Exhibit 1.1
Trump Atlantic City Associates
Trump Atlantic City Funding, Inc.
___% First Mortgage Notes due 2006
UNDERWRITING AGREEMENT
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April __, 1996
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
SALOMON BROTHERS INC
BT SECURITIES CORPORATION
c/o Donaldson, Lufkin & Jenrette
Securities Corporation
277 Park Avenue
New York, New York 10172
Ladies and Gentlemen:
Subject to the terms and conditions herein contained, Trump
Atlantic City Associates, a New Jersey general partnership (the "Company"), and
Trump Atlantic City Funding, Inc., a Delaware corporation ("Funding"), and
Trump Plaza Associates, a New Jersey general partnership ("Plaza Associates"),
The Trump Taj Mahal Corporation, a Delaware corporation ("TTMC"), and Trump Taj
Mahal Associates, a New Jersey general partnership ("Taj Associates," and
together with Plaza Associates and TTMC, the "Guarantors," and, together with
the Company and Funding, the "Issuers"), jointly and severally propose to issue
and, as applicable, to sell to Donaldson, Lufkin & Jenrette Securities
Corporation ("DLJ"), Salomon Brothers Inc and BT Securities Corporation
(collectively, the "Underwriters") an aggregate of $1,100,000,000 principal
amount of ___% First Mortgage Notes due 2006 (the "Notes"), which will be the
joint and several obligations of the Issuers, and the related guarantees (the
"Guarantees") by the Guarantors (collectively, the "Securities"). The
Securities are to be issued pursuant to the provisions of an Indenture (the
"Indenture") to be dated as of April __, 1996, by and among the Issuers and
First Bank National Association, a national banking association, as Trustee
(the "Trustee").
Capitalized terms used herein without definition shall have the
meanings ascribed thereto in the Prospectus (as hereinafter defined). Unless
the context otherwise requires, all references herein to "the Company" shall be
deemed to give effect to the acquisition by the Company or its subsidiaries
other than Funding (collectively, the "Subsidiaries" or "the Subsidiaries"), as
applicable, of all of the direct and indirect equity interests in Trump Taj
Mahal Associates ("Taj Associates") pursuant to the Merger Agreement and the
Contribution Agreement dated April [11], 1996 between Trump, TTMI, TM/GP and
THCR Holdings (the "1996 Contribution Agreement"), at or prior to consummation
of the issuance of the Securities. All references herein to "the Subsidiaries"
or "the Guarantors" shall be deemed to include Taj Associates, Taj Funding and
TTMC, unless the context otherwise requires; provided, that no such entity
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shall be required to be a signatory hereto until the Closing Date (as
hereinafter defined), on which date each such entity shall become a party to
this Agreement. Concurrently with the issuance of the Securities, Trump Hotels
& Casino Resorts, Inc., a Delaware corporation ("THCR"), the sole general
partner of Trump Hotels & Casinos Resorts Holdings, L.P., a Delaware limited
partnership ("THCR Holdings"), a 99% general partner of the Company, is
proposing to issue and sell to certain underwriters, including you, 12,500,000
shares (and an additional 1,875,000 shares subject to an over-allotment option)
of its common stock, $.01 par value, pursuant to an underwriting agreement, to
be dated as of the date hereof, by and among THCR, the Underwriters and Sands
Brothers & Co., Ltd., as Representatives of the underwriters named in Schedule
I thereto.
1. Registration Statement and Prospectus. The Company,
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Funding and Plaza Associates have prepared and filed with the Securities and
Exchange Commission (the "Commission"), in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated pursuant thereto (collectively, the "Act"), a
registration statement on Form S-1 (No. 333-643) with respect to the
Securities, including a preliminary prospectus, subject to completion, relating
to the Securities. The registration statement, as amended at the time it
becomes effective (including a registration statement (if any) filed pursuant
to Rule 462(b) under the Act, all financial statements and exhibits and the
information, if any, contained in a prospectus that is deemed to be a part of
the registration statement at the time of its effectiveness pursuant to Rule
430A or Rule 434 under the Act), is hereinafter referred to as the
"Registration Statement", and the prospectus constituting a part of the
Registration Statement, in the form first furnished to the Underwriters and
used to confirm sales of the Securities and including all documents
incorporated or deemed to be incorporated by reference therein, if any, is
hereinafter referred to as the "Prospectus."
2. Agreements to Sell and Purchase. On the basis of the
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representations and warranties contained in this Agreement, and subject to the
terms
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and conditions contained in this Agreement, the Issuers jointly and severally
agree to issue and sell to the Underwriters, and each Underwriter agrees,
severally and not jointly, to purchase from the Issuers, Securities in the
respective principal amount set forth opposite the name of such Underwriter in
Schedule I hereto, plus such amount, if any, as they may individually become
obligated to purchase pursuant to Section 9 hereof, at a purchase price per
Security equal to the percentage of the principal amount thereof set forth in
the table on the cover page of the Prospectus under the heading "Proceeds to
the Issuers" (the "Purchase Price").
3. Delivery and Payment. Delivery to you of and payment for
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the Securities shall be made at 10:00 A.M., New York City time, on the third or
fourth business day, unless otherwise permitted by the Commission pursuant to
Rule 15c6-1 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), (such time and date being referred to as the "Closing Date"), following
the date of the initial public offering of the Securities as advised by DLJ to
the Issuers, at the offices of Willkie Farr & Gallagher, 153 East 53rd Street,
New York, New York, 10022, or such other place as you shall reasonably
designate. The Closing Date and the location of delivery of and the form of
payment for the Securities may be varied by agreement among DLJ and the
Issuers.
The Securities in definitive form shall be registered in such names
and issued in such denominations as you shall request in writing not later than
two full business days prior to the Closing Date, and shall be made available
to you at the offices of DLJ (or at such other place as shall be acceptable to
you) for inspection not later than 10:00 A.M., New York City time, no later
than the business day next preceding the Closing Date. Definitive Securities
shall be delivered to you on the Closing Date, with any transfer taxes payable
upon initial issuance thereof duly paid by the Issuers, for your respective
accounts against payment of the Purchase Price by wire or similar transfer of
same-day funds to the order of the Company.
4. Agreements of the Issuers. Each of the Issuers jointly
-------------------------
and severally agrees with each of you that:
(a) It will, if the Registration Statement has not heretofore
become effective under the Act, and, if necessary or required by law,
file an amendment to the Registration Statement or, if necessary pursuant
to Rule 430A under the Act, a post-effective amendment to the
Registration Statement, in each case as soon as practicable after the
execution and delivery of this Agreement, and will use its best efforts
to cause the Registration Statement or such post-effective amendment to
become effective at the earliest possible time. If the Registration
Statement has become effective and the Issuers, omitting from the
Prospectus certain information in reliance upon Rule 430A of the Act,
elect not to file a post-effective amendment pursuant to Rule
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430A of the Act, it will file the form of Prospectus required by Rule
424(b) of the Act within the time period specified by Rule 430A and Rule
424(b) of the Act. The Issuers will otherwise comply fully and in a
timely manner with the applicable provisions of Rule 424 and Rule 430A
under the Act.
(b) It will advise you promptly and, if requested by any of you,
confirm such advice in writing, (i) when the Registration Statement has
become effective, if and when the Prospectus is sent for filing pursuant
to Rule 424 under the Act and when any post-effective amendment to the
Registration Statement becomes effective, (ii) of the receipt of any
comments from the Commission or any state securities commission or any
other regulatory authority that relate to the Registration Statement or
requests by the Commission or any state securities commission or any
other regulatory authority for any amendment or supplements to the
Registration Statement or any amendment or supplement to the Prospectus
or for additional information, (iii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement, or of the suspension of qualification of the Securities for
offering or sale in any jurisdiction, or the initiation of any proceeding
for such purpose by the Commission or any state securities commission or
other regulatory authority, and (iv) of the happening of any event during
the period referred to in paragraph (d) below which makes any statement
of a material fact made in the Registration Statement (as amended or
supplemented from time to time) untrue or which requires the making of
any additions to or changes in the Registration Statement (as amended or
supplemented from time to time) in order to make the statements therein
not misleading or that makes any statement of a material fact made in the
Prospectus (as amended or supplemented from time to time) untrue or which
requires the making of any addition to or change in the Prospectus (as
amended or supplemented from time to time) in order to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The Issuers shall use their best efforts to
prevent the issuance of any stop order or order suspending the
qualification or exemption of the Securities under any Federal or state
securities or Blue Sky laws, and, if at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or exemption
of the Securities under any state securities or Blue Sky laws, the
Issuers shall use every reasonable effort to obtain the withdrawal or
lifting of such order at the earliest possible time.
(c) Promptly after the Registration Statement becomes effective,
and from time to time thereafter for such period in your reasonable
judgment as a prospectus is required by the Act, the Exchange Act or any
state
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securities laws to be delivered in connection with sales of the
Securities by an Underwriter or a dealer, it will furnish to each
Underwriter and each dealer, without charge, as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) as such
Underwriter or dealer may reasonably request; provided, that the
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expense of any such delivery more than one year after the effective date
of the Registration Statement shall be borne by the Underwriter
requesting to make such delivery.
(d) If during the period during which in your reasonable judgment
you are required to deliver a prospectus in connection with offers or
sales of Securities by you, any event shall occur as a result of which it
becomes necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances existing as of
the date the Prospectus is delivered to an offeree or a purchaser, not
misleading, or if it is necessary to amend or supplement the Prospectus
to comply with applicable law, it will promptly prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented,
will not, in the light of the circumstances existing as of the date the
Prospectus is so delivered, be misleading, and will comply with
applicable law and will promptly notify you of such event and amendment
or supplement and furnish to you without charge such number of copies
thereof as you may reasonably request.
(e) It will mail and make generally available to its security
holders as soon as practicable and as specified by Rule 158 under the
Act, a consolidated earning statement which shall satisfy the provisions
of Section 11(a) of the Act and Rule 158 thereunder and advise you in
writing when such statement has been made available.
(f) It will furnish to each of the Underwriters, without charge,
two (2) signed copies (plus one additional signed copy to your legal
counsel) of the Registration Statement, as first filed with the
Commission, and of each amendment or supplement to it, including each
post-effective amendment and all exhibits filed therewith or incorporated
by reference therein, and will furnish to each of the Underwriters, such
number of conformed copies of the Registration Statement as so filed and
of each amendment to it, including each post-effective amendment, but
without exhibits, as you may reasonably request.
(g) It will not file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or make any amendment or supplement to the Prospectus, of
which you shall not previously have been advised and provided a copy of
within two business
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days prior to the filing thereof or to which you shall reasonably object;
and it will prepare and file with the Commission, promptly upon your
reasonable request, any amendment or supplement to the Registration
Statement or amendment or supplement to the Prospectus which in your sole
judgment may be necessary in connection with the distribution of the
Securities by you, and will use its best efforts to cause the same to
become effective as promptly as possible.
(h) Prior to any public offering of the Securities, it will
cooperate with you and your counsel in connection with the registration
or qualification of the Securities for offer and sale by the Underwriters
under the state securities or Blue Sky laws of such jurisdictions as you
may request. The Issuers will continue such qualification in effect so
long as required by law for distribution of the Securities and will file
such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification
(provided, that none of the Issuers shall be obligated to qualify as
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a foreign corporation or general partnership, as the case may be, in any
jurisdiction in which it is not so qualified or to take any action that
would subject it to general consent to service of process in any
jurisdiction in which it is not now so subject).
(i) It will timely complete all required filings and otherwise
comply fully in a timely manner with all provisions of the Exchange Act,
and will file all reports and any definitive proxy or information
statements required to be filed by the Issuers with the Commission
pursuant to Sections 13(a), 13(c), 14(a) or 15(d) of the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery
of a prospectus is required in connection with the offer or sale of the
Securities.
(j) So long as any of the Securities are outstanding, it will
furnish to you, without charge, a copy of each report or other publicly
available information of the Issuers furnished to holders of the
Securities or filed with the Commission, whether or not required by law
or pursuant to the Indenture, and such other publicly available
information concerning the Issuers or the Subsidiaries as you may
reasonably request, at the same time as such reports or other information
are furnished to such holders.
(k) During the period beginning on the date of this Agreement and
continuing to and including the Closing Date, except as described in the
Prospectus with respect to the Merger Transaction, there will be no
transactions entered into by the Issuers or any of the Subsidiaries,
which are material with respect to the Company, Funding or any of the
Subsidiaries, taken individually or as a whole, and there will be no
dividend or distribution
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of any kind declared, paid or made by the any of the Issuers on any class
of their respective capital stock or other equity interests.
(l) It will not voluntarily claim, and will resist any attempts
to claim, the benefits of any usury laws against the holders of the
Securities.
(m) It will use the proceeds from the sale of the Securities in
the manner described in the Prospectus under the caption "Use of
Proceeds" and will make any filing required by Rule 463 of the Act.
(n) During the period referred to in paragraph (k), it will not
offer, sell, contract to sell or otherwise dispose of any debt securities
or warrants, rights or options to purchase debt securities (other than
the Securities), without the prior written consent of DLJ.
(o) It will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or
after the Closing Date and to satisfy all conditions precedent to the
delivery of the Securities.
5. Payment of Expenses. Each of the Issuers jointly and
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severally agrees with you that, whether or not the transactions contemplated
hereby are consummated or this Agreement is terminated, it will pay and be
responsible for all costs, charges, liabilities, expenses, fees and taxes
incurred in connection with or incident to (i) the preparation, printing
(including word processing), filing, distribution and delivery under the Act of
the Registration Statement (including financial statements and exhibits), each
preliminary prospectus, the Prospectus and all amendments and supplements
thereto, (ii) the registration with the Commission and the issuance and
delivery of the Securities, (iii) the preparation, printing (including word
processing), execution, distribution and delivery of the documents listed on
Schedule II hereto (the "Mortgage Documents"), this Agreement, the Indenture,
the Securities, the [Amended License Agreement], the [Amended Trademark
Security Agreement], the 1996 Contribution Agreement, the [Amended Trump
Executive Agreement,] the Amended and Restated Partnership Agreements of each
of Plaza Associates, Taj Associates and the Company, the Merger Agreement, the
First and the Second Supplemental Indentures to the Plaza Note Indenture, the
First Supplemental Indenture to the Senior Note Indenture,the agreement
providing for satisfaction of the NatWest Loan, the agreement providing for
discharge of the First Fidelity Loan, the agreement providing for the exercise
of the Plaza East Purchase Option, the redemption notice for the Taj Bonds, the
letter agreements dated January 8, 1996 between Trump and Taj Associates and
THCR, respectively, the underwriting agreement for the Equity Offering, the
letter agreement dated October 6, 1995 by and among Taj Associates, Taj Funding
and Taj Holdings and certain holders of Taj
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Holding Class A Common Stock (collectively, the "Operative Documents"), the
Preliminary and Final Blue Sky Memoranda, and all other agreements, memoranda,
reports, correspondence and other documents printed, distributed and delivered
in connection with the offering of the Securities, (iv) the registration or
qualification of the Securities for offer and sale under the securities or Blue
Sky laws of the jurisdictions referred to in paragraph 4(h) above (including,
in each case, the fees and disbursements of counsel for the Underwriters
relating to such registration or qualification and any memoranda relating
thereto and any filing fees in connection therewith), (v) subject to paragraph
4(c) above, furnishing such copies of the Registration Statement (including
exhibits), Prospectus and preliminary prospectus, and all amendments and
supplements to any of them, including any document incorporated by reference
therein, as may be reasonably requested by the Underwriters or by dealers, (vi)
the filing, registration and clearance with the National Association of
Securities Dealers, Inc. (the "NASD") of the Underwriters' compensation in
connection with the offering of the Securities (including, without limitation,
any filing fees in connection therewith), (vii) the fees charged by securities
rating services for rating of the Securities, (viii) the costs of distributing
the terms of agreement relating to the organization of the selling group to the
members thereof by mail, telex or other means of communication, (ix) any
"qualified independent underwriter" as required by Schedule E to the Bylaws of
the NASD (including fees and disbursements of counsel for such qualified
independent underwriter) and (x) the performance by each of the Issuers and
each of the Subsidiaries of its other obligations under this Agreement and
under each of other the Operative Documents to which it is a party, including
(without limitation) the fees and expenses of the Trustee, the costs of their
personnel and other internal costs, the cost of printing and engraving the
certificates representing the Securities, and all expenses and taxes incident
to the sale and delivery of the Securities to you, and creating and perfecting
security interests in the Collateral, including, without limitation, filing and
recording fees and expenses and fees and expenses of counsel for the Issuers
for providing such opinions as you may reasonably request. Subject to Section
9 below, the Underwriters will otherwise pay their own out-of-pocket expenses,
including the fees and disbursements of counsel (other than under clauses (iv),
(vi) and (ix) above and as may have been provided otherwise in separate
agreements with you).
6. Representations and Warranties. Each of the Issuers
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jointly and severally represents and warrants to each Underwriter that:
(a) When the Registration Statement became or becomes effective,
including on the date of any post-effective amendment, at the date of the
Prospectus (if different) and at the Closing Date, the Registration
Statement will comply in all material respects with the provisions of the
Act and the Trust Indenture Act of 1939, as amended, and the rules and
regulations thereunder (collectively, the "TIA"), and will not contain
any untrue state-
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ment of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading;
the Prospectus and each supplement or amendment thereto will not, at the
date of the Prospectus, at the date of any such supplement or amendment
and at the Closing Date, contain any untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
contained in this paragraph (a) shall not apply to statements in or
omissions from the Registration Statement or the Prospectus (or any
supplement or amendment to them) made in reliance upon and in conformity
with information relating to any Underwriter furnished to the Issuers in
writing by or on behalf of such Underwriter through DLJ expressly for use
therein. Each of the Issuers acknowledges for all purposes under this
Agreement (including this paragraph and Section 7 hereof) that the
statements set forth in the last paragraph of the cover page of the
Prospectus and the first (including the table therein) and the third
paragraphs, the third sentence of the fourth paragraph and the fourth and
sixth sentences of the sixth paragraph of the section entitled
"Underwriting" in the Prospectus constitute the only written information
furnished to any of the Issuers by or on behalf of any Underwriter through
DLJ expressly for use in the Registration Statement, the preliminary
prospectus or the Prospectus (or any amendment or supplement to any of
them) and that the Underwriters shall not be deemed to have provided any
information (and therefore are not responsible for any statements or
omissions) pertaining to any arrangement or agreement with respect to any
party other than the Underwriters. When the Registration Statement became
or becomes effective, including at the time of any post-effective
amendment, at the date of the Prospectus and any amendment or supplement
thereto (if different) and at the Closing Date, the Indenture will have
been qualified under and will conform in all material respects to the
requirements of the TIA. No contract or document of a character required
to be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement has not been described
and filed as required.
(b) Each preliminary prospectus and the Prospectus, filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 or 430A under the Act,
and each Registration Statement filed pursuant to Rule 462(b) under the
Act, if any, complied when so filed in all material respects with the
Act.
(c) No action has been taken and no statute, rule, regulation or
order has been enacted, adopted or issued by any governmental body,
agency or official which prevents the issuance of the Securities,
suspends the effec-
9
tiveness of the Registration Statement, prevents or suspends the use of
any preliminary prospectus or suspends the sale of the Securities in any
jurisdiction referred to in Section 4(h) hereof; no injunction,
restraining order or order of any nature by any Federal or state court of
competent jurisdiction has been issued with respect to the Issuers or any
of the Subsidiaries which would prevent or suspend the issuance or sale of
the Securities, the effectiveness of the Registration Statement, or the
use of any preliminary prospectus or Prospectus or in any jurisdiction
referred to in Section 4(h) hereof; no action, suit or proceeding before
any court or arbitrator or any governmental body, agency or official,
domestic or foreign, is pending against or, to the best knowledge of the
Issuers, after due inquiry, threatened against, the Issuers or any of the
Subsidiaries which, if adversely determined, could interfere with or
adversely affect the issuance of the Securities or in any manner draw into
question the validity of this Agreement or any of the other Operative
Documents; and the Issuers have complied with every request of the
Commission, or any securities authority or agency of any jurisdiction for
additional information (to be included in the Registration Statement or
the Prospectus or otherwise).
(d) The Indenture has been duly authorized by each of the Issuers
and, when duly executed and delivered by each of the Issuers in
accordance with its terms, will be a legal, valid and binding agreement
of each of the Issuers, enforceable against each of the Issuers in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws
affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except to the extent that a waiver of
rights under any usury laws may be unenforceable. No Federal or state
taxes are required to be paid by any purchasers of the Securities with
respect to the execution of the Indenture by each of the Issuers or with
respect to the issuance of the Securities.
(e) The Notes have been duly authorized by each of the Company and
Funding and, on the Closing Date, will have been duly executed by each of
the Company and Funding and will, when issued, executed, authenticated
and delivered in accordance with the Indenture and paid for in accordance
with the terms of this Agreement, constitute legal, valid and binding
obligations of each of the Company and Funding, enforceable against each
of the Company and Funding in accordance with their terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and, except to
the extent that a waiver of
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rights under any usury laws may be unenforceable, will be entitled to the
benefits of the Indenture and will conform in all material respects to
the descriptions thereof in the Prospectus. The Notes rank and will rank
on a parity with all unsubordinated indebtedness of the Company and
Funding that is outstanding on the date hereof or that may be incurred
hereafter, and senior to all other indebtedness of the Company and
Funding that is outstanding on the date hereof or that may be incurred
hereafter.
(f) The Guarantees have been duly authorized by each of the
Guarantors and, on the Closing Date, will have been duly executed by each
of the Guarantors and will, when issued, executed, authenticated and
delivered in accordance with the Indenture, constitute legal, valid and
binding obligations of each of the Guarantors, enforceable against each
of the Guarantors in accordance with their respective terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer and similar laws affecting creditors' rights and remedies
generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and, except
to the extent that a waiver of rights under any usury laws may be
unenforceable, will be entitled to the benefits of the Indenture and will
conform in all material respects to the descriptions thereof in the
Prospectus. The Guarantees rank and will rank on a parity with all
unsubordinated indebtedness of the applicable Guarantor that is
outstanding on the date hereof or that may be incurred hereafter and
senior to all other indebtedness of the applicable Guarantor that is
outstanding on the date hereof and that may be incurred hereafter, other
than as disclosed in the Prospectus.
(g) This Agreement has been duly authorized and validly executed
and delivered by each of the Issuers and constitutes a valid and legally
binding agreement of each of the Issuers, enforceable against each of the
Issuers in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and similar
laws affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity) and except to the extent that
indemnification from liability in connection with the Federal securities
laws may be unenforceable.
(h) Each of the other Operative Documents (including, in the case
of an Operative Document which is being amended in connection with the
Merger Transaction (as defined below), the amendment thereto) has been or
on the Closing Date will have been duly and validly authorized by each of
the Issuers and the Subsidiaries, as applicable, and on the Closing Date,
will have been duly executed and delivered by each of the Issuers and the
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Subsidiaries, as applicable, in accordance with its respective terms and
each will be a legal, valid and binding agreement of each of the Issuers
and each of the Subsidiaries, as applicable, enforceable against each of
the Issuers and each of the Subsidiaries, as applicable, in accordance
with its respective terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws
affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(i) Each of the Operative Documents and each of the elements of
the Merger Transaction described in the Prospectus conforms in all
material respects to the description thereof contained in the Prospectus.
(j) Each of the Issuers and each of the Subsidiaries has all the
requisite corporate or partnership power, as the case may be, to execute,
deliver and perform its obligations under each of the Operative Documents
to which it is a party, and to authorize, issue and sell the Securities.
The execution and delivery by each of the Issuers and each of the
Subsidiaries of the Operative Documents to which it is a party, the
issuance and sale of the Securities, the performance of the Operative
Documents and the consummation of the transactions contemplated hereby
and thereby will not conflict with or result in a breach or violation of
(i) any of the respective charters, bylaws or partnership agreements, as
the case may be, of the Issuers, any of the Subsidiaries or any of the
entities through which ownership interests in Trump's Castle Associates
are directly or indirectly held (the "Castle Entities"), (ii) any of the
terms or provisions of, or constitute a default or cause an acceleration
of any obligation under, or result in the imposition or creation of (or
the obligation to create or impose), any security interest, mortgage,
pledge, claim, lien, encumbrance or adverse interest of any nature (each,
a "Lien"), other than Liens permitted under the Indenture, with respect
to any obligation, bond, agreement, note, debenture or other evidence of
indebtedness or any indenture, mortgage, deed of trust or other
agreement, lease or instrument to which the Issuers, any of the
Subsidiaries or any of the Castle Entities is a party or by which they or
any of them are bound, or to which any of the properties or assets of the
Issuers, any of the Subsidiaries or any of the Castle Entities is or may
be subject, or (iii) any Federal, state or local law, rule,
administrative regulation or ordinance or order of any court or
governmental agency, body or official having jurisdiction over the
Issuers or any of the Subsidiaries or any of their properties, except, in
the case of clause (ii) or (iii), for such conflicts, breaches,
violations, defaults or Liens that could not have a material adverse
effect on the properties, plans, business, results of operations, general
affairs, management, condition (financial or otherwise), prospects, or
business affairs
12
of the Issuers or the Subsidiaries, singly or in the aggregate (a
"Material Adverse Effect").
(k) No authorization, approval, consent or order of, or filing
with, any court or governmental body, agency or official, including the
New Jersey Casino Control Commission (the "CCC"), the New Jersey
Department of Environmental Protection (the "NJDEP"), is necessary in
connection with the issuance of the Securities and the other transactions
contemplated by this Agreement and the other Operative Documents and the
Merger Transaction except such as may be required by the NASD or have
been obtained and made under the Casino Control Act (the "Gaming Act"),
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), the Act, the TIA or state securities or Blue Sky laws or
regulations. Neither of the Issuers nor any of their affiliates is
presently doing business with the government of Cuba or with any person
or affiliate located in Cuba.
(l) Each of the Issuers and the Subsidiaries has been duly
incorporated or organized, as the case may be, and each of the Issuers
and each of the Subsidiaries is validly existing as a corporation or
general partnership, as the case may be, under the laws of its
jurisdiction of incorporation or organization, as the case may be, and
has the requisite power and authority to carry on its business as it is
currently being conducted or is proposed to be conducted (as discussed in
the Prospectus) and to own, lease and operate its properties, as
applicable, and each is duly qualified as a foreign corporation or
foreign general partnership, as the case may be, authorized to do
business in each jurisdiction (each, a "Foreign Jurisdiction") where the
operation, ownership or leasing of property or the conduct of its
business requires such qualification, except where the failure to be so
qualified could not have a Material Adverse Effect.
(m) The consolidated capitalization of each of the Company and Taj
Associates is as set forth in the Prospectus under the caption
"Capitalization" in the respective columns "Trump AC" and "Taj
Associates," and, after consummation of the Offerings, the consolidated
capitalization of the Company will be as set forth in the column "Pro
Forma." All of the issued and outstanding shares of capital stock of
Funding, Plaza Funding and TTMC have been duly authorized and validly
issued and are fully paid and nonassessable. On the Closing Date, the
Company will own, either directly or indirectly, all of the outstanding
equity interests in Plaza Associates and Taj Associates and all of the
outstanding capital stock of TTMC, Plaza Funding and Funding, free and
clear of any Liens, restrictions on transfer, agreements, voting trusts
or other defects of title whatsoever, other than (x) Liens or other
restrictions on transfer permitted under the Indenture, (y) transfer
13
restrictions which may be imposed under the Gaming Act and (z) Liens in
favor of the trustee under the Senior Note Indenture. There are no
outstanding subscriptions, rights, warrants, options, calls, convertible
or exchangeable securities or commitments of sale related to or entitling
any person to purchase or otherwise to acquire any shares of the capital
stock of, or other ownership interests in, any Subsidiary.
(n) Funding has not conducted any business other than in
connection with the proposed issuance and sale of the Notes. Neither the
Issuers nor any of the Subsidiaries is (i) in violation of its respective
charter, bylaws or partnership agreements or (ii) in default in the
performance of any obligation, bond, agreement, debenture, note or any
other evidence of indebtedness or any indenture, mortgage, deed of trust
or other contract, lease or other instrument to which the Issuers or any
of the Subsidiaries is a party or by which any of them is bound, or to
which any of the property or assets of the Issuers or any of the
Subsidiaries is subject, except, in the case of clause (ii), for such
defaults that could not have a Material Adverse Effect.
(o) There is no action, suit or proceeding before or by any court
or governmental agency or body, domestic or foreign, pending against or
affecting the Issuers or any of the Subsidiaries or any of their
respective assets or properties, which is required to be disclosed in the
Registration Statement or the Prospectus (except as disclosed therein),
or which could have a Material Adverse Effect, or which could materially
and adversely affect the performance by any of the Issuers of its
obligations pursuant to this Agreement and the Operative Documents or the
transactions contemplated hereby or thereby and, to the best knowledge of
the Issuers, after due inquiry, no such action, suit or proceeding is
contemplated or threatened.
(p) (i) Neither the Issuers nor any of the Subsidiaries is in
violation of any Federal, state or local laws and regulations relating to
pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, ground water, land
surface or subsurface strata), including, without limitation, laws and
regulations relating to emissions, discharges, releases or threatened
releases of toxic or hazardous substances, materials or wastes, or
petroleum and petroleum products ("Materials of Environmental Concern"),
or otherwise relating to the protection of human health and safety, or
the storage, disposal, transport or handling of Materials of
Environmental Concern (collectively, "Environmental Laws"), which
violation includes, but is not limited to, noncompliance with any permits
or other governmental authorizations, except to the extent that any such
violation could not have a Material Adverse Effect or otherwise require
disclosure in the Prospectus; and (ii) to the best knowledge of the
Issuers,
14
after due inquiry, (A) neither the Issuers nor any of the Subsidiaries
has received any communication (written or oral), whether from a
governmental authority or otherwise, alleging any such violation or
noncompliance, and there are no circumstances, either past, present or
that are reasonably foreseeable, that may lead to such violation in the
future, (B) there is no pending or threatened claim, action,
investigation or notice (written or oral) by any person or entity
alleging potential liability for investigatory, cleanup, or governmental
responses costs, or natural resources or property damages, or personal
injuries, attorney's fees or penalties relating to (x) the presence, or
release into the environment, of any Material of Environmental Concern at
any location owned or operated by the Issuers or any Subsidiary, now or
in the past, or (y) circumstances forming the basis of any violation, or
alleged violation, of any Environmental Law (collectively, "Environmental
Claims") that could have a Material Adverse Effect or otherwise require
disclosure in the Prospectus, and (C) there are no past or present
actions, activities, circumstances, conditions, events or incidents, that
could form the basis of any Environmental Claim against the Issuers or
any Subsidiary or against any person or entity whose liability for any
Environmental Claim the Issuers or any Subsidiary has retained or assumed
either contractually or by operation of law.
(q) Neither the Issuers nor any of the Subsidiaries is in
violation of any Federal, state or local law relating to discrimination
in the hiring, promotion or pay of employees nor any applicable wage or
hour laws, except as could not have a Material Adverse Effect. There is
(A) no significant unfair labor practice complaint pending against the
Issuers or any Subsidiary or, to the best knowledge of the Issuers, after
due inquiry, threatened against any of them, before the National Labor
Relations Board or any state or local labor relations board, and no
material grievance or material arbitration proceeding arising out of or
under any collective bargaining agreement is so pending against the
Issuers or any Subsidiary or, to the best knowledge of the Issuers, after
due inquiry, threatened against any of them, and (B) no labor dispute in
which the Issuers or any Subsidiary is involved nor, to the best
knowledge of the Issuers, after due inquiry, is any labor dispute
imminent, other than routine disciplinary and grievance matters. The
Issuers and the Subsidiaries are in compliance in all material respects
with all applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, and the regulations and published
interpretations thereunder ("ERISA"); and no "reportable event" (as
defined in ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) established or maintained by the Issuers or any of the
Subsidiaries or with respect to which the Issuers or the Subsidiaries are
obligated to make contributions. The Issuers and the Subsidiaries have
not incurred and do not expect to incur
15
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "employee benefit plan" as such term is defined in
Section 3(3) of ERISA or (ii) Sections 4971, 4975, or 4980B of the
Internal Revenue Code of 1986, as amended (the "Code"). Each "employee
benefit plan" established or maintained by the Issuers and the
Subsidiaries that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred,
whether by action or by failure to act, which would cause the loss of
such qualification.
(r) Except as could not have a Material Adverse Effect, each of
the Issuers and each of the Subsidiaries has good and marketable title,
free and clear of all Liens (except for (x) Liens created by the Mortgage
Documents and (y) Permitted Liens (as defined in the Indenture)), to all
property and assets described in the Registration Statement as being
owned by it and such properties and assets are in the condition and
suitable for use as so described. All leases to which any of the Issuers
or the Subsidiaries is a party are valid and binding and no default has
occurred and is continuing thereunder (in the case of defaults by persons
other than the Issuers and the Subsidiaries, to the best knowledge of the
Issuers and the Subsidiaries, after due inquiry), which could result in a
Material Adverse Effect, and the Issuers and the Subsidiaries enjoy
peaceful and undisturbed possession under all such leases to which any of
them is a party as lessee with such exceptions as do not interfere with
the use made or proposed to be made by the Issuers or such Subsidiary.
(s) The Issuers and the Subsidiaries maintain insurance at least
in such amounts and covering at least such risks as is adequate for the
conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar
businesses in similar industries.
(t) Arthur Andersen LLP, the firm of accountants that has
certified or shall certify the applicable historical financial statement
of Funding and the applicable historical consolidated financial
statements and supporting schedules of the Company and Taj Associates,
filed or to be filed with the Commission as part of the Registration
Statement and the Prospectus, are independent public accountants with
respect to the Issuers and the Subsidiaries, as required by the Act. The
historical financial statement and the historical consolidated financial
statements, together with related schedules and notes, set forth in the
Prospectus and the Registration Statement, comply as to form in all
material respects with the requirements of the Act and fairly present the
financial position of Funding and the consolidated financial position of
the Company and Taj Associates at the respective dates indicated and
16
the consolidated results of their operations and their consolidated cash
flows, as applicable, for the respective periods indicated, in accordance
with generally accepted accounting principles in the United States of
America ("GAAP") consistently applied throughout such periods. The
pro forma financial statements contained in the Registration
--- -----
Statement have been prepared on a basis consistent with such historical
statements and give effect to assumptions made on a reasonable basis and
fairly present the historical and proposed transactions contemplated to
be addressed by the preliminary prospectuses, the Prospectus, the
Operative Documents and this Agreement. The historical ratios of
earnings to fixed charges of the Company, Plaza Associates and Taj
Associates and the pro forma ratios of earnings to fixed charges
--- -----
of the Company included in the Prospectus under the caption "Prospectus
Summary-Summary Financial Information" have been calculated in compliance
with Item 503(d) of Regulation S-K promulgated by the Commission. The
other financial and statistical information and data included in the
Prospectus and in the Registration Statement, historical and pro
---
forma, are accurately presented and prepared on a basis consistent
-----
with such financial statements and the books and records of Taj
Associates, Taj Funding, the Company, Funding, Plaza Funding and Plaza
Associates, as applicable.
(u) The forecasted financial statement information included in the
Registration Statement (i) are within the coverage of Rule 175(b) of the
Act, (ii) were made by the Issuers with a reasonable basis and in good
faith, (iii) have been prepared in accordance with Item 10 of Regulation
S-K of the Act and (iv) have been properly compiled on the bases
described therein. The assumptions used in the preparation of such
forecasted consolidated financial statement information (i) are all those
the Issuers believe are significant in forecasting the financial results
of Plaza Associates, Taj Associates and the Company and (ii) reflect, for
the relevant periods, a reasonable estimate of the events, contingencies
and circumstances described therein. Such forecasted consolidated
financial statement information presents each of the Issuers' reasonable
estimate of the expected consolidated results of operations, except for
the omission of non-operating items, income taxes, extraordinary items
and the calculation of net income, of each of Plaza Associates, Taj
Associates and the Company for the forecasted periods.
(v) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and up to the
Closing Date, (i) neither the Issuers nor any of the Subsidiaries has
incurred any liabilities or obligations, direct or contingent, which are
material to the Issuers or the Subsidiaries, singly or in the aggregate,
nor entered into any transaction not in the ordinary course of business,
except as described in the
17
Prospectus with respect to the Merger Transaction, (ii) there has been no
decision or judgment in the nature of litigation, administrative or
regulatory proceedings or arbitration that could have a Material Adverse
Effect and (iii) there has not been any material adverse change or any
development which could involve, singly or in the aggregate, a material
adverse change, in the properties, plans, business, results of
operations, general affairs, management, condition (financial or
otherwise), prospects or business affairs of the Issuers or the
Subsidiaries, singly or in the aggregate (any of the items set forth in
clauses (i),(ii) or (iii) of this paragraph (t), a "Material Adverse
Change").
(w) All material Tax (as defined below) returns required to be
filed by the Issuers and the Subsidiaries have been filed and all such
returns are true, complete, and correct in all material respects. All
material Taxes that are due or claimed to be due from the Issuers and the
Subsidiaries have been paid other than those (i) currently payable
without penalty or interest or (ii) being contested in good faith and by
appropriate proceedings and, in either case, for which adequate reserves
have been established on the books and records of the Issuers and the
Subsidiaries in accordance with GAAP. The Issuers and the Subsidiaries
are not parties to any pending action, proceeding, inquiry, or
investigation by any government authority for the assessment or
collection of Taxes, nor do the Issuers have any knowledge, after due
inquiry, of any such proposed or threatened action, proceeding, inquiry,
or investigation. For purposes of this agreement, the terms "Tax" and
"Taxes" shall mean all Federal, state, local and foreign taxes, and other
assessments of a similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or penalties
applicable thereto.
(x) (i) Each of the Issuers, each of the Subsidiaries and each of
the persons listed under the caption "Management" in the Registration
Statement has all certificates, consents, exemptions, orders, permits,
licenses, authorizations or other approvals or rights (each, an
"Authorization") of and from, and has made all declarations and filings
with, all Federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals,
including, without limitation, all such Authorizations with respect to
engaging in gaming operations in the State of New Jersey or required to
own, lease, license and use its properties and assets and to conduct its
current business in the manner described in or contemplated by the
Prospectus; (ii) all such Authorizations are valid and in full force and
effect; (iii) each of the Issuers and each of the Subsidiaries and, to
the best of the Issuers' knowledge, after due inquiry, each of the
persons listed under the caption "Management" in the Registration
Statement is in compliance in all material respects with the terms and
conditions of all such Authorizations
18
and with the rules and regulations of the regulatory authorities and
governing bodies having jurisdiction with respect thereto and (iv) none
of the Issuers nor any Subsidiary nor, to the best of the Issuers'
knowledge, after due inquiry, each of the persons listed under the
caption "Management" in the Registration Statement has received any
notice of proceedings relating to the revocation or modification of any
such Authorization and no such Authorization contains any restrictions
that are materially burdensome to any of them. None of the Issuers nor
any of the Subsidiaries has any reason to believe that the CCC is
considering modifying, limiting, conditioning, suspending, revoking or
not renewing any such Authorizations of the Issuers, any of the
Subsidiaries or any of the persons listed under the caption "Management"
in the Registration Statement or that either the CCC or any other
governmental agencies are investigating the Issuers or any of the
Subsidiaries or related parties (other than normal overseeing reviews of
the CCC incident to the gaming, riverboat or casino activities, as the
case may be, of the Issuers and the Subsidiaries). None of the Issuers
nor any of the Subsidiaries has any reason to believe that there is an
existing basis for the CCC to deny the renewal of the current casino and
gaming licenses held by Plaza Associates and Taj Associates,
respectively. The Issuers and the Subsidiaries possess, or will promptly
acquire on reasonable terms, the licenses, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names, including a grant to the
Company (subject to the preexisting license to Trump's Castle
Associates, as described in the Prospectus) of an exclusive royalty-free
right and license to use worldwide, the names and marks "TRUMP," "DONALD
J. TRUMP," "DONALD TRUMP," "D.J. TRUMP," and "D. TRUMP" (the "Trump
Names") (including combinations thereof, and the U.S. Registrations
"Oysters Trump" and "Trump Plaza") in connection with Casino Services and
Products (as defined in the [Amended License Agreement]) (collectively,
the "Licensed Marks"), and the right to use Trump's personal name
(i.e., "Trump," "Donald Trump" or "Donald J. Trump") and his
----
likeness, in connection with Casino Services and Products presently or
proposed to be employed by them in connection with their businesses as
currently being conducted or as proposed to be conducted (as discussed in
the Prospectus). The Trump Names with respect to Casino Services and
Products, together with each of the marks, registrations and applications
listed on Schedule A of the [Amended License Agreement], shall be
referred to hereinafter, collectively, as the "Marks"). The Licensed
Marks are free of any Liens (other than the license granted by Trump to
Trump Plaza Hotel and Casino pursuant to the Amended and Restated
Services Agreement by and among Plaza Associates, Trump Plaza Management
Corp. and Trump, dated June 24, 1993, and the security interest in the
registration "Trump Plaza" as of
19
October 3, 1990 in favor of Bankers Trust Company). To the best
knowledge of each of the Issuers and the Subsidiaries, after due inquiry,
there is no material claim, suit, action or proceeding pending and served
or threatened in the United States with respect to the validity of any of
the Marks, Trump's ownership of any of the Marks, the infringement of any
of the Marks by any third party or the infringement of the rights of any
third party arising out of the use of any of the Marks. To the best
knowledge, of each of the Issuers and each of the Subsidiaries, after due
inquiry, the use of the Marks, as provided in the [Amended License
Agreement], does not infringe on the rights of any person.
(y) The Issuers and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and
(iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
(z) The CCC has issued declaratory rulings determining that the
initial holders of the Securities need not be qualified under the Casino
Control Act, that the Company is a qualified holding company, financial
source and entity qualifier of each of Plaza Associates and Taj
Associates and that each of Plaza Associates and Taj Associates continues
to be a qualified casino licensee under the Casino Control Act. The
Trustee is a "financial source" under the Casino Control Act and the CCC
has issued a ruling that it continues to be qualified as such. Such
rulings have not been revoked, modified or rescinded. Each of this
Agreement and the other Operative Documents has been presented to the CCC
to the extent required by law, and such documents and the transactions
contemplated hereby or thereby have been approved by or on behalf of the
CCC to the extent required by law and such approvals have not been
revoked, modified or rescinded.
(aa) None of the Issuers nor any agent acting on their behalf has
taken or will take any action that is reasonably likely to cause the
issuance or sale of the Securities to violate Regulation G, T, U, or X of
the Board of Governors of the Federal Reserve System, in each case as in
effect on the Closing Date.
(ab) None of the Issuers nor any of the Subsidiaries is (i) an
"investment company" or a company "controlled" by an investment company
20
within the meaning of the Investment Company Act of 1940, as amended, or
(ii) a "holding company" or a "subsidiary company" of a holding company,
or an "affiliate" thereof within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
(ac) Except as disclosed in the Prospectus, there are no business
relationships or related party transactions required to be disclosed
therein by Item 404 of Regulation S-K of the Commission.
(ad) Each certificate signed by any officer of any of the Issuers
or a general partner thereof and delivered to the Underwriters or counsel
for the Underwriters in connection therewith shall be deemed to be a
representation and warranty by such Issuer to each Underwriter as to the
matters covered thereby.
7. Indemnification.
---------------
(a) The Issuers and each of the Subsidiaries, jointly and
severally, agree to indemnify and hold harmless, (i) each of the
Underwriters, (ii) each person, if any, who controls (within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act) any of the
Underwriters (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person") and (iii) the
respective officers, directors, partners, employees, representatives and
agents of any of the Underwriters or any controlling person (any person
referred to in clause (i), (ii) or (iii) may hereinafter be referred to
as an "Indemnified Person") to the fullest extent lawful, from and
against any and all losses, claims, damages, judgments, actions, costs,
assessments, expenses and other liabilities (collectively,
"Liabilities"), including without limitation and as incurred,
reimbursement of all reasonable costs of investigating, preparing,
pursuing, or defending any claim or action, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
including the reasonable fees and expenses of counsel to any Indemnified
Person directly or indirectly caused by, related to, based upon, arising
out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or
any amendment or supplement thereto) or the Prospectus (or any amendment
or supplement thereto) or any preliminary prospectus, or any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they were made) not
misleading, except insofar as such Liabilities are caused by an untrue
statement or omission or alleged untrue statement or omission that is
made in reliance upon and in conformity with information relating to any
Under-
21
writer furnished in writing to the Issuers by or on behalf of any
such Underwriter through DLJ expressly for use in the Registration
Statement (or any amendment or supplement thereto) or the Prospectus (or
any amendment or supplement thereto) or any preliminary prospectus. The
Issuers shall notify you promptly of the institution, threat or assertion
of any claim, proceeding (including any governmental investigation) or
litigation in connection with the matters addressed by this Agreement
which involves the Issuers or an Indemnified Person.
(b) In case any action or proceeding (for all purposes of this
Section 7, including any governmental investigation) shall be brought or
asserted against any of the Indemnified Persons with respect to which
indemnity may be sought against the Company, Funding or any Subsidiary,
such Underwriter (or the Underwriter controlled by such controlling
person) shall promptly notify the Company in writing; provided, that
--------
the failure to give such notice shall not relieve the Issuers or any of
the Subsidiaries of their obligations pursuant to this Agreement. Upon
receiving such notice, the Company shall be entitled to participate in
any such action or proceeding and to assume, at its sole expense, the
defense thereof, with counsel reasonably satisfactory to such Indemnified
Person and, after receipt of written notice from the Company to such
Indemnified Person of its election so to assume the defense thereof made
within ten business days after receipt of the notice from the Indemnified
Person of such action or proceeding, the Issuers and the Subsidiaries
shall not be liable to such Indemnified Person hereunder for legal
expenses of other counsel subsequently incurred by such Indemnified
Person in connection with the defense thereof, other than costs of
investigation, unless (i) the Company, Funding or such Subsidiary, as the
case may be, agrees to pay such fees and expenses, or (ii) the Company
fails promptly to assume such defense or fails to employ counsel
reasonably satisfactory to such Indemnified Person or (iii) the named
parties to any such action or proceeding (including any impleaded
parties) include both such Indemnified Person and any of the Issuers or
an affiliate of the Issuers, and either (x) there may be one or more
legal defenses available to such Indemnified Person that are different
from or additional to those available to any of the Issuers or such
affiliate or (y) a conflict may exist between such Indemnified Person and
any of the Issuers or such affiliate. In the event of any of clause (i),
(ii) and (iii) of the immediately preceding sentence, if such Indemnified
Person notifies the Company in writing, the Company shall not have the
right to assume the defense thereof and such Indemnified Person shall
have the right to employ its own counsel in any such action and the
reasonable fees and expenses of such counsel shall be paid, as incurred,
by the Issuers and the Subsidiaries, regardless of whether it is
ultimately determined that an Indemnified Person is not entitled to
indemnification hereunder, it being
22
understood, however, that the Issuers and the Subsidiaries shall not, in
connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any
local counsel) at any time for each such Indemnified Person. Each of the
Issuers and each of the Subsidiaries agrees to be liable for any
settlement of such action or proceeding effected with the Company's prior
written consent, which consent will not be unreasonably withheld, and the
Issuers and each of the Subsidiaries agree to indemnify and hold harmless
any Indemnified Person from and against any liabilities by reason of any
settlement of any action effected with the written consent of the
Company. Each of the Issuers and each of the Subsidiaries agrees to be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 20 business days
after receipt by the Company of the aforesaid request for payment in
respect of an indemnification obligation pursuant hereto and (ii) the
Indemnified Person shall not have been reimbursed in accordance with such
request prior to the date of such settlement. Neither of the Issuers nor
any of the Subsidiaries shall, without the prior written consent of each
Indemnified Person, settle or compromise or consent to the entry of any
judgment in or otherwise seek to terminate any pending or threatened
action, claim, litigation or proceeding in respect of which
indemnification or contribution may be sought pursuant hereto (whether or
not any Indemnified Person is a party thereto), unless such settlement,
compromise, consent or termination includes an unconditional release of
each Indemnified Person from all liability arising out of such action,
claim, litigation or proceeding.
(c) Each of the Underwriters agrees, severally and not jointly,
to indemnify and hold harmless the Issuers, their directors, their
officers who sign the Registration Statement and any person controlling
(within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Issuers, to the same extent as the foregoing indemnity
from the Issuers and the Subsidiaries to each of the Indemnified Persons,
but only with respect to claims and actions based on information relating
to such Underwriter and conforming to information furnished in writing by
or on behalf of such Underwriter through DLJ expressly for use in the
Registration Statement, Prospectus or any preliminary prospectus, as
applicable. In case any action or proceeding (including any governmental
investigation) shall be brought or asserted against the Issuers, any of
their directors, any such officer, or any such controlling person based
on the Registration Statement, the Prospectus or any preliminary
prospectus in respect of which indemnity is sought against any
Underwriter pursuant to the foregoing sentence, the Underwriter shall
have the rights and duties given to the Issuers (except that if the
Company
23
shall have assumed the defense thereof, such Underwriter shall not be
required to do so, but may employ separate counsel therein and
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), and the Issuers,
their directors, any such officers and each such controlling person shall
have the rights and duties given to the Indemnified Person by Section
7(b) above.
(d) If the indemnification provided for in this Section 7 is
finally determined by a court of competent jurisdiction to be unavailable
to an indemnified party in respect of any Liabilities referred to herein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified
party as a result of such Liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuers and
the Subsidiaries, on the one hand, and the Underwriter, on the other
hand, from the offering of the Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above, but also the relative fault of the
indemnifying parties and the indemnified party, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers and the Subsidiaries, on the one hand, and any of the
Underwriters (and its related Indemnified Persons), on the other hand,
shall be deemed to be in the same proportion as the total proceeds from
the Securities (net of underwriting discounts and commissions but before
deducting expenses) received by the Issuers bears to the total
underwriting discounts and commissions received by such Underwriter, in
each case as set forth in the Prospectus. The relative fault of the
Issuers and the Subsidiaries, on the one hand, and the Underwriters, on
the other hand, shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to
information supplied by the Issuers and the Subsidiaries, on the one
hand, or by the Underwriters, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The indemnity and contribution
obligations of the Issuers and the Subsidiaries set forth herein shall be
in addition to any liability or obligation the Issuers and the
Subsidiaries may otherwise have to any Indemnified Person.
The Issuers, the Subsidiaries and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section
7(d) were determined by pro rata allocation (even if the
----
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to in the immediately
24
preceding paragraph. The amount paid or payable by an indemnified party
as a result of the losses, claims, damages, judgments, liabilities or
expenses referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, none of the
Underwriters (and its related Indemnified Persons) shall be required to
contribute, in the aggregate, any amount in excess of the amount by which
the total underwriting discount applicable to the Securities purchased by
such Underwriter exceeds the amount of any damages and related expenses
which such of the Underwriters (and its related Indemnified Persons) has
otherwise been required to pay or incur by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 7(d) are several in
proportion to the respective aggregate principal amount of Securities
purchased by each of the Underwriters hereunder and not joint.
8. Conditions to Underwriters' Obligations. The respective
---------------------------------------
obligations of the several Underwriters to purchase any Securities under this
Agreement are subject to the satisfaction of each of the following conditions
on the Closing Date:
(a) All the representations and warranties of the Issuers
contained in this Agreement shall be true and correct on the Closing Date
with the same force and effect as if made on and as of the Closing Date.
All of the representations and warranties of each of Issuers, as
applicable, made in the other Operative Documents (i) on the date made to
the extent previously made and (ii) on the Closing Date, to the extent
such document contains a representation or warranty made on the Closing
Date, was and shall be true and correct on such date. The Issuers and
the Subsidiaries shall have performed or complied with all of their
obligations and agreements herein and therein contained and required to
be performed or complied with by them at or prior to the Closing Date.
(b) (i) The Registration Statement (including a registration
statement (if any) filed pursuant to Rule 462(b) under the Act) shall
have become effective (or, if a post-effective amendment is required to
be filed pursuant to Rule 430A under the Act, such post-effective
amendment shall have become effective (or, if any Securities are sold in
reliance upon Rule 430A of the Act and no post-effective amendment is so
required to be filed,
25
the Prospectus shall have been timely filed with the Commission in
accordance with Section 4(a) hereof) not later than 5:30 p.m., New York
City time, on the date of this Agreement or at such later date and time
as you may approve in writing, (ii) at the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been commenced
or shall be pending before or, to the best knowledge of the Issuers,
after due inquiry, threatened by the Commission and every request for
additional information on the part of the Commission shall have been
complied with in all respects, and (iii) no stop order suspending the
sale of the Securities in any jurisdiction referred to in Section 4(h)
shall have been issued and no proceeding for that purpose shall have been
commenced or shall be pending or, to the best knowledge of the Issuers,
after due inquiry, threatened.
(c) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency, body or official (including, without limitation, the
CCC), which would, as of the Closing Date, prevent the issuance of the
Securities or have a Material Adverse Effect; and no injunction,
restraining order or order of any nature by any Federal or state court
shall have been issued as of the Closing Date which would prevent the
issuance of the Securities or have a Material Adverse Effect. Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date, there shall not have been any downgrading or indication that such
securities have been placed on any "watch list" for possible downgrading,
nor shall any review for a possible change that does not indicate the
direction of the possible change, in the rating accorded any of THCR
Holdings', the Issuers' or any Subsidiary's securities by any nationally
recognized statistical rating organization, as such term is defined for
purposes of Rule 436(g)(2) of the Act.
(d) (i) Since the earlier of the date hereof or the dates of
which information is given in the Registration Statement and the
Prospectus, there shall not have been any Material Adverse Change, (ii)
since the date of the latest balance sheet included in the Registration
Statement and the Prospectus, there shall not have been any material
adverse change, or any development involving a prospective material
adverse change, in the capital stock or debt, of any of the Issuers or
any of the Subsidiaries and (iii) each of the Issuers and each of the
Subsidiaries shall have no liability or obligation, direct or contingent,
that is material to the Issuers and the Subsidiaries, taken as a whole,
and which is not disclosed in the Registration Statement and the
Prospectus.
26
(e) You shall have received a certificate of each of the Issuers,
dated the Closing Date, in each case executed on behalf of the Issuers by
THCR Holdings, the other general partner of the Company, and the Chief
Executive Officer and the Chief Financial Officer of Funding, in their
respective capacities as sole general partner and officers of the THCR
and Funding, as applicable, confirming the matters set forth in
paragraphs (a), (b), (c) and (d) of this Section 8.
(f) You shall have received an opinion (satisfactory to you and
your counsel), dated the Closing Date, of Willkie Farr & Gallagher,
counsel for the Issuers, to the effect that:
(i) the Registration Statement was declared effective in
compliance with the Act; any required filing of the Prospectus, and any
amendments or supplements thereto, pursuant to Rule 424(b), have been
made in the manner and within the time period required by Rule 424(b); to
the best of such counsel's knowledge, after due inquiry, no stop order
suspending the effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings therefor have been instituted
or to the best of such counsel's knowledge, after due inquiry, are
pending or contemplated under the Act; and the Indenture has been duly
qualified under the TIA;
(ii) at the time it became effective and on the Closing
Date, the Registration Statement, including all documents incorporated by
reference therein (except for financial statements, the notes thereto and
related schedules and other financial, numerical data, statistical data
and financial forecasts included therein or incorporated by reference
therein and the Form T-1, as to which no opinion need be expressed)
complied as to form in all material respects with the applicable
requirements of the Act and the TIA;
(iii) each of the Issuers and each of the Subsidiaries,
other than Taj Associates, the Company and Plaza Associates
(collectively, the "New Jersey Subsidiaries"), has the requisite
corporate or partnership power and authority to execute, deliver and
perform all of its obligations pursuant to this Agreement and each of the
other Operative Documents to which it is a party and, in the case of the
Issuers, to authorize, issue and sell the Securities as contemplated by
this Agreement; each of this Agreement and the other Operative Documents
has been duly authorized, executed and delivered by each of the Issuers
and each of the Subsidiaries, as applicable, and constitutes a valid and
legally binding obligation of each of the Issuers and each of the
Subsidiaries, as applicable, enforceable against each of the Issuers and
each of the Subsidiaries, as applicable, in accordance with its terms,
subject to
27
applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance and similar laws and to general principles of equity
(regardless of whether enforcement is sought in a proceeding of law or in
equity);
(iv) the Notes have been duly authorized by all requisite
corporate or partnership action and when authenticated in accordance with
the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with the terms of this Agreement, the Notes
will constitute valid and legally binding obligations of each of the
Company and Funding, enforceable against each of the Company and Funding
in accordance with their terms and entitled to the benefits of the
Indenture, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws then or
thereafter in effect relating to or affecting rights and remedies of
creditors, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity), and except to
the extent that a waiver of rights under any usury laws may be
unenforceable;
(v) the Guarantees have been duly authorized by all
requisite corporate or partnership action and when executed and
authenticated in accordance with the provisions of the Indenture and
delivered in accordance with the terms of this Agreement, the Guarantees
will constitute valid and binding obligations of each of the Guarantors,
enforceable against each of the Guarantors in accordance with their
respective terms and entitled to the benefits of the Indenture, subject
to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights
and remedies generally and to general principles of equity (regardless of
whether enforcement is sought in a proceeding at law or in equity) and
except to the extent that a waiver of rights or defenses under any usury
laws may be unenforceable.
(vi) the Indenture has been duly authorized, executed and
delivered and constitutes a valid and legally binding agreement of each
of the Issuers, enforceable against each of the Issuers in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws then or
thereafter in effect relating to or affecting rights and remedies of
creditors, and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity) and except to
the extent that a waiver of rights under any usury laws may be
unenforceable;
(vii) this Agreement and each of the other Operative
Documents which is described in the Registration Statement and the
Prospectus
28
conforms in all material respects to the descriptions thereof contained
in the Registration Statement and the Prospectus; the descriptions in the
Registration Statement and the Prospectus of statutes, regulations, legal
and governmental proceedings and contracts to which any of the Issuers or
the Subsidiaries is a party have been reviewed by such counsel and are
accurate summaries thereof in all material respects (except for financial
data included therein or omitted therefrom, as to which counsel need
express no opinion); the material Federal income and estate tax
consequences to a holder of the Securities will generally be as is
described in the Registration Statement under the caption "Certain
Federal Income Tax Considerations";
(viii) each of TTMC and Funding is duly organized and each
of TTMC and Funding is a validly existing corporation, under the laws of
the State of Delaware, and has the requisite corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Registration Statement and Prospectus; each
of the Company, Taj Associates and Plaza Associates has been classified
for treatment as a partnership since its inception and will be classified
as a partnership for Federal income tax purposes on the Closing Date;
each of the Issuers and the Subsidiaries is duly qualified as a foreign
corporation or foreign general partnership, as the case may be, in each
Foreign Jurisdiction, except where the failure to be so qualified could
not have a material adverse effect on the properties, plans, business,
results of operation, general affairs, management, condition (financial
or otherwise) or business affairs of the Issuers and the Subsidiaries, in
the aggregate; each of the Issuers and each of the Subsidiaries which is
not a general partnership is in good standing under the laws of its
jurisdiction of incorporation or organization, as the case may be, and in
each Foreign Jurisdiction, as applicable;
(ix) none of the Issuers nor any of the Subsidiaries is (a)
an "investment company" or a company "controlled" by an investment
company within the meaning of the Investment Company Act of 1940, as
amended, or (b) a "holding company" or a "subsidiary company" of a
holding company, or an "affiliate" thereof within the meaning of the
Public Utility Holding Company Act of 1935, as amended;
(x) to the best of such counsel's knowledge after due
inquiry, there are no legal or governmental proceedings required to be
described in the Registration Statement or Prospectus which are not
described as required, or any contracts or agreements to which any of the
Issuers or any of the Subsidiaries is a party or by which any of them may
be bound that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement other than those described
29
therein or filed or incorporated by reference as exhibits thereto; to the
best of such counsel's knowledge, after due inquiry, there is no current,
pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving any of
the Issuers or any of the Subsidiaries or to which any of their
respective properties are subject of a character required to be disclosed
in the Registration Statement which is not adequately disclosed in the
Prospectus;
(xi) to the best of such counsel's knowledge, after due
inquiry, no authorization, approval, consent or order of any court or
governmental body, agency or official, is necessary in connection with
the issuance of the Securities or the other transactions contemplated by
this Agreement or the other Operative Documents, except such as may be
required by the NASD or have been obtained and made under the HSR Act,
the Gaming Act, the Act, the TIA, or state securities or Blue Sky laws or
regulations;
(xii) the execution and delivery of this Agreement and the
other Operative Documents by the Issuers, as applicable, the issuance and
sale of the Securities, the performance of the Issuers' obligations
pursuant to the Operative Documents, as applicable, and the consummation
of the transactions contemplated hereby and thereby will not conflict
with or result in a breach or violation of or constitute a default or
cause an acceleration of any obligation under, or result in the
imposition or creation of (or the obligation to create or impose) any
Lien (other than under the Mortgage Documents and the lien in favor of
the trustee under the Senior Note Indenture) with respect to (A) any of
the respective charters, by-laws and partnership agreements, as the case
may be, of any of the Issuers or the Subsidiaries, other than the New
Jersey Subsidiaries (B) any agreement or instrument filed as an Exhibit
to the Registration Statement, (C) any applicable statute, rule or
regulation under New York law, United States Federal law or the
Corporation Law of the State of Delaware other than the securities or
Blue Sky laws of the various states, as to which such counsel need
express no opinion, or (D) any order of any court or governmental agency,
body or official having jurisdiction over any of the Issuers or any of
the Subsidiaries or any of their properties, except, in the case of
clauses (B), (C) or (D), for such conflicts, breaches, violations or
defaults that could not have a material adverse effect on the properties,
plans, business, results of operation, general affairs, management,
condition (financial or otherwise) or business affairs of the Issuers and
the Subsidiaries, in the aggregate;
(xiii) to the best of such counsel's knowledge, after due
inquiry, no default exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
30
indenture, mortgage, loan agreement, note, lease or other instrument
described in or filed as an Exhibit to the Registration Statement, except
for defaults which could not have a material adverse effect on the
properties, plans, business, results of operation, general affairs,
management, condition (financial or otherwise) or business affairs of the
Issuers and the Subsidiaries, in the aggregate;
(xiv) to the best of such counsel's knowledge, after due
inquiry, each of the Issuers and each of the Subsidiaries has the right
to use the Licensed Marks presently or proposed to be employed by it in
connection with its businesses as currently being conducted or as
proposed to be conducted (as discussed in the Prospectus), and, to the
best of such counsel's knowledge, after due inquiry, the Licensed Marks
are free and clear of Liens (other than the license granted by Trump to
Trump Plaza Hotel and Casino pursuant to the Amended and Restated
Services Agreement by and among Plaza Associates, Trump Plaza Management
Corp. and Trump dated June 24, 1993, and the security interest in the
registration "Trump Plaza" as of October 3, 1990 in favor of Bankers
Trust Company) and any other rights of third parties and none of the
Issuers or any of the Subsidiaries has received any notice, or has any
knowledge, of infringement or of conflict with asserted rights of others
with respect to any of the Licensed Marks;
(xv) neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Securities will violate Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System;
(xvi) all of the issued and outstanding shares of capital
stock of Funding and TTMC have been duly authorized and validly issued,
and are fully paid and nonassessable, the shares of capital stock of, or
other ownership interests in, each Subsidiary are owned, either directly
or indirectly, by the Company, free and clear of any Liens (other than
Liens in favor of the Trustee under the Senior Note Indenture);
(xvii) the Merger has become effective under Delaware law;
(xviii) all of the equity interests held directly or
indirectly by Trump in Taj Associates have been contributed to THCR or
its subsidiaries and are owned free and clear of any Lien (other than
Liens in favor of the Trustee under the Senior Note Indenture);
(xix) the Taj Bonds have been redeemed in accordance with the
terms of the indenture under which the Taj Bonds were issued, and the
31
lien on the collateral securing the Taj Bonds in favor of the trustee
under the indenture under which the Taj Bonds were issued has been
released;
(xx) the Offer to Purchase and Consent Solicitation conform
with Regulation 14E under the Exchange Act, and all outstanding Plaza
Notes not purchased pursuant to the Offer to Purchase and Consent
Solicitation have been defeased in accordance with Section 403 of the
Plaza Note Indenture and the lien of the trustee under the Plaza Note
Indenture on the collateral securing the Plaza Notes has been released;
and
(xxi) the Senior Note Indenture has been amended as provided
for in the Senior Note Indenture and in the Senior Note Consent
Solicitation.
(xxii) each of the Mortgage Documents is in a form which may
be used in the State of New York so as to accomplish its intended purpose
and has been duly authorized, executed and delivered by each of the
Issuers except the New Jersey Subsidiaries, as applicable, and, assuming
the due authorization, execution and delivery thereof by the New Jersey
Subsidiaries, constitutes a valid and legally binding obligation of each
of the Issuers, as applicable, enforceable against each of the Issuers,
as applicable, in accordance with its terms, except that enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and similar laws and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding of law or in equity), but such limitations on enforceability
will not in such counsel's opinion render the Mortgage Documents invalid
as a whole or substantially interfere with the practical realization of
the material benefits and/or the security intended to be afforded
thereby.
(xxiii) the Issuers' security agreement is sufficient under
the laws of the State of New York to create a valid security interest in
all of the Issuers' respective rights in the personal property described
in the Issuers' respective Security Agreement, whether now existing or
hereafter acquired (the "Issuer Collateral"), in favor of the Trustee to
secure all obligations of each such Issuer as identified in Issuers'
Security Agreement (including each Issuers' payment obligations under the
Indenture). The filings and recordings (including, without limitation,
UCC financing statements) identified on schedule A to the Issuers'
security agreement are in appropriate form for filing in the filing
offices identified on such schedule A thereto and such filings and
recordings in such filing offices are the only filings and recordings
necessary to perfect the security interest of the Trustee in the Issuer
Collateral. The security interest of the Trustee is a perfected, first
priority security interest in the Issuer Collateral under the laws of New
York.
32
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Issuers and the Subsidiaries, representatives of Arthur Andersen LLP,
independent public accountants for the Issuers and the Subsidiaries, your
representatives and your counsel in connection with the preparation of
the Registration Statement and Prospectus and has considered the matters
required to be stated therein and the statements contained therein, and
such counsel shall advise you that, although (without limiting the
opinions provided) such counsel has not independently verified the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus, on the basis of the foregoing, no
facts came to such counsel's attention that caused such counsel to
believe that the Registration Statement (including any Registration
Statement filed under Rule 462(b) of the Act (if any)), as amended or
supplemented, at the time such Registration Statement or any
post-effective amendment became effective and as of the date of such
opinion, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading (other than information omitted
therefrom in reliance on Rule 430A under the Act), or the Prospectus, as
amended or supplemented, as of its date and the Closing Date, contained
an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Without limiting the foregoing, such counsel may further state that
it assumes no responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements, notes and
schedules, financial forecasts and other financial and statistical data
included in the Registration Statement. Such counsel may also state that
it has assumed in its examination of all relevant documents the
genuineness of all signatures, has relied, in part, as to factual matters
upon the statements of officers and other representatives of the Issuers
and as to matters relating to the laws of other jurisdictions, on the
opinions of local counsel for the Issuers in such jurisdictions, as to
which laws such counsel needs express no opinion. In addition such
counsel may state that its opinion is limited by the fact that the (i)
enforceability of the Operative Documents and (ii) the rights of the
Trustee to the Collateral may be limited by the Gaming Act, as to which
such counsel needs express no opinion.
(g) You shall have received a signed opinion of Graham, Curtin &
Sheridan, New Jersey counsel for the Issuers, dated as of the Closing
Date, in form and substance satisfactory to counsel for the Underwriters,
to the effect that:
33
(i) Plaza Funding has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
New Jersey and each of Plaza Associates, Taj Associates and the Company
is validly existing as a general partnership under the laws of the State
of New Jersey; each of Plaza Associates, Taj Associates, Taj Funding and
the Company has the requisite corporate or partnership power and
authority, as the case may be, to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and Prospectus;
(ii) all of the issued and outstanding capital stock of
Plaza Funding has been duly authorized and validly issued and is fully
paid and nonassessable, and the shares of capital stock and the
partnership interests, as the case may be, of Taj Associates, Plaza
Funding and Plaza Associates are owned, either directly or indirectly, by
the Company;
(iii) to the best knowledge of such counsel, no
authorization, approval, consent or order of the NJDEP or any other
governmental body, agency or official of the State of New Jersey ("New
Jersey Authorities") is necessary in connection with the issuance of the
Securities and the other transactions contemplated by this Agreement and
the other Operative Documents or any other transactions described in the
Registration Statement to be entered into prior to or contemporaneously
with such agreements, except as disclosed in the Registration Statement
or such authorizations, approvals, consents or licenses of the NJDEP and
such other New Jersey Authorities that have been obtained; such counsel
need express no opinion regarding authorizations, approvals, consents or
orders of the CCC;
(iv) to the best knowledge of such counsel, each of the
Issuers and each of the Subsidiaries is in possession of all
Authorizations of and from all New Jersey Authorities which are material
and required to be held by any of them in connection with the present
operation of its business, all of which are valid and in full force and
effect;
(v) the 1% equity interest held by Plaza Funding in Plaza
Associates has been contributed to TTMC;
(vi) the separate corporate existence of Taj Funding has been
dissolved upon the filing of the certificate of dissolution with the
Secretary of State of the State of New Jersey; and
(vii) each of the Mortgage Documents is in a form which may
be used in the State of New Jersey so as to accomplish its intended
purpose and has been duly authorized, executed and delivered by each of
the Issuers
34
except TTMC and Funding, as applicable, and, assuming the due
authorization, execution and delivery thereof by TTMC and Funding,
constitutes a valid and legally binding obligation of each of the
Issuers, as applicable, enforceable against each of the Issuers, as
applicable, in accordance with its terms, except that enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and similar laws and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding of law or in equity), but such limitations on enforceability
will not in such counsel's opinion render the Mortgage Documents invalid
as a whole or substantially interfere with the practical realization of
the material benefits and/or the security intended to be afforded
thereby.
(viii) the Issuers' security agreement is sufficient under
the laws of the State of New Jersey to create a valid security interest
in all of the Issuers' respective rights in the personal property
described in the Issuers' respective Security Agreement, whether now
existing or hereafter acquired (the "Issuer Collateral"), in favor of the
Trustee to secure all obligations of each such Issuer as identified in
Issuers' Security Agreement (including each Issuers' payment obligations
under the Indenture). The filings and recordings (including, without
limitation, UCC financing statements) identified on schedule A to the
Issuers' security agreement are in appropriate form for filing in the
filing offices identified on such schedule A thereto and such filings and
recordings in such filing offices are the only filings and recordings
necessary to perfect the security interest of the Trustee in the Issuer
Collateral. The security interest of the Trustee is a perfected, first
priority security interest in the Issuer Collateral under the laws of New
Jersey.
(ix) each of the Mortgage Documents is in proper form so as
to comply with the recording requirements of the State of New Jersey, and
upon recordation of the Mortgage Documents in the office of the County
Clerk of Atlantic County, New Jersey (the "Recording Office"), and when
appropriate UCC financing statements are filed in the Office of the
Secretary of State of the State of New Jersey and filed and properly
indexed in the Office of the Clerk of Atlantic County, New Jersey, will
create a valid lien and perfected first priority security interest in
favor of the Trustee in such of the collateral described therein which
constitutes (x) real property (including fixtures), and (y) personal
property in which, in the case of this clause (y), a security interest
can be perfected by the recording of a mortgage or the filing of a
financing statement under the UCC, and no further action will be required
to perfect such liens.
35
With respect to opinions expressed in paragraphs (iii) and
(iv), such counsel need express no opinion regarding authorizations of,
or declarations or filings with, the CCC or with respect to state
securities or Blue Sky laws. In addition, such counsel may state that it
has relied, as to factual matters, upon the statements of officers and
other representatives of the Issuers. Such opinion shall be to such
further effect with respect to other legal matters relating to this
Agreement as counsel for the Underwriters may reasonably request.
(h) You shall have received an opinion of Sterns & Weinroth, New
Jersey regulatory counsel for the Issuers, dated as of the Closing Date,
in form and substance satisfactory to counsel for the Underwriters, to
the effect that:
(i) (a) the statements in the Prospectus under the captions
"Risk Factors--Control Involvement of Trump," "Risk Factors--Atlantic
City Properties Expansion," "Risk Factors--Strict Regulation by CCC,
"Management's Discussion and Analysis of Financial Condition and Results
of Operations--Liquidity and Capital Resources--Trump Associates" (fifth
and sixth paragraph and second and third sentences of eighth paragraphs
thereunder), "Regulatory Matters--New Jersey Gaming Regulations", and
"Description of the First Mortgage Notes--Gaming Laws" (first and third
sentences of first paragraph) and "Description of the Mortgage
Notes--Gaming Laws" insofar as such statements constitute a summary of
New Jersey gaming laws ("New Jersey Gaming Laws") and proceedings
thereunder, fairly present the information with respect to such New
Jersey Gaming Laws and proceedings thereunder; and (b) no facts have come
to the attention of such counsel that would lead such counsel to believe
that the statements listed in clause (a) of this paragraph (i) contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make such statements,
in light of the circumstances under which they are made, not misleading,
or that the statements listed in clause (a) of this paragraph (i), as
contained in the Prospectus at the time of filing thereof or on the date
of such counsel's opinion, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make such statements, in light of the circumstances
under which they were made, not misleading;
(ii) no authorization, approval, consent or order of the CCC
is necessary in connection with the issuance of the Securities and the
due and valid execution, delivery and performance by any of the Issuers
or the Subsidiaries, as the case may be, of this Agreement or the other
Operative Documents, as applicable, or any other transactions described
in the
36
statements listed in clause (a) of paragraph (i) above to be entered into
prior to or contemporaneously with such agreements, except (a) as
disclosed in the Registration Statement; (b) such approvals, consents or
orders, or conditional approvals, consents or orders of the CCC that have
been obtained prior to the date of such opinion; (c) such additional
approvals, consents or orders of the CCC that may be deemed necessary
under existing orders, consents or conditional approvals and (d) the
periodic and other filings and reporting requirements to which any of the
Issuers and the Subsidiaries are subject generally. Each of the
Operative Documents has been presented to the CCC to the extent required
by New Jersey Gaming Laws, and such documents and the transactions
described therein have been approved by the CCC to the extent required by
New Jersey Gaming Laws. Such counsel has received no notice that such
approvals have been revoked, modified or rescinded as of the date of such
opinion;
(iii) the CCC has issued declaratory rulings determining
that the initial holders of the Securities are waivable qualifiers under
the New Jersey Gaming Laws and that the Company is a qualified holding
company, financial source and entity qualifier of Plaza Associates and
Taj Associates, subject to the filing of the applicable business entity
disclosure forms by the Issuers and the Subsidiaries by ________, 1996
and that each of Plaza Associates and Taj Associates continues to be a
qualified casino licensee under the New Jersey Gaming Laws, subject to
the filing of business entity disclosure forms as set forth above. Such
counsel has received no notice that such rulings and the casino licensure
of each of Plaza Associates and Taj Associates have been revoked,
modified or rescinded as of the date of such opinion;
(iv) except as disclosed in the Registration Statement, (a)
to the best knowledge of such counsel, each of the Issuers and each of
the Subsidiaries has made all declarations and filings with the CCC
necessary to use its properties and assets and to conduct its business
pursuant to New Jersey Gaming Laws, as of the date of such opinion; (b)
no facts have come to the attention of such counsel that would lead such
counsel to believe that all authorizations of and from the CCC are not
valid and in full force and effect as of the date of such opinion; (c) no
facts have come to the attention of such counsel that would lead such
counsel to believe that each of the Issuers and each of the Subsidiaries
is not in compliance in all material respects with the terms and
conditions of all authorizations of and from CCC and with the New Jersey
Gaming Laws, as of the date of such opinion; and (d) as of the date of
such opinion, such counsel has received no notice of any proceedings
relating to the revocation or modification of any authority granted by
the CCC to the Issuers and the Subsidiaries, and such counsel is
37
aware of no restrictions imposed by the CCC which would have a material
adverse effect on the properties, plans, results of operations,
management, condition (financial or otherwise) or business affairs of the
Issuers or the Subsidiaries, in the aggregate; no facts have come to the
attention of such counsel that would lead such counsel to believe that
the CCC is considering modifying, limiting, conditioning, suspending,
revoking or not renewing the licenses, permits, certificates, consents,
orders, approvals and other authorizations from the CCC ("Gaming
Licenses") of any of the Issuers or the Subsidiaries, except where such
modification, revocation, suspension, limitation or condition would not
have a material adverse effect on the properties, plans, results of
operations, management, condition (financial or otherwise) or business
affairs of the Issuers or the Subsidiaries, in the aggregate; such
counsel is aware of no notice given to the Issuers or any of the
Subsidiaries that New Jersey gaming authorities are investigating any of
the Issuers or the Subsidiaries (other than normal overseeing reviews
incident to the gaming activities of the Issuers and the Subsidiaries);
and such counsel has received no notice that any of the Issuers, the
Subsidiaries or Trump has any reason to believe there is an existing
basis for the CCC to deny the renewal of the Gaming Licenses held by
Plaza Associates and Taj Associates; and
(v) each of the persons listed under the caption "Management"
in the Prospectus has been or will be qualified or licensed by the CCC,
as required by the Gaming Act.
Such counsel may rely on the resolutions of the CCC in giving its
opinions in paragraphs (ii) and (v) above.
(i) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Skadden, Arps, Slate, Meagher & Flom ("Skadden
Arps"), counsel for the Underwriters in form and substance reasonably
satisfactory to you.
(j) You shall have received letters on and as of the date hereof
as well as on and as of the Closing Date (in the latter case constituting
an affirmation of the statements set forth in the former, based on
limited procedures), in form and substance satisfactory to you, from
Arthur Andersen LLP, independent public accountants for the Issuers and
the Subsidiaries, with respect to the financial statement of Funding, the
consolidated financial statements of each of the Company and Taj
Associates and certain other financial information contained in the
Registration Statement and the Prospectus including, without limitation,
the financial forecasts.
38
(k) You shall have received a certificate of a financial officer
of the Company as to certain agreed upon accounting matters, in
substantially the form previously delivered to you.
(l) Prior to the Closing Date, the Issuers shall have furnished
to you or caused to be furnished to you such further information,
certificates and documents as you may reasonably request including,
without limitation, (i) satisfactory evidence from the trustee for the
Taj Bonds that the indenture governing the Taj Bonds has been fully
satisfied and discharged and (ii) from the trustee under the Plaza Note
Indenture that such notes and the indenture governing such note have been
defeased in accordance with Section 403 thereof, (iii) the NatWest Loan
has been satisfied and (iv) the First Fidelity Loan has been satisfied.
(m) The Issuers and the Subsidiaries shall not have failed at or
prior to the Closing Date to perform or comply with any of the agreements
herein contained and required to be performed or complied with by the
Issuers or the Subsidiaries at or prior to the Closing Date.
(n) The Merger shall have become effective under the Delaware
General Corporation Law.
(o) The Equity Offering shall have been consummated.
(p) The Taj Holdings Class B Common Stock shall have been
redeemed in accordance with the Taj Holding Certificate of Incorporation.
(q) The Taj Bonds shall have been redeemed.
(r) At least 90% of the outstanding Plaza Mortgage Notes shall
have been purchased by Plaza Funding and Plaza Associates and thereafter
shall be cancelled in accordance with the Plaza Note Indenture and all
remaining Plaza Notes shall have been defeased as described in Plaza
Funding and Plaza Associates Offer to Purchase and Solicitation of
Consents dated March 13, 1996, as supplemented to date.
(s) All of Taj Associates indebtedness to National Westminster
Bank USA shall have been satisfied and the liens securing such
indebtedness shall have been released.
(t) Taj Associates shall have acquired the Specified Parcels free
and clear of all liens and encumbrances, all indebtedness of Taj
Associates
39
to First Fidelity shall have been satisfied and the liens securing such
indebtedness shall have been released.
(u) Trump Plaza Associates shall have exercised the Trump Plaza
East Option and shall have acquired Trump Plaza East free and clear of
all liens and encumbrances.
(v) Bankers Trust shall have released all liens and other
security interests on Trump's interest in Taj Associates.
(w) THCR shall have acquired all of Trump's direct and indirect
ownership interests in Taj Associates free and clear of any liens or
adverse interests.
(x) The Senior Note Indenture shall have been amended in
accordance with the Senior Note Consent Solicitation; the transactions
described in clauses (n) through (x), inclusive, shall constitute the
"Merger Transaction" for the purpose of this Agreement.
(y) All legal opinions and accountants "comfort letters" received
in connection with any aspect of the Merger Transaction, whose form and
substance shall have been determined by THCR and its subsidiaries, shall
be addressed to or reliance certificates issued to and shall be delivered
to the Underwriters.
9. Effective Date of Agreement, Defaults and Termination.
-----------------------------------------------------
This Agreement shall become effective upon the later of (i) the execution and
delivery of this Agreement by the parties hereto, (ii) unless the Issuers
intend to rely on Rule 430A of the Act, the effectiveness of the Registration
Statement (including, if applicable, the registration statement filed pursuant
to Rule 462(b) under the Act), and (iii) if the Issuers intend to rely on Rule
430A of the Act, the earlier of the effectiveness of a post-effective amendment
filed in compliance with Rule 430A of the Act or the filing of a final
prospectus pursuant to Rule 424(b) of the Act. Notwithstanding the foregoing,
this Agreement shall not become effective prior to the effectiveness of the
Equity Underwriting Agreement.
This Agreement may be terminated at any time on or prior to the
Closing Date by DLJ by notice to the Company if any of the following has
occurred: (i) subsequent to the date the Registration Statement is declared
effective or the date of this Agreement, any Material Adverse Change which, in
the judgment of DLJ, impairs the investment quality of the Securities, (ii) any
outbreak or escalation of hostilities or other national or international
calamity or crisis or material adverse change in the financial markets of the
United States or elsewhere or any other
40
substantial national or international calamity or emergency if the effect of
such outbreak, escalation, calamity, crisis or emergency would, in DLJ's
judgment, make it impracticable or inadvisable to market the Securities or to
enforce contracts for the sale of the Securities, (iii) any suspension or
limitation of trading generally in securities on the New York, American or
Pacific Stock Exchanges or the National Association of Securities Dealers
Automated Quotation National Market, or the over-the-counter markets or any
setting of minimum prices for trading on such exchanges or markets, (iv) any
declaration of a general banking moratorium by either Federal or New York state
authorities, (v) the taking of any action by any Federal, state or local
government or agency in respect of its monetary or fiscal affairs that in DLJ's
judgment has a material adverse effect on the financial markets in the United
States, and would, in DLJ's judgment, make it impracticable or inadvisable to
market the Securities or to enforce contracts for the sale of the Securities,
(vi) any securities of the Issuers, their parent or any of the Subsidiaries
shall have been downgraded or placed on any "watch list" for possible
downgrading or reviewed for a possible change that does not indicate the
direction of the possible change by any "nationally recognized statistical
rating organization," as such term is defined for purposes of Rule 436(g)(2) of
the Act, (vii) the enactment, publication, decree or other promulgation of any
Federal, state or local statute, regulation, rule or order of any court or
other governmental authority which in the judgment of DLJ could have a Material
Adverse Effect or make it inadvisable or impractical to market the Securities
or (viii) the occurrence, scheduling of or the announcement of, or published
discussion regarding any proposed, pending, threatened or contemplated
investigation or inquest by a court or other governmental authority in respect
of the Company, its parent, the Subsidiary or any person required to be
licensed therewith.
If this Agreement shall be terminated by the Underwriters pursuant
to clause (i), (vi), (vii) or (viii) of the second paragraph of this Section 9
or because of the failure or refusal on the part of the Issuers or the
Subsidiaries to comply with the terms or to fulfill any of the conditions of
this Agreement, the Issuers and the Subsidiaries jointly and severally agree to
reimburse you for all reasonable out-of-pocket expenses (including the
reasonable fees and disbursements of counsel) incurred by the Underwriters, and
(without duplication) to fulfill the obligations of that certain engagement
letter, dated January 3, 1996, as amended and supplemented through the date
hereof, among THCR, its existing and future subsidiaries and DLJ.
Notwithstanding any termination of this Agreement, the Issuers and the
Subsidiaries shall be liable, jointly and severally, for all expenses which
they agree to pay pursuant to Section 5 hereof. If this Agreement is
terminated pursuant to this Section 9, such termination shall be without
liability of any Underwriter to the Issuers or any of the Subsidiaries.
If on the Closing Date any of the Underwriters shall fail or refuse
to purchase the Securities which it has agreed to purchase hereunder on such
date, and
41
the aggregate principal amount of such Securities that such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase does not exceed 10% of the total principal amount of such
Securities to be purchased on such date by all Underwriters, each
non-defaulting Underwriter shall be obligated to purchase the Securities that
such defaulting Underwriter agreed but failed or refused to purchase on such
date; provided that in no event shall the aggregate principal amount of
--------
Securities that any Underwriter has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such principal amount of Securities without the written consent of
such Underwriter. If, on the Closing Date, any of the Underwriters shall fail
or refuse to purchase the Securities and the total principal amount of
Securities with respect to which such default occurs exceeds 10% of the total
amount of Securities to be purchased on such date by all Underwriters and
arrangements satisfactory to you and the Issuers for the purchase of such
Securities are not made within 48 hours after such default, this Agreement
shall terminate without liability on the part of the non-defaulting Underwriter
and the Issuers, except as otherwise provided in this Section 9. In any such
case that does not result in termination of this Agreement, either you or the
Issuers may postpone the Closing Date for not longer than seven (7) days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve a defaulting Underwriter from
liability in respect of any default of any such Underwriter under this
Agreement.
10. Notices. Notices given pursuant to any provision of this
-------
Agreement shall be addressed as follows: (a) if to any of the Issuers, to it
at Mississippi Avenue and The Boardwalk, Atlantic City, New Jersey 08401,
Attention: Robert M. Pickus, Esq., with a copy to Willkie Farr & Gallagher at
153 East 53rd Street, New York, New York 10022, Attention: Daniel D. Rubino,
Esq. (b) if to any Underwriter, to Donaldson, Lufkin & Jenrette Securities
Corporation, 277 Park Avenue, New York, New York 10172, Attention: Syndicate
Department, with a copy to Skadden, Arps, Slate, Meagher & Flom at 300 South
Grand Avenue, Suite 3400, Los Angeles, California 90071, Attention: Nicholas
P. Saggese, Esq. or (c) in any case to such other address as the person to be
notified may have requested in writing.
11. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AS
APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE COMPANY, ON BEHALF OF
ITSELF AND ITS SUBSIDIARIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS LOCATED IN THE
42
CITY OF NEW YORK IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING RELATED TO
THIS AGREEMENT OR ANY OF THE MATTERS CONTEMPLATED HEREBY, IRREVOCABLY WAIVES
ANY DEFENSE OF LACK OF PERSONAL JURISDICTION AND IRREVOCABLY AGREES THAT ALL
CLAIMS IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT. THE COMPANY, ON BEHALF OF ITSELF AND THE SUBSIDIARIES
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, ANY OBJECTION WHICH IT OR ITS SUBSIDIARIES MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
12. Severability. Any determination that any provision of
------------
this Agreement may be, or is, unenforceable shall not affect the enforceability
of the remainder of this Agreement.
13. Successors. Except as otherwise provided, this Agreement
----------
has been and is made solely for the benefit of and shall be binding upon the
Issuers, the Subsidiaries, the Underwriters, any Indemnified Person referred to
herein and their respective successors and assigns, all as and to the extent
provided in this Agreement, and no other person shall acquire or have any right
under or by virtue of this Agreement. The terms "successors and assigns" shall
not include a purchaser of any of the Securities from any of the several
Underwriters merely because of such purchase.
14. Certain Definitions. For purposes of this Agreement, (a)
-------------------
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading and (b) "subsidiary" has the meaning set forth in Rule 405 of the
Securities Act.
15. Counterparts. This Agreement may be executed in one or
------------
more counterparts and, if executed in one or more counterparts, the executed
counterparts shall each be deemed to be an original, and all such counterparts
shall together constitute one and the same instrument.
16. Headings. The headings herein are inserted for
--------
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
43
17. Survival. The indemnity and contribution provisions and
--------
the other agreements, representations and warranties of the Issuers, their
partners, officers and directors and of the Underwriters set forth in or made
pursuant to this Agreement shall remain operative and in full force and effect,
and will survive delivery of and payment for the Securities, regardless of (i)
any investigation, or statement as to the results thereof, made by or on behalf
of any of the Underwriters or by or on behalf of the Issuers or the partners,
officers or directors of the Issuers or any controlling person of the Issuers,
(ii) acceptance of the Securities and payment for them hereunder and (iii)
termination of this Agreement.
44
Please confirm that the foregoing correctly sets forth the
agreement among the Issuers and you.
Very truly yours,
TRUMP ATLANTIC ASSOCIATES
BY: TRUMP HOTELS & CASINO RESORTS HOLDINGS,
L.P., its general partner
By: TRUMP HOTELS & CASINO RESORTS,
INC., its general partner
By:
----------------------------------
Name:
Title:
TRUMP ATLANTIC CITY FUNDING, INC.
By:
-------------------------------------
Name:
Title:
TRUMP PLAZA ASSOCIATES
BY: TRUMP ATLANTIC CITY ASSOCIATES, its
general partner
By: TRUMP HOTELS & CASINO RESORTS
HOLDINGS, L.P., its general partner
By: TRUMP HOTELS & CASINO RESORTS,
INC., its general partner
By:
-------------------------------------
Name:
Title:
TRUMP PLAZA FUNDING, INC.
By:
-------------------------------------
Name:
Title:
45
TRUMP TAJ MAHAL ASSOCIATES
By: TRUMP ATLANTIC CITY
ASSOCIATES, its general partner
By: TRUMP HOTELS & CASINO
RESORTS HOLDINGS, L.P.,
its general partner
By: TRUMP HOTELS & CASINO
RESORTS, INC., its general partner
By:
-------------------------------------
Name:
Title:
TRUMP TAJ MAHAL CORPORATION
By:
-------------------------------------
Name:
Title:
46
The foregoing Underwriting Agreement
is hereby confirmed and accepted
as of the date first above written.
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
SALOMON BROTHERS INC
BT SECURITIES CORPORATION
By: DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By:
-----------------------
Name:
Title:
47
SCHEDULE I
Principal Amount
----------------
Donaldson, Lufkin & Jenrette Securities Corporation $
Salomon Brothers Inc
BT Securities Corporation
--------------
Total $1,100,000,000
--------------
SCHEDULE II
Mortgage Documents
[Mortgage dated April [17], 1996 by Trump Plaza Associates, Trump Taj Mahal
Associates, Trump Atlantic City Associates, Trump Atlantic City Funding, Inc.
and The Trump Taj Mahal Corporation to First Bank National Association, as
Collateral Agent.
Assignment of Leases and Rents dated April [17], 1996 from Trump Plaza
Associates, Trump Taj Mahal Associates, Trump Atlantic City Associates, Trump
Atlantic City Funding, Inc. and The Trump Taj Mahal Corporation to First Bank
National Association, as Collateral Agent.
Security Agreement dated April [17], 1996 by and between Trump Plaza
Associates, Trump Taj Mahal Associates, Trump Atlantic City Associates, Trump
Atlantic City Funding, Inc. and The Trump Taj Mahal Corporation and First Bank
National Association, as collateral agent.
Collateral Agency Agreement dated April 17, 1996 by and among Trump Plaza
Associates, Trump Taj Mahal Associates, Trump Atlantic City Associates, Trump
Atlantic City Funding, Inc. and The Trump Taj Mahal Corporation, First Bank
National Association, as collateral agency and the other parties who become
signatory thereto.
Pledge Agreement dated April [17], 1996 from Trump Atlantic City Associates to
First Bank National Association, as Trustee.]