
Boardwalk, Atlantic City, NJ 08401.
2. You are to examine Letters of Transmittal and the Old Notes and
other documents delivered or mailed to you, by or for the holders of Old Notes,
prior to the Expiration Date, to ascertain whether (i) the Letters of
Transmittal are properly executed and completed in accordance with the
instructions set forth therein, (ii) the Old Notes are in proper form for
transfer and (iii) all other documents submitted to you are in proper form. In
each case where a Letter of Transmittal or other document has been improperly
executed or completed or for any other reason, is not in proper form, or some
other irregularity exists, you will endeavor to promptly notify the tendering
holder of such irregularity and as to the appropriate means of resolving the
same and will take any other reasonable action as may be necessary or advisable
to cause such irregularity to be corrected. Determination of questions as to the
proper completion or execution of the Letters of Transmittal, or as to the
proper form for transfer of the Old Notes or as to any other irregularity in
connection with the submission of Letters of Transmittal and/or Old Notes and
other documents in connection with the Exchange Offer, shall be made by the
officers of, or counsel for, the Company at their written instructions or oral
direction confirmed by facsimile. Any determination made by the Company on such
questions shall be final and binding.
3. The Company expressly reserves the right to amend or terminate the
Exchange Offer, and not to accept for exchange Old Notes not theretofore
accepted for exchange, upon the occurrence of any of the conditions of the
Exchange Offer specified in the Prospectus under the caption "The Exchange Offer
- - Expiration Dates; Extensions; Amendments." At the written request of the
Company or its counsel, Willkie Farr & Gallagher, you shall notify tendering
holders of Old Notes in the event of any such termination, you will return all
tendered Old Notes to the persons entitled thereto, at the Company's expense and
request of the Company or its counsel.
4. Tender of the Old Notes may be made only as set forth in the Letter
of Transmittal. Notwithstanding the foregoing, tenders which the Company shall
approve in writing as having been properly delivered shall be considered to be
properly tendered. Letters of Transmittal and Notices of Guaranteed Delivery
shall be recorded by you as to the date and time of receipt and shall be
preserved and retained by you at the Company's expense for one year. New Notes
are to be issued in exchange for Old Notes pursuant to the Exchange Offer only
(i) against deposit with you prior to the Expiration Date or, in the case of a
tender in accordance with the guaranteed delivery procedures outlined in
Instruction 1 of the Letter of Transmittal, within three New York Stock Exchange
trading days after the Expiration Date of the Exchange Offer, together with
executed Letters of Transmittal and other documents required by the Exchange
Offer or (ii) in the event that the holder is a participant in the Depository
Trust
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Company ("DTC") system, by the utilization of DTC's Automated Tender Offer
Program ("ATOP") and any evidence required by the Exchange Offer.
You are hereby directed to establish an account with respect to the
Notes at The Depositary Trust Company (the "Book Entry Transfer Facility")
within two days after the date hereof in accordance with SEC Regulation
240.17Ad. Any financial institution that is a participant in the Book Entry
Transfer Facility system may, until the Expiration Date, make book-entry
delivery of the Notes by causing the Book Entry Facility to transfer such Notes
into your account in accordance with the procedure for such transfer established
by the Book Entry Transfer Facility. In every case, however, a Letter of
Transmittal (or a manually executed facsimile thereof), or an agent's message,
properly completed and duly executed, with any required signature guarantees and
any other required documents must be transmitted to and received by you prior to
the Expiration Date or the guaranteed delivery procedures described in the
Prospectus must be complied with.
5. Upon oral or written request of the Company (with written
confirmation of any such oral request thereafter), you will transmit by
facsimile or telephone, and promptly thereafter confirm in writing to Joseph A.
D'Amato at the Company, Resorts International Hotel and Casino, Inc., 1133
Boardwalk, Atlantic City, NJ 08401, fax number (609) 340-6547, telephone number
(609) 340-7896 and Adam Turteltaub at Willkie Farr & Gallagher, 787 Seventh
Avenue, New York, N.Y. 10019, fax number (212) 728-8111, telephone number (212)
728-8129, or such other persons as the Company may reasonably request, the
aggregate number and principal amount of Old Notes tendered to you and the
number and principal amount of Old Notes properly tendered that day. In
addition, you will also inform the aforementioned persons, upon oral request
made from time to time (with written confirmation of such request thereafter)
prior to the Expiration Date, of such information as they or any of them may
reasonably request.
6. Upon the terms and subject to the conditions of the Exchange Offer,
delivery of New Notes will be made by you promptly after acceptance of the
tendered Old Notes. You will hold all items which are deposited for tender with
you after 5:00 p.m. New York City time, on the Expiration Date pending further
instructions from an officer of the Company.
7. If any holder of Old Notes shall report to you that his or her
failure to surrender Old Notes registered in his or her name is due to the loss
or destruction of a certificate or certificates, you shall request such holder
(i) to furnish to you an affidavit of loss and, if required by the Company, a
bond of indemnity in an amount and evidenced by such certificate or certificates
of a surety, as may be satisfactory to you and the Company, and (ii) to execute
and deliver an agreement to indemnify the Company and you in such form as is
acceptable to you and the Company. The obligees to be named in each such
indemnity bond shall include the Company and you. You shall report to the
Company the names of all holders who claim that their Old Notes have been lost
or destroyed and the principal amount of such Old Notes.
8. As soon as practicable after the Expiration Date, you shall mail or
deliver via the Book Entry Transfer Facility's applicable procedures, the New
Notes that such holders may be entitled to receive and you shall arrange for
cancellation of the Old Notes submitted to you or returned by DTC in connection
with ATOP. Such Old Notes shall be forwarded to Adam
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Turteltaub at Willkie Farr & Gallagher for cancellation and retirement as you
are instructed by the Company (or a representative designated by the Company) in
writing.
9. For your services as the Exchange Agent hereunder, the Company shall
pay you in accordance with the schedule of fees attached hereto as Exhibit C.
The Company also will reimburse you for your reasonable out-of-pocket expenses
(including, but not limited to, reasonable attorneys' fees not previously paid
to you as set forth in Exhibit C) in connection with your services promptly
after submission to the Company of itemized statements.
10. You are not authorized to pay any concessions, commissions or
solicitation fees to any broker, dealer, bank or other person or to engage or
utilize any person to solicit tenders.
11. As the Exchange Agent hereunder you:
(a) shall have no duties or obligations other than those
specifically set forth herein, in the section of the Prospectus
entitled "The Exchange Offer" or in the Exhibits attached hereto or as
may be subsequently requested in writing of you by the Company and
agreed to by you in writing with respect to the Exchange Offer;
provided, however, that in no way will your general duty to act in good
faith be discharged by the foregoing;
(b) will be regarded as making no representations and having
no responsibilities as to the validity, accuracy, sufficiency, value or
genuineness of any Old Notes deposited with you hereunder, any New
Notes, and Tender Documents or other documents prepared by the Company
in connection with the Exchange Offer (other than with respect to
information about the Exchange Agent provided to the Company
specifically for use in such materials);
(c) shall not be obligated to take any legal action hereunder
which might in your reasonable judgment involve any expense or
liability unless you shall have been furnished with reasonable
indemnity;
(d) may rely on, and shall be fully protected and indemnified
as provided in Section 12 hereof in acting upon, the written
instructions with respect to any matter relating to your acting as
Exchange Agent specifically covered by this Agreement or supplementing
or qualifying any such action of any officer or agent of such other
person or persons as may be designated or whom you reasonably believe
have been designated by the Company;
(e) may consult with counsel satisfactory to you, including
counsel for the Company, and the advice of such counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by you in good faith and in reliance upon
such advice of such counsel;
(f) shall not at any time advise any person as to the wisdom
of the Exchange Offer or as to the market value or decline or
appreciation in market value of any Old Notes or New Notes; and
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(g) shall not be liable for any action which you may do or
refrain from doing in connection with this Agreement except for your
gross negligence willful misconduct or bad faith.
12. The Company covenants and agrees to indemnify and hold harmless
Deutsche Bank Trust Company Americas and its officers, directors, employees,
agents and affiliates (collectively, the "Indemnified Parties" and each an
"Indemnified Party") against any loss, liability or reasonable expense of any
nature (including reasonable attorneys' and other fees and expenses), incurred
in connection with the administration of the duties of the Indemnified Parties
hereunder in accordance with this Agreement; provided, however, that the Company
shall not be liable for indemnification or otherwise for any loss, liability,
cost or expense to the extent arising out of an Indemnified Party's gross
negligence or willful misconduct. In no case shall the Company be liable under
this indemnity with respect to any claim against an Indemnified Party unless the
Company shall be notified by such Indemnified Party by letter, or by facsimile,
cable, telex or telecopier confirmed by letter, of the written assertion of a
claim against such Indemnified Party, or of any action commenced against such
Indemnified Party, promptly after but in any event within 10 days of the date
such Indemnified Party shall have received any such written assertion of a claim
or shall have been served with a summons, or other legal process, giving
information as to the nature and basis of the claim; provided, that the failure
to so notify shall not affect the obligations of the Indemnified Parties except
to the extent such failure to notify materially prejudices such parties. The
Company shall be entitled to participate at its own expense in the defense of
any such claim or legal action and if the Company so elects or if the
Indemnified Party in such notice to the Company so directs, the Company shall
assume the defense of any suit brought to enforce any such claim. In the event
the Company shall assume the defense of any suit, the Company shall not be
liable for the fees and expenses of any additional counsel thereafter retained
by an Indemnified Party so long as the Company retains counsel satisfactory to
such Indemnified Party; provided, that the Company shall not be entitled to
assume the defense of any such action if the named parties to such action
include both an Indemnified Party and the Company and the representation of both
parties by the same legal counsel would, in the written opinion of counsel for
the Indemnified Party, be inappropriate due to actual or potential conflicting
interests between the Indemnified Party and the Company. The Company shall not
be liable under this indemnity for the fees and expenses of more than one legal
counsel for all Indemnified Parties. Indemnified Parties shall not enter into a
settlement or other compromise with respect to any indemnified loss, liability
or expense without the prior written consent of the Company, which shall not be
unreasonably withheld or delayed if not adverse to the Company's interests.
13. This Agreement and your appointment as the Exchange Agent shall be
construed and enforced in accordance with the laws of the State of New York and
shall inure to the benefit of, and the obligations created hereby shall be
binding upon, the successors and assigns of the parties hereto. No other person
shall acquire or have any rights under or by virtue of this Agreement.
14. The parties hereto hereby irrevocably submit to the venue and
jurisdiction of any New York State or federal court sitting in the Borough of
Manhattan in New York City in any action or proceeding arising out of or
relating to this Agreement, and the parties hereby irrevocably agree that all
claims in respect of such action or proceeding arising out of or relating
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to this Agreement, shall be heard and determined in such a New York State or
federal court. The parties hereby consent to and grant to any such court
jurisdiction over the persons of such parties and over the subject matter of any
such dispute and agree that delivery or mailing of any process or other papers
in the manner provided herein, or in such other manner as may be permitted by
law, shall be valid and sufficient service thereof.
15. This Agreement may not be modified, amended or supplemented without
an express written agreement executed by the parties hereto. Any inconsistency
between this Agreement and the Tender Documents, as they may from time to time
be supplemented or amended, shall be resolved in favor of the latter, except
with respect to the duties, liabilities and indemnification of you as Exchange
Agent.
16. This Agreement may be executed in two or more counterparts
(including by facsimile), each of which shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
17. In case any provision of this Agreement shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
18. Unless terminated earlier by the parties hereto, this Agreement
shall terminate 90 days following the Expiration Date. Notwithstanding the
foregoing, Sections 9 and 12 shall survive the termination of this Agreement.
Upon any termination of this Agreement, you shall promptly deliver to the
Trustee any certificates for Old Notes or New Notes, funds or property then held
by you as Exchange Agent under this Agreement.
19. All notices and communications hereunder shall be in writing and
shall be deemed to be duly given if delivered or mailed first class certified or
registered mail, postage prepaid, or telecopied as follows:
If to the Company: Resorts International Hotel and Casino, Inc.
1133 Boardwalk
Atlantic City, NJ 08401
Telephone: 609-340-7896
Telecopier: 609-340-6547
Attn: Joseph A. D'Amato
and a copy to: Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
Telephone: 212-728-8000
Telecopier: 212-728-8111
Attn: Thomas M. Cerabino
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If to you: Deutsche Bank Trust Company Americas
Corporate Trust and Agency Group
60 Wall Street
New York, NY 10005
Attn.: Christina Van Ryzin
Telephone: 201-593-6302
Telecopier: 201-593-6528
and a copy to: DB Services Tennessee, Inc.
Corporate Trust & Agency Service
Reorganization Unit
648 Grassmere Park Road
Nashville, TN 37211
or such other address or telecopy number as any of the above may have furnished
to the other parties in writing for such purposes.
20. This Letter Agreement and all of the obligations hereunder shall be
assumed by any and all successors and assigns of the Company.
[Signature Page Follows]
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If the foregoing is in accordance with your understanding,
would you please indicate your agreement by signing and returning the enclosed
copy of this Agreement to the Company.
Very truly yours,
By: /s/ Joseph A. D'Amato
----------------------------
Name: Joseph A. D'Amato
Title: Vice President
Agreed to this 31st day of May, 2002
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Exchange Agent
By: /s/ Christina Van Ryzin
-----------------------------------
Name: Christina Van Ryzin
Title: Vice President
[Signature Page Only]
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Exhibit C
- --------------------------------------------------------------------------------
Deutsche Bank Trust Company Americas
Corporate Trust and Agency Group
- --------------------------------------------------------------------------------
SCHEDULE OF FEES
I. Exchange Agent Acceptance Fees: $5,000.00 per Cusip
-------------------------------
Covers review of the Exchange Agent Agreement, the Letter of
Transmittal and other related documentation; establishment of accounts and
systems link with depositories; operational and administrative charges and time
spent in connection with the review, receipt and processing of Letters of
Transmittal and agent's messages.