EXHIBIT 4.26
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TRUMP ATLANTIC CITY ASSOCIATES
TRUMP ATLANTIC CITY FUNDING, INC.
ISSUERS
TRUMP PLAZA ASSOCIATES
TRUMP TAJ MAHAL ASSOCIATES
THE TRUMP TAJ MAHAL CORPORATION
GUARANTORS
TRUMP TAJ MAHAL FUNDING, INC.
AND
FIRST BANK NATIONAL ASSOCIATION
TRUSTEE
________________
INDENTURE
Dated as of April __, 1996
________________
$1,100,000,000 ____% First Mortgage Notes due 2006
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CROSS-REFERENCE TABLE
TIA INDENTURE
SECTION SECTION
- ------- ---------
310(a)(1)....................................................... 8.10
(a)(2)....................................................... 8.10
(a)(3)....................................................... N.A.
(a)(4)....................................................... N.A.
(a)(5)....................................................... 8.10
(b) ....................................................... 8.8;
8.10;
12.2
(c) ....................................................... N.A.
311(a) ....................................................... 8.11
(b) ....................................................... 8.11
(c) ....................................................... N.A.
312(a) ....................................................... 2.5
(b) ....................................................... 12.3
(c) ....................................................... 12.3
313(a) ....................................................... 8.6
(b) ......................................................... 8.6.
(c) ....................................................... 8.6;
12.2
(d) ....................................................... 8.6
314(a) ....................................................... 5.7;
5.8;
12.2
(b) ........................................................ 4.2
(c)(1)....................................................... 2.2;
8.2;
12.4;
12.5
(c)(2)....................................................... 8.2;
12.4;
12.5
(c)(3)....................................................... 4.1(c)
4.2
(d) ........................................................ 4.1(c)
4.4
(e) ........................................................ 12.5
(f) ....................................................... N.A.
i
315(a) ....................................................... 8.1(b)
(b) ....................................................... 8.5
(c) ....................................................... 8.1(a)
(d) ....................................................... 2.9;
7.11;
8.1(c)
(e) ....................................................... 7.13
316(a)(last sentence)........................................... 2.9
(a)(1)(A) ................................................. 7.11
(a)(1)(B) ................................................... 7.12
(a)(2)....................................................... N.A.
(b) ....................................................... 7.7;
7.12;
10.2
317(a)(1)....................................................... 7.3
(a)(2)....................................................... 7.4
(b) ........................................................ 2.4
318(a) ....................................................... 12.1
__________
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
TABLE OF CONTENTS
PAGE
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions...........................................
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SECTION 1.2 Incorporation by Reference of TIA.......................
---------------------------------
SECTION 1.3 Rules of Construction..................................
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ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating........................................
---------------
SECTION 2.2 Execution and Authentication...........................
----------------------------
SECTION 2.3 Registrar and Paying Agent.............................
--------------------------
SECTION 2.4 Paying Agent to Hold Assets in Trust...................
------------------------------------
SECTION 2.5 Securityholder Lists...................................
--------------------
SECTION 2.6 Transfer and Exchange..................................
---------------------
SECTION 2.7 Replacement Securities.................................
----------------------
SECTION 2.8 Outstanding Securities.................................
----------------------
SECTION 2.9 Treasury Securities....................................
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SECTION 2.10 Temporary Securities...................................
--------------------
SECTION 2.11 Cancellation...........................................
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SECTION 2.12 Defaulted Interest.....................................
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ARTICLE III
REDEMPTION
SECTION 3.1 Right of Redemption....................................
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SECTION 3.2 Redemption Pursuant to Applicable Laws.............
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SECTION 3.3 Notices to Trustee.....................................
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SECTION 3.4 Selection of Securities to Be Redeemed.................
--------------------------------------
SECTION 3.5 Notice of Redemption...................................
--------------------
SECTION 3.6 Effect of Notice of Redemption.........................
------------------------------
SECTION 3.7 Deposit of Redemption Price............................
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SECTION 3.8 Securities Redeemed in Part............................
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PAGE
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ARTICLE IV
SECURITY
SECTION 4.1 Security Interest......................................
-----------------
SECTION 4.2 Recording; Opinions of Counsel.........................
------------------------------
SECTION 4.3 Disposition of Certain Collateral......................
---------------------------------
SECTION 4.4 Certain Releases of Collateral.........................
------------------------------
SECTION 4.5 Payment of Expenses....................................
-------------------
SECTION 4.6 Suits to Protect the Collateral........................
-------------------------------
SECTION 4.7 Trustee's Duties.......................................
----------------
SECTION 4.8 Restricted Funds Account................................
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ARTICLE V
COVENANTS
SECTION 5.1 Payment of Securities..................................
---------------------
SECTION 5.2 Maintenance of Office or Agency........................
-------------------------------
SECTION 5.3 Limitation on Restricted Payments......................
---------------------------------
SECTION 5.4 Corporate and Partnership Existence....................
-----------------------------------
SECTION 5.5 Payment of Taxes and Other Claims......................
---------------------------------
SECTION 5.6 Maintenance of Insurance...............................
------------------------
SECTION 5.7 Compliance Certificate; Notice of Default..............
-----------------------------------------
SECTION 5.8 Provision of Financial Statements......................
---------------------------------
SECTION 5.9 Waiver of Stay, Extension or Usury Laws................
---------------------------------------
SECTION 5.10 Limitation on Transactions with Affiliates.............
------------------------------------------
SECTION 5.11 Limitation on Incurrence of Additional Indebtedness....
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SECTION 5.12 Restriction on Sale and Issuance of Subsidiary Stock....
----------------------------------------------------
SECTION 5.13 Limitation on Dividends and Other Payment Restrictions
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Affecting Subsidiaries..................................
----------------------
SECTION 5.14 Limitation on Liens....................................
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SECTION 5.15 Limitation on Sales of Assets and Subsidiary
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Stock; Event of Loss....................................
------------------------------------
SECTION 5.16 Future Subsidiary Guarantors...........................
----------------------------
SECTION 5.17 Limitation on Activities of Funding....................
-----------------------------------
SECTION 5.18 Limitation on Lines of Business........................
-------------------------------
SECTION 5.19 Restriction on Certain Agreements.......................
---------------------------------
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PAGE
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SECTION 5.20 Limitation on Leases....................................
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SECTION 5.21 Limitation on Status as Investment Company..............
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SECTION 5.22 Future Collateral Agreements............................
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ARTICLE VI
SUCCESSORS
SECTION 6.1 Limitation on Merger, Sale or Consolidation............
-------------------------------------------
SECTION 6.2 Successor Substituted..................................
---------------------
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1 Events of Default......................................
-----------------
SECTION 7.2 Acceleration of Maturity Date; Rescission and Annulment
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SECTION 7.3 Collection of Indebtedness and Suits for Enforcement
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by Trustee...............................................
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SECTION 7.4 Trustee May File Proofs of Claim.......................
--------------------------------
SECTION 7.5 Trustee May Enforce Claims Without Possession of
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Securities...............................................
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SECTION 7.6 Priorities.............................................
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SECTION 7.7 Limitation on Suits....................................
-------------------
SECTION 7.8 Unconditional Right of Holders to Receive Principal,
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Premium and Interest.....................................
--------------------
SECTION 7.9 Rights and Remedies Cumulative.........................
------------------------------
SECTION 7.10 Delay or Omission Not Waiver...........................
----------------------------
SECTION 7.11 Control by Holders.....................................
------------------
SECTION 7.12 Waiver of Past Default.................................
----------------------
SECTION 7.13 Undertaking for Costs..................................
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SECTION 7.14 Restoration of Rights and Remedies.....................
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ARTICLE VIII
TRUSTEE
SECTION 8.1 Duties of Trustee......................................
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SECTION 8.2 Rights of Trustee......................................
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SECTION 8.3 Individual Rights of Trustee...........................
----------------------------
SECTION 8.4 Trustee's Disclaimer...................................
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SECTION 8.5 Notice of Default......................................
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PAGE
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SECTION 8.6 Reports by Trustee to Holders..........................
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SECTION 8.7 Compensation and Indemnity.............................
--------------------------
SECTION 8.8 Replacement of Trustee.................................
----------------------
SECTION 8.9 Successor Trustee by Merger, Etc.......................
---------------------------------
SECTION 8.10 Eligibility; Disqualification..........................
-----------------------------
SECTION 8.11 Preferential Collection of Claims against Issuers......
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ARTICLE IX
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 9.1 Option to Effect Legal Defeasance or Covenant
---------------------------------------------
Defeasance...............................................
----------
SECTION 9.2 Legal Defeasance and Discharge.........................
------------------------------
SECTION 9.3 Covenant Defeasance....................................
-------------------
SECTION 9.4 Conditions to Legal or Covenant Defeasance.............
------------------------------------------
SECTION 9.5 Deposited U.S. Legal Tender and U.S. Government
-----------------------------------------------
Obligations to Be Held in Trust;
--------------------------------
Other Miscellaneous Provisions...........................
------------------------------
SECTION 9.6 Repayment to Issuers...................................
--------------------
SECTION 9.7 Reinstatement..........................................
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ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1 Supplemental Indentures Without Consent of Holders.....
--------------------------------------------------
SECTION 10.2 Amendments, Supplemental Indentures and Waivers
-----------------------------------------------
with Consent of Holders..................................
-----------------------
SECTION 10.3 Compliance with TIA....................................
-------------------
SECTION 10.4 Revocation and Effect of Consents......................
---------------------------------
SECTION 10.5 Notation on or Exchange of Securities..................
-------------------------------------
SECTION 10.6 Trustee to Sign Amendments, Etc........................
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ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1 Repurchase of Securities at Option of the Holder
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Upon Change of Control...................................
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PAGE
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ARTICLE XII
MISCELLANEOUS
SECTION 12.1 TIA Controls...........................................
------------
SECTION 12.2 Notices................................................
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SECTION 12.3 Communications by Holders with Other Holders...........
--------------------------------------------
SECTION 12.4 Certificate and Opinion as to Conditions Precedent.....
--------------------------------------------------
SECTION 12.5 Statements Required in Certificate or Opinion...........
---------------------------------------------
SECTION 12.6 Rules by Trustee, Paying Agent, Registrar..............
-----------------------------------------
SECTION 12.7 Legal Holidays.........................................
--------------
SECTION 12.8 Governing Law..........................................
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SECTION 12.9 No Interpretation of Other Agreements..................
-------------------------------------
SECTION 12.10 No Recourse against Others.............................
--------------------------
SECTION 12.11 Successors.............................................
----------
SECTION 12.12 Duplicate Originals....................................
-------------------
SECTION 12.13 Severability...........................................
------------
SECTION 12.14 Table of Contents, Headings, Etc.......................
---------------------------------
SECTION 12.15 Gaming Laws............................................
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ARTICLE XIII
GUARANTY
SECTION 13.1 Guaranty................................................
--------
SECTION 13.2 Executive and Delivery of Guaranty..................
----------------------------------
SECTION 13.3 Certain Bankruptcy Events...............................
-------------------------
SECTION 13.4 Rights Under the Guaranty...............................
-------------------------
SECTION 13.5 Severability............................................
------------
SECTION 13.6 Merger or Consolidation of Guarantors...................
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vii
PAGE
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EXHIBITS
Exhibit A Form of First Mortgage Note due 2006.........A-1
Exhibit B Form of Guaranty.............................B-1
Exhibit C Form of Assignment of Leases and Rents.......C-1
Exhibit D Form of Mortgage and Security Agreement......D-1
Exhibit E Form of Intercompany Note....................E-1
Exhibit F Form of Pledge and Security Agreement........F-1
Exhibit G Form of Pledge Agreement.....................G-1
Exhibit H Form of Collateral Agency Agreement..........H-1
Exhibit I Schedule of Existing Indebtedness............I-1
Exhibit J Schedule of Existing Investments.............J-1
Exhibit K Schedule of Existing Liens...................K-1
viii
INDENTURE, dated as of April __, 1996, between Trump Atlantic
City Associates, a New Jersey partnership (the "Company"), Trump Atlantic City
Funding, Inc., a Delaware corporation and a wholly owned subsidiary of the
Company ("Funding" and, together with the Company, the "Issuers"), as joint and
several obligors; Trump Plaza Associates, a New Jersey partnership ("Plaza
Associates"), and Trump Taj Mahal Associates, a New Jersey partnership ("Taj
Associates"), and The Trump Taj Mahal Corporation, a Delaware corporation
("TTMC" and, together with Taj Associates and Plaza Associates and such other
persons as may be required from time to time to execute a Guaranty hereunder,
the "Guarantors"); Trump Taj Mahal Funding, Inc., a Delaware corporation ("Taj
Funding") and First Bank National Association, a national banking association,
as Trustee.
Each party hereto agrees as follows for the benefit of each other
party and for the equal and ratable benefit of the Holders of the ____% First
Mortgage Notes due 2006 being issued by the Issuers and guaranteed by the
Guarantors.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
-----------
"Acceleration Notice" shall have the meaning specified in Section
7.2.
"Acceptance Amount" shall have the meaning specified in Section
5.15.
"Acquired Indebtedness" means Indebtedness or Disqualified Capital
Stock of any Person (a) existing at the time such Person becomes a Subsidiary
of the Company, including by designation, or is merged or consolidated into or
with the Company or one of its Subsidiaries or (b) assumed in connection with
the Acquisition of assets from such Person, in each case, other than
Indebtedness incurred in connection with, or in contemplation of, such Person
becoming a Subsidiary or such acquisition, consolidation or merger.
Indebtedness shall be deemed to be incurred on the date of the related
acquisition of assets from any Person or the date the acquired Person becomes a
Subsidiary, including by designation, or the date of such merger or
consolidation, as applicable.
"Acquisition" means the purchase or other acquisition of any Person
or substantially all the assets of any Person by any other Person, whether by
purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"Affiliate" means, with respect to any specified Person, (a) any
other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person or (b) any other
Person that owns, directly or indirectly, 5% or more of such Person's Equity
Interests or any officer or director of any such Person or other person or with
respect to any natural Person, any person having a relationship with such
1
Person by blood, marriage or adoption not more remote than first cousin. For
the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Affiliated Ground Leases" means the TSA Lease and SFA Lease.
"After Acquired Property" shall have the meaning specified in
Section 5.22.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Approvals" means all approvals, licenses (including Gaming
Licenses), permits, authorizations, findings and other filings necessary under
applicable gaming laws.
"Asset Sale" shall have the meaning specified in Section 5.15.
"Asset Sale Offer" shall have the meaning specified in Section
5.15.
"Asset Sale Offer Amount" shall have the meaning specified in
Section 5.15.
"Asset Sale Offer Period" shall have the meaning specified in
Section 5.15.
"Asset Sale Offer Price" shall have the meaning specified in
Section 5.15.
"Asset Sale Purchase Date" shall have the meaning specified in
Section 5.15.
"Asset Sale Put Date" shall have the meaning specified in Section
5.15.
"Assignment of Leases and Rents" means that certain Assignment of
Leases and Rents made by Taj Associates and Plaza Associates to the Trustee,
dated April __, 1996, as the same may be amended from time to time.
"Authorized Representative" of any person shall mean (i) in the
case of the Company, (x) any person or persons that has or have been designated
by the Board of Directors of Plaza Holding, as general partner of the Company,
to be an "Authorized Representative" under this Indenture or (y) any member of
the Board of Directors of Plaza Holding; (ii) in the case of Funding, any
Authorized Representative of the Company (with Funding, by its execution and
delivery of this Indenture, irrevocably appointing the Authorized
Representatives from time to time of the Company as its Authorized
Representatives hereunder); and (iii) in the case of any Guarantor or other
obligor, any Officer of such party or, if such person has no Officers, any
person or persons that have been designated by the Board of Directors of Plaza
Holding to be an "Authorized Representative" of such person under this
Indenture.
2
"Average Life" means, as of the date of determination, with respect
to any security or instrument, the quotient obtained by dividing (i) the sum of
(a) the product of the number of years from the date of determination to the
date or dates of each successive scheduled principal (or redemption) payment of
such security or instrument and (b) the amount of each such respective
principal (or redemption) payment by (ii) the sum of all such principal (or
redemption) payments.
"Bankruptcy Law" means Title 11, United States Code, as amended, or
any similar United States federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of
debtors or any amendment to, succession to or change in any such law.
"Beneficial Owner" or "beneficial owner" for purposes of the
definition of Change of Control has the meaning attributed to it in Rules 13d-3
and 13d-5 under the Exchange Act (as in effect on the Issue Date), whether or
not applicable, except that a "person" shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time.
"Board of Directors" means, with respect to any Person, the Board
of Directors of such person or any committee of the Board of Directors of such
Person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly
adopted resolution of the Board of Directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"Capital Contribution" shall mean, with respect to any Person, that
amount of money or the Fair Market Value of any Property (net of liabilities to
which such Property is subject) irrevocably and unconditionally contributed to
such Person in exchange for Qualified Equity Interests of such Person;
provided, however, that such term shall not include any contribution of
-------
funds obtained from the proceeds of the equity offering by THCR prior to or
substantially concurrent with the issuance of the Securities (including
proceeds from any exercise of the underwriters overallotment option) except for
funds in excess of $__ million [to be calculated as the amount necessary to
fund the Company's and its Subsidiaries' specified proceeds uses described in
the Prospectus, plus $71 million].
"Capitalized Lease Obligation" of any Person means any obligation
of such Person or its Subsidiaries on a Consolidated basis under a lease that
is required to be capitalized for financial reporting purposes in accordance
with GAAP, and the amount of Indebted-
3
ness represented by such obligation shall be the capitalized amount of such
obligations, as determined in accordance with GAAP.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"Cash Collateral" means Collateral in the form of U.S. Legal Tender
to be deposited in the Restricted Funds Account.
"Cash Equivalent" means (a) any evidence of Indebtedness, maturing
not more than one year after the date of acquisition, issued by the United
States of America, or an instrumentality or agency thereof and guaranteed fully
as to principal, premium, if any, and interest by the United States of America,
(b) any certificate of deposit, maturing not more than one year after the date
of acquisition, issued by, or time deposit of, a commercial banking institution
that is a member of the Federal Reserve System and that has combined capital
and surplus and undivided profits of not less than $300.0 million and whose
debt has a rating, at the time as of which any investment therein is made, of
"P-1" (or higher) according to Moody's Investors Service, Inc. or any successor
rating agency, or "A-1" (or higher) according to Standard & Poor's Ratings
Service, a division of McGraw-Hill, Inc., or any successor rating agency, (c)
commercial paper, maturing not more than one year after the date of
acquisition, issued by a corporation (other than an Affiliate or Subsidiary of
the Company) organized and existing under the laws of the United States of
America with a rating, at the time as of which any investment therein is made,
of "P-1" (or higher) according to Moody's Investors Service, Inc. or any
successor rating agency, or "A-1" (or higher) according to Standard & Poor's
Ratings Service, a division of McGraw-Hill, Inc., or any successor rating
agency and (d) any money market deposit accounts issued or offered by a
domestic commercial bank having capital and surplus in excess of $300.0
million.
"Casino Control Act" shall mean the New Jersey Casino Control Act.
"Casino Hotels" means collectively (i) the casino and hotel complex
currently known as the "Trump Plaza Hotel and Casino" in Atlantic City, New
Jersey and ancillary structures and facilities located on the premises and all
furniture, fixtures and equipment at any time contained therein in each case
owned by or leased to Plaza Associates and covered by the Lien of the Mortgage
Documents and (ii) the casino and hotel complex currently known as the "Trump
Taj Mahal Casino Resort" in Atlantic City, New Jersey and ancillary structures
and facilities located on the premises and all furniture, fixtures and
equipment at any time contained therein in each case owned by or leased to Taj
Associates and covered by the Lien of the Mortgage Documents.
"Casino Sale" shall have the meaning specified in Section 5.15
hereof.
"Change of Control" means any of the following events:
4
(i) THCR Holdings ceases to be the "beneficial owner," directly or
indirectly, of 100% of the Equity Interests of the Company;
(ii) any sale, transfer or other conveyance, whether direct or
indirect, of all or substantially all of the assets of THCR Holdings or
THCR, on a Consolidated basis, in one transaction or a series of related
transactions, if, immediately after giving effect to such transaction,
(A) any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable),
other than the Permitted Holder, or if applicable in the case of THCR
Holdings, THCR, becomes the "beneficial owner" (as defined), directly or
indirectly, of more than 35% of the total voting power of the Voting
Stock of the transferee unless the Permitted Holder "beneficially owns"
(as so defined), directly or indirectly, in the aggregate a greater
percentage of the total voting power of the Voting Stock of the
transferee than such other person or group and still has the right or
ability by voting power, contract or otherwise to elect or designate a
majority of the Board of Directors of THCR;
(iii) any "person" or "group" (as such terms are used for purposes
of Sections 13(d) and 14(d) of the Exchange Act, whether or not
applicable), other than the Permitted Holder, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of more than 35% of the total
voting power of the Voting Stock of THCR, or any successor thereto by
merger, consolidation or otherwise, unless the Permitted Holder
"beneficially owns" (as so defined), directly or indirectly, in the
aggregate a greater percentage of the total voting power of the Voting
Stock of THCR than such other person or group and has the right or
ability by voting power, contract or otherwise to elect or designate for
election a majority of the Board of Directors of THCR (for purposes of
this definition, such other person shall be deemed to beneficially own
any Voting Stock of a specified corporation held by a parent corporation,
if such other person "beneficially owns" (as so defined), directly or
indirectly, more than 35% of the voting power of the Voting Stock of such
parent corporation and the Permitted Holder "beneficially owns" (as so
defined), directly or indirectly, in the aggregate, a lesser percentage
of the voting power of the Voting Stock of such parent corporation and
does not have the right or ability by voting power, contract or otherwise
to elect or designate for election a majority of the Board of Directors
of such parent corporation); or
(iv) during any period of two consecutive years, individuals who
at the beginning of such period constituted the Board of Directors of
THCR or Funding (together with any new directors whose election by such
Board of Directors or whose nomination for election by the stockholders
of THCR or Funding, as applicable, is approved by the Permitted Holder or
by a vote of the 66 2/3% of the directors of THCR or Funding, as
applicable, then still in office who are either directors at the beginning
of such period or whose election or nomination for election was previously
so approved) have ceased for any reason to constitute a majority of the
Board of Directors of THCR or Funding, as applicable, then in office.
5
"Change of Control Date" shall have the meaning specified in
Section 11.1.
"Change of Control Offer" shall have the meaning specified in
Section 11.1.
"Change of Control Offer Period" shall have the meaning specified
in Section 11.1.
"Change of Control Purchase Date" shall have the meaning specified
in Section 11.1.
"Change of Control Purchase Price" shall have the meaning specified
in Section 11.1.
"Change of Control Put Date" shall have the meaning specified in
Section 11.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means the Property and assets of the Issuers or the
Guarantors which, at the time in question, is subject to the Liens created by
the Mortgage Documents, this Indenture or the Guaranty.
"Collateral Agent" shall mean First Bank National Association, as
collateral agent under the Collateral Agency Agreement.
"Collateral Agency Agreement" means that agreement dated the date
hereof by and among the Collateral Agent and the Trustee as well as such other
persons as may be permitted to become parties thereunder as a result of their
status as lenders of Indebtedness permitted to be incurred pursuant to Section
5.11(c) (including Refinancing Indebtedness in respect thereof) or (e) hereof,
in substantially the form set forth in Exhibit H hereto.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Company Request" means a written request of the Issuers in the
form of an Officers' Certificate.
"Consolidated Coverage Ratio" of any person on any date of
determination (the "Transaction Date") means the ratio, on a pro forma basis,
of (a) the aggregate amount of Consolidated EBITDA of such person attributable
to continuing operations and businesses (exclusive of amounts attributable to
operations and businesses permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such person's
6
Consolidated Fixed Charges subsequent to the Transaction Date) during the
Reference Period; provided, that for purposes of such calculation, (i)
Acquisitions which occurred during the Reference Period or subsequent to the
Reference Period and on or prior to the Transaction Date shall be assumed to
have occurred on the first day of the Reference Period, (ii) transactions
giving rise to the need to calculate the Consolidated Coverage Ratio shall be
assumed to have occurred on the first day of the Reference Period, (iii) the
incurrence of any Indebtedness or issuance of any Disqualified Capital Stock
during the Reference Period or subsequent to the Reference Period and on or
prior to the Transaction Date (and the application of the proceeds therefrom to
the extent used to refinance or retire other Indebtedness) shall be assumed to
have occurred on the first day of such Reference Period, and (iv) the
Consolidated Fixed Charges of such person attributable to interest on any
Indebtedness or dividends on any Disqualified Capital Stock bearing a floating
interest (or dividend) rate shall be computed on a pro forma basis as if the
average rate in effect from the beginning of the Reference Period to the
Transaction Date had been the applicable rate for the entire period, unless
such Person or any of its Subsidiaries is a party to an Interest Swap and
Hedging Obligation (which shall remain in effect for the 12-month period
immediately following the Transaction Date) that has the effect of fixing the
interest rate on the date of computation, in which case such rate (whether
higher or lower) shall be used.
"Consolidated EBITDA" means, with respect to any person, for any
period, the Consolidated Net Income of such person for such period (determined,
for purposes of this definition only, without taking into effect clause (x) of
the last sentence of the definition thereof) adjusted to add thereto (to the
extent deducted from net revenues in determining Consolidated Net Income),
without duplication, the sum of (i) Consolidated income tax expense, (ii)
Consolidated depreciation and amortization expense, provided, that consolidated
depreciation and amortization of a Subsidiary that is a less than Wholly-owned
Subsidiary shall only be added to the extent of the equity interest of such
person in such Subsidiary and (iii) Consolidated Fixed Charges, less the amount
of all cash payments made by such person or any of its Subsidiaries during such
period to the extent such payments relate to non-cash charges that were added
back in determining Consolidated EBITDA for such period or any prior period.
"Consolidated Fixed Charges" of any person means, for any period,
the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of (a) interest expensed or capitalized, paid, accrued,
or scheduled to be paid or accrued (including, in accordance with the following
sentence, interest attributable to Capitalized Lease Obligations) of such
person and its Consolidated Subsidiaries during such period, including (i)
original issue discount and non-cash interest payments or accruals on any
Indebtedness, (ii) the interest portion of all deferred payment obligations and
(iii) all commissions, discounts and other fees and charges owed with respect
to bankers' acceptances and letters of credit financings and currency and
Interest Swap and Hedging Obligations, in each case to the extent attributable
to such period, (b) one-third of Consolidated Rental Payments for such period
attributable to operating leases of such person and its Consolidated
Subsidiaries, and (c) the amount of dividends accrued or payable by such person
or any of its Consolidated Subsidiaries in respect of Preferred Stock (other
than by Subsidiaries of such
7
person to such person or such person's Wholly-owned Subsidiaries). For
purposes of this definition, (x) interest on a Capitalized Lease Obligation
shall be deemed to accrue at an interest rate reasonably determined by the
Issuers to be the rate of interest implicit in such Capitalized Lease
Obligation in accordance with GAAP and (y) interest expense attributable to any
Indebtedness represented by the guarantee by such person or a Subsidiary of
such person of an obligation of another person shall be deemed to be the
interest expense attributable to the Indebtedness guaranteed.
"Consolidated Net Income" means, with respect to any person for any
period, the net income (or loss) of such person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication): (a) all gains (but not losses)
which are either extraordinary (as determined in accordance with GAAP) or are
either unusual or nonrecurring (including any gain from the sale or other
disposition of assets outside the ordinary course of business or from the
issuance or sale of any capital stock), less all fees and expenses relating
thereto, (b) the net income, if positive, of any person, other than a
Consolidated Wholly-owned Subsidiary, in which such person or any of its
Consolidated Subsidiaries has an interest, except to the extent of the amount
of any dividends or distributions actually paid in cash to such person or a
Consolidated Wholly-owned Subsidiary of such person during such period, but in
any case not in excess of such person's pro rata share of such person's net
income for such period, (c) the net income or loss of any person acquired in a
pooling of interests transaction for any period prior to the date of such
acquisition, and (d) the net income, if positive, of any of such person's
Consolidated Subsidiaries to the extent that the declaration or payment of
dividends or similar distributions is not at the time permitted by operation of
the terms of its charter or bylaws or any other agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation applicable to
such Consolidated Subsidiary. To the extent not already reduced thereby,
Consolidated Net Income of the Company for any period shall be reduced by the
aggregate amount of (x) all Permitted Tax Distributions made during, or
distributable in respect of, such period and (y) all payments made during such
period pursuant to the TPM Services Agreement.
"Consolidated Net Worth" of any person at any date means, in the
case of a partnership, such person's partners' capital and, in the case of a
corporation, the aggregate Consolidated stockholders' equity of such person
(plus amounts attributable to preferred stock) and its Consolidated
Subsidiaries, as would be shown on the consolidated balance sheet of such
person prepared in accordance with GAAP, adjusted to exclude (to the extent
included in calculating such equity), (a) the amount of any such stockholders'
equity attributable to Disqualified Capital Stock or treasury stock of such
person and its Consolidated Subsidiaries, (b) all upward revaluations and other
write-ups in the book value of any asset of such person or a Consolidated
Subsidiary of such person subsequent to the Issue Date, and (c) all investments
in Subsidiaries that are not Consolidated Subsidiaries and in persons that are
not Subsidiaries.
8
"Consolidated Rental Payments" of any Person means the aggregate
rental obligations of such Person and its Consolidated Subsidiaries (not
including taxes, insurance, maintenance and similar expenses that the lessee is
obligated to pay under the terms of the relevant leases), determined on a
Consolidated basis in conformity with GAAP, payable in respect of such period
under leases of real or personal property (net of income from subleases
thereof, not including taxes, insurance, maintenance and similar expenses that
the sublessee is obligated to pay under the terms of such sublease), whether or
not such obligations are reflected as liabilities or commitments on a
Consolidated balance sheet of such Person and its Subsidiaries or in the notes
thereto, excluding, however, in any event, that portion of Consolidated Fixed
Charges of such Person representing payments by such Person or any of its
Consolidated Subsidiaries in respect of Capitalized Lease Obligations.
"Consolidated Subsidiary" means, for any person, each Subsidiary of
such person (whether now existing or hereafter created or acquired), the
financial statements of which are consolidated for financial statement
reporting purposes with the financial statements of such person in accordance
with GAAP.
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of such Person and each of its Subsidiaries if
and to the extent the accounts of such Person and each of its Subsidiaries
would normally be consolidated with those of such Person, all in accordance
with GAAP consistently applied. The term "Consolidated" shall have a similar
meaning.
"CRDA" means the New Jersey Casino Reinvestment Development
Authority or any successor entity thereto.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in Section
2.12.
"Disqualified Capital Stock" means, with respect to any person, an
Equity Interest of such person that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of an event (other than the disqualification of the holder
thereof by a Gaming Authority) or the passage of time would be, required to be
redeemed or repurchased (including at the option of the holder thereof) in
whole or in part, on or prior to the final Stated Maturity of the Securities.
"Egg Harbor Mortgage" shall have the meaning given to it in the
Mortgage.
"Egg Harbor Parcel" means that warehouse and office facility owned
by Plaza Associates and located on the premises known as Block 404 Lots 13 and
14 of the official tax
9
map of Egg Harbor Township, New Jersey, containing approximately 64,000 square
feet of space.
"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) in such Person's
equity, and shall in any event include any Capital Stock issued by, or
partnership interests in, such Person.
"Event of Default" shall have the meaning specified in Section 7.1.
"Event of Loss" means, with respect to any property or asset, any
(i) loss, destruction or damage of such property or asset, or (ii) any
condemnation, seizure or taking, by exercise of the power of eminent domain or
otherwise, of such property or asset, or confiscation or requisition of the use
of such property or asset.
"Excepted Property" shall have the meaning given to it in the
Mortgage.
"Excess Proceeds" shall have the meaning specified in Section 5.15.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Expansion Site Lease" shall have the meaning given to it in the
Mortgage.
"Expansion Site Option" shall have the meaning given to it in the
Mortgage.
"F, F&E Financing Agreement" means an agreement which creates a
Lien upon any after-acquired tangible personal property and/or other items
constituting operating assets, which are financed, purchased or leased for the
purpose of engaging in or developing a Related Business.
"Facility Lease" shall have the meaning given to it in the
Mortgage.
"Fair Market Value" means, with respect to any asset or property,
the sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy and, with respect to any redemption of
Securities pursuant to the Gaming Laws means (a) the last sales price regular
way on the last trading day prior to the date of determination of such value on
the largest national securities exchange (or, if said security is not listed on
a national securities exchange, on the National Market System of the National
Association of Securities Dealers, Inc. Automated Quotation System ("NASDAQ"))
on which such Securities shall have traded on such trading day, or (b) if no
such sales of such Securities occurred on such trading day, the mean between
the "bid" and "asked" prices on such national securities exchange or as quoted
on the National Market System of NASDAQ, as the case may be, on such last
trading day, or (c) if the Securities are not listed or quoted on any national
securities exchange or the Nasdaq National Market, the average of the closing
bid and asked prices on such day in the over-the-counter market as reported by
NASDAQ or, if
10
bid and asked prices for the Securities have not been reported through NASDAQ,
the average of the bid and asked prices on such day as furnished by any New
York Stock Exchange member firm regularly making a market in the Securities,
selected for such purpose by Funding, or (d) if none of clauses (a) through (c)
are applicable, the fair market value of such Securities as of the date of
determination as determined in such manner as shall be satisfactory to Funding,
which shall be entitled to rely for such purpose on the advice of any firm of
investment bankers or securities dealers having familiarity with the
Securities.
"First Mortgage Notes" means the __% First Mortgage Notes due 2006
issued by Funding and the Company, which, together with the Guaranty, form the
Securities.
"First Mortgage Note Register" means the list of names and
addresses of Holders held by the Registrar of the Securities.
"Funding" means Trump Atlantic City Funding, Inc. until a successor
replaces it as an Issuer pursuant to this Indenture, and thereafter means such
successor.
"Gaming Authority" means the New Jersey Casino Control Commission,
the New Jersey Division of Gaming Enforcement or any other governmental agency
which regulates gaming in a jurisdiction in which the Company or any of the
Subsidiaries conducts gaming activities.
"Gaming Law" means any law, rule, regulation or ordinance governing
gaming activities and any administrative rules or regulations promulgated
thereunder, and any other corresponding statutes, rules and regulations.
"Gaming Licenses" means every material license, material franchise,
or other material authorization required to own, lease, operate or otherwise
conduct or manage gaming in any state or jurisdiction where the Company or its
Subsidiaries conduct business, and any applicable liquor licenses.
"Generally Accepted Accounting Principles" or "GAAP" means United
States generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession as in effect on
the Issue Date.
"Governmental Authority" means any agency, authority, board,
bureau, commission, department, office or instrumentality of any nature
whatsoever of the United States or foreign government, any state, province or
any city or other political subdivision and whether now or hereafter in
existence, or any officer or official thereof, and any maritime authority.
11
"Ground Leases" means the ground leases, as amended or supplemented
in accordance with the Mortgage Documents, each of which expires on December
31, 2078, pursuant to which Plaza Associates is the current lessee, and each of
Trump Seashore Associates (the "TSA Lease"), Seashore Four Associates (the "SFA
Lease") and Plaza Hotel Management Company (the "PHMC Lease") are the current
respective lessors.
"Guaranteed Debt" of any Person means, without duplication, all
indebtedness of any other Person referred to in the definition of Indebtedness
contained in this section guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (a) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (b) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss, (c) to
supply funds to, or in any other manner invest in, the debtor (including any
agreement to pay for property or services without requiring that such property
be received or such services be rendered), (d) to maintain working capital or
equity capital of the debtor, or otherwise to maintain the net worth, solvency
or other financial condition of the debtor or (e) otherwise to assure a
creditor against loss; provided that the term "guarantee" shall not include
endorsements for collection or deposit, in either case in the ordinary course
of business; provided, further, that the obligations of Plaza Associates
pursuant to the TPM Services Agreement or the Ground Leases, in each case in
effect on the Issue Date or as amended pursuant to terms substantially similar
to the terms in effect on the Issue Date, shall not be deemed to be Guaranteed
Debt of Plaza Associates.
"Guarantors" means Plaza Associates, Taj Associates, TTMC and each
existing or future Subsidiary of Funding or the Company.
"Guaranty" shall have the meaning provided in Section 13.1.
"Holder" or "Securityholder" means the person in whose name a
Security is registered on the Registrar's books.
"Improvements" shall mean, with respect to any gaming or other
facility, all improvements thereto, including any alteration thereof and the
acquisition, construction of any additions related thereto (including adjacent
property) or renovations thereof, including without limitation the construction
or renovation of additional gaming space or facilities, hotel and restaurant
facilities and parking facilities, with all landscaping and other off- and
on-site work related thereto.
"incurrence" shall have the meaning specified in Section 5.11.
"Incurrence Date" shall have the meaning specified in Section 5.11.
12
"Indebtedness" means, with respect to any Person, without
duplication, (a) all liabilities and obligations, contingent and otherwise, of
such Person for borrowed money or representing the balance deferred and unpaid
of the purchase price of property or services, excluding any trade payables and
other accrued current liabilities arising in the ordinary course of business,
but including, without limitation, all obligations, contingent or otherwise, of
such Person in connection with any letters of credit issued under letter of
credit facilities, acceptance facilities or other similar facilities or in
connection with any agreement to purchase, redeem, exchange, convert or
otherwise acquire for value any Equity Interest of such Person, or any
warrants, rights or options to acquire such Equity Interest, now or hereafter
outstanding, (b) all obligations of such Person evidenced by bonds, notes,
debentures or other similar instruments, (c) every obligation of such Person
issued as payment in consideration of the purchase by such Person or an
Affiliate of such Person of the Equity Interest or all or substantially all of
the assets of another Person or in consideration for the merger or
consolidation with respect to which such Person or an Affiliate of such Person
was a party, (d) all indebtedness created or arising under any conditional sale
or other title retention agreement with respect to property acquired by such
Person (even if the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), but excluding trade payables and other accrued current liabilities
arising in the ordinary course of business, (e) all obligations under Interest
Swap and Hedging Obligations of such Person, (f) all Capitalized Lease
Obligations of such Person, (g) all Indebtedness referred to in clauses (a)
through (f) above of other Persons and all dividends of other Persons, the
payment of which are secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien,
upon or in property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness, (h) all Guaranteed Debt of such
Person and (i) all Disqualified Capital Stock of such Person (valued at the
greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends). For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant
to this Indenture, and if such price is based upon, or measured by, the Fair
Market Value of such Disqualified Capital Stock, such Fair Market Value to be
determined in good faith by the Board of Directors of the issuer (or managing
general partner of the issuer) of such Disqualified Capital Stock.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Indenture Obligations" means the obligations of the Issuers and
the Guarantors pursuant to this Indenture and the Securities (and any other
obligor hereunder or under the Securities) now or hereafter existing, to pay
principal of and interest on the Securities when due and payable, whether on
Maturity or an Interest Payment Date, by acceleration, call for redemption,
acceptance of any Asset Sale Offer, Change of Control Offer, or otherwise, and
interest on the overdue principal of, and (to the extent lawful) interest, if
any,
13
on, the Securities and all other amounts due or to become due in connection
with this Indenture, the Securities and the Mortgage Documents, including any
and all extensions, renewals or other modifications thereof, in whole or in
part, and the performance of all other obligations of the Issuers and the
Guarantors (and any other obligor hereunder or under the Securities), including
all costs and expenses incurred by the Trustee or the Holders in the collection
or enforcement of any such obligations or realization upon the Mortgage or the
security of any Mortgage Documents.
"Independent Directors" shall mean directors who are not officers
or employees of THCR or any of its Subsidiaries and who are not Affiliates of
Trump or any of his Affiliates.
"Intercompany Notes" means collectively the several promissory
notes between the Company, as obligee, and each of the Guarantors, as obligors,
substantially in the form attached hereto as Exhibit E.
"Interest Payment Date" means the stated due date of an installment
of interest on the Securities.
"Interest Swap and Hedging Obligation" means any obligation of any
person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such
person is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional
amount in exchange for periodic payments made by such person calculated by
applying a fixed or floating rate of interest on the same notional amount.
"Investment" means, with respect to any Person, directly or
indirectly, (a) any advance, loan or other extension of credit or capital
contribution to any other Person (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), (b) any purchase or other acquisition by such Person of any
Equity Interest, bonds, notes, debentures or other securities issued or owned
by, any other Person or (c) other than guarantees of Indebtedness of the
Issuers or any Subsidiary to the extent permitted by Section 5.11, the entering
into by such Person of any guarantee of, or other credit support or contingent
obligation with respect to, Indebtedness or other liability of such other
Person.
"Issue Date" means the date of first issuance of the Securities
under this Indenture.
"Issuers" shall mean, collectively, the Company and Funding.
"Leased Land" shall have the meaning given to it in the Mortgage.
14
"Leases" shall have the meaning given to it in the Mortgage.
"Legal Requirements" means all applicable laws, statutes, codes,
acts, ordinances, orders, judgments, decrees, injunctions, rules, regulations,
permits, licenses, authorizations, directions and requirements of all
governments, departments, commissions, boards, courts, authorities, agencies,
officials and officers, of governments, federal, state and municipal.
"Legal Holiday" shall have the meaning provided in Section 12.7.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein
provided or as provided in this Indenture, whether at final Stated Maturity,
Change of Control Purchase Date, Asset Sale Offer Purchase Date or the
redemption date and whether by declaration of acceleration, call for redemption
or otherwise.
"Mortgage" means that certain Indenture of Mortgage and Security
Agreement made by the Mortgagor and the Mortgagee, dated April __, 1996, as the
same may be amended from time to time in accordance with its terms and the
terms of this Indenture.
"Mortgage Documents" means the Mortgage, the Assignment of Leases
and Rents, the Pledge Agreements and any other agreement purporting to convey
to the Trustee for the benefit of the Holders, a security interest in Property
pursuant to the requirements of this Indenture, including, without limitation,
Section 5.22, executed by any Issuer or any of the Guarantors, as the same may
be amended from time to time, including any UCC-1 financing statements which
may be filed in connection therewith.
"Mortgagee" shall have the meaning given to it in the Mortgage.
"Mortgagor" shall have the meaning given to it in the Mortgage.
"Net Cash Proceeds" (x) of an issuance of Indebtedness or Equity
Interests means the cash proceeds of such issuance, net of attorneys' fees,
accountants' fees, brokerage, consultant, underwriting and other fees and
expenses actually incurred in connection with such issuance, sale, conversion
or exchange and net of any taxes paid or payable as a result thereof by the
entity making such sale and (y) of an Asset Sale (including an Event of Loss)
means the aggregate amount of cash and Cash Equivalents received by the Company
and its Subsidiaries in respect of such Asset Sale less the sum of all fees,
commissions and other expenses incurred in connection with such Asset Sale
less, in the case of an Asset Sale only, the amount (estimated reasonably and
in good faith by the Company) of income, fran
15
chise, sales and other applicable taxes required to be paid by the Company or
any of its Subsidiaries or distributable by the Company as a Permitted Tax
Distribution, in each case, within 12 months of consummating the Asset Sale, in
connection with such Asset Sale.
"Net Proceeds" means the aggregate Net Cash Proceeds and fair
market value of property and assets (valued at the fair market value thereof at
the time of receipt in good faith by the Company).
"Obligation" means any principal, premium or interest payment, or
monetary penalty, or damages, due by the Issuers or the Guarantors under the
terms of the Securities or this Indenture.
"Offer to Purchase" means any Change of Control Offer or Asset Sale
Offer.
"Offer to Purchase Price" means any Change of Control Offer Price
or Asset Sale Offer Price.
"Officer" means, with respect to any Person, the Chairman of the
Board, the President, any Vice President, the Chief Financial Officer, the
Treasurer or Assistant Treasurer, the Controller, or the Secretary or Assistant
Secretary of such Person.
"Officers' Certificate" means, with respect to the Issuers or any
Guarantor, a certificate signed by two Authorized Representatives of the
Issuers or such Guarantor and otherwise complying with the requirements of
Sections 12.4(1) and 12.5.
"Operating Assets" shall have the meaning given to it in the
Mortgage.
"Opinion of Counsel" means a written opinion from legal counsel to
the Issuers or the Guarantors reasonably acceptable to the Trustee and which
complies with the requirements of Sections 12.4 and 12.5. Unless otherwise
required by this Indenture, the counsel may be in-house counsel to the Issuers
or the Guarantors.
"Original Policy" shall have the meaning given to it in the
Mortgage.
"Outstanding Amount" of any Indebtedness at any time means the
principal amount outstanding of such Indebtedness at such time, unless such
Indebtedness was issued at a discount, in which case the "Outstanding Amount"
of such Indebtedness means the original issue price of such Indebtedness plus
the accretion to such time of the original issue discount, determined in
accordance with Generally Accepted Accounting Principles.
"Partners" means each of THCR Holdings and Plaza Holding or any
additional or substitute partners admitted under the Partnership Agreement so
long as (i) each is a partner under the Partnership Agreement, unless removed
as a partner in accordance with the Partnership Agreement and (ii) no Default
or Event of Default occurs as a result thereof.
16
"Partnership Agreement" means the Amended and Restated Agreement of
Partnership of the Company, dated as of the Issue Date, as amended from time to
time in accordance with its terms.
"Paying Agent" shall have the meaning specified in Section 2.3.
"Permit" means any license (including, without limitation, all
Gaming Licenses), franchise, authorization, statement of compliance,
certificate of operation, certificate of occupancy and permit required for the
lawful ownership, occupancy, operation and use of all or a material portion of
either of the Casino Hotels, whether held by Plaza Associates, Taj Associates
or any other Person (which may be temporary or permanent) (including, without
limitation, those required for the use of either of the Casino Hotels as a
licensed casino facility), in accordance with all applicable Legal
Requirements.
"Permitted Holder" means Trump and the spouse and descendants of
Trump (including any related grantor trusts controlled by, and established and
maintained for the sole benefit of, Trump or such spouse or descendants), and
the estate of any of the foregoing, but no other Person.
"Permitted Indebtedness" means the following:
(a) the Company may incur Indebtedness to any Wholly-owned
Subsidiary Guarantor, and any Wholly-owned Subsidiary Guarantor may incur
Indebtedness to any other Wholly-owned Subsidiary Guarantor or to the Company,
provided, that, in the case of Indebtedness of the Company such obligations
shall be unsecured and expressly subordinated in right of payment to the
Company's Obligations pursuant to the Securities, and that the date of any
event that causes such Subsidiary Guarantor to no longer be a Wholly-owned
Subsidiary Guarantor shall be an Incurrence Date;
(b) the Super Puma Helicopter Lease, but only to the extent no
Services Fees are thereafter paid under the TPM Services Agreement; and
(c) Indebtedness listed on Exhibit I hereto and existing on the
Issue Date, after giving effect to the transactions contemplated by the "Merger
Transaction" as such term is defined in the Prospectus.
"Permitted Investment" means (a) Investments in any of the
Securities; (b) Cash Equivalents; (c) intercompany notes to the extent
permitted under clause (a) of the definition of "Permitted Indebtedness"; (d)
loans, advances or investments listed on Exhibit J hereto and existing on the
Issue Date; (e) any Investment in any Wholly-owned Subsidiary of the Company;
and (f) any Investment consisting of the extension of gaming credit to
customers consistent with industry practice in the ordinary course of business.
17
"Permitted Leases" means the following:
(a) any Capitalized Lease Obligation of the Company or any of its
Subsidiaries incurred in accordance with Section 5.11;
(b) any lease of Plaza Associates or Taj Associates, as tenant or
subtenant, existing on the date of this Indenture and listed on a schedule
hereto, including any modifications, amendments, renewals or supplements
thereof, provided that the aggregate annual rent and other costs thereunder are
not increased thereby, except as such rent or costs may be increased during any
renewed lease term pursuant to the terms of such leases as they exist on the
date of this Indenture; and
(c) any operating leases of the Company or any of its Subsidiaries
other than the leases set forth above, provided that the aggregate average
annual rent and other payments required thereunder over the terms of such
leases shall not exceed $10.0 million.
"Permitted Liens" means:
(a) Liens listed on Exhibit K hereto and existing on the Issue
Date after giving effect to the "Merger Transaction" as such term is defined in
the Prospectus, and Liens securing Refinancing Indebtedness in respect of
secured Indebtedness existing on the Issue Date;
(b) the Lien of the Trustee as provided for in this Indenture and
in the Mortgage Documents;
(c) Indebtedness incurred in accordance with clause (d) of Section
5.11 may be secured by the assets acquired pursuant to the respective capital
lease (in the case of Capitalized Lease Obligations) or with the proceeds of
the respective F, F&E Financing Agreements, so long as such Liens do not extend
to any other assets;
(d) Indebtedness of the Company and the Guarantors incurred
pursuant to clause (e) of Section 5.11 (and refinancings thereof pursuant to
clause (e) of Section 5.11) may be secured by the assets of the Company and the
Guarantors, as applicable, provided, that the Securities are secured by the
assets securing such Indebtedness on a senior or an equal and ratable basis
pursuant to the terms of the Collateral Agency Agreement;
(e) Indebtedness of the Company, Plaza Associates and Taj
Associates incurred pursuant to clause (c) of Section 5.11 (and refinancings
thereof pursuant to clause (f) of Section 5.11) may be secured by the assets of
the Company, Plaza Associates or Taj Associates, as applicable, provided, that
the Securities are secured by the assets securing such Indebtedness on a senior
or an equal and ratable basis pursuant to the terms of the Collateral Agency
Agreement;
(f) any Lien arising by reason of (i) any judgment, decree or
order of any court, so long as such Lien is adequately bonded and any
appropriate legal proceedings which may have been duly initiated for the review
of such judgment, decree or order shall not have been
18
finally terminated or the period within which such proceedings may be initiated
shall not have expired; (ii) security for payment of workmen's compensation or
other insurance; (iii) good faith deposits in connection with tenders, leases
and contracts (other than contracts for the payment of money); and (iv)
deposits to secure public or statutory obligations, or in lieu of surety or
appeal bonds;
(g) Liens for taxes, assessments or other governmental charges not
yet due or which are being contested in good faith and by appropriate
proceedings by the Company or any of its Subsidiaries if adequate reserves with
respect thereto are maintained on the books of the Company or any of its
Subsidiaries, as the case may be, in accordance with GAAP;
(h) statutory Liens of carriers, warehousemen, mechanics,
landlords, laborers, materialmen, repairmen or other like Liens arising by
operation of law in the ordinary course of business and consistent with
industry practices and Liens on deposits made to obtain the release of such
Liens if (i) the underlying obligations are not overdue for a period of more
than 60 days or (ii) such Liens are being contested in good faith and by
appropriate proceedings by the Company or any of its Subsidiaries and adequate
reserves with respect thereto are maintained on the books of the Company or any
of its Subsidiaries, as the case may be, in accordance with GAAP;
(i) easements, rights-of-way, zoning and similar restrictions and
other similar encumbrances or title defects, which, if they are incurred by the
Company or any of its Subsidiaries after it acquires the property subject
thereto, are incurred in the ordinary course of business and consistent with
industry practices which, in the aggregate, are not substantial in amount, and
which do not in any case materially detract from the value of the property
subject thereto (as such property is used or proposed to be used by the Company
or any of its Subsidiaries) or interfere with the ordinary conduct of the
business of the Company or any of its Subsidiaries, provided, that any such
Liens are not incurred in connection with any borrowing of money or any
commitment to loan any money or to extend any credit;
(j) Liens that secure Acquired Indebtedness (and refinancings
pursuant to clause (f) of Section 5.11), provided, in each case, that such
Liens do not secure any property or assets other than the property or asset so
acquired and were not put in place in connection with or in anticipation of
such acquisition, merger or consolidation;
(k) leases or subleases granted to other persons in the ordinary
course of business not materially interfering with the conduct of the business
of the Company or any of its Subsidiaries or materially detracting from the
value of the relative assets of the Company or such Subsidiary;
(l) Liens arising from precautionary Uniform Commercial Code
financing statement filings regarding operating leases entered into by the
Company or any of its Subsidiaries in the ordinary course of business; and
19
(m) Liens on the Equity Interests of the Company or any of its
Subsidiaries to the extent required to be pledged for the benefit of holders of
the Senior Notes or of any Refinancing Indebtedness in respect thereof.
"Permitted Tax Distributions" means for each tax year that the
Company qualifies as a partnership or substantially similar pass-through entity
under the Code or any similar provision of state or local law, distributions of
Tax Amounts in respect of the jurisdictions in which the Company so qualifies
as a partnership or substantially similar pass-through entity; provided, that
(A) prior to any Permitted Tax Distribution a knowledgeable and duly authorized
officer of Funding shall certify, and counsel reasonably acceptable to the
Trustee shall opine, that the Company qualifies as a partnership or
substantially similar pass-through entity for federal income tax purposes and
under similar laws of the states in respect of which such distributions are
being made and (B) at the time of such distributions, the most recent audited
financial statements of the Company provide that the Company was treated as a
partnership for federal income tax purposes for the period of such financial
statements. Distributions of Tax Amounts may be made between the tenth and
twentieth day of each January (provided that payments in respect of estimated
state or local taxes due in January may instead, at the option of the Company,
be paid during the last five days of the immediately preceding December),
April, June and September, based upon the minimum estimated tax payments in
respect of Tax Amounts which would then be due and payable, and during the
tenth through twentieth day of April or within ten days of the reconciliation
described in the immediately succeeding sentence, with respect to any
additional tax payments owing in respect of the prior fiscal year. Within
sixty days of the Company's filing of the Internal Revenue Service Form 1065
for the applicable tax year, a reconciliation shall be made of the Permitted
Tax Distributions actually paid versus the amount permitted to be paid as
Permitted Tax Distributions based upon the final results of the applicable tax
year. In addition, prior to any Permitted Tax Distributions, each Partner
shall have entered into a binding agreement promptly to reimburse the Company
for any positive difference between the distributed amount and the Tax Amount
as finally determined; provided, however, that, if the Partners of the Company
do not promptly reimburse the Company for any positive difference between the
distributed amount and the Tax Amount, then the Permitted Tax Distributions
during the year in which such reimbursement should have been made shall be
reduced by the unreimbursed amount until the Permitted Tax Distributions for
such year are zero and, thereafter, Permitted Tax Distributions shall be
reduced in the succeeding years until the unreimbursed amount not used to
reduce Permitted Tax Distributions is zero.
"Person" or "person" means any individual, corporation, limited or
general partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Plaza Associates" shall mean Trump Plaza Associates, a
Wholly-owned Subsidiary of the Company.
"Plaza Holding" shall mean Trump Plaza Holding, Inc., a Delaware
corporation.
20
"Pleasantville Warehouse" means that warehouse and office facility
owned by Taj associates and located on the premises known as Lot 15 Block 190
on the official tax maps of Pleasantville, New Jersey and Lot 9 Block 801 of
the official tax maps of the Township of Egg Harbor, New Jersey, containing
approximately 23,000 square feet of space.
"Pledge Agreements" means collectively the several pledge
agreements in favor of the Collateral Agent and the Company or any of its
Subsidiaries as the case may be which are required to be executed and delivered
under Section 5.22, substantially in the form of Exhibits F and G hereto, as
they may be amended or supplemented from time to time in accordance with the
terms thereof. Such pledge agreements shall be dated as of the Issue Date or
such subsequent date as such new pledge agreement may be entered into as
required from time to time in accordance with Section 5.22 of this Indenture,
and shall be executed in favor of the Collateral Agent.
"Principal" or "principal" of any Indebtedness (including the
Securities) means the principal of such Indebtedness plus any applicable
premium, if any, on such Indebtedness.
"Property" or "property" means any right or interest in or to
property or assets of any kind whatsoever, whether real, personal or mixed and
whether tangible, intangible, contingent, indirect or direct.
"Prospectus" shall refer to the prospectus, dated April ___, 1996,
in connection with the offering of the Securities, as the same may be amended
or supplemented prior to the Issue Date.
"Purchase Price" means any Change of Control Purchase Price or
Asset Sale Offer Price.
"Qualified Capital Stock" means any Equity Interest of the Company
that is not Disqualified Capital Stock.
"Qualified Exchange" means (a) any repurchase, redemption or other
acquisition or retirement of any shares of any class of Equity Interests of the
Company on or after the Issue Date in exchange for (including any such exchange
pursuant to the exercise of a conversion right or privilege in connection with
which cash is paid in lieu of the issuance of fractional shares, interests or
scrip), or out of the Net Cash Proceeds of a substantially concurrent issuance
and sale (other than to a Subsidiary of the Company) of, Qualified Capital
Stock of the Company; or (b) the redemption, repayment, defeasance, repurchase
or other acquisition or retirement for value of any Indebtedness of, or
guaranteed by, the Company on or after the Issue Date in exchange for, or out
of the Net Cash Proceeds of a substantially concurrent issuance and sale of,
Qualified Equity Interests of the Company.
"Realty Warehouse" means that warehouse facility owned by Taj
Associates located on the premises known as Lots 6, 22, 39, 58, 68, 85 in
Block 119 and Lots 23, 33, 44,
21
58, 65 and 66 in Block 120, on the official tax maps of Atlantic City, New
Jersey, containing approximately 34,500 square feet of space.
"Record Date" means a Record Date specified in the Securities
whether or not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and Paragraph 5 in the applicable form of Security.
"Redemption Price," when used with respect to any Security to be
redeemed, means the redemption price for such redemption set forth in Paragraph
5 in the applicable form of Security.
"Reference Period" with regard to any person means the four full
fiscal quarters (or such lesser period during which such person has been in
existence) ended immediately preceding any date upon which any determination is
to be made pursuant to the terms of the Securities or this Indenture.
"Refinancing Indebtedness" means the Indebtedness or Disqualified
Capital Stock issued in exchange for, or the proceeds from the issuance and
sale of which are used substantially concurrently to repay, redeem, defease,
refund, refinance, discharge or otherwise retire for value, in whole or in
part, or constituting an amendment, modification or supplement to, or a
deferral or renewal of (collectively, a "Refinancing"), any Indebtedness or
Disqualified Capital Stock in a principal amount or, in the case of
Disqualified Capital Stock, liquidation preference, not to exceed (after
deduction of reasonable and customary fees and expenses incurred in connection
with the Refinancing) the lesser of (i) the principal amount or, in the case of
Disqualified Capital Stock, liquidation preference, of the Indebtedness or
Disqualified Capital Stock so Refinanced and (ii) if such Indebtedness being
Refinanced was issued with an original issue discount, the accreted value
thereof (as determined in accordance with GAAP) at the time of such
Refinancing; provided, that (A) such Refinancing Indebtedness of any Subsidiary
shall only be used to Refinance outstanding Indebtedness or Disqualified
Capital Stock of such Subsidiary, (B) Refinancing Indebtedness shall (x) not
have an Average Life shorter than the Indebtedness or Disqualified Capital
Stock to be so refinanced at the time of such Refinancing and (y) in all
respects, be no less subordinated or junior, if applicable, to the rights of
Holders than was the Indebtedness or Disqualified Capital Stock to be so
refinanced, (C) such Refinancing Indebtedness shall be secured only by the
assets (if any) securing the Indebtedness to be so refinanced and (D) such
Refinancing Indebtedness shall have no installment of principal (or redemption
payment) scheduled to come due earlier than the scheduled maturity of the
corresponding installment of principal of the Indebtedness or Disqualified
Capital Stock to be so refinanced which was scheduled to come due prior to the
Stated Maturity.
22
"Refinancing Lien" shall have the meaning given to it in the
Mortgage.
"Registrar" shall have the meaning specified in Section 2.3.
"Related Business" means the business conducted (or proposed to be
conducted) by Plaza Associates or Taj Associates as of the Issue Date and any
and all businesses that in good faith judgment of the Board of Directors of
Funding are related businesses in Atlantic County, New Jersey or are related to
the Casino Hotels.
"Required Regulatory Redemption" means a redemption by the Issuers
of any Holder's Securities pursuant to, and in accordance with, any order of
any Governmental Authority with appropriate jurisdiction and authority relating
to a Gaming License, or to the extent necessary in the reasonable, good faith
judgment of the Issuers to prevent the loss, failure to obtain or material
impairment or to secure the reinstatement of, any material Gaming License,
where such redemption or acquisition is required because the Holder or
beneficial owner of such Security is required to be found suitable or to
otherwise qualify under any gaming laws and is not found suitable or so
qualified within a reasonable period of time.
"Restricted Funds Account" means a segregated bank account of the
Company or any of its Subsidiaries subject to the Lien of the Collateral Agent
under the Collateral Agency Agreement, the proceeds of which are invested in
cash or Cash Equivalents pending any use permitted by Section 5.15.
"Restricted Investment" means, in one or a series of related
transactions, any Investment, other than investments in Cash Equivalents.
"Restricted Payment" means, with respect to any person, (a) the
declaration or payment of any dividend or other distribution in respect of
Equity Interests of such person or any Subsidiary or parent of such person, (b)
any payment on account of the purchase, redemption or other acquisition or
retirement for value of Equity Interests of such person or any Subsidiary or
parent of such person, (c) any purchase, redemption, or other acquisition or
retirement for value of, any payment in respect of any amendment of the terms
of or any defeasance of, any Indebtedness of, or guaranteed by, such Person,
any parent of such Person or any Subsidiary prior to the scheduled maturity,
any scheduled repayment of principal, or scheduled sinking fund payment, as the
case may be, of such Indebtedness (including any payment in respect of any
amendment of the terms of any such Indebtedness, which amendment is sought in
connection with any such acquisition of such Indebtedness or seeks to shorten
any such due date), (d) in connection with the designation of a Person as an
Unrestricted Subsidiary, a Restricted Payment shall be deemed to exist in the
amount provided in the definition of Unrestricted Subsidiary contained herein
and (e) any Restricted Investment by such person; provided, that the term
"Restricted Payment" does not include (i) any dividend, distribution or other
payment on or with respect to Equity Interests of an issuer to the extent
payable solely in shares of Qualified Capital Stock of such issuer, or (ii) any
dividend, distribution or other payment to the Company or to any of its
Wholly-owned Subsidiaries or any Guarantor.
23
"SEC" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or if at any time after the
execution of this Indenture such SEC is not existing and performing the duties
now assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
"Securities" means the First Mortgage Notes due 2006, together with
the Guaranties thereof, as amended or modified from time to time in accordance
with the terms hereof, issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholder." See "Holder."
"Senior Notes" means the 15 1/2% Senior Secured Notes due 2005 of
THCR Holdings and Trump Hotels & Casino Resorts Funding, Inc.
"Services Fee" means, for any period, the amount of the fee payable
by Plaza Associates under the TPM Services Agreement for such period.
"Significant Subsidiary" shall have the meaning provided under
Regulation S-X of the Securities Act, as in effect on the Issue Date.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity" when used with respect to any Security means
April __, 2006 and when used with respect to any other Indebtedness means the
dates specified in such other Indebtedness as the fixed date on which the
principal of such Indebtedness is due and payable.
"Subsidiary" of any Person means (i) a corporation a majority of
whose Voting Stock is at the time, directly or indirectly, owned by such
Person, by such Person and one or more Subsidiaries of such Person or by one or
more Subsidiaries of such Person, (ii) any other Person (other than a
corporation) in which such Person, one or more Subsidiaries of such Person, or
such Person and one or more Subsidiaries of such Person, directly or
indirectly, at the date of determination thereof has a majority ownership
interest, or (iii) a partnership in which such Person or a Subsidiary of such
Person is, at the time, a general partner and has a majority ownership
interest. Notwithstanding the foregoing, no Unrestricted Subsidiary shall be
considered a Subsidiary of the Company or any of its other Subsidiaries for
purposes of the Securities and this Indenture. Unless the context otherwise
requires, all references herein to "Subsidiaries" shall be to the direct and
indirect to Subsidiaries of the Company for purposes of the Securities and this
Indenture.
"Super Puma Helicopter Lease" means that certain Aircraft Lease
Agreement, dated as of March 9, 1992, between The CIT/Group Equipment
Financing, Inc., as Lessor, and Trump Plaza Management Corp., as Lessee, as it
may be amended to modify the expiration date
24
to the end of the last renewal period currently contained therein, together
with all the obligations of the parties thereunder and related thereto.
"Superior Mortgages" shall have the meaning given to it in the
Mortgage.
"Taj Associates" means Trump Taj Mahal Associates, a Wholly-owned
Subsidiary of the Company.
"Tax Funding" means Trump Taj Mahal Funding, Inc., a Delaware
corporation.
"Tangible Personal Property" shall have the meaning given to it in
the Mortgage.
"Tax Amounts" with respect to any year means an amount no greater
than (a) the higher of (i) the product of (A) the taxable income of the Company
for such year as determined in good faith by the Board of Directors of Funding
and (B) the Tax Percentage and (ii) the product of (A) the alternative minimum
taxable income attributable to the Company for such year as determined in good
faith by the Board of Directors of Funding and (B) the Tax Percentage, reduced
by (b) to the extent not previously taken into account, any income tax benefit
attributable to the Company which could be realized (without regard to the
actual realization) by its Partners in the current or any prior taxable year,
or portion thereof, commencing on or after the Issue Date (including any tax
losses or tax credits), computed at the applicable Tax Percentage for the year
that such benefit is taken into account for purposes of this computation. Any
part of the Tax Amount not distributed in respect of a tax period for which it
is calculated shall be available for distribution in subsequent tax periods.
"Tax Percentage" means the highest, aggregate effective marginal
rate of federal, state and local income tax or, when applicable, alternative
minimum tax, to which any Partner of the Company would be subject in the
relevant year of determination (as certified to the Trustee by a nationally
recognized tax accounting firm); provided, however, that in no event shall the
Tax Percentage be greater than the sum of (x) the highest, aggregate effective
marginal rate of federal, state, and local income tax or, when applicable,
alternative minimum tax, to which the Company would have been subject if it
were a C corporation, for federal income tax purposes, and (y) 5 percentage
points. If any Partner or Upper Tier Owner of the Company is an S corporation,
partnership or similar pass-through entity for federal income tax purposes, the
Tax Percentage shall be computed based upon the tax rates applicable to the
shareholder or partner of such Partner or Upper Tier Owner, as the case may be.
"THCR" means Trump Hotels & Casino Resorts, Inc., a Delaware
corporation.
"THCR Holdings" means Trump Hotels & Casino Resorts Holdings, L.P.,
a Delaware limited partnership.
"TPM Services Agreement" means the Amended and Restated Services
Agreement, dated June 24, 1993, between Plaza Associates and Trump Plaza
Management Corp.
25
"Trump" means Donald J. Trump.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939, as amended.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust
department (or any successor group) of the Trustee including any vice
president, assistant vice president, secretary, assistant secretary or any
other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at that time shall be
such officers, and also means, with respect to a particular corporate trust
matter, any other officer of the corporate trust department (or any successor
group) of the Trustee to whom such trust matter is referred because of his
knowledge of and familiarity with the particular subject.
"TTMC" means The Trump Taj Mahal Corporation, a Wholly-owned
Subsidiary of the Company.
"Unrestricted Subsidiary" means any Subsidiary of the Company that,
at the time of determination, shall be an Unrestricted Subsidiary (as
designated by the Company, as provided below) provided that such Subsidiary
does not and shall not engage, to any substantial extent, in any line or lines
of business activity other than a Related Business. The Company may designate
any Person (other than Plaza Associates, Taj Associates, TTMC, Funding and any
direct or indirect holder of Equity Interest therein) to be an Unrestricted
Subsidiary if (a) no Default or Event of Default is existing or will occur as a
consequence thereof, (b) either (x) such Subsidiary, at the time of designation
thereof, has no assets, (y) such Subsidiary is designated an "Unrestricted
Subsidiary" at the time of Acquisition by the Company, in the case of
Subsidiaries acquired after the Issue Date or (z) immediately after giving
effect to such designation, on a pro forma basis, the Company could incur at
least $1.00 of additional Indebtedness pursuant to the Debt Incurrence Ratio in
paragraph (a) of Section 5.11, and (c) such Subsidiary does not own any Equity
Interests in, or own or hold any Lien on any property of, the Company or any
other Subsidiary (excluding other Unrestricted Subsidiaries). Any such
designation also constitutes a Restricted Payment in an amount equal to the sum
of (x) net assets of such Subsidiary at the time of the designation, unless in
the case of this clause (x) the designation is made pursuant to clause (b)(y)
of the first sentence of this definition, in which case the amount of
consideration paid by the Company and its Subsidiaries to effect such
Acquisition (excluding Qualified Equity Interests of THCR issued in connection
therewith) shall be the amount for purpose of this clause (x), and (y) the
maximum amount of Guaranteed Debt of the Company and its Subsidiaries in
respect of the designated Subsidiary which is to be outstanding immediately
after such designation, in each case for purposes of Section 5.3. Subject to
the foregoing, the Company may designate any Unrestricted Subsidiary to be a
Subsidiary, provided, that (i) no Default or Event of Default is existing or
will occur as a consequence thereof and (ii) immediately after giving effect to
such designation, on a pro forma basis, the Company could incur at least $1.00
of Indebtedness
26
pursuant to the Debt Incurrence Ratio test in paragraph (a) of Section 5.11.
Each such designation shall be evidenced by filing with the Trustee a certified
copy of the resolution giving effect to such designation and an officers'
certificate certifying that such designation complied with the foregoing
conditions.
"Upper Tier Owner" means (i) if a Partner is an S corporation,
partnership or similar pass-through entity for federal income tax purposes, any
shareholder or partner of such Partner and (ii) if any such shareholder or
partner referred to in (i) above is an S corporation, partnership or similar
pass-though entity for federal income tax purposes, any shareholder or partner
of such person.
"U.S. Government Obligations" means direct non-callable obligations
of, or noncallable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"U.S. Legal Tender" means such coin or currency of the United
States of America as at the time of payment is legal tender for the payment of
public and private debts.
"Voting Stock" with respect to any Person means all classes of
Equity Interests of such Person then outstanding and normally entitled to vote
in elections of directors of such Person.
"Wholly-owned Subsidiary" means a Subsidiary all the Equity
Interests of which are owned by the Company or another Wholly-owned Subsidiary
of the Company.
"Working Capital Facility" shall mean any credit facility available
to the Company or any of its Subsidiaries the proceeds of which are used for
working capital or other general corporate purposes.
SECTION 1.2 Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA, such
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
27
"obligor" on the indenture securities means the Issuers, each
Guarantor and any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein, have the meanings assigned to them thereby.
SECTION 1.3 Rules of Construction.
---------------------
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in
the plural include the singular;
(v) provisions apply to successive events and transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(vii) references to Sections or Articles means reference to
such Section or Article in this Indenture, unless stated otherwise.
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.
---------------
The Securities and the Trustee's certificate of authentication, in
respect thereof, shall be substantially in the form of Exhibit A hereto,
---------
and each First Mortgage Note shall be endorsed with the Guaranty substantially
in the form of Exhibit B hereto, each of which Exhibits is incorporated
---------
into and made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Issuers shall approve the form of the Securities and any notation, legend or
endorsement on them. Any such notations, legends or endorsements not contained
in the form of First Mortgage Note attached as
28
Exhibit A hereto or the form of Guaranty attached as Exhibit B hereto
---------
shall be delivered in writing to the Trustee. Each Security shall be dated the
date of its authentication.
The terms and provisions contained in the form of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Issuers, the Guarantors and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
SECTION 2.2 Execution and Authentication.
----------------------------
Two Authorized Representatives shall sign, or one Authorized
Representative shall sign and one Authorized Representative shall attest to,
the Securities for the Issuers by manual or facsimile signature. The Issuers'
seals shall be impressed, affixed, imprinted, or reproduced on the Securities
and may be in facsimile form.
If an Authorized Representative whose signature is on a Security
was an Authorized Representative at the time of such execution but no longer
holds that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless and the Issuers shall nevertheless be
bound by the terms of the Securities and this Indenture.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security, but
such signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of up to $1,100,000,000 upon a written order of the
Issuers in the form of an Officers' Certificate. The Officers' Certificate
shall specify the amount of Securities to be authenticated and the date on
which the Securities are to be authenticated. The aggregate principal amount
of Securities outstanding at any time may not exceed $1,100,000,000, except as
provided in Section 2.7. Upon the written order of the Issuers in the form of
an Officers' Certificate, the Trustee shall authenticate Securities in
substitution of Securities originally issued to reflect any name change of the
Issuers.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Issuers, any Affiliate of the Issuers
or any of their respective Subsidiaries.
Securities shall be issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof.
29
SECTION 2.3 Registrar and Paying Agent.
--------------------------
The Issuers shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or agency
in the Borough of Manhattan, The City of New York where Securities may be
presented for payment ("Paying Agent") and an office or agency where notices
and demands to or upon the Issuers in respect of the Securities may be served.
Unless a Default or Event of Default has occurred and is continuing, the
Issuers or any of their Subsidiaries may act as Registrar or Paying Agent,
except that, for the purposes of Articles III, IX, XI and Section 5.15 and as
otherwise specified in this Indenture, neither the Issuers, any Guarantor nor
any other obligor on the Securities nor any Affiliate of the Issuers, any
Guarantor or such other obligor shall act as Paying Agent. The Registrar shall
keep a register of the Securities and of their transfer and exchange. The
Issuers may have one or more co-Registrars and one or more additional Paying
Agents. The term "Paying Agent" includes any additional Paying Agent. The
Issuers hereby initially appoint the Trustee as Registrar and Paying Agent, and
the Trustee hereby initially agrees so to act until such time as the Trustee
has resigned or a successor has been appointed. The Company may change any
Registrar, Paying Agent or co-Registrar without notice to any Holder.
The Issuers shall enter into an appropriate written agency
agreement with any Agent not a party to this Indenture, which agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Issuers shall promptly notify the Trustee in writing of the name and address of
any such Agent. If the Issuers fail to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
SECTION 2.4 Paying Agent to Hold Assets in Trust.
------------------------------------
The Issuers shall require each Paying Agent other than the Trustee
to agree in writing that each Paying Agent shall hold in trust for the benefit
of Holders or the Trustee all assets held by the Paying Agent for the payment
of principal of, premium, if any, or interest on, the Securities (whether such
assets have been distributed to it by the Issuers, a Guarantor or any other
obligor on the Securities), and shall notify the Trustee in writing of any
Default by the Issuers, a Guarantor or any other obligor on the Securities in
making any such payment. If the Issuers, a Guarantor, any other obligor on the
Securities or a Subsidiary of the Issuers acts as Paying Agent, it shall
segregate such assets and hold them as a separate trust fund for the benefit of
the Holders or the Trustee. The Issuers at any time may require a Paying Agent
to distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have
been delivered by the Issuers or any Guarantor to the Paying Agent, the Paying
Agent (if other than the Issuers, a Guarantor or any other obligor on the
Securities) shall have no further liability for such assets.
30
SECTION 2.5 Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Issuers shall furnish to the
Trustee on or before the third Business Day preceding each Interest Payment
Date and at such other times as the Trustee may request in writing a list in
such form and as of such date as the Trustee reasonably may require of the
names and addresses of Holders. The Trustee, the Registrar and the Issuers
shall provide a current securityholder list to any Gaming Authority upon
demand.
SECTION 2.6 Transfer and Exchange.
---------------------
When Securities are presented to the Registrar or a co-Registrar
with a request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of other authorized
denominations, the Registrar or co-Registrar shall register the transfer or
make the exchange as requested if its reasonable requirements for such
transaction are met; provided, however, that the Securities surrendered for
transfer or exchange shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Issuers and the
Registrar or co-Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit registrations of transfers and
exchanges, the Issuers and the Guarantors shall execute and the Trustee shall
authenticate Securities at the Registrar's or co-Registrar's request. No
service charge shall be made for any registration of transfer or exchange, but
the Issuers may require payment of a sum sufficient to cover any transfer tax,
assessments, or similar governmental charge payable in connection therewith
(other than any such transfer taxes, assessments, or similar governmental
charge payable upon exchanges or transfers pursuant to Section 2.2, 2.10, 3.5,
5.15, 10.5, or 11.1). Except for a Required Regulatory Redemption pursuant to
Section 3.2 or an order of any Gaming Authority, the Registrar or co-Registrar
shall not be required to register the transfer of or exchange of (a) any
Security selected for redemption in whole or in part pursuant to Article Three,
except the unredeemed portion of any Security being redeemed in part, or (b)
any Security for a period beginning 15 Business Days before the mailing of a
notice of an offer to repurchase pursuant to Sections 5.15 or of a notice to
redeem Securities pursuant to Article III and ending at the close of business
on the day of such mailing.
SECTION 2.7 Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims and submits an affidavit or other evidence,
satisfactory to the Trustee, to the Trustee to the effect that the Security has
been lost, destroyed or wrongfully taken, the Issuers shall issue, the
Guarantors shall endorse, and the Trustee shall authenticate a replacement
Security if the Trustee's requirements are met. If required by the Trustee or
the Issuers, such Holder must provide an indemnity bond or other indemnity,
sufficient in the judgment of both the Issuers and the Trustee, to protect the
Issuers, the Guarantors, the Trustee or any Agent from any loss which any of
them may suffer if a Security is replaced. The Issuers may charge such Holder
for its reasonable, out-of-pocket expenses in replacing a Security.
31
Every replacement Security is an additional obligation of the
Issuers, and, to the extent of the Guaranty, the Guarantors.
SECTION 2.8 Outstanding Securities.
----------------------
Securities outstanding at any time are all the Securities that have
been authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section 2.8 as not
outstanding. A Security does not cease to be outstanding because an obligor or
an Affiliate of the Issuers holds the Security, except as provided in Section
2.9.
If a Security is replaced pursuant to Section 2.7 (other than a
mutilated Security surrendered for replacement), it ceases to be outstanding
unless the Trustee receives proof satisfactory to it that the replaced Security
is held by a bona fide purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof pursuant to
Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent
(other than the Issuers, the Guarantors (or any other obligor on the
Securities) or an Affiliate of the Issuers or any Guarantor (or such other
obligor)) holds U.S. Legal Tender or U.S. Government Obligations sufficient to
pay all of the principal and interest due on the Securities payable on that
date and payment of the Securities called for redemption is not otherwise
prohibited, then on and after that date such Securities cease to be outstanding
and interest on them ceases to accrue unless any such obligor defaults in its
obligations with respect thereto.
SECTION 2.9 Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount
of Securities have concurred in any direction, amendment, supplement, waiver or
consent, Securities owned by the Issuers, any Guarantor or any other obligor on
the Securities and Affiliates of the Issuers, shall be disregarded, except
that, for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, amendment, supplement, waiver or consent, only
Securities that the Trustee knows or has reason to know are so owned shall be
disregarded.
SECTION 2.10 Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Issuers may
prepare, the Guarantors shall endorse and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Issuers reasonably
and in good faith consider appropriate for temporary Securities. Without
unreasonable delay, the Issuers shall prepare, the Guarantors shall endorse and
the Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as permanent Securities
authenticated and delivered hereunder.
32
SECTION 2.11 Cancellation.
------------
The Issuers at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Issuers or any Guarantor (or any other obligor on the
Securities) or an Affiliate of the Issuers or any Guarantor (or such other
obligor)), and no one else, shall cancel and, at the written direction of the
Issuers, shall dispose of all Securities surrendered for transfer, exchange,
payment or cancellation. Subject to Section 2.7, the Issuers may not issue new
Securities to replace Securities they have paid or delivered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section 2.11, except as
expressly permitted in the form of Securities and as permitted by this
Indenture.
SECTION 2.12 Defaulted Interest.
------------------
If the Issuers default in a payment of interest on the Securities,
they shall pay the defaulted interest, plus (to the extent lawful) interest on
the defaulted interest, to the persons who are Holders on a Record Date (or at
the Issuers' option a subsequent special record date) which date shall be the
fifteenth day next preceding the date fixed by the Issuers for the payment of
defaulted interest, whether or not such day is a Business Day, unless the
Trustee fixes another record date. At least 15 days before the subsequent
special record date, the Issuers shall mail to each Holder with a copy to the
Trustee a notice that states the subsequent special record date, the payment
date and the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
ARTICLE III
REDEMPTION
SECTION 3.1 Right of Redemption.
-------------------
Redemption of Securities shall be made only in accordance with this
Article III. At their election, the Issuers may redeem the Securities in whole
or in part, at any time on or after April __, 2001, at the Redemption Prices
specified under the caption "Redemption" in the Form of Security attached as
Exhibit A hereto, plus accrued and unpaid interest to the applicable
- ---------
Redemption Date. Except as provided in this paragraph, Section 3.2 and
paragraph 5 of the Securities, the Securities may not otherwise be redeemed at
the option of the Issuers.
33
SECTION 3.2 Redemption Pursuant to Applicable Laws.
----
Notwithstanding the provisions of this Indenture, if the CCC does
not waive the qualification requirements as to any Securityholder (whether the
record owner or beneficial owner) and requires that such Securityholder be
qualified under the Casino Control Act, then, in such event, such
Securityholder must qualify under the Casino Control Act. If a Securityholder
does not so qualify, the Securityholder must dispose of its interest in the
Securities, within 30 days after the Issuers' receipt of notice of such finding
(or within such earlier date as the CCC may require), or the Issuers may redeem
such Securities in whole or in part, pursuant to, and in accordance with, a
Required Regulatory Redemption. Notwithstanding any other provision of this
Indenture, the Securities shall also be redeemable at any time pursuant to, and
in accordance with, a Required Regulatory Redemption. If the Issuers require
the redemption of any Security pursuant to this Section 3.2, then the
Redemption Price shall be the principal amount thereof, plus accrued and unpaid
interest to the Redemption Date (or such lesser amount as may be required by
applicable law or by order of any Gaming Authority). The Issuers shall tender
the Redemption Price, plus accrued and unpaid interest to the Redemption Date,
to the Trustee no less than 30 and no more than 60 days after the Issuers give
the Securityholder or owner of a beneficial or voting interest written notice
of redemption or such earlier date as may be required by applicable law. The
Issuers shall notify the Trustee of any disposition or redemption required
under this Section 3.2, and upon receipt of such notice, the Trustee shall not
accord any rights or privileges under this Indenture or any Security to any
Securityholder or owner of a beneficial or voting interest who is required to
dispose of any Security or tender it for redemption, except to pay the
Redemption Price, plus accrued and unpaid interest to the Redemption Date, upon
tender of such Security.
SECTION 3.3 Notices to Trustee.
------------------
If the Issuers elect to redeem Securities pursuant to Article III
(including, without limitation, Section 3.2), they shall notify the Trustee in
writing of the date on which the applicable Securities are to be redeemed
("Redemption Date") and the principal amount thereof to be redeemed and whether
they want the Trustee to give notice of redemption to the Holders.
The Company shall give each notice to the Trustee provided for in
this Section 3.3 at least 30 days before the Redemption Date (unless a shorter
notice shall be required by applicable law or by order of any Gaming
Authority). Any such notice may be cancelled at any time prior to notice of
such redemption being mailed to any Securityholder and shall thereby be void
and of no effect.
SECTION 3.4 Selection of Securities to Be Redeemed.
--------------------------------------
If less than all of the Securities are to be redeemed pursuant to
the first paragraph of Paragraph 5 thereof, the Trustee shall, if applicable,
select from among such Securities to be redeemed pro rata or by lot or by such
other method as the Trustee shall determine to be fair and appropriate and in
such manner as complies with any applicable legal and stock exchange
requirements.
34
The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption and shall promptly notify
the Issuers in writing of the Securities selected for redemption and, in the
case of any Security selected for partial redemption, the principal amount
thereof to be redeemed. Securities in denominations of $1,000 may be redeemed
only in whole. The Trustee may select for redemption portions (equal to $1,000
or any integral multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called
for redemption.
SECTION 3.5 Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before each Redemption
Date (unless another notice period shall be required by applicable laws or by
order of any Gaming Authority), the Issuers shall mail a notice of redemption
by first class mail, postage prepaid, to each Holder whose Securities are to be
redeemed (unless a shorter notice period shall be required by applicable law)
to such Holder's last address as then shown upon the First Mortgage Note
Register. At the Issuers' request, the Trustee shall give the notice of
redemption in the Issuers' name and at the Issuers' expense. Each notice for
redemption shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price, plus the amount of accrued and unpaid
interest to be paid upon such redemption;
(3) the name, address and telephone number of the Paying Agent;
(4) that Securities called for redemption must be surrendered to
the Paying Agent at the address specified in such notice to collect the
Redemption Price;
(5) that, unless (a) the Issuers default in their obligation to
deposit U.S. Legal Tender with the Paying Agent in accordance with Section 3.7
or (b) such redemption payment is prevented for any reason, interest on
Securities called for redemption ceases to accrue on and after the Redemption
Date and the only remaining right of the Holders of such Securities is to
receive payment of the Redemption Price, plus accrued and unpaid interest to
the Redemption Date, upon surrender to the Paying Agent of the Securities
called for redemption and to be redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount, equal to $1,000 or any integral multiple thereof, of such
Security to be redeemed and that, after the Redemption Date, and upon surrender
of such Security, a new Security or Securities in aggregate principal amount
equal to the unredeemed portion thereof will be issued;
35
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be
redeemed, as well as the aggregate principal amount of such Securities to be
redeemed;
(8) the CUSIP number of the Securities to be redeemed;
(9) in the case of a Required Regulatory Redemption, the
circumstances pursuant to which such Required Regulatory Redemption is being
effected; and
(10) that the notice is being sent pursuant to this Section 3.5
and pursuant to the redemption provisions of Paragraph 5 of the Securities.
SECTION 3.6 Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section 3.5,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price, plus accrued and unpaid interest to the Redemption
Date. Upon surrender to the Trustee or Paying Agent, such Securities called
for redemption shall be paid at the Redemption Price, plus accrued and unpaid
interest to the Redemption Date; provided that if the Redemption Date is after
a regular Record Date and on or prior to the corresponding Interest Payment
Date, the accrued interest constituting part of the Redemption Price shall be
payable to the Holder of the redeemed Securities registered on the relevant
Record Date; and provided, further, that if a Redemption Date is a Legal
Holiday, payment shall be made on the next succeeding Business Day and no
interest shall accrue for the period from such Redemption Date to such
succeeding Business Day.
SECTION 3.7 Deposit of Redemption Price.
---------------------------
On or before the Redemption Date, the Issuers shall deposit with
the Paying Agent (other than the Issuers, any of the Guarantors (or any other
obligor on the Securities) or an Affiliate of the Issuers, or any of the
Guarantors or any other obligor on the Securities) U.S. Legal Tender sufficient
to pay the Redemption Price, plus accrued and unpaid interest to the Redemption
Date, of all Securities to be redeemed on such Redemption Date (other than
Securities or portions thereof called for redemption on that date that have
been delivered by the Company to the Trustee for cancellation). The Paying
Agent shall promptly return to the Issuers any U.S. Legal Tender so deposited
which is not required for that purpose upon the written request of the Issuers.
If the Issuers comply with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not prevented for any reason, interest on the Securities to be
redeemed will cease to accrue on the applicable Redemption Date, whether or not
such Securities are presented for payment. Notwithstanding anything herein to
the contrary, if any Security surrendered for redemption in the manner provided
in the Securities shall not be so paid upon surrender for redemption because of
the failure of the Issuers to comply with the preceding paragraph and the other
provisions of this Article III, interest shall
36
continue to accrue and be paid from and including the Redemption Date until
such payment is made on the unpaid principal, and, to the extent lawful, on any
interest not paid on such unpaid principal, in each case at the rate and in the
manner provided in Section 5.1 hereof and the Securities.
SECTION 3.8 Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is to be redeemed in part, the
Issuers shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge, a new Security or Securities equal in principal
amount to the unredeemed portion of the Security surrendered.
37
ARTICLE IV
SECURITY
SECTION 4.1 Security Interest.
-----------------
(a) In order to secure the prompt and complete payment and
performance in full of the Indenture Obligations, the Issuers, the Guarantors,
the Trustee and the Collateral Agent have entered into this Indenture and the
Mortgage Documents, as applicable, required to be entered into on the Issue
Date. Each Holder, by accepting a Security, agrees to all of the terms and
provisions of this Indenture and the Mortgage Documents, and the Trustee and
the Collateral Agent agree to all of the terms and provisions of this Indenture
and the Mortgage Documents, as applicable, as this Indenture and the Mortgage
Documents may be amended from time to time pursuant to the provisions thereof
and hereof.
(b) Subject to the terms of the Collateral Agency
Agreement, the Collateral as now or hereafter constituted shall be held for the
equal and ratable benefit of the Holders without preference, priority or
distinction of any thereof over any other by reason of difference in time of
issuance, sale or otherwise, as the only security for the Indenture Obligations
and other obligors secured thereby pursuant to the Collateral Agency Agreement.
The Collateral is to be held by the Collateral Agent for the equal and ratable
benefit of the Holders, subject to the terms of the Collateral Agency Agreement.
(c) The provisions of TIA Section 314(d), and the provisions
of TIA Section 314(c)(3) to the extent applicable by specific reference in this
Article IV, are hereby incorporated by reference herein as if set forth in their
entirety, except that, as set forth in Section 4.4, TIA Section 314(d) need not
be complied with in certain respects.
SECTION 4.2 Recording; Opinions of Counsel.
------------------------------
(a) Each of the Issuers warrants and represents that it has
caused to be executed and delivered, filed and recorded and covenants that it
will promptly cause to be executed and delivered, filed and recorded, all
instruments and documents, and has done and will do or will cause to be done
all such acts and other things, at the Issuers' expense, as are necessary to
effect and maintain valid and perfected security interests in the Collateral.
Each of the Issuers shall, as promptly as practicable, cause to be executed and
delivered, filed and recorded all instruments and do all acts and other things
as may be required by law to perfect, maintain and protect the Liens under the
Mortgage Documents, the Collateral Agency Agreement and herein. Each of the
Guarantors warrants and represents that it has caused to be executed and
delivered, filed and recorded and covenants that it will promptly cause to be
executed and delivered, filed and recorded, all instruments and documents, and
has done and will do or will cause to be done all such acts and other things,
at such Guarantor's expense, as are necessary to effect and maintain valid and
perfected Liens in the Collateral. Each of the Guarantors shall, as promptly
as practicable, cause to be executed and delivered, filed and recorded all
instruments
38
and do all acts and other things as may be required by law to perfect, maintain
and protect the security interests under the Mortgage Documents and herein.
(b) The Issuers shall furnish to the Trustee and the
Collateral Agent, concurrently with the execution and delivery of this
Indenture and the Mortgage Documents and promptly after the execution and
delivery of any amendment thereto or any other instrument of further assurance,
an Opinion(s) of Counsel stating that, in the opinion of such counsel, subject
to customary exclusions and exceptions reasonably acceptable to the Trustee and
the Collateral Agent, either (i) this Indenture, the Mortgage Documents, any
such amendment and all other instruments of further assurance have been
properly recorded, registered and filed and all such other action has been
taken to the extent necessary to make effective such valid Liens and to perfect
such Liens intended to be created by this Indenture, the Mortgage Documents and
the Collateral Agency Agreement, and reciting the details of such action, or
(ii) no such action is necessary to effect and maintain in full force and
effect the validity and perfection of the Liens under the Mortgage Documents,
the Collateral Agency Agreement and hereunder.
(c) The Issuers shall furnish to the Trustee, on or prior
to April __, of each year commencing in 1997, an Opinion(s) of Counsel, dated
as of such date, stating that, in the opinion of such counsel, subject to
customary exclusions and exceptions reasonably acceptable to the Trustee,
either (A) all such action has been taken with respect to the recording,
registering, filing, rerecording and refiling of the Mortgage Documents,
financing statements, continuation statements and all other instruments of
further assurance as is necessary to maintain the validity and perfection of
Liens under the Mortgage Documents, the Collateral Agency Agreement and
hereunder in full force and effect and reciting the details of such action, and
stating that all financing statements and continuation statements have been
executed and filed and such other actions taken that are necessary fully to
preserve and protect the rights of the Holders and the Trustee hereunder and
under the Mortgage Documents and the Collateral Agency Agreement, or (B) no
such action is necessary to maintain in full force and effect the validity and
perfection of the Liens under the Mortgage Documents and hereunder.
SECTION 4.3 Disposition of Certain Collateral.
---------------------------------
(a) Unless an Event of Default shall have occurred, the
Company and its Subsidiaries may, without requesting the release or consent of
the Trustee and the Collateral Agent, but otherwise subject to the requirements
of this Indenture and the Mortgage Documents:
(i) in the ordinary course of business for the casino industry,
convey, sell, lease, transfer, assign, or otherwise dispose of, free from the
Liens under the Mortgage Documents and hereunder, assets acquired and held for
resale in the ordinary course of business;
(ii) other than a Casino Sale, convey, sell, lease, transfer or
otherwise dispose of, free from the Liens under the Mortgage Documents and
hereunder, assets pursuant to and in accordance with Section 6.1 of this
Indenture;
39
(iii) convey, sell, lease, transfer, assign or otherwise dispose
of, free from the Liens under the Mortgage Documents and hereunder, three
warehouses and related facilities (the Egg Harbor Parcel, the Pleasantville
Warehouse and the Realty Warehouse) in exchange for any type of consideration
so long as the Company determines in good faith that the Company or such
Subsidiary, as applicable, receives fair market value;
(iv) convey, sell, transfer, assign or otherwise dispose of assets
to the Company or any Wholly-owned Subsidiaries of the Company so long as they
continue to be subject to a Lien under the Mortgage Documents; and
(v) subject to the provisions of the Mortgage Documents pertaining
to disposal of real property, sell, assign, transfer, license or otherwise
dispose of, free from the Liens under the Mortgage Documents and hereunder, any
assets or property in accordance with Section 5.15 (including, without
limitation, pursuant to Section 5.15(a)); provided that the proceeds
--------
of such sale, assignment, transfer, license or other disposition are applied in
the manner set forth in Section 5.15.
(vi) sell or dispose of, free from the Liens under the Mortgage
Documents, any Tangible Personal Property which, in the Company's reasonable
opinion, may have become obsolete or unfit for use or which is no longer
necessary in the conduct of its businesses, and no purchaser of any such
property shall be bound to inquire into any question affecting the Company's or
any of its Subsidiaries' rights to sell or otherwise dispose of the same free
from the Liens under the Mortgage Documents;
(vii) alter, repair, replace, change shall the location or
position of and add to any Tangible Personal Property; provided,
--------
however, that no change shall be made in the location of any such property
- -------
subject to the Liens under the Mortgage Documents which would in any respect
impair the security of the Liens under the Mortgage Documents upon such
property; or
(viii) renew, extend, surrender, terminate, modify or amend any
leases of Tangible Personal Property, when, in the Company's or any of its
Subsidiaries' reasonable opinion, it is prudent to do so.
Notwithstanding the provisions of subsection (a) above, the Net
Cash Proceeds from any disposition described in clauses (i) through (viii)
above shall be held in a Restricted Funds Account, pending application in
accordance with Section 5.15.
(b) Notwithstanding the provisions of subsection (a) above,
the Issuers shall not dispose of or transfer (by lease, assignment, license,
sale or otherwise) or pledge, mortgage or otherwise encumber Collateral
pursuant to the provisions of Section 4.3(a) with a fair value of 10% or more
of the aggregate fair value of all Collateral then existing in any calendar
year.
(c) In the event that the Issuers or any Guarantor have
sold, exchanged, or otherwise disposed of or propose to sell, exchange or
otherwise dispose of any
40
portion of the Collateral which under the provisions of this Section 4.3 may be
sold, exchanged or otherwise disposed of by the Issuers or any Guarantor
without consent of the Trustee and the Collateral Agent, and the Issuers
request the Trustee and the Collateral Agent to furnish a written disclaimer,
release or quitclaim of any interest in such property under the Mortgage
Documents, the Trustee and the Collateral Agent shall execute such an
instrument prepared by the Issuers or a Guarantor, upon delivery to the Trustee
and the Collateral Agent of an Officers' Certificate by the Issuers reciting
the sale, exchange or other disposition made or proposed to be made and
describing in reasonable detail the property affected thereby, and certifying
that such property is property which by the provisions of this Section 4.3 may
be sold, exchanged or otherwise disposed of or dealt with by the Issuers or the
Guarantors without any release or consent of the Trustee and the Collateral
Agent or the Holders; provided, that the Trustee and the Collateral Agent
--------
shall have no liability thereunder (except for its gross negligence or willful
misconduct) and all costs and expenses (including, without limitation,
reasonable attorneys' fees and disbursements) shall be paid by the Company.
The Trustee and the Collateral Agent shall be authorized to conclusively rely
on such certification.
(d) Any disposition of Collateral made in compliance with
the provisions of this Section 4.3 shall be deemed not to impair the Liens
under the Mortgage Documents and hereunder in contravention of the provisions
of this Indenture.
SECTION 4.4 Certain Releases of Collateral.
------------------------------
Subject to applicable law, the release of any Collateral from Liens
created by the Mortgage Documents or the release of, in whole or in part, the
Liens created by the Mortgage Documents, will not be deemed to impair the
Mortgage Documents in contravention of the provisions of this Indenture if and
to the extent the Collateral or Liens are released pursuant to, and in
accordance with, the applicable Mortgage Documents and pursuant to, and in
accordance with, the terms hereof. To the extent applicable, without
limitation, the Issuers, each Guarantor and each other obligor, if any, on the
Securities shall cause TIA Section 314(d), relating to the release of property
or securities from the Liens of the Mortgage Documents, to be complied with. Any
certificate or opinion required by TIA Section 314(d) may be made by two
Authorized Representatives, except in cases in which TIA Section 314(d) requires
that such certificate or opinion be made by an independent person. The Issuers
shall not be required under this Indenture to deliver to the Trustee any
certificates or opinions required to be delivered pursuant to Section 314(d) of
the TIA in connection with releases of Collateral in accordance with Section
4.3(a) (ii) hereunder, unless TIA Section 314(d) would require such certificate
or opinion to be made by an independent person.
SECTION 4.5 Payment of Expenses.
-------------------
On demand of the Trustee, the Issuers forthwith shall pay or
satisfactorily provide for all reasonable expenditures incurred by the Trustee
under this Article IV, including the reasonable fees and expenses of counsel
and all such sums shall be a Lien upon the Collateral and shall be secured
thereby.
41
SECTION 4.6 Suits to Protect the Collateral.
-------------------------------
Subject to Section 4.1 of this Indenture and to the provisions of
the Mortgage Documents, the Trustee or the Collateral Agent shall have power to
institute and to maintain such suits and proceedings as it may deem expedient
to prevent any impairment of the Collateral by any acts which may be unlawful
or in violation of the Mortgage Documents or this Indenture, including the
power to institute and maintain suits or proceedings to restrain the
enforcement of or compliance with any legislative or other governmental
enactment, rule or order that may be unconstitutional or otherwise invalid or
if the enforcement of, or compliance with, such enactment, rule or order would
impair the security interests in contravention of this Indenture or be
prejudicial to the interests of the Holders, the Trustee or the Collateral
Agent. The Trustee shall give notice to the Issuers promptly following the
institution of any such suit or proceeding.
SECTION 4.7 Trustee's Duties.
----------------
The powers and duties conferred upon the Trustee by this Article IV
are solely to protect the Liens and shall not impose any duty upon the Trustee
to exercise any such powers and duties, except as expressly provided in this
Indenture, the Mortgage Documents or the TIA. The Trustee shall not be under
any duty to the Issuers or any Guarantor whatsoever to make or give any
presentment, demand for performance, notice of nonperformance, protest, notice
of protest, notice of dishonor, or other notice or demand in connection with
any Collateral, or to take any steps necessary to preserve any rights against
prior parties except as expressly provided in this Indenture or the Mortgage
Documents. The Trustee shall not be liable to the Issuers or any Guarantor for
failure to collect or realize upon any or all of the Collateral, or for any
delay in so doing, nor shall the Trustee be under any duty to the Issuers or
any Guarantor to take any action whatsoever with regard thereto. The Trustee
shall have no duty to the Issuers or any Guarantor to comply with any
recording, filing, or other legal requirements necessary to establish or
maintain the validity, priority or enforceability of the security interests in,
or the Trustee's rights in or to, any of the Collateral.
SECTION 4.9 Restricted Funds Account.
------------------------
(a) The Company or any of its Subsidiaries shall maintain
and establish a Restricted Funds Account, which, subject to the terms of the
Collateral Agency Agreement, shall hold Cash Collateral for the equal and
ratable benefit of the Holders without preference, priority or distinction of
any thereof over any other by reason of difference in time of issuance, sale or
otherwise, as security for the Indenture Obligations and other obligors secured
thereby pursuant to the Collateral Agency Agreement. Upon delivery of an
Officers' Certificate from the Company or any of its Subsidiaries notifying the
Trustee and the Collateral Agent of the release of funds from the Restricted
Funds Account and certifying that such funds will be used in compliance with
Section 5.15 within the time provided by Section 5.15, but not later than 5
Business Days after the transfer of such funds, the Company or its Subsidiary,
as the case may be, may transfer such funds from the Restricted Funds Account.
42
(b) The Issuers and the Guarantors hereby grant a first
priority security interest to the Collateral Agent in all of its right, title
and interest in the Restricted Funds Account and all sums of money, from any
source whatsoever, now or hereafter transferred to and comprising the
Restricted Funds Account, including, without limitation, all proceeds of the
Collateral paid into the Restricted Funds Account, and any and all interest and
dividends or other income derived from any such moneys, and all statements,
certificates and instruments in or representing the Restricted Funds Account.
(c) The Issuers or any Guarantor may invest Cash Collateral
in the Restricted Funds Account only in Cash Equivalents. Interest and other
amounts earned on such Cash Collateral shall be held by the Collateral Agent in
the Restricted Funds Account as additional Collateral.
ARTICLE V
COVENANTS
SECTION 5.1 Payment of Securities.
---------------------
The Issuers shall pay the principal of and interest on the
Securities on the dates and in the manner provided in the Securities and this
Indenture. An installment of principal of or interest on the Securities shall
be considered paid on the date it is due if the Trustee or Paying Agent (other
than the Issuers, any of the Guarantors (or any other obligor on the
Securities) or an Affiliate of either of the Issuers or any of the Guarantors
(or such other obligor)) holds for the benefit of the Holders, on or before
10:00 a.m. New York City time on that date, U.S. Legal Tender deposited and
designated for and sufficient to pay the installment.
The Issuers shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities compounded
semi-annually, to the extent lawful.
SECTION 5.2 Maintenance of Office or Agency.
-------------------------------
The Issuers shall maintain in the Borough of Manhattan, The City of
New York, an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Issuers in respect of
the Securities and this Indenture may be served. No service charge will be
made for any registration of transfer, exchange or redemption of Securities,
but the Issuers may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith. The Issuers shall
give prompt written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the Issuers shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in
Section 12.2.
43
The Issuers may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Issuers of their obligation to maintain an office or agency in the
Borough of Manhattan, The City of New York, for such purposes. The Issuers
shall give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or
agency. The Issuers hereby initially designate the Corporate Trust Office of
the Trustee as such office.
SECTION 5.3 Limitation on Restricted Payments.
---------------------------------
The Company will not, and will not permit any of its Subsidiaries
to, directly or indirectly, make any Restricted Payment if, after giving effect
to such Restricted Payment on a pro forma basis, (1) a Default or an Event of
Default shall have occurred and be continuing, (2) the Company is not permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Debt
Incurrence Ratio in paragraph (a) of Section 5.11, or (3) the aggregate amount
of all Restricted Payments made by the Company and its Subsidiaries, including
after giving effect to such proposed Restricted Payment, from and after the
Issue Date, would exceed the sum of (a) 50% of the aggregate Consolidated Net
Income of the Company and its Consolidated Subsidiaries for the period (taken
as one accounting period) commencing on the first day of the first fiscal
quarter commencing prior to the Issue Date, to and including the last day of
the fiscal quarter ended immediately prior to the date of each such calculation
(or, in the event Consolidated Net Income for such period is a deficit, then
minus 100% of such deficit), plus (b) the aggregate Net Cash Proceeds received
by the Company after the Issue Date and on or prior to the date of such
proposed Restricted Payment from (i) the sale of its Qualified Equity Interests
(other than (x) to a Subsidiary of the Company, (y) to the extent applied in
connection with a Qualified Exchange and (z) in connection with the equity
offering by THCR concurrent with the issuance of the Securities, including any
exercise of the underwriters' overallotment option, except for funds in excess
of $ million [to be calculated as the amount necessary to fund the
------
Company's and its Subsidiaries' proceeds uses described in the Prospectus plus
$71 million] or (ii) other Capital Contributions.
The foregoing clauses (2) and (3) of the immediately preceding
paragraph, however, will not prohibit (v) (I) distributions by the Company
pursuant to the terms of the Partnership Agreement as in effect on the Issue
Date to THCR Holdings to the extent promptly distributed to and/or applied by
THCR Holdings or THCR (A) to pay reasonable general and administrative expenses
of such persons, including directors' fees and premiums for directors' and
officers' liability insurance, which distributions shall not exceed $10.0
million in any consecutive four-quarter period, (B) to make indemnification
payments as required by the Certificate of Incorporation of THCR as in effect
on the Issue Date or (C) to effect redemption of any Equity Interest of THCR if
(x) counsel to THCR delivers an opinion that failure to so redeem would subject
THCR to an adverse action by a Gaming Authority (or, if applicable, a failure
to act by a Gaming Authority that is adverse to THCR) and (y) THCR determines
(as evidenced by a resolution of its Board of Directors delivered to the
Trustee) that such adverse action (or, if applicable, such failure to act)
would be likely to have a material adverse effect on
44
THCR, and (II) distributions by the Company to THCR Holdings to the extent
promptly distributed to and applied by THCR to pay any tax liability resulting
from the distributions provided for in (I) above, as required by the
Partnership Agreement, (w) distributions by the Company to THCR Holdings in an
amount not to exceed $50.0 million in the aggregate to the extent applied by
THCR Holdings, within 20 Business Days of receiving such distribution, to the
next scheduled interest payment on the Senior Notes or any Refinancing
Indebtedness with respect thereto (provided, that solely in the case of this
clause (w), clause (1) of the immediately preceding paragraph will not prohibit
a distribution hereunder except in the case of an Event of Default under clause
(a) or (b) of Section 7.1 hereof), (x) a Qualified Exchange, (y) for so long as
the Company is a partnership or substantially similar pass-through entity for
Federal income tax purposes, cash distributions made by the Company to its
Partners from time to time in amounts not to exceed the Permitted Tax
Distributions, so long as the payments are made at the time permitted by the
second sentence of the definition of Permitted Tax Distributions contained
herein, or (z) the payment of any dividend within 60 days after the date of its
declaration if such dividend could have been made on the date of such
declaration in compliance with the foregoing provisions. In addition, the
immediately preceding paragraph will not prohibit the purchase by the Company
of Indebtedness incurred pursuant to clause (c) of Section 5.11 substantially
concurrently with a purchase by the Company of Securities pursuant to a Change
of Control Offer or an Asset Sale Offer, provided, that (i) in the case of a
purchase pursuant to an Asset Sale Offer, such purchase of Securities
represents a pro rata application of the Asset Sale Offer Amount to the
Securities and such other Indebtedness, based upon the aggregate principal
amount then outstanding, and (ii) the terms of such other Indebtedness do not
restrict such purchase of the Securities pursuant to a Change of Control Offer
or an Asset Sale Offer. The full amount of any Restricted Payment made
pursuant to the foregoing clauses (v), (w), (y) and (z) of the second preceding
sentence (but not pursuant to the immediately preceding sentence or to clause
(x) of the second preceding sentence), however, will be deducted in the
calculation of the aggregate amount of Restricted Payments available to be made
referred to in clause (3) of the immediately preceding paragraph.
SECTION 5.4 Corporate and Partnership Existence.
-----------------------------------
Subject to Article VI, each of the Issuers shall do or cause to be
done all things necessary to preserve and keep in full force and effect their
corporate or partnership existence, as the case may be, and the corporate or
other existence of each of their Subsidiaries in accordance with the respective
organizational documents of each of them and the rights (charter and statutory)
and corporate or partnership franchises of the Issuers and each of their
Subsidiaries; provided, however, that neither of the Issuers shall be required
to preserve, with respect to itself or any of its Subsidiaries, any right or
franchise if (a) the Board of Directors of Funding shall determine reasonably
and in good faith that the preservation thereof is no longer desirable in the
conduct of the business of the Issuers and (b) the loss thereof is not
disadvantageous in any material respect to the Holders; and provided further,
that the Company may change from a partnership to a corporation, in which case
it must thereafter maintain its corporate existence in accordance with this
Section 5.4; and provided further, that Trump Taj Mahal Funding, Inc. shall
conduct no business, receive no Investment from the Issuers or any of their
Subsidiaries and be
45
dissolved pursuant to [New Jersey Certificate of Dissolution/expand] within
_____ days of the Issue Date or shall immediately thereafter become a
Guarantor.
SECTION 5.5 Payment of Taxes and Other Claims.
---------------------------------
Each of the Issuers shall, and shall cause each of their
Subsidiaries to, pay or discharge or cause to be paid or discharged, before the
same shall become delinquent, (i) all taxes, assessments and governmental
charges (including withholding taxes and any penalties, interest and additions
to taxes) levied or imposed upon either of the Issuers or any of their
Subsidiaries or properties and assets of the Issuers or any of their
Subsidiaries and (ii) all lawful claims, whether for labor, materials,
supplies, services or anything else, which have become due and payable and
which by law have or may become a Lien upon the property and assets of either
of the Issuers or any of their Subsidiaries; provided, however, that the
Issuers or their subsidiaries shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by
appropriate proceedings and for which disputed amounts adequate reserves have
been established in accordance with GAAP.
SECTION 5.6 Maintenance of Insurance.
------------------------
The Company will, and will cause its Subsidiaries to, (a) obtain,
prior to the Issue Date, mortgagee title insurance policies insuring a first
mortgage lien on the real estate portion of the Collateral, as constituted on
the Issue Date, subject to certain exceptions, in an amount not less than
[$1,225,000,000] and (b) from and at all times after the Issue Date until the
Securities have been paid in full, have and maintain in effect insurance with
responsible carriers against such risks and in such amounts as is customarily
carried by similar businesses with such deductibles, retentions, self insured
amounts and coinsurance provisions as are customarily carried by similar
businesses of similar size, including, without limitation, property and
casualty, and, with respect to insurance on the Collateral, shall have provided
insurance certificates evidencing such insurance to the Collateral Agent prior
to the Issue Date and shall thereafter provide such certificates prior to the
anniversary or renewal date of each such policy referred to in this clause (b),
which certificate shall expressly state the expiration date for each policy
listed. All insurance with respect to the Collateral required under the
Indenture (except worker's compensation) shall name the Issuers, Taj
Associates, Plaza Associates and the Collateral Agent as additional insureds or
loss payees, as the case may be, with losses in excess of $10.0 million payable
jointly to the Issuers, Taj Associates, Plaza Associates and the Collateral
Agent (unless a Default or Event of Default has occurred and is then
continuing, in which case all losses are payable solely to the Collateral
Agent), with no recourse against the Collateral Agent for the payment of
premiums, deductibles, commissions or club calls, and for at least 30 days
notice of cancellation. All such insurance policies will be issued by carriers
having an A.M. Best & Company, Inc. rating of A- or higher and a financial size
category of not less than X, or if such carrier is not rated by A.M. Best &
Company, Inc., having the financial stability and size deemed appropriate by an
opinion from a reputable insurance broker.
46
SECTION 5.7 Compliance Certificate; Notice of Default.
-----------------------------------------
(a) The Issuers shall deliver to the Trustee, within 120
days after the end of each of their fiscal years, an Officers' Certificate
complying (whether or not required) with Section 314(a)(4) of the TIA and
stating that a review of their activities and the activities of their
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Authorized Representatives with a view to
determining whether each of the Issuers has kept, observed, performed and
fulfilled its obligations under this Indenture and the Mortgage Documents and
further stating, as to each such Authorized Representative signing such
certificate, whether or not the signer knows of any failure by either of the
Issuers or any Subsidiary of either of the Issuers to comply with any
conditions or covenants in this Indenture and, if such signer does know of such
a failure to comply, the certificate shall describe such failure with
particularity. The Officers' Certificate shall also notify the Trustee should
the relevant fiscal year end on any date other than the current fiscal year end
date.
(b) So long as not contrary to the then current
recommendation of the American Institute of Certified Public Accountants, the
Issuers shall deliver to the Trustee within 120 days after the end of each of
their fiscal years a written report of a firm of independent certified public
accountants with an established national reputation stating that in conducting
their audit for such fiscal year, nothing has come to their attention that
caused them to believe that either of the Issuers or any Subsidiary of either
of the Issuers was not in compliance with the provisions set forth in Section
5.3, 5.11, 5.15, 5.19, or 5.20 of this Indenture or any of the provisions of
the Mortgage Documents.
(c) Each of the Issuers shall, so long as any of the
Securities are outstanding, deliver to the Trustee, immediately upon becoming
aware of any Default or Event of Default under this Indenture, an Officers'
Certificate specifying such Default or Event of Default and what action the
Issuers are taking or propose to take with respect thereto. The Trustee shall
not be deemed to have knowledge of a Default or an Event of Default unless one
of its trust officers receives notice of the Default or Event of Default giving
rise thereto from either of the Issuers or any of the Holders.
SECTION 5.8 Provision of Financial Statements.
---------------------------------
Whether or not either of the Issuers is subject to Section 13(a) or
15(d) of the Exchange Act, each such Person will file with the SEC the annual
reports, quarterly reports and other documents which each such Person would
have been required to file with the SEC (to the extent permitted by applicable
law) pursuant to such Section 13(a) or 15(d) if such Person were so subject,
such documents to be filed with the SEC on or prior to the respective dates
(the "Required Filing Dates") by which such Person would have been required so
to file such documents if such Person were so subject. Each such Person will
also in any event within 15 days of each Required Filing Date (i) transmit by
mail to all Holders, as their names and addresses appear in the First Mortgage
Note Register, without cost to such Holders and (ii) file with the Trustee
copies of the annual reports, quarterly reports and other documents which each
such Person would have been required to file with the SEC pursuant to Section
13(a) or 15(d) of
47
the Exchange Act if such Person were subject to such Sections, together with
supplemental information in respect of summary financial data for each of the
Casino Hotels at the Issuers' cost. Notwithstanding anything contrary herein
the Trustee shall have no duty to review such documents for purposes of
determining compliance with any provisions of this Indenture.
SECTION 5.9 Waiver of Stay, Extension or Usury Laws.
---------------------------------------
Each of the Issuers and each of the Guarantors covenant (to the
extent that it may lawfully do so) that it will not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law wherever enacted which
would prohibit or forgive either of the Issuers or any Guarantor from paying
all or any portion of the principal of or interest on the Securities as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or which may affect the covenants or the performance of this Indenture; and (to
the extent that they may lawfully do so) each of the Issuers or any Guarantor
hereby expressly waives all benefit or advantage of any such law insofar as
such law applies to the Securities, and covenants that it shall not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
SECTION 5.10 Limitation on Transactions with Affiliates.
------------------------------------------
The Company will not, nor will any of the Subsidiaries be permitted
to, directly or indirectly, enter into or suffer to exist any contract,
arrangement, understanding or transaction or series of related transactions
(including, without limitation, the sale, purchase, exchange or lease of
assets, property or services) with any Affiliate of the Company (other than a
Wholly-owned Subsidiary) unless (a) such transaction or series of related
transactions is on terms that are no less favorable to the Company or such
Subsidiary, as the case may be, than would be available at the time of such
transaction or transactions in a comparable transaction in arm's-length
dealings with an unaffiliated third party and, with respect to a transaction or
series of related transactions involving aggregate payments equal to or greater
than (x) $2.0 million, such transaction or series of related transactions is
approved by a majority of the Independent Directors of the Board of Directors
of Funding, or (y) $10.0 million, prior to the consummation of such transaction
or series of related transactions, the Company also obtains a written favorable
opinion as to the fairness thereof to the Company from a financial point of
view from an independent investment banking firm of national reputation, and
(b) the Company delivers an Officers' Certificate to the Trustee certifying
that such transaction or transactions comply with clause (a) above. The
foregoing restriction will not apply to (1) pro rata dividends or distributions
paid in cash of any class of Equity Interests and not prohibited under Section
5.3, (2) the Partnership Agreement as in effect on the Issue Date, (3) the
Affiliated Ground Leases as in effect on the Issue Date or the exercise of the
option pursuant to the TSA Lease, or (4) the following existing arrangements as
in effect on the Issue Date: (i) the assumption by the Company or one of its
Subsidiaries of the Super Puma Helicopter Lease in connection with the transfer
of the stock of Trump Plaza Management to THCR Holdings, (ii) the TPM Services
Agreement, (iii) the provision of legal services by John Barry of Barry &
McMoran to the Company or its Subsidiaries, (iv) a lease between Taj Associates
and The Trump Equitable Fifth
48
Avenue Company dated as of renewed for a period of five years on September 1,
1995 for the lease of office space in the Trump Tower in New York City, (v)
employment agreements between Nicholas Ribis and each of Taj Associates and
Plaza Associates dated September 25, 1993 and June 12, 1995, respectively, (vi)
the purchase of joint property insurance coverage with Trump Castle Associates
upon reasonable market terms consistent with past practices, (vii) the lease
dated , by Plaza Associates of portions of its warehouse facility
----------
located in Egg Harbor Township, New Jersey, to Trump Castle Associates, (viii)
certain indemnification arrangements with certain former an current directors
of Plaza Funding and Trump Plaza GP, (ix) the indemnification provisions
contained in the Agreement and Plan of Merger dated January 8, 1996 between Taj
Associates, Taj Mahal Holding Corp., THCR and THCR Merger Corp. and (x) the
lease of up to 500 parking spaces from Trump Castle Associates upon reasonable
market terms consistent with past practices.
Funding will maintain at least two Independent Directors on its
Board of Directors.
SECTION 5.11 Limitation on Incurrence of Additional
---------------------------------------
Indebtedness.
- ------------
Except as set forth below in this Section 5.11, the Company will
not, nor will any of its Subsidiaries be permitted to, directly or indirectly,
create, issue, assume, guaranty, incur, become directly or indirectly liable
with respect to (including as a result of an Acquisition), or otherwise become
responsible for, contingently or otherwise (individually and collectively, to
"incur" or, as appropriate, an "incurrence"), any Indebtedness or any
Disqualified Capital Stock (including Acquired Indebtedness). Notwithstanding
the foregoing:
(a) if (i) no Default or Event of Default shall have
occurred and be continuing at the time of, or would occur after giving effect
on a pro forma basis to, such incurrence of Indebtedness or Disqualified
Capital Stock and (ii) on the date of such incurrence (the "Incurrence Date"),
the Consolidated Coverage Ratio of the Company for the Reference Period
immediately preceding the Incurrence Date, after giving effect on a pro forma
basis to such incurrence of such Indebtedness or Disqualified Capital Stock
and, to the extent set forth in the definition of Consolidated Coverage Ratio,
the use of proceeds thereof, would be at least 2.0 to 1 for incurrences on or
prior to October __, 1998 and at least 2.25 to 1 for incurrences thereafter
(the "Debt Incurrence Ratio"), then the Company may incur such Indebtedness or
Disqualified Capital Stock, provided, that except in the case of Acquired
Indebtedness, such Indebtedness incurred pursuant to this clause (a) has an
Average Life to Stated Maturity that exceeds the remaining Average Life to
Stated Maturity of the Securities and has a Stated Maturity for its final
scheduled principal or (in the case of Disqualified Capital Stock) redemption
payment, as applicable, later than the Stated Maturity for the final scheduled
principal payment of the Securities;
(b) the Company and the Guarantors may incur Indebtedness
evidenced by the Securities and represented by this Indenture;
49
(c) the Company may incur Indebtedness not to exceed $75.0
million in aggregate principal amount outstanding at any time pursuant to this
clause (c) the proceeds of which are used for further acquisitions, renovations
or constructions of Improvements with respect to, or related to (including
related demolitions), the Casino Hotels or the financing of equipment to be
used therein, provided, that no Indebtedness shall be incurred pursuant to this
clause (c) in an aggregate principal amount which exceeds 75% of the cost of
the assets or Improvements, as the case may be, financed thereby, and provided
further, that except in the case of Acquired Indebtedness, such Indebtedness
incurred pursuant to this clause (c) has an average life to Stated Maturity
that equals or exceeds the remaining Average Life to Stated Maturity of the
Securities and has a Stated Maturity for its final scheduled principal or (in
the case of Disqualified Capital Stock) redemption payment, as applicable, on
or later than the Stated Maturity for the final scheduled principal payment of
the Securities;
(d) Plaza Associates and Taj Associates may incur
Indebtedness represented by F, F&E Financing Agreements and/or Capitalized
Lease Obligations relating to after-acquired gaming or related equipment (or
other after-acquired equipment necessary to conduct a Related Business and
consistent in amount and nature with industry practices) of (or, in the case of
Capitalized Lease Obligations, leased by) Plaza Associates or Taj Associates,
as applicable, not to exceed (for Plaza Associates and Taj Associates,
collectively) $50.0 million in aggregate principal amount outstanding at any
time pursuant to this clause (d) (including any Indebtedness issued to
refinance, refund or replace such Indebtedness);
(e) the Company may incur Indebtedness pursuant to the
Working Capital Facility up to an aggregate amount outstanding (including any
Indebtedness issued to refinance, refund or replace such Indebtedness) at any
time of $25.0 million;
(f) the Company, Plaza Associates and Taj Associates, as
applicable, may incur Refinancing Indebtedness with respect to any Indebtedness
or Disqualified Capital Stock, as applicable, described in clauses (a), (b) and
(c) of this Section or which is outstanding on the Issue Date so long a such
Refinancing Indebtedness is secured only by the assets (if any) that secured
the Indebtedness so refinanced;
(g) the Company, Plaza Associates, Taj Associates and their
Subsidiaries may incur Permitted Indebtedness; and
(h) the Company may incur Indebtedness in an aggregate
amount outstanding at any time pursuant to this clause (h) (including any
Indebtedness issued to refinance, replace, or refund such Indebtedness) of up
to $30.0 million.
Indebtedness of any Person which is outstanding at the time such
Person becomes a Subsidiary of the Company, including by designation, or is
merged with or into or consolidated with the Company or a Subsidiary of the
Company shall be deemed to have been incurred at the time such Person becomes
such a Subsidiary of the Company or is merged with or into or consolidated with
the Company or a Subsidiary of the Company, as applicable. Except to the
extent provided otherwise in the definition of Permitted Indebtedness, any
Guarantor may
50
guarantee Indebtedness of the Company or another Guarantor to the extent and at
the time the Company or such other Guarantor incurs such Indebtedness in
compliance with this Section 5.11.
SECTION 5.12 Restriction on Sale and Issuance of Subsidiary
-----------------------------------------------
Stock.
- -----
The Company will not sell, and will not permit any of its
Subsidiaries to issue or sell, any shares of Equity Interests of any Subsidiary
of the Company to any Person other than the Company or a Wholly-owned
Subsidiary of the Company, except that all of the Equity Interests of a
Subsidiary may be sold if such Asset Sale complies with the other provisions of
this Indenture, including Sections 5.15 and 6.1.
SECTION 5.13 Limitation on Dividends and Other Payment
------------------------------------------
Restrictions Affecting Subsidiaries.
- -----------------------------------
The Company will not, nor will any of its Subsidiaries be permitted
to, directly or indirectly, create, assume or otherwise cause or suffer to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any Subsidiary of the Company to pay dividends or make any
other distributions to or on behalf of, or to pay any obligation to or on
behalf of, or otherwise to transfer assets or property to or on behalf of, or
make or pay loans or advances to or on behalf of, the Company or any Subsidiary
of the Company, except (a) any restrictions, with respect to a Subsidiary that
is not a Subsidiary on the date of this Indenture, in existence at the time
such Person becomes a Subsidiary of the Company (but not created in connection
with or contemplation of such Person becoming a Subsidiary and not applicable
to any Person, or property, asset or business, than the Person, or property,
asset or business so acquired), (b) any restrictions with respect to a
Subsidiary imposed pursuant to an agreement which has been entered into for the
sale or disposition of all or substantially all of the Equity Interests or
assets of such Subsidiary (which restrictions shall be for the benefit of the
purchaser thereof and no other Person and apply only to the assets of the
Subsidiary to be sold), (c) restrictions imposed by a Permitted Lien on the
transfer of the respective assets subject thereto, (d) restrictions contained
in this Indenture and the Mortgage Documents, as the same may be amended from
time to time in accordance with the terms thereof, (e) restrictions imposed by
Gaming Authorities on the payment of dividends by entities holding Gaming
Licenses, and (f) any restrictions existing under any agreement which
refinances or replaces the agreements containing the restrictions in clause
(a), provided that the terms and conditions of any such agreement are not more
restrictive than those under or pursuant to the agreement evidencing the
Indebtedness refinanced.
SECTION 5.14 Limitation on Liens.
-------------------
The Company will not, nor will any of its Subsidiaries be permitted
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
of any kind, other than Permitted Liens, upon any of their respective assets
now owned or acquired after the date of this Indenture or upon any income or
profits therefrom.
51
SECTION 5.15 Limitation on Sales of Assets and Subsidiary Stock;
----------------------------------------------------
Event of Loss.
- -------------
Neither the Company nor any of its Subsidiaries will, in one or a
series of related transactions, convey, sell, transfer, assign or otherwise
dispose of, directly or indirectly, any of its property, business or assets,
including, without limitation, upon any sale or other transfer or issuance of
any Equity Interests of any Subsidiary or any sale and leaseback transaction,
whether by the Company or a Subsidiary of the Company or through the issuance,
sale or transfer of Equity Interests by a Subsidiary of the Company (an "Asset
Sale"), unless:
(1) (a) within 210 days after the date of such Asset Sale,
the Net Cash Proceeds therefrom (the "Asset Sale Offer Amount") are applied to
the optional redemption of the Securities in accordance with the terms of this
Indenture or to the repurchase of the Securities pursuant to an irrevocable,
unconditional cash offer by the Company (the "Asset Sale Offer") to repurchase
the Securities at a purchase price (the "Asset Sale Offer Price") of 100% of
principal amount, plus accrued interest to the date of payment, made within 180
days of such Asset Sale and/or (b) within 180 days following such Asset Sale,
the Asset Sale Offer Amount (less that portion of the Asset Sale Offer Amount
applied as provided in clause (a) above) is reinvested by the Company or its
Subsidiaries to make replacements, improvements or additions to existing
properties or new properties directly related to a Related Business and such
reinvestment is made or committed to be made (such commitment to be established
by (A) the purchase of a new property, the ground-breaking or the commencement
of construction, in each case within 180 days of such Asset Sale or (B)
promptly placing the Net Cash Proceeds in a Restricted Funds Account, provided,
that such Net Cash Proceeds are invested as aforesaid in existing properties or
new properties within 365 days of being placed in such Restricted Funds
Account) and provided further, that in the case of any Asset Sale involving all
or substantially all of (x) the Capital Stock of a Subsidiary, the assets of
which constitute all or substantially all of either Casino Hotel (or both) or
(y) the assets of either Casino Hotel (or both) (a "Casino Sale"), such Net
Cash Proceeds must be used to make an Asset Sale Offer in accordance with
clause 1(a), and not reinvested under clause 1(b),
(2) with respect to any Asset Sale or related series of
Asset Sales involving securities, property or assets with an aggregate fair
market value in excess of $5.0 million, at least 75% (or 90%, in the case of a
Casino Sale) of the consideration for such Asset Sale or series of related
Asset Sales consists of cash or Cash Equivalents (treating for this purpose as
cash or Cash Equivalents (A) property that promptly after such Asset Sale is
converted into cash or Cash Equivalents and (B) except in the case of a Casino
Sale, any senior Indebtedness that secured the subject assets that are assumed
by the transferee in such Asset Sale,
(3) no Default or Event of Default shall have occurred and
be continuing at the time of, or would occur after giving effect, on a pro
forma basis, to, such Asset Sale, and
(4) the Company determines in good faith that the Company or
such Subsidiary, as applicable, receives fair market value for such Asset Sale.
52
For purposes of this Section 5.15 with respect to the application
of the Net Cash Proceeds thereof, the receipt by the Company or any of its
Subsidiaries of proceeds due to an Event of Loss shall constitute an Asset
Sale. All Net Cash Proceeds from an Event of Loss shall be reinvested or used
to repurchase the Securities, all within the period and as otherwise provided
above in clause (1)(a) of the first paragraph of this Section 5.15.
An Asset Sale Offer need not be made until the accumulated Net Cash
Proceeds from Asset Sales not applied in accordance with (1) above (the "Excess
Proceeds") exceeds $15.0 million. Each Asset Sale Offer shall remain open for
20 Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Asset Sale Offer
Period"). Upon expiration of the Asset Sale Offer Period, the Company shall
apply the Excess Proceeds, plus an amount equal to accrued interest, to the
purchase of all Securities tendered (on a pro rata basis if the Excess Proceeds
is insufficient to purchase all such Securities so tendered) at the Asset Sale
Offer Price (together with accrued interest).
Notwithstanding the foregoing, if an Asset Sale Offer is commenced
and securities of the Company ranking pari passu in right of payment with the
Securities and incurred pursuant to clause (c) of Section 5.11 are outstanding
at the date of commencement thereof, the terms of which provide that a
substantially similar offer must be made with respect thereto, then the Asset
Sale Offer shall be made concurrently with such other offer, and securities of
each issue which the Holders of securities of such issue elect to have
purchased will be accepted pro rata in proportion to the aggregate principal
amount thereof; provided, that in so repurchasing such other securities the
Company is in compliance with the provisions of Section 5.3.
Subject to Article IV hereof, notwithstanding the foregoing
provisions of the prior paragraphs:
(i) the Company and its Subsidiaries may, without
complying with the foregoing, in the ordinary course of business
for the casino industry, convey, sell, lease, transfer, assign, or
otherwise dispose of assets acquired and held for resale in the
ordinary course of business;
(ii) other than a Casino Sale, the Company and its
Subsidiaries may, without complying with the foregoing, convey,
sell, lease, transfer or otherwise dispose of, free from the Liens
under the Mortgage Documents, assets pursuant to and in accordance
with Section 6.1 of this Indenture;
(iii) the Company and its Subsidiaries may, without
complying with the foregoing, convey, sell, lease, transfer, assign
or otherwise dispose of three warehouses and related facilities
(the Egg Harbor Parcel, the Pleasantville Warehouse and the Realty
Warehouse) in exchange for any type of consideration so long as
53
the Company determines in good faith that the Company or such
Subsidiary, as applicable, receives fair market value;
(iv) the Company and its Subsidiaries may, without
complying with the foregoing, convey, sell, transfer, assign or
otherwise dispose of assets to the Company or any Wholly-owned
Subsidiaries of the Company, so long as they continue to be subject
to a Lien under the Mortgage Documents;
(v) sell or dispose of, free from the Liens under the
Mortgage Documents, any Tangible Personal Property which, in the
Company's reasonable opinion, may have become obsolete or unfit for
use or which is no longer necessary in the conduct of its
businesses, and no purchaser of any such property shall be bound to
inquire into any question affecting the Company's or any of its
Subsidiaries' rights to sell or otherwise dispose of the same free
from the Liens under the Mortgage Documents;
(vi) alter, repair, replace, change shall the location
or position of and add to any Tangible Personal Property;
provided, however, that no change shall be made in the
-------
location of any such property subject to the Liens under the
Mortgage Documents which would in any respect impair the security
of Liens under the Mortgage Documents upon such property; or
(vii) renew, extend, surrender, terminate, modify or
amend any leases of Tangible Personal Property, when, in the
Company's or any of its Subsidiaries' reasonable opinion, it is
prudent to do so.
Notwithstanding the foregoing, the Company will not, and will not permit any of
its Subsidiaries to, directly or indirectly make any Asset Sale of any of the
Equity Interests of such Subsidiary except pursuant to an Asset Sale of all the
Equity Interests of such Subsidiary.
In addition, if the amount required to acquire all Securities
tendered by Holders pursuant to the Asset Sale Offer (the "Acceptance Amount")
is less than the Asset Sale Offer Amount, the excess of the Asset Sale Offer
Amount over the Acceptance Amount may be used by the Company and its
Subsidiaries for general corporate or partnership purposes without restriction,
other than dividends, repurchases or other distributions in respect of Equity
Interests, and unless otherwise restricted by the other provisions of the
Indenture. Upon consummation of any Asset Sale Offer, the Asset Sale Offer
Amount will be reduced to zero.
Notice of an Asset Sale Offer shall be sent, not later than 20
Business Days prior to the close of business on the Asset Sale Put Date (as
defined below), by first-class mail, by the Issuers to each Holder at its
registered address, with a copy to the Trustee. The notice to the
54
Holders shall contain all information, instructions and materials required by
applicable law or otherwise material to such Holders' decision to tender
Securities pursuant to the Asset Sale Offer. The notice, which (to the extent
consistent with this Indenture) shall govern the terms of the Asset Sale Offer,
shall state:
(l) that the Asset Sale Offer is being made pursuant
to such notice and this Section 5.15;
(2) the Asset Sale Offer Amount, the Accumulated
Amount, the Asset Sale Offer Price (including the amount of accrued and unpaid
interest), the Asset Sale Put Date, and the "Asset Sale Purchase Date," which
Asset Sale Purchase Date shall be on or prior to 30 Business Days (or later, if
required by law) following the date the Accumulated Amount was greater than
$5.0 million;
(3) that any Security or portion thereof not tendered
or accepted for payment will continue to accrue interest if interest is then
accruing;
(4) that, unless the Issuers default in depositing
U.S. Legal Tender with the Paying Agent (which may not for purposes of this
Section 5.15, notwithstanding anything in this Indenture to the contrary, be
the Issuers or any Affiliate of the Issuers) in accordance with the last
paragraph of this clause (b), any Security, or portion thereof, accepted for
payment pursuant to the Asset Sale Offer shall cease to accrue interest after
the Asset Sale Purchase Date;
(5) that Holders electing to have a Security, or
portion thereof, purchased pursuant to an Asset Sale Offer will be required to
surrender their Security, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Security completed, to the Paying Agent (which
may not for purposes of this Section 5.15, notwithstanding any other provision
of this Indenture, be the Issuers or any Affiliate of the Issuers) at the
address specified in the notice prior to the close of business on the third
Business Day prior to the Asset Sale Purchase Date (the "Asset Sale Put Date");
(6) that Holders will be entitled to withdraw their
elections, in whole or in part, if the Paying Agent (which may not for purposes
of this Section 5.15, notwithstanding any other provision of this Indenture, be
the Issuers or any Affiliate of the Issuers) receives, up to the close of
business on the Asset Sale Put Date, a telegram, telex, facsimile transmission
or letter setting forth the name of the Holder, the principal amount of the
Securities the Holder is withdrawing and a statement that such Holder is
withdrawing his election to have such principal amount of Securities purchased;
(7) that if Securities in a principal amount in
excess of the principal amount of Securities to be acquired pursuant to the
Asset Sale Offer are tendered and not withdrawn, the Issuers shall purchase
Securities on a pro rata basis (with such adjustments as may be deemed
appropriate by the Issuers so that only Securities in denominations of $1,000
or integral multiples of $1,000 shall be acquired);
55
(8) that Holders whose Securities were purchased only
in part will be issued new Securities equal in principal amount to the
unpurchased portion of the Securities surrendered; and
(9) the circumstances and relevant facts regarding
such Asset Sales.
No later than 12:00 noon New York City time on an Asset Sale
Purchase Date, the Issuers shall (i) accept for payment Securities or portions
thereof properly tendered pursuant to the Asset Sale Offer (on a pro rata basis
if required pursuant to paragraph (7) above), (ii) deposit with the Paying
Agent U.S. Legal Tender sufficient to pay the Asset Sale Offer Price (plus
accrued interest) for all Securities or portions thereof so accepted and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate setting forth the Securities or portions thereof being purchased by
the Issuers. The Paying Agent shall promptly mail or deliver to Holders of
Securities so accepted payment in an amount equal to the Asset Sale Offer Price
for such Securities, and the Trustee shall promptly authenticate and mail or
deliver to such Holders a new Security equal in principal amount to any
unpurchased portion of the Security surrendered. Any Securities not so
accepted shall be promptly mailed or delivered by the Issuers to the Holder
thereof.
SECTION 5.16 Future Subsidiary Guarantors.
----------------------------
The Company and the Guarantors covenant and agree that they shall
cause each person that is or becomes a Subsidiary of the Company (other than
Funding) to execute a Guaranty in the form of Exhibit B hereto and will
---------
cause such Subsidiary to enter into a supplemental indenture for the purpose of
jointly and severally guaranteeing, on a senior secured basis, the Indenture
Obligations. Taj Funding shall not be required to become a Guarantor, provided
that it conducts no business, receives no Investment from the Issuers or any of
their Subsidiaries and is dissolved pursuant to [NJ equivalent of certificate
of dissolution] within days of the Issue Date.
---
SECTION 5.17 Limitation on Activities of Funding.
-----------------------------------
Funding will not conduct any business (including having any
Subsidiary) whatsoever, other than to comply with its obligations under this
Indenture and the Securities. Funding will not incur or otherwise become liable
for any Indebtedness (other than the Securities and any renewal, extension,
substitution, refunding, refinancing or replacement thereof in accordance with
this Indenture) or make any Restricted Payments.
SECTION 5.18 Limitation on Lines of Business.
-------------------------------
Neither the Company nor any of the Subsidiaries will directly or
indirectly engage to any substantial extent in any line or lines of business
activity other than which, in the reasonable good faith judgment of the
Independent Directors of Funding is a Related Business.
56
SECTION 5.19 Restriction on Certain Agreements.
-----------
Other than employment agreements in the ordinary course of business
consistent with industry practice and approved by the compensation committee of
Funding, the Company will not, and will not permit any of its Subsidiaries to,
enter into any management, services or consulting agreement with Trump or any
Affiliate of Trump, other than the TPM Services Agreement; provided that no
Services Fee thereunder shall be paid (i) to any person other than the Company
or a Subsidiary of the Company if the TPM Services Agreement is assigned or
transferred by Trump Plaza Management Corp. and (ii) to Trump Plaza Management
Corp. after expiration of the Super Puma Helicopter Lease. The Company will
not, and will not permit the Subsidiaries to, pay any Services Fee under the
TPM Services Agreement to Trump Plaza Management Corp. or pay or reimburse any
expenses relating thereto if a Default or Event of Default has occurred and is
continuing. The terms of the TPM Services Agreement shall not be amended to
increase the amounts to be paid thereunder in the aggregate or on any
particular date, or in any other manner which would be adverse to the Company
or its Subsidiaries.
SECTION 5.20 Limitation on Leases.
--------------------
The Company will not, nor will any of its Subsidiaries, be
permitted to, lease as tenant or subtenant real or personal property (except
Permitted Leases), unless the Company's Consolidated Coverage Ratio for the
four full fiscal quarters immediately preceding such event, taken as one period
(and after also giving pro forma effect to any such lease as if such lease was
entered into at the beginning of such four-quarter period), would have been at
least equal to the ratios set forth below for the applicable period during
which such determination is being made:
PERIOD RATIO
- ------ -----
First 24 months from and including the Issue Date.........2.00 to 1
Thereafter................................................2.25 to 1
In giving effect to the lease as of such four full fiscal quarters, it will be
assumed that the rent for such prior four fiscal quarters was the greater of
the (i) average annualized rent over the term of such lease and (ii) rent
payable for the first four fiscal quarters of such lease.
SECTION 5.21 Limitation on Status as Investment Company.
------------------------------------------
None of the Company, Funding, any Unrestricted Subsidiary or any of
their respective Subsidiaries shall become required to register as an
"investment company" (as that term is defined in the Investment Company Act of
1940, as amended), or otherwise become subject to regulation under the
Investment Company Act.
SECTION 5.22 Future Collateral Agreements.
----------------------------
All property, real, personal or mixed or any interest therein
(other than Excepted Property), of every kind and description and wheresoever
situate, which may be hereafter acquired by the Company, any of its
Subsidiaries or any Guarantor (including, without limitation,
57
fee title to any Leased Land) shall immediately upon the acquisition thereof by
the Company, any of its Subsidiaries or any Guarantor, and without any further
mortgage, conveyance or assignment, become subject to the Liens under the
Mortgage Documents as fully as though now owned by the Company, any of its
Subsidiaries or any Guarantor. Nevertheless, the Company, any of its
Subsidiaries or any Guarantor shall do, execute, acknowledge and deliver all
and every such further acts, conveyances, mortgages, financing statements and
assurances as the Collateral Agent shall require for accomplishing the express
purposes of the Indenture and the Mortgage Documents, including execution and
delivery of appropriate Pledge Agreements.
ARTICLE VI
SUCCESSORS
SECTION 6.1 Limitation on Merger, Sale or Consolidation.
-------------------------------------------
Neither of the Issuers may consolidate with, merge with or into any
other Person or sell, assign, convey, transfer, lease or otherwise dispose of
all or substantially all of its properties and assets (as an entirety or
substantially as an entirety in one transaction or series of related
transactions) to any Person or group of affiliated Persons or permit any of the
Company's Subsidiaries to enter into any such transaction or transactions if
such transaction or transactions, in the aggregate, would result in a transfer
of all or substantially all of the assets of the Company and the Subsidiaries
on a Consolidated basis or Funding, as applicable, to any other Person, unless:
(a) such Issuer shall be the continuing Person, or the
Person (if other than such Issuer) formed by such consolidation or into
which such Issuer is merged or to which the properties and assets of such
Issuer are transferred (the "Surviving Entity") shall be a partnership or
corporation, in the case of the Company, and a corporation, in the case
of Funding, duly organized and validly existing under the laws of the
United States or any state thereof or the District of Columbia and shall
expressly assume, by a supplemental indenture, all of the obligations of
such Issuer under the Securities and this Indenture, and this Indenture
shall remain in full force and effect;
(b) immediately before and immediately after giving
effect to such transaction on a pro forma basis, no Event of Default or
Default shall have occurred and be continuing;
(c) immediately after giving effect to such
transaction on a pro forma basis, the Consolidated Net Worth of the
Company or the Surviving Entity, as applicable, is at least equal to the
Consolidated Net Worth of the Company immediately prior to such
transaction or series of transactions;
(d) immediately before and after giving effect to such
transaction on a pro forma basis, the Company or the Surviving Entity, as
applicable, could incur at
58
least $1.00 of additional Indebtedness pursuant to the Debt Incurrence
Ratio set forth in paragraph (a) of Section 5.11; and
(e) immediately after such transaction, such Issuer or
the Surviving Entity, as applicable, holds all Permits required for
operation of the business of, and such entity is controlled by a Person
or entity (or has retained a Person or entity which is) experienced in,
operating casino hotels or otherwise holds all Permits (including those
required from Gaming Authorities) to operate its business.
The Company shall also deliver to the Trustee an officers'
certificate and an opinion of counsel, each stating that (a) such
consolidation, merger, sale, assignment, conveyance, transfer, lease or
disposition and such supplemental indenture comply with this Indenture and (b)
this transaction shall not impair the rights and powers of the Trustee and
Holders of the Securities thereunder.
For purposes of the first sentence of this Section 6.1, the sale,
lease, conveyance or transfer of all or substantially all of the properties and
assets of one or more Subsidiaries of the Issuers, which properties and assets,
if held by the Issuers instead of such Subsidiaries, would constitute all or
substantially all of the properties and assets of the Issuers on a consolidated
basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Issuers.
SECTION 6.2 Successor Substituted.
---------------------
In the event of any transaction (other than a lease) described in
and complying with the conditions listed in Section 6.1 in which the Company or
Funding, as applicable, is not the continuing Person, the successor Person
formed or remaining shall succeed to, and be substituted for, and may exercise
every right and power of, provisions of the Company or Funding, as applicable,
and the Company or Funding shall in such case be discharged from all
obligations and covenants under this Indenture, the Securities and the Mortgage
Documents.
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1 Events of Default.
-----------------
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation,
by operation of law or pursuant to any judgment, decree or order of any court
or any order, rule or regulation of any administrative or governmental body):
59
(a) the failure by the Issuers to pay any installment of
interest (including any defaulted interest) on the Securities as and when the
same becomes due and payable and the continuance of any such failure for 30
days;
(b) the failure by the Issuers to pay all or any part of the
principal, or premium, if any, on the Securities when and as the same becomes
due and payable at maturity, at redemption, by acceleration or otherwise,
including, without limitation, payment of the Change of Control Purchase Price
or the Asset Sale Offer Price, or otherwise;
(c)(i) the failure by the Company or any of its Subsidiaries
to observe or perform any other covenant or agreement contained in the
Securities or this Indenture and (other than a default in the performance, or
breach of a covenant that is specifically dealt with elsewhere in this section)
the continuance of such failure for a period of 30 days after written notice is
given to the Issuers by the Trustee or to the Issuers and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Securities
outstanding, specifying such default and requiring that it be remedied; (ii)
default in the performance or breach of the provisions of Article VI; (iii)
Funding or the Company shall have failed to make or consummate a Change of
Control Offer in accordance with provisions of Section 11.1; and (iv) Funding
or the Company shall have failed to make or consummate an Asset Sale Offer in
accordance with the provisions of Section 5.15;
(d) a default in Indebtedness of either of the Issuers or any
of the Subsidiaries with an aggregate outstanding principal amount in excess of
$20.0 million;
(e) one or more judgments, orders or decrees for the payment
of money in excess of $20.0 million, either individually or in the aggregate,
shall be rendered against either of the Issuers or any of the Subsidiaries or
any of their respective properties and shall not be discharged and either (i)
an enforcement proceeding shall have been commenced by any creditor upon such
judgment, order or decree or (ii) there shall be any period of 60 days during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect;
(f) there shall have been the entry by a court having
jurisdiction in the premises of (i) a decree or order for relief in respect of
either of the Issuers or any of the Significant Subsidiaries in an involuntary
case or proceeding under any applicable Bankruptcy Law or (ii) a decree or
order adjudging either of the Issuers or any of the Significant Subsidiaries
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or
composition of or in respect of either of the Issuers or any of the Significant
Subsidiaries under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of either of the Issuers or any of the Significant
Subsidiaries or of any substantial part of their property, or ordering the
winding-up or liquidation of their affairs, and the continuance of any such
decree or order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days;
60
(g)(i) either of the Issuers or any of the Significant
Subsidiaries commences a voluntary case or proceeding under any applicable
Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or
insolvent, or (ii) either of the Issuers or any of the Significant Subsidiaries
consents to the entry of a decree or order for relief in respect of either of
the Issuers or such Significant Subsidiary in an involuntary case or proceeding
under any applicable Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or (iii) either of the Issuers or any
of the Significant Subsidiaries files a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or either
of the Issuers or any of the Significant Subsidiaries consents to (1) the
filing of such petition or the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of either of the Issuers or such Significant Subsidiary or of any
substantial part of its property, (2) the making by it of an assignment for the
benefit of creditors or (3) the admission by it in writing of its inability to
pay its debts generally as they become due, or (iv) the taking of corporate or
partnership action by either of the Issuers or any of the Significant
Subsidiaries in furtherance of any such action in this paragraph (g);
(h) the revocation, suspension or involuntary loss of any
Permit which results in the cessation of all or a substantial portion of the
operations of either Casino Hotel for a period of more than 90 consecutive
days;
(i) except as permitted by this Indenture and the
Securities, the cessation of effectiveness of any Guaranty of the Obligations
in any material respect or the finding by any judicial proceeding that any such
Guaranty is unenforceable or invalid in any material respect or the denial or
disaffirmation by any Guarantor in writing of its obligations under its
Guaranty; or
(j) default in the payment of any other sum due under the
Mortgage, and the continuance of such default for a period of 30 days after
there has been given to the Issuers a notice specifying such default and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(k) default in the performance, or breach, of any covenant
of Mortgagor in the Mortgage (other than a covenant, a default in the
performance or breach of which is elsewhere in the Mortgage specifically dealt
with), and continuance of such default or breach for a period of 30 days after
there has been given to Mortgagor a notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder, unless (i) the default or breach is of such a nature that
is curable but not susceptible of being cured with due diligence within such
30-day period (for reasons other than the lack of funds), (ii) Mortgagor
delivers an Officers' Certificate to Mortgagee within such 30-day period
stating (A) the applicability of the provisions of clause (i) to such default
or breach, (B) Mortgagor's intention to remedy such default or breach with
reasonable diligence and (C) the steps which Mortgagor has undertaken or
intends to undertake to remedy such default or breach and (iii) Mortgagor
delivers to Mortgagee additional Officers' Certificates every 30 days
thereafter updating the information contained in the certificate described in
clause (ii), in which case such 30-day period shall be extended for such
further period of time (but in no event more than 60 days after the last day of
such 30-day period) as may reasonably be required to cure the
61
same, provided that Mortgagor is then proceeding and thereafter continues to
proceed to cure the same with reasonable diligence; or
(l) default by Mortgagor under any of the terms of any
Facility Lease which shall not be fully cured or waived prior to the expiration
of any grace period (as such grace period may be extended) contained in such
Facility Lease; or
(m) default by Mortgagor under any of the terms of the Egg
Harbor Mortgage (i) at the Stated Maturity of the Indebtedness secured by such
mortgage or (ii) which default results in the acceleration of the Stated
Maturity of the Indebtedness secured by such mortgage and, in the case of (i)
or (ii), which default shall not be fully cured, waived or rescinded, as the
case may be, prior to the expiration of any grace period (as such grace period
may be extended) contained in such mortgage; or
(n) default by Mortgagor under any of the terms of any
Superior Mortgage (other than the Egg Harbor Mortgage) with respect to which
there is no grace period and no notice is required to be given, or, if a grace
period is provided in such Superior Mortgage (other than the Egg Harbor
Mortgage), which shall not be fully cured or waived within five days prior to
the expiration of such grace period (as such grace period may be extended); or
(o) default in the performance, or breach, of any of the
provisions of Article Four of the Mortgagee; or
(p) if any representation or warranty of Mortgagor set forth
in this Mortgage or in any notice, certificate, demand or request delivered to
Mortgage pursuant to this Mortgage shall prove to be incorrect in any material
respect as of the time when made; or
(q) default by Mortgagor under any of the terms of any
Refinancing Lien which shall not be fully cured or waived prior to the
expiration of any grace period contained therein (as such grace period may be
extended) and there has been given to Mortgagor a notice specifying such
default and stating that such notice is a "Notice of Default" hereunder; or
(r) the declaration or payment of any dividend or other
distribution in respect of Equity Interests of any Guarantor in the event of
failure by any Guarantor to pay any installment of interest or all or any part
of the principal, or premium, if any, on the Intercompany Notes when and as the
same become due and payable; or
(s) an event of default under any of the Mortgage Documents.
An Event of Default shall not be deemed to exist by reason of any
event which Mortgagor is contesting in compliance with the provisions of
Section 5.09 of the Mortgage.
Notwithstanding the 30-day period and notice requirement contained
in Section 7.1(c) above, (i) with respect to a default under Article XI, the
30-day period referred to in Section 7.1(c) shall be deemed to have begun as of
the date the Change of Control notice is
62
required to be sent in the event that the Company has not complied with the
provisions of Section 11.1, and the Trustee or Holders of at least 25% in
principal amount of the outstanding Securities thereafter give the notice of
default referred to in Section 7.1(c) to the Company and, if applicable, the
Trustee; provided, however, that if the breach or default is a result of a
default in the payment when due of the Change of Control Purchase Price, such
default shall be deemed, for purposes of this Section 7.1, to arise no later
than on such due date; and (ii) with respect to a default under Section 5.15,
the 30-day period referred to in Section 7.1(c) shall be deemed to have begun
as of the date the notice of an Offer to Purchase is required to be sent in the
event that the Company has not complied with the provisions of Section 5.15
requiring the giving of such notice, and the Trustee or Holders of at least 25%
in principal amount of the outstanding Securities thereafter give the notice of
default referred to in Section 7.1(c) to the Company and, if applicable, the
Trustee; provided, however, that if the breach or default is a result of a
default in the payment when due of the Offer to Purchase Price, such default
shall be deemed, for purposes of this Section 7.1, to arise no later than on
such due date.
SECTION 7.2 Acceleration of Maturity Date; Rescission and
----------------------------------------------
Annulment.
- ---------
If an Event of Default (other than as specified in clauses (f) and
(g) of Section 7.1) occurs and is continuing, then in every such case, unless
the principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of at least 25% of the principal amount of
the Securities then outstanding, by written notice to the Issuers (and to the
Trustee if such notice is given by such Holders) (an "Acceleration Notice"),
may, and the Trustee at the request of such Holders shall, declare all unpaid
principal of, premium, if any, and accrued interest on all Securities to be due
and payable and thereupon the Trustee may, at its discretion, proceed to
protect and enforce the rights of the Holders of the Securities by appropriate
judicial proceeding. If an Event of Default specified in clause (f) or (g)
occurs and is continuing, then the principal of all Securities shall ipso facto
become and be immediately due and payable without any declaration or other act
of the Trustee or any Holder.
After a declaration of acceleration, but before a judgment or
decree for payment of the money due has been obtained by the Trustee, the
Holders of a majority in aggregate principal amount of Securities outstanding,
by written notice to the Issuers and the Trustee, may annul such declaration
if:
(a) the Issuers have paid or deposited with the Trustee a
sum sufficient to pay:
(i) all sums paid or advanced by the Trustee under
this Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all Securities,
(iii) the principal of and premium, if any, on any
Securities which have become due otherwise than by such declaration
of acceleration and interest thereon at the rate borne by the
Securities, and
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(iv) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by the
Securities; and
(b) all Events of Default, other than the non-payment of
principal of the Securities which have become due solely by such
declaration of acceleration, have been cured or waived.
Notwithstanding the previous sentence of this Section 7.2, no
annulment of a declaration of acceleration shall be effective for any Event of
Default with respect to any covenant or provision which cannot be modified or
amended without the consent of the Holder of greater than a simple majority of
the outstanding principal amount of the Securities, unless such specified
percentage of affected Holders agree, in writing, to annul such declaration of
acceleration. No such annulment shall cure or waive any subsequent default or
impair any right consequent thereon.
SECTION 7.3 Collection of Indebtedness and Suits for Enforcement
-----------------------------------------------------
by Trustee.
- ----------
The Issuers covenant that if an Event of Default in payment of
principal, premium, or interest specified in Section 7.1(a) and (b) occurs and
is continuing, the Issuers shall, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Securities, the whole amount then due and
payable on such Securities for principal, premium (if any) and interest, and,
to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (premium, if any) and on any overdue
interest, at the rate borne by the Securities, and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including compensation to, and expenses, disbursements and advances
of the Trustee, its agents and counsel.
If the Issuers fail to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust in favor of the
Holders, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Issuers or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Issuers or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 7.4 Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the
64
Issuers or any other obligor upon the Securities or the property of the Issuers
or of such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Issuers for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise to take any and all actions under the TIA,
including
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to
distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 8.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment, or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 7.5 Trustee May Enforce Claims Without Possession of
-------------------------------------------------
Securities.
- ----------
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust in favor of the Holders, and any
recovery of judgment shall, after provision for the payment of compensation to,
and expenses, disbursements and advances of the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Securities in respect
of which such judgment has been recovered.
SECTION 7.6 Priorities.
----------
Any money collected by the Trustee pursuant to this Article VII
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium (if any) or interest, upon presentation of the
65
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant
to Section 8.7;
SECOND: To the Holders in payment of the amounts then due
and unpaid for principal of, premium (if any) and interest on, the
Securities in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium (if any) and interest, respectively; and
THIRD: To whomsoever may be lawfully entitled thereto, the
remainder, if any.
The Trustee may, but shall not be obligated to, fix a record date
and payment date for any payment to the Holders under this Section 7.6.
SECTION 7.7 Limitation on Suits.
-------------------
No Holder of any Security shall have any right to order or direct
the Trustee to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(A) such Holder has previously given written notice
to the Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% in principal
amount of then outstanding Securities shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(C) such Holder or Holders have offered to the
Trustee reasonable security or indemnity against the costs,
expenses and liabilities to be incurred or reasonably probable to
be incurred in compliance with such request;
(D) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(E) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by
the Holders of a majority in principal amount of the outstanding
Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or
66
prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all the Holders.
SECTION 7.8 Unconditional Right of Holders to Receive Principal,
-----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision of this Indenture, the Holder
of any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and interest on, such Security on the
Maturity dates of such payments as expressed in such Security (in the case of
redemption, the Redemption Price on the applicable Redemption Date, in the case
of a Change of Control, the Change of Control Purchase Price on the applicable
Change of Control Purchase Date, and, in the case of an Asset Sale, the Asset
Sale Offer Price on the Asset Sale Purchase Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 7.9 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 7.10 Delay or Omission Not Waiver.
----------------------------
No delay or omission by the Trustee or by any Holder of any
Security to exercise any right or remedy arising upon any Event of Default
shall impair the exercise of any such right or remedy or constitute a waiver of
any such Event of Default. Every right and remedy given by this Article VII or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
SECTION 7.11 Control by Holders.
------------------
The Holder or Holders of a majority in aggregate principal amount
of then outstanding Securities shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred upon the Trustee, provided, that
--------
(1) such direction shall not be in conflict with any
rule of law or with this Indenture,
67
(2) the Trustee shall not determine that the action so
directed would be unjustly prejudicial to the Holders not taking part in
such direction, and
(3) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION 7.12 Waiver of Past Default.
----------------------
Subject to Section 7.8, the Holder or Holders of not less than a
majority in aggregate principal amount of the outstanding Securities may, by
written notice to the Trustee on behalf of all Holders, prior to the
declaration of acceleration of the maturity of the Securities, waive any past
default hereunder and its consequences, except a default
(A) in the payment of the principal of,
premium, if any, or interest on, any Security as specified in
clauses (a) and (b) of Section 7.1, or
(B) in respect of a covenant or provision
hereof which, under Article X, cannot be modified or amended
without the consent of the Holder of each outstanding Security
affected or Holders of more than a simple majority in principal
amount of the Securities, as applicable; provided, however, that
such a default may be waived upon the affirmative vote of the
requisite principal amount of the Securities.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair the exercise of any right arising
therefrom.
SECTION 7.13 Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any
Security by its acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted to be taken by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made
by such party litigant; but the provisions of this Section 7.13 shall not apply
to any suit instituted by the Issuers, to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the
aggregate more than 10% in aggregate principal amount of the outstanding
Securities, or to any suit instituted by any Holder for enforcement of the
payment of principal of, or premium (if any) or interest on, any Security on or
after the Maturity of such Security.
68
SECTION 7.14 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Issuers, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
ARTICLE VIII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
SECTION 8.1 Duties of Trustee.
-----------------
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of a Default or an Event
of Default:
(1) The Trustee need perform only those duties as are
specifically set forth in this Indenture and no others, and no covenants
or obligations shall be implied in or read into this Indenture which are
adverse to the Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 8.1.
69
(2) The Trustee shall comply with any order or
directive of a Gaming Authority that the Trustee submit an application
for any license, finding of suitability or other approval pursuant to any
Gaming Law and will cooperate fully and completely in any proceeding
related to such application.
(3) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(4) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 7.11.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or to take or omit to take any
action under this Indenture or at the request, order or direction of the
Holders or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(e) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of
this Section 8.1.
(f) The Trustee shall not be liable for interest on any
assets received by it except as the Trustee may agree in writing with the
Issuers. Assets held in trust by the Trustee need not be segregated from other
assets except to the extent required by law.
SECTION 8.2 Rights of Trustee.
-----------------
Subject to Section 8.1:
(a) The Trustee may rely on any document believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
consult with counsel and may require an Officers' Certificate or an Opinion of
Counsel, which shall conform to Sections 12.4 and 12.5. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
such certificate or opinion.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent
appointed with due care.
70
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture or the TIA.
(e) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Except with respect to Section 5.1, the Trustee shall
have no duty to inquire as to the performance of the Issuers' covenants in
Article V. In addition, the Trustee shall not be deemed to have knowledge of
any Default or Event of Default except (i) any Event of Default occurring
pursuant to Sections 7.1(a), 7.1(b) and 5.1, or (ii) any Default or Event of
Default of which the Trustee shall have received written notification or
obtained actual knowledge.
SECTION 8.3 Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of any of the Securities, may make loans to, accept deposits
from, and perform services for the Issuers or their Affiliates, and may
otherwise deal with the Issuers, any of their respective Subsidiaries, or their
respective Affiliates with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee
must comply with Sections 8.10 and 8.11.
SECTION 8.4 Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or adequacy
of this Indenture or the Securities and it shall not be responsible for any
statement in the Securities, other than the Trustee's certificate of
authentication, or the use or application of any funds received by a Paying
Agent other than the Trustee.
SECTION 8.5 Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing and if
it is known to the Trustee, the Trustee shall mail to each Securityholder
notice of the uncured Default or Event of Default within 90 days after such
Default or Event of Default occurs. Except in the case of a Default or an
Event of Default in payment of principal (or premium, if any) of, or interest
on,
71
any Security (including the payment of the Change of Control Purchase Price on
the Change of Control Purchase Date, the Redemption Price on the Redemption
Date and the Asset Sale Offer Amount on the Asset Sale Purchase Date, as the
case may be), the Trustee may withhold the notice if and so long as a Trust
Officer in good faith determines that withholding the notice is in the interest
of the Securityholders.
SECTION 8.6 Reports by Trustee to Holders.
-----------------------------
(a) Securities Law Requirements. If required by law,
---------------------------
within 60 days after each May 15, beginning with the May 15 following the date
of this Indenture, the Trustee shall mail to each Securityholder a brief report
dated as of such May 15 that complies with TIA Section 313(a). If required by
law, the Trustee also shall comply with TIA Section Section 313(b) and 313(c).
The Issuers shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Issuers and filed with the SEC and each stock exchange,
if any, on which the Securities are listed.
(b) Gaming License Requirements. The Trustee will
---------------------------
provide any applicable Gaming Authority with:
(1) copies of all notices, reports and other written
communications which the Trustee gives to Holders;
(2) a list of Holders promptly after the original
issuance of the Securities and a list of Holders eight months and two months
prior to the expiration date of each then-current Gaming License held by the
Company or its Subsidiaries;
(3) notice of any Event of Default under this
Indenture or of any Default, any acceleration of the Indebtedness evidenced or
secured hereby, the institution of any legal actions or proceedings before any
court or governmental authority in respect of this Indenture or the Collateral
Documents, the entering into or taking possession of any property constituting
the Collateral and any rescission, annulment or waiver in respect of an Event
of Default;
(4) notice of the removal or resignation of the
Trustee within five Business Days thereof;
(5) notice of any transfer or assignment of rights
under this Indenture (but no transfers or assignments of the Securities) or the
Collateral Documents within five Business Days thereof; and
72
(6) a copy of any amendment to the Securities, this
Indenture or the Collateral Documents within five Business Days of the
effectiveness thereof.
The notice specified in clause (3) above shall be in writing and, except as set
forth below, shall be given within five Business Days after the Trustee has
transmitted the notice required by Section 8.5. In the case of any notice in
respect of any Event of Default, such notice shall be accompanied by a copy of
any notice from the Holders, or a representative thereof or the Trustee, to the
defaulting Person and, if accompanied by any such notice to the defaulting
Person, shall be given simultaneously with the giving of any such notice to the
defaulting Person. In the case of any legal actions or proceedings, such
notice shall be accompanied by a copy of the complaint or other initial
pleading or document.
The Trustee shall in accordance with the limitations set forth
herein cooperate with any applicable Gaming Authority in order to provide such
Gaming Authority with information and documentation relevant to compliance with
clause (3) above and as otherwise required by any applicable gaming law.
The Issuers will advise the Trustee of the expiration date of any
then-current Gaming License held by the Partnership at least nine months prior
to the expiration thereof and the Trustee until so advised may assume that such
Gaming License has not expired.
SECTION 8.7 Compensation and Indemnity.
--------------------------
Each of the Issuers shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. Each
of the Issuers shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents, accountants, experts and counsel.
Each of the Issuers shall indemnify the Trustee (in its capacity as
Trustee) and each of its officers, directors, attorneys-in-fact and agents for,
and hold it harmless against, any claim, demand, expense (including but not
limited to reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel), loss or liability incurred by them without negligence, bad
faith or willful misconduct on its part, arising out of or in connection with
the administration of this trust and their rights or duties hereunder including
the reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder. The Trustee shall notify the Issuers promptly of any
claim asserted against the Trustee for which it may seek indemnity. The
Issuers shall defend the claim and the Trustee shall provide reasonable
cooperation at the Issuers's expense in the defense. The Trustee may have
separate counsel and the Issuers shall pay the reasonable fees and expenses of
such counsel; provided, that the Issuers will not be required to pay such
--------
fees and expenses if it assumes the Trustee's defense and there is no conflict
of interest between the Issuers and the Trustee in connection with such
defense. The Issuers need not pay for any settlement made without its written
consent. The Issuers need not reimburse any expense
73
or indemnify against any loss or liability to the extent incurred by the
Trustee through its negligence, bad faith or willful misconduct.
To secure the Issuers' payment obligations in this Section 8.7, the
Trustee shall have a lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 7.1 (f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Issuers' obligations under this Section 8.7 and any lien
arising hereunder shall survive the resignation or removal of the Trustee, the
discharge of the Issuers' obligations pursuant to Article IX and any rejection
or termination of this Indenture under any Bankruptcy Law.
SECTION 8.8 Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Issuers in writing. The
Holder or Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Issuers and the Trustee
in writing and may appoint a successor trustee with the Issuers' consent. The
Issuers may remove the Trustee if:
(1) the Trustee fails to comply with Section 8.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver, Custodian, or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holder or Holders of a majority in principal amount of the Securities may
appoint a successor Trustee to replace the successor Trustee appointed by the
Issuers.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Immediately after that
and provided that all sums owing to the Trustee provided for in Section 8.7
have been paid, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided in Section 8.7,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
74
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Issuers
or the Holder or Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 8.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
8.8, the Issuers' obligations under Section 8.7 shall continue for the benefit
of the retiring Trustee.
SECTION 8.9 Successor Trustee by Merger, Etc.
---------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 8.10 Eligibility; Disqualification.
-----------------------------
The Trustee shall at all times satisfy the requirements of TIA
Section 310(a)(1) and TIA Section 310(a)(5). The Trustee shall have a combined
capital and surplus of at least $25,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA Section
310(b).
SECTION 8.11 Preferential Collection of Claims against
------------------------------------------
Issuers.
- -------
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE IX
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
75
SECTION 9.1 Option to Effect Legal Defeasance or Covenant
----------------------------------------------
Defeasance.
- ----------
The Issuers may elect to have either Section 9.2 or 9.3 be applied
to all outstanding Securities upon compliance with the conditions set forth
below in this Article IX.
SECTION 9.2 Legal Defeasance and Discharge.
------------------------------
The Issuers may at their option, within one year of the final
Stated Maturity of the Securities and upon the Issuers' exercise under Section
9.1 of the option applicable to this Section 9.2, elect to have their
obligations and the obligations of the Guarantors discharged with respect to
all outstanding Securities on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Issuers shall be deemed to have paid and discharged
the entire Indebtedness represented by the outstanding Securities, which shall
thereafter be deemed to be "outstanding" only for the purposes of Section 9.5
and the other Sections of this Indenture referred to in (a) and (b) below, and
to have satisfied all their, and the Guarantors', other obligations under such
Securities and this Indenture and the Mortgage Documents and the Liens of the
Trustee thereunder shall be deemed to have been paid and discharged (and the
Trustee, on demand of and at the expense of the Issuers, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (a) the rights of
Holders of outstanding Securities to receive solely from the trust fund
described in Section 9.4, and as more fully set forth in such section, payments
in respect of the principal of, premium, if any, and interest on such
Securities when such payments are due, (b) the Issuers' obligations with
respect to such Securities under Sections 2.4, 2.6, 2.7, 2.10 and 5.2, (c) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and the
Issuers' obligations in connection therewith and (d) this Article IX. Subject
to compliance with this Article IX, the Issuers may exercise their option under
this Section 9.2 notwithstanding the prior exercise of its option under Section
9.3 with respect to the Securities.
SECTION 9.3 Covenant Defeasance.
-------------------
Upon the Issuers' exercise under Section 9.1 of the option
applicable to this Section 9.3, the Issuers and the Guarantors shall be
released from their respective obligations under the covenants contained in
Sections 5.3, 5.6, 5.7, 5.8, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.18, 5.19,
5.20, 5.22 and Article VI with respect to the outstanding Securities on and
after the date the conditions set forth below are satisfied (hereinafter,
"Covenant Defeasance"), and the Securities shall thereafter be deemed not
"outstanding" for the purposes of any direction, waiver, consent or declaration
or act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "outstanding" for all other purposes
hereunder. For this purpose, such Covenant Defeasance means that, with respect
to the outstanding Securities, the Issuers and the Guarantors need not comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any
other document and the Liens of the Trustee under the Mortgage Documents shall
be deemed to have been paid and
76
discharged, but, except as specified above, the remainder of this Indenture and
such Securities shall be unaffected thereby. In addition, upon the Issuers'
exercise under Section 9.1 of the option applicable to this Section 9.3,
Sections 7.1(c), 7.1(d), 7.1(e), 7.1(h), 7.1(i) and 7.1(j) shall not constitute
Events of Default.
SECTION 9.4 Conditions to Legal or Covenant Defeasance.
------------------------------------------
The following shall be the conditions to the application of either
Section 9.2 or Section 9.3 to the outstanding Securities, unless otherwise
specified herein:
(a) the Issuers must irrevocably deposit with the Trustee,
in trust, for the benefit of the Holders of the Securities, U.S. Legal Tender,
U.S. Government Obligations or a combination thereof, in such amounts as will
be sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, premium, if any, and interest on
such Securities on the stated date for payment thereof or on the redemption
date of such principal or installment of principal of, premium, if any, or
interest on such Securities, and the Holders of Securities must have a valid,
perfected, exclusive security interest in such trust;
(b) in the case of the Legal Defeasance, the Issuers shall
have delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to Trustee confirming that (A) the Issuers have received
from, or there has been published by the Internal Revenue Service, a ruling or
(B) since the date of this Indenture, there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based thereon,
such opinion of counsel shall confirm that, the Holders of such Securities will
not recognize income, gain or loss for Federal income tax purposes as a result
of such Legal Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such Legal Defeasance had not occurred;
(c) in the case of the Covenant Defeasance, the Issuers
shall have delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to such Trustee confirming that the Holders of such
Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such Covenant Defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and
be continuing on the date of such deposit or insofar as Events of Default from
bankruptcy or insolvency events are concerned, at any time in the period ending
on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under, this
Indenture or any other material agreement or instrument to which the Company or
any of its Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound;
77
(f) the Issuers shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Issuers with
the intent of preferring the Holders of such Securities over any other
creditors of the Company or any of its Subsidiaries or with the intent of
defeating, hindering, delaying or defrauding any other creditors of the
Company, its Subsidiaries or others; and
(g) the Issuers shall have delivered to the Trustee an
Officers' Certificate and an opinion of counsel, each stating that the
conditions precedent provided for in, in the case of the Officers' Certificate,
(a) through (f) and, in the case of the opinion of counsel, clauses (a) (with
respect to the validity and perfection of the security interest), (b), (c) and
(e) of this Section have been complied with.
SECTION 9.5 Deposited U.S. Legal Tender and U.S. Government
------------------------------------------------
Obligations to Be Held in Trust; Other Miscellaneous Provisions.
- ---------------------------------------------------------------
Subject to Section 9.6, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 9.5, the
"Trustee") pursuant to Section 9.4 in respect of the outstanding Securities
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect
of principal, premium, if any, and interest, but such money need not be
segregated from other funds except to the extent required by law.
The Issuers jointly and severally agree to pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Legal Tender or U.S. Government Obligations deposited pursuant to Section
9.4 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
the outstanding Securities.
Anything in this Article IX to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuers from time to time upon the request
of the Issuers any U.S. Legal Tender or U.S. Government Obligations held by it
as provided in Section 9.4 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 9.4(a)), are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
SECTION 9.6 Repayment to Issuers.
--------------------
Any money deposited with the Trustee or any Paying Agent, or then
held by the Issuers, in trust for the payment of the principal of or interest
on any Security and remaining unclaimed for two years after such principal or
interest has become due and payable shall be paid to the Issuers on their
request; and the Holder of such Security shall thereafter look only to the
Issuers for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to
78
such trust money shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Issuers cause to be published once, in the New York Times and
The Wall Street Journal (national edition), notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such notification or publication, any unclaimed
balance of such money then remaining will be repaid to the Issuers.
SECTION 9.7 Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 9.2 or 9.3, as
the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Issuers' obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.2 or 9.3 until such time as the Trustee or Paying Agent
is permitted to apply such money in accordance with Section 9.2 and 9.3, as the
case may be; provided, however, that, if the Issuers make any payment of
principal of or interest on any Security following the reinstatement of its
obligations, the Issuers shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1 Supplemental Indentures Without Consent of
-------------------------------------------
Holders.
- -------
Without the consent of any Holder, the Issuers, when authorized by
Board Resolutions, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, or may amend, modify or
supplement the Securities, this Indenture, or any of the exhibits hereto, in
form satisfactory to the Trustee and the Issuers, for any of the following
purposes:
(1) to cure any ambiguity, defect, or inconsistency,
or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture, provided such action pursuant to this
clause (1) shall not adversely affect the interests of any Holder in any
respect;
(2) to add to the covenants of the Issuers for the
benefit of the Holders, or to surrender any right or power herein
conferred upon the Issuers or to make any other change that does not
adversely affect the rights of any Holder; provided, that the Issuers
--------
have delivered to the Trustee an Opinion of Counsel stating that such
change does not adversely affect the rights of any Holder;
79
(3) to provide for additional collateral for or for
guarantors of the Securities;
(4) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
(5) to evidence the succession of another person to
the Issuers, and the assumption by any such successor of the obligations
of the Issuers, herein and in the Securities in accordance with Article
VI; or
(6) to comply with the TIA.
The terms of any document entered into pursuant to this Section
shall be subject to prior approval, if required, of any applicable Gaming
Authority.
SECTION 10.2 Amendments, Supplemental Indentures and Waivers
------------------------------------------------
with Consent of Holders.
- -----------------------
Subject to Section 7.8 and the last sentence of this paragraph,
with the consent of the Holders of not less than a majority in aggregate
principal amount of then outstanding Securities, by written act of said Holders
delivered to the Issuers and the Trustee, the Issuers, when authorized by Board
Resolutions, and the Trustee may amend or supplement any of the exhibits
hereto, this Indenture or the Securities or enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Mortgage
Documents, this Indenture or the Securities or of modifying in any manner the
rights of the Holders under any of the exhibits hereto, this Indenture or the
Securities. Subject to Section 7.8 and the last sentence of this paragraph,
the Holder or Holders of a majority in aggregate principal amount of then
outstanding Securities may waive compliance by the Issuers with any provision
of the Mortgage Documents, this Indenture or the Securities. Notwithstanding
the foregoing provisions of this Section 10.2, no such amendment, supplemental
indenture or waiver shall,
(a) without the consent of the Holder of each outstanding
Security affected thereby:
(i) change the Stated Maturity on any
Security, or reduce the principal amount thereof or the rate (or
extend the time for payment) of interest thereon, or change the
place of payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or reduce the Change
of Control Purchase Price or the Asset Sale Offer Price or
80
alter the provisions of Article III in a manner adverse to the
Holders;
(ii) reduce the percentage in principal
amount of outstanding Securities, the consent of whose Holders is
required for any such amendment, supplemental indenture or waiver
provided for in this Indenture; or
(iii) release any Collateral from the
Liens created by the Mortgage Documents, except in accordance with
this Indenture and such documents, or modify any of the waiver
provisions (except to increase any required percentage or to
provide that certain other provisions of this Indenture cannot be
modified or waived).
(b) without the consent of the Holders of not less than
two-thirds in aggregate principal amount of the then outstanding Securities
affected thereby (except as set forth in clause (a) of this sentence), modify
the obligations of the Issuers to make and consummate a Change of Control Offer
or modify any of the provisions or definitions with respect thereto.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Issuers shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Issuers to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
After an amendment, supplement or waiver under this Section 10.2 or
10.4 becomes effective, it shall bind each Holder, subject to the limitations
set forth above.
In connection with any amendment, supplement or waiver under this
Article X, the Issuers may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or
waiver.
The terms of any document entered into pursuant to this Section
shall be subject to prior approval, if required, of any applicable Gaming
Authority.
SECTION 10.3 Compliance with TIA.
-------------------
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
81
SECTION 10.4 Revocation and Effect of Consents.
---------------------------------
Until an amendment, waiver or supplement becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder may
revoke the consent as to his Security or portion of his Security by written
notice to the Issuers or the person designated by the Issuers as the person to
whom consents should be sent if such revocation is received by the Issuers or
such person before the date on which the Trustee receives an Officers'
Certificate certifying that the Holders of the requisite principal amount of
Securities have consented (and not theretofore revoked such consent) to the
amendment, supplement or waiver.
The Issuers may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver, which record date shall be the date so fixed
by the Issuers notwithstanding the provisions of the TIA. If a record date is
fixed, then notwithstanding the last sentence of the immediately preceding
paragraph, those persons who were Holders at such record date, and only those
persons (or their duly designated proxies), shall be entitled to revoke any
consent previously given, whether or not such persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder; provided, that any such waiver shall not
--------
impair or affect the right of any Holder to receive payment of principal and
premium of and interest on a Security, on or after the respective dates set for
such amounts to become due and payable expressed in such Security, or to bring
suit for the enforcement of any such payment on or after such respective dates.
SECTION 10.5 Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee or require the Holder to put an appropriate notation on the
Security. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Issuers
or the Trustee so determine, the Issuers in exchange for the Security shall
issue, the Guarantors shall endorse and the Trustee shall authenticate a new
Security that reflects the changed terms. Any failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment, supplement or waiver.
82
SECTION 10.6 Trustee to Sign Amendments, Etc.
--------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article X, provided, that the Trustee may, but
--------
shall not be obligated to, execute any such amendment, supplement or waiver
which affects the Trustee's own rights, duties or immunities under this
Indenture. The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
any amendment, supplement or waiver authorized pursuant to this Article X is
authorized or permitted by this Indenture.
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1 Repurchase of Securities at Option of the Holder
-------------------------------------------------
Upon Change of Control.
- ----------------------
(a) In the event that a Change of Control (the date on which
such event occurs being referred to as the "Change of Control Date") occurs,
each Holder of Securities shall have the right, at such Holder's option,
subject to the terms and conditions hereof, to require the Issuers to
repurchase all or any part of such Holder's Securities (provided, that the
principal amount of such Securities at maturity must be $1,000 or an integral
multiple thereof) on a date (the "Change of Control Purchase Date") that is
no later than 75 days after the occurrence of such Change of Control, at a cash
price (the "Change of Control Purchase Price") equal to 101% of the principal
amount thereof, plus accrued and unpaid interest, if any, to the Change of
Control Purchase Date.
(b) In the event that, pursuant to this Section 11.1, the
Company shall be required to commence an offer to purchase Securities (a
"Change of Control Offer"), the Company shall follow the procedures set forth
in this Section 11.1 as follows:
(1) within 30 days following any Change of Control,
the Company or the Trustee (upon the request and at the expense of the
Company) shall send, by first-class mail, a notice to each of the
Securityholders, at his address appearing in the First Mortgage Note
Register, which (to the extent consistent with this Indenture) shall
govern the terms of the Change of Control Offer and shall state:
(i) that the Change of Control Offer is
being made pursuant to this Section 11.1;
(ii) the Change of Control Purchase Price
together with accrued and unpaid interest;
83
(iii) the purchase date for such validly
tendered Securities, which date shall be a business day no earlier
than 45 days nor later than 60 days from the date such notice is
mailed;
(iv) the Change of Control Put Date (as
defined below);
(v) that any Security or portion thereof
not tendered or accepted for payment will continue to accrue
interest;
(vi) that, unless (a) the Company default
in depositing U.S. Legal Tender with the Paying Agent (which may
not for purposes of this Section 11.1, notwithstanding anything in
this Indenture to the contrary, be the Issuers or any of the
Guarantors or any Affiliate of any of the Guarantors (or any other
obligor on the Securities) or any Affiliate of the Issuers (or such
other obligor)) in accordance with the last paragraph of this
clause (b) or (b) such Change of Control payment is prevented for
any reason, any Security or portion thereof accepted for payment
pursuant to the Change of Control Offer shall cease to accrue
interest after the Change of Control Purchase Date;
(vii) that Holders electing to have a
Security, or portion thereof, purchased pursuant to a Change of
Control Offer will be required to surrender the Security, with the
form entitled "Option of Holder to Elect Purchase" on the reverse
of the Security completed, to the Paying Agent (which may not for
purposes of this Section 11.1, notwithstanding anything in this
Indenture to the contrary, be the Issuers or any of the Guarantors
or any Affiliate of any of the Guarantors (or any other obligor on
the Securities) or any Affiliate of the Issuers (or such other
obligor)) at the address specified in the notice prior to the close
of business on the fifth Business Day prior to the Change of
Control Purchase Date (the "Change of Control Put Date");
(viii) that Holders will be entitled to
withdraw their elections, in whole or in part, if the Paying Agent
(which, for purposes of this Section 11.1, notwithstanding any
other provision of this Indenture, may not be the Issuers or an
Affiliate of the Issuers or any of the Guarantors or any Affiliate
of any of the Guarantors) receives, up to the close of business on
the Change of Control Put Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the
principal
84
amount of the Securities the Holder is withdrawing and a statement
that such Holder is withdrawing his election to have such principal
amount of Securities purchased; and
(ix) a brief description of the events
resulting in such Change of Control.
(2) the Change of Control Offer shall commence within
30 days following the Change of Control Date;
(3) the Change of Control Offer shall remain open for
20 Business Days and no longer, except to the extent that a longer period
is required by applicable law (the "Change of Control Offer Period");
(4) within 5 Business Days following the expiration of
a Change of Control Offer (and in any event not earlier than 45 days nor
later than 60 days following the mailing of the notice described above),
the Company shall purchase all of the tendered Securities at the Change
of Control Purchase Price together with accrued interest to the Change of
Control Purchase Date;
(5) if the Change of Control Purchase Date is on or
after an interest payment record date and on or before the related
interest payment date, any accrued interest will be paid to the Person in
whose name a Security is registered at the close of business on such
record date, and no additional interest will be payable to
Securityholders who tender Securities pursuant to the Change of Control
Offer and who are paid on the Change of Control Purchase Date; and
(6) the Company shall provide the Trustee with notice
of the Change of Control Offer at least 5 Business Days before the
commencement of any Change of Control Offer.
On or before the Change of Control Purchase Date, the Company shall
(i) accept for payment Securities or portions thereof properly tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent
U.S. Legal Tender sufficient to pay the Change of Control Purchase Price
(including accrued and unpaid interest) of all Securities so tendered and (iii)
deliver to the Trustee Securities so accepted together with an Officers'
Certificate listing the Securities or portions thereof being purchased. The
Paying Agent will promptly mail to the Holders of Securities so accepted
payment in an amount equal to the Change of Control Purchase Price (together
with accrued and unpaid interest), and the Trustee shall promptly authenticate
and mail or deliver to such Holders a new Security equal in principal amount to
any unpurchased portion of the Security surrendered. Any Securities not so
accepted shall be promptly mailed or delivered to the Holder thereof. The
Company will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Purchase Date.
85
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 TIA Controls.
------------
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
SECTION 12.2 Notices.
-------
Any notices or other communications to the Issuers or the Trustee
required or permitted hereunder shall be in writing, and shall be sufficiently
given if made by hand delivery, by telex, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as
follows:
if to Trump Atlantic City Associates:
Trump Atlantic City Associates
Mississippi Avenue and The Boardwalk
Atlantic City, New Jersey 08401
Attention: Corporate Secretary
Telephone: (609) 441-6000
if to Trump Atlantic City Funding, Inc.:
Trump Atlantic City Funding, Inc.
Mississippi Avenue and The Boardwalk
Atlantic City, New Jersey 08401
Attention: Corporate Secretary
Telephone: (609) 441-6000
if to Trump Plaza Associates:
Trump Plaza Associates
Mississippi Avenue and The Boardwalk
Atlantic City, New Jersey 08401
Attention: Corporate Secretary
Telephone: (609) 441-6000
86
if to Trump Taj Mahal Associates:
Trump Taj Mahal Associates
1000 Boardwalk
Atlantic City, New Jersey 08401
Attention: Corporate Secretary
Telephone: [(609) 949-1000]
if to The Trump Taj Mahal Corporation:
The Trump Taj Mahal Corporation
1000 Boardwalk
Atlantic City, New Jersey 08401
Attention: Corporate Secretary
Telephone: [(609) 949-1000]
if to the Trustee:
First Bank National Association
180 E. 5th Street
St. Paul, Minnesota 55101
Attention: Richard Prokosch
Telephone: (612) 244-0721
The Issuers, the Guarantors or the Trustee by notice to each other
party may designate additional or different addresses as shall be furnished in
writing by such party. Any notice or communication to the Issuers, the
Guarantors or the Trustee shall be deemed to have been given or made as of the
date so delivered, if personally delivered; when answered back, if telexed;
when receipt is acknowledged, if telecopied; and 5 Business Days after mailing
if sent by registered or certified mail, postage prepaid (except that a notice
of change of address shall not be deemed to have been given until actually
received by the addressee).
Any notice or communication mailed to a Securityholder shall be
mailed to him by first class mail or other equivalent means at his address as
it appears on the registration books of the Registrar and shall be deemed to
have been given upon the date so mailed.
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
87
SECTION 12.3 Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA Section 312(b) with
other Securityholders with respect to their rights under this Indenture or the
Securities. The Issuers, the Trustee, the Registrar and any other person shall
have the protection of TIA Section 312(c).
SECTION 12.4 Certificate and Opinion as to Conditions
-----------------------------------------
Precedent.
- ---------
Upon any request or application by the Issuers to the Trustee to
take any action under this Indenture, the Issuers shall furnish to the Trustee:
(1) an Officers' Certificate (in form and substance
reasonably satisfactory to the Trustee) stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (in form and substance
reasonably satisfactory to the Trustee) stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 12.5 Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion
of each such person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an
-------
Opinion of Counsel may rely on an Officers' Certificate or certificates
of public officials.
88
SECTION 12.6 Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules for action by or at a meeting
of Securityholders. The Paying Agent or Registrar may make reasonable rules
for its functions.
SECTION 12.7 Legal Holidays.
--------------
A "Legal Holiday" used with respect to a particular place of
payment is a Saturday, a Sunday or a day on which banking institutions in New
York, New York are not required to be open. If a payment date is a Legal
Holiday in New York, New York, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for
the intervening period.
SECTION 12.8 Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE ISSUERS AND THE GUARANTORS HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING
IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE
SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE
ISSUERS AND THE GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH
THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE 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. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR
ANY SECURITYHOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OF THE ISSUERS OR
THE GUARANTORS IN ANY OTHER JURISDICTION.
SECTION 12.9 No Interpretation of Other Agreements.
-------------------------------------
This Indenture may not be used to interpret another indenture, loan
or debt agreement of any of the Issuers or any of their Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
89
SECTION 12.10 No Recourse against Others.
--------------------------
A direct or indirect partner, director, officer, employee or
stockholder, as such, past, present or future of either of the Issuers, the
Guarantors or any successor entity shall not have any personal liability in
respect of the obligations of the Issuers or the Guarantors under the
Securities or this Indenture by reason of his or its status as such partner,
director, officer, employee or stockholder except to the extent such is an
Issuer or a Guarantor. Each Securityholder by accepting a Security waives and
releases all such liability. Such waiver and release are part of the
consideration for the issuance of the Securities.
SECTION 12.11 Successors.
----------
All agreements of the Issuers or the Guarantors in this Indenture
and the Securities shall bind their successors. All agreements of the Trustee
in this Indenture shall bind its successor.
SECTION 12.12 Duplicate Originals.
-------------------
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
SECTION 12.13 Severability.
------------
In case any one or more of the provisions in this Indenture or in
the Securities shall be held invalid, illegal or unenforceable, in any respect
for any reason, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 12.14 Table of Contents, Headings, Etc.
---------------------------------
The Table of Contents, Cross-Reference Table and headings of the
Articles and the Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
90
SECTION 12.15 Gaming Laws.
-----------
This Indenture, the Mortgage Documents, the Securities and the
security interests thereunder are subject to the Casino Control Act of the
State of New Jersey and the rules and regulations thereunder (the "Gaming
Regulations") (and each Issuer represents and warrants that all requisite
approvals thereunder have been obtained), and the exercise of remedies under
the Mortgage Documents with respect to the Collateral will be subject to the
Gaming Regulations.
ARTICLE XIII
GUARANTY
SECTION 13.1 Guaranty.
--------
(a) In consideration of good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, each of the
Guarantors, jointly and severally, hereby irrevocably and unconditionally
guarantees, which guarantee shall be secured by a perfected security interest
in all of the Collateral owned by such Guarantors and which Guaranty shall be
senior to all unsubordinated Indebtedness of such Guarantor (the "Guaranty"),
to each Holder of a Security authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Securities or the obligations of the
Issuers under this Indenture or the Securities, that: (w) the principal and
premium (if any) of and interest on the Securities will be paid in full when
due, whether at the maturity or interest payment date, by acceleration, call
for redemption, upon an Offer to Purchase, or otherwise, and interest on the
overdue principal and interest, if any, of the Securities, if lawful, and all
other obligations of the Company to the Holders or the Trustee under this
Indenture or the Securities will be promptly paid in full or performed, all in
accordance with the terms of this Indenture and the Securities; (x) all other
obligations of the Company to the Holders or the Trustee under this Indenture
or the Securities will be promptly paid in full or performed, all in accordance
with the terms of this Indenture and the Securities; and (y) in case of any
extension of time of payment or renewal of any Securities or any of such other
obligations, they will be paid in full when due or performed in accordance with
the terms of the extension or renewal, whether at maturity, by acceleration,
call for redemption, upon an Offer to Purchase or otherwise. Failing payment
when due of any amount so guaranteed for whatever reason, each Guarantor shall
be obligated to pay the same before failure so to pay becomes an Event of
Default. This Guaranty is a guarantee of payment and not of collection.
Failing payment when due of any amount so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same before
failure to so pay becomes an Event of Default.
(b) Each Guarantor hereby agrees that its obligations with
regard to this Guaranty shall be unconditional, irrespective of the validity,
regularity or enforceability of the Securities or this Indenture, the absence
of any action to enforce the same, any delays in obtaining or realizing upon or
failures to obtain or realize upon collateral, the recovery of any
91
judgment against the Issuers, any action to enforce the same or any other
circumstances that might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of either of the Issuers, any right to require a proceeding first
against either of the Issuers or right to require the prior disposition of the
assets of either of the Issuers to meet its obligations, protest, notice and
all demands whatsoever and covenants that this Guaranty will not be discharged
except by complete performance of the obligations contained in the Securities
and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to either of the Issuers or any Guarantor, or any
Custodian, Trustee, or similar official acting in relation to either of the
Issuers or such Guarantor, any amount paid by either of the Issuers or such
Guarantor to the Trustee or such Holder, this Guaranty, to the extent
theretofore discharged, shall be reinstated in full force and effect. Each
Guarantor agrees that it will not be entitled to any right of subrogation in
relation to the Holders in respect of any obligations guaranteed hereby until
payment in full of all obligations guaranteed hereby. Each Guarantor further
agrees that, as between such Guarantor, on the one hand, and the Holders and
the Trustee, on the other hand, (i) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Section 7.2 for the purposes of this
Guaranty, notwithstanding any stay, injunction or other prohibition preventing
such acceleration as to the Issuers of the obligations guaranteed hereby, and
(ii) in the event of any declaration of acceleration of those obligations as
provided in Section 7.2, those obligations (whether or not due and payable)
will forthwith become due and payable by each of the Guarantors for the purpose
of this Guaranty.
(d) It is the intention of each Guarantor and the Issuers
that the obligations of each Guarantor hereunder shall be in, but not in excess
of, the maximum amount permitted by applicable law. Accordingly, if the
obligations in respect of the Guaranty would be annulled, avoided or
subordinated to the creditors of any Guarantor by a court of competent
jurisdiction in a proceeding actually pending before such court as a result of
a determination both that such Guaranty was made without fair consideration
and, immediately after giving effect thereto, such Guarantor was insolvent or
unable to pay its debts as they mature or left with an unreasonably small
capital, then the obligations of such Guarantor under such Guaranty shall be
reduced by such court if and to the extent such reduction would result in the
avoidance of such annulment, avoidance or subordination; provided,
--------
however, that any reduction pursuant to this paragraph shall be made in the
- -------
smallest amount as is strictly necessary to reach such result. For purposes of
this paragraph, "fair consideration", "insolvency", "unable to pay its debts as
they mature", "unreasonably small capital" and the effective times of
reductions, if any, required by this paragraph shall be determined in
accordance with applicable law. The provisions of this Section 13.1(d) shall
survive until the Securities are no longer outstanding.
SECTION 13.2 Execution and Delivery of Guaranty.
----------------------------------
To evidence its Guaranty set forth in Section 13.1, each Guarantor
agrees to execute a Guaranty substantially in the form annexed hereto as
Exhibit B and that this Indenture
92
shall be executed on behalf of such Guarantor by two Officers or an Officer and
an Assistant Secretary by manual or facsimile signature.
Each Guarantor agrees that its Guaranty set forth in Section 13.1
shall remain in full force and effect and apply to all the Securities
notwithstanding any failure to endorse on each Security a notation of such
Guaranty.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security to which a Guaranty
relates, the Guaranty shall be valid nevertheless.
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Guaranty
set forth in this Indenture on behalf of each Guarantor.
SECTION 13.3 Certain Bankruptcy Events.
-------------------------
Each Guarantor hereby covenants and agrees that in the event of the
insolvency, bankruptcy, dissolution, liquidation or reorganization of either of
the Issuers, such Guarantor shall not file (or join in any filing of), or
otherwise seek to participate in the filing of, any motion or request seeking
to stay or to prohibit (even temporarily) execution on the Guaranty and hereby
waives and agrees not to take the benefit of any such stay of execution,
whether under Section 362 or 105 of the United States Bankruptcy Code or
otherwise.
SECTION 13.4 Rights Under the Guaranty.
-------------------------
No payment by any Guarantor pursuant to the provisions hereof to
the Trustee shall entitle such Guarantor to any payment out of any Collateral
held by the Trustee under this Indenture or any Mortgage Documents.
(a) Each of the Guarantors waives notice of the issuance,
sale and purchase of the Securities and notice from the Trustee or the holders
from time to time of any of the Securities of their acceptance and reliance on
this Guaranty.
(b) Notwithstanding any payment or payments made by the
Guarantors by reason of this Guaranty, the Guarantors shall not be subrogated
to any rights of the Trustee or any Holder of the Securities against the
Issuers until all the Securities shall have been paid or deemed to have been
paid within the meaning of this Indenture. Any payment made by the Guarantors
by reason of this Guaranty shall be in all respects subordinated to the full
and complete payment or discharge under this Indenture of all obligations
guaranteed hereby, and no payment by the Guarantors by reason of this Guaranty
shall give rise to any claim of the Guarantors against the Trustee or any
Holder of the Securities. Unless and until the Securities shall have been paid
or deemed to have been paid within the meaning of this Indenture, none of the
Guarantors will assign or otherwise transfer any such claim against the Issuers
to any other person.
93
(c) No set-off, counterclaim, reduction or diminution of any
obligation or any defense of any kind or nature (other than performance by the
Guarantor of its obligation hereunder) which the Guarantor may have or assert
against the Trustee or any holder of any Securities shall be available
hereunder to the Guarantor against the Trustee.
(d) Each Guarantor agrees to pay all costs, expense and
fees, including all reasonable attorneys' fees, which may be incurred by the
Trustee in enforcing or attempting to enforce the Guaranty or protecting the
rights of the Trustee or the Holders of Securities, if any, in accordance with
this Indenture.
SECTION 13.5 Severability.
------------
In case any provision of this Guaranty shall be invalid, illegal or
unenforceable, that portion of such provision that is not invalid, illegal or
unenforceable shall remain in effect, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 13.6 Merger or Consolidation of Guarantors.
-------------------------------------
No Guarantor shall consolidate or merge with or into (whether or
not such Guarantor is the surviving Person) another Person unless (i) subject
to the provisions of the following paragraph, the Person formed by or surviving
any such consolidation or merger (if other than such Guarantor) assumes all the
obligations of such Guarantor pursuant to a supplemental indenture and
supplemental Mortgage Documents in form reasonably satisfactory to the Trustee,
pursuant to which such Person shall unconditionally guarantee, on a senior
secured basis, all of such Guarantor's obligations under such Guarantor's
guarantee, this Indenture and the Mortgage Documents on the terms set forth in
this Indenture; (ii) immediately before and immediately after giving effect to
such transaction on a pro forma basis, no Default or Event of Default shall
have occurred or be continuing; and (iii) immediately after such transaction,
the surviving Person holds all Permits required for operation of the business
of, and such entity is controlled by a Person or entity (or has retained a
Person or entity which is) experienced in, operating casino hotels or otherwise
holds all Permits (including those required from Gaming Authorities) to operate
its business.
In the event of a sale or other disposition of all of the Equity
Interests of any Guarantor (including pursuant to a merger or consolidation) to
any person other than a Subsidiary Guarantor, then such Guarantor may be
released and relieved of any obligation under its Guaranty; provided, that (x)
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing and (y) such Asset Sale and the
application of the Net Cash Proceeds therefrom are in accordance with the
applicable provisions of this Indenture, including without limitation Section
5.15 and Article VI.
94
SIGNATURE
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed as of the date first written above.
TRUMP ATLANTIC CITY ASSOCIATES
By:TRUMP HOTELS & CASINO RESORTS
HOLDINGS, L.P.,
its general partner
By: TRUMP HOTELS & CASINO
RESORTS, INC.,
its managing general partner
By:
---------------------------------
Name:
Title:
Attest: _______________
TRUMP ATLANTIC CITY FUNDING, INC.
By:
---------------------------------
Name:
Title:
Attest: _______________
FIRST BANK NATIONAL
ASSOCIATION, as Trustee
By:
----------------------------------
Name:
Title:
95
Attest: _______________
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 managing general partner
By:
----------------------------------
Name:
Title:
TRUMP TAJ MAHAL FUNDING, INC.
By:
----------------------------------
Name:
Title:
GUARANTORS
TRUMP PLAZA ASSOCIATES
By: TRUMP ATLANTIC CITY ASSOCIATES,
its general partner
By: TRUMP HOTELS & CASINO RESORTS
HOLDINGS, L.P., its general partner
96
By: TRUMP HOTELS & CASINO RESORTS,
INC., its managing general partner
By:
----------------------------------
Name:
Title:
Attest: _________________
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 managing general partner
By:
----------------------------------
Name:
Title:
THE TRUMP TAJ MAHAL CORPORATION
By:
----------------------------------
Name:
Title:
Attest: _________________
97
Exhibit A
[FORM OF SECURITY]
TRUMP ATLANTIC CITY ASSOCIATES
TRUMP ATLANTIC CITY FUNDING, INC.
% FIRST MORTGAGE NOTES
------------
DUE 2006
No. $
CUSIP
-------------------------
Trump Atlantic City Associates, a New Jersey partnership, and Trump
Atlantic City Funding, Inc., a Delaware corporation (hereinafter collectively
called the "Issuers," which term includes any successor entity under the
Indenture hereinafter referred to), for value received, hereby promise to pay
to ______________, or registered assigns, the principal sum of
___________________________________________ Dollars, on April __, 2006.
Interest Payment Dates: April and October .
--
Record Dates: April and October .
--
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set
forth at this place.
A-1
IN WITNESS WHEREOF, the Issuers have caused this Instrument to be
duly executed under their respective corporate seals.
Dated:
Attest: TRUMP ATLANTIC CITY ASSOCIATES
By: TRUMP HOTELS & CASINO RESORTS
HOLDINGS, L.P., its general partner
By: TRUMP HOTELS & CASINO RESORTS,
INC., its managing general partner
By:
--------------------------------
- -----------------------
Secretary
Attest: TRUMP ATLANTIC CITY FUNDING, INC.
By:
--------------------------------
- -----------------------
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the
within-mentioned Indenture.
FIRST BANK NATIONAL ASSOCIATION,
as trustee
By: _____________________________
Authorized Signatory
Dated:
A-2
TRUMP ATLANTIC CITY ASSOCIATES
TRUMP ATLANTIC CITY FUNDING, INC.
% FIRST MORTGAGE NOTESDUE 2006
------------
1. Interest.
--------
Trump Atlantic City Associates, a New Jersey partnership, and Trump
Atlantic City Funding, Inc., a Delaware corporation (collectively, the
"Issuers"), jointly and severally promise to pay interest on the principal
amount of this Security at the rate of % per annum from the date of
-------
issuance or from the most recent Interest Payment Date to which interest has
been paid or provided for. Interest on this Security will be payable
semiannually on April and October , commencing October ,
--
1996, to the person in whose name this Security is registered at the close of
business on April or October , preceding such Interest Payment
--
Date (each, a "Record Date"). Interest on this Security will be computed on
the basis of a 360-day year, consisting of twelve 30-day months.
2. Method of Payment.
-----------------
The Issuers shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of
business on the Record Date immediately preceding the Interest Payment Date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. Except as provided below, the Issuers shall pay principal and
interest in such coin or currency of the United States of America as at the
time of payment shall be legal tender for payment of public and private debts
("U.S. Legal Tender"). The Issuers may deliver any such interest payment to
the Paying Agent or the Issuers may mail any such interest payment to a Holder
at the Holder's registered address. Notwithstanding the preceding two
sentences, in the case of Securities of which The Depository Trust Company or
its nominee is the Holder, such payments must be made by wire transfer of
Federal funds.
3. Paying Agent and Registrar.
--------------------------
Initially, First Bank National Association, a national banking
association (the "Trustee"), will act as Paying Agent and Registrar. The
Issuers may change any Paying Agent, Registrar or Co-registrar without notice
to the Holders. The Issuers or any of their Subsidiaries may, subject to
certain exceptions, act as Paying Agent, Registrar or Co-registrar.
4. Indenture.
---------
The Issuers issued the Securities under an Indenture, dated as of
April , 1996 (the "Indenture"), between the Issuers, the Guarantors named
--
therein and the Trustee. Capital-
A-3
ized terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act, as in
effect on the date of the Indenture. The Securities are subject to all such
terms, and Holders of Securities are referred to the Indenture and said Act for
a statement of them. The Securities are senior, secured obligations of each of
the Issuers limited in aggregate principal amount to $1,100,000,000.
5. Redemption.
----------
The Securities are redeemable in whole or from time to time in part
at any time on and after April , 2001, at the option of the Issuers, at
--
the Redemption Price (expressed as a percentage of principal amount) set forth
below, if redeemed during the 12-month period commencing April of each
--
of the years indicated below, in each case, together with any accrued but
unpaid interest through the Redemption Date. Except as provided in the next
paragraph, the Securities may not otherwise be redeemed at the option of the
Issuers.
12-Month
Period Beginning Redemption Price
---------------- ----------------
April , 2001 ..................... %
--
April , 2002........................ %
--
April , 2003........................ %
--
April , 2004 and thereafter......... 100.000 %
--
Any Governmental Authority with appropriate jurisdiction and
authority relating to a Gaming License held by an Issuer or an Affiliate or
wholly owned Subsidiary of an Issuer may require a Holder to be qualified under
any applicable law administered by such Governmental Authority. If a Holder
does not qualify under the Casino Control Act, the Holder must dispose of its
interest in the Securities, within 30 days after an Issuer's notice of such
finding (or within such earlier date as the CCC may require), or the Issuers
may redeem such Securities to the extent necessary in the reasonable, good
faith judgment of a general partner of the Company, to prevent the loss,
failure to obtain or material impairment or to secure the reinstatement of any
material Gaming License. If a Holder does not qualify under any applicable law
administered by a Governmental Authority other than the Casino Control Act, the
Issuers may redeem such Securities to the extent necessary in the reasonable,
good faith judgment of a general partner of the Company, to prevent the loss,
failure to obtain or material impairment or to secure the reinstatement of any
material Gaming License. In such event, the Redemption Price shall be the
principal amount thereof, plus accrued and unpaid interest to the date of
redemption (or such lesser amount as may be required by applicable law).
Any redemption of the Securities shall comply with Article III of
the Indenture.
A-4
6. Notice of Redemption.
--------------------
Notice of redemption will be mailed by first class mail at least 30
days but not more than 60 days before the Redemption Date (unless another
notice period shall be required by applicable laws or by order of any Gaming
Authority) to each Holder of Securities to be redeemed at his registered
address. Securities in denominations larger than $1,000 may be redeemed in
part, but only in $1,000 integrals.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption
shall have been deposited with the Paying Agent (other than either of the
Issuers or an Affiliate of either of the Issuers) on such Redemption Date, the
Securities called for redemption will cease to bear interest and the only right
of the Holders of such Securities will be to receive payment of the Redemption
Price, including any accrued and unpaid interest to the Redemption Date, unless
the Issuers default on such payment.
7. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may
register the transfer of, or exchange Securities in accordance with, the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any Securities selected for redemption.
8. Persons Deemed Owners.
---------------------
The registered Holder of a Security may be treated as the owner of
it for all purposes.
9. Unclaimed Money.
---------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Issuers at their written request. After that, all liability of the Trustee
and such Paying Agent(s) with respect to such money shall cease.
10. Legal Defeasance or Covenant Defeasance Prior to Redemption or
---------------------------------------------------------------
Maturity.
- --------
If the Issuers, within one year of the final Stated Maturity of the
Securities in the case of Legal Defeasance, or at any time in the case of
Covenant Defeasance, deposit with the Trustee, in trust, for the benefit of the
Holders, U.S. Legal Tender, non-callable government securities or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants selected by the Trustee, to
pay the principal of, premium, if any and interest on the Securities to
redemption or maturity and comply
A-5
with the other provisions of the Indenture relating thereto, the Issuers may
elect to have their obligations discharged, in the case of a Legal Defeasance
(in which case the Indenture would cease to be of further effect, except as to
certain limited obligations and to the rights of Holders to receive payments
when due from the trust funds therefore), or, in the case of a Covenant
Defeasance, to be discharged from certain provisions of the Indenture and the
Securities (including the financial covenants, but excluding their obligation
to pay the principal of and interest on the Securities).
11. Amendment; Supplement; Waiver.
-----------------------------
Subject to certain exceptions, the Indenture or the Securities may
be amended or supplemented with the written consent of the Holders of a simple
majority, 66 2/3% or 100% in aggregate principal amount of the Securities then
outstanding, depending on the provisions, and any existing Default or Event of
Default or compliance with any provision may be waived with the consent of the
Holders of the same specified percentage of aggregate principal amount of the
Securities then outstanding. Without notice to or consent of any Holder, the
parties thereto may amend or supplement the Indenture, the Mortgage Documents
or the Securities to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Securities in addition to or in place
of certificated Securities, or make any other change that does not adversely
affect the rights of any Holder of a Security.
12. Restrictive Covenants.
---------------------
The Indenture imposes certain limitations on the ability of the
Issuers and their Subsidiaries to, among other things, incur additional
Indebtedness and Disqualified Capital Stock, make payments in respect of its
Equity Interests, enter into transactions with Affiliates, incur Liens, sell
assets, merge or consolidate with any other person and sell, lease, transfer or
otherwise dispose of substantially all of its properties or assets. The
limitations are subject to a number of important qualifications and exceptions.
The Issuers must annually report to the Trustee on compliance with such
limitations.
13. Change of Control.
-----------------
In the event there shall occur any Change of Control, each Holder
of Securities shall have the right, at such Holder's option but subject to the
limitations and conditions set forth in the Indenture, to require the Issuers
to purchase on the Change of Control Purchase Date in the manner specified in
the Indenture, all or any part (in integral multiples of $1,000) of such
Holder's Securities at a Change of Control Purchase Price equal to 101% of the
principal amount thereof, together with accrued and unpaid interest, if any, to
the Change of Control Purchase Date.
A-6
14. Security.
--------
In order to secure the obligations under the Indenture, the
Issuers, the Guarantors and the Trustee have entered into the Mortgage
Documents and the Collateral Agency Agreement in order to create and govern
security interests in certain assets of the Issuers, the Guarantors and their
Subsidiaries.
15. Sale of Assets.
--------------
The Indenture imposes certain limitations on the ability of the
Issuers or any of their Subsidiaries to sell assets. In the event the proceeds
from a permitted Asset Sale exceed certain amounts, as specified in the
Indenture, the Issuers and the Guarantors will be required either to reinvest
the proceeds of such Asset Sale in their business or to repay certain
indebtedness and to make an offer to purchase each Holder's Securities at 100%
of the principal amount thereof, together with accrued and unpaid interest, if
any, to the Asset Sale Purchase Date.
16. Gaming Laws.
-----------
The rights of the Holder of this Security and any owner of any
beneficial interest in this Security are subject to the gaming laws,
regulations and the jurisdiction and requirements of the Gaming Authorities and
the further limitations and requirements set forth in the Indenture.
17. Successors.
----------
When a successor assumes all the obligations of its predecessor
under the Securities and the Indenture, the predecessor will be released from
those obligations.
18. Defaults and Remedies.
---------------------
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of
Securities may not enforce the Indenture or the Securities except as provided
in the Indenture. The Trustee may require reasonable security or indemnity
satisfactory to it before it enforces the Indenture or the Securities. Subject
to certain limitations, Holders of a majority in aggregate principal amount of
the Securities then outstanding may direct the Trustee in its exercise of any
trust or power.
19. Trustee Dealings with Issuers.
-----------------------------
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of any of the Securities, make loans
to, accept deposits from, and perform services for the Issuers or their
Affiliates, and may otherwise deal with the Issuers or their respective
Affiliates with the same rights it would have if it were not the Trustee.
A-7
20. No Recourse Against Others.
--------------------------
No direct or indirect partner, director, officer, employee or
stockholder, as such, past, present or future of either of the Company or
Funding, any Guarantor or any successor entity shall have any personal
liability in respect of the obligations of the Issuers or any Guarantor under
the Indenture or the Securities or the guarantees thereof by reason of his or
its status as such partner, director, officer, employee or stockholder, except
to the extent such is an Issuer or a Guarantor. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
21. Authentication.
--------------
This Security shall not be valid until the Trustee or
authenticating agent signs the certificate of authentication on the other side
of this Security.
22. Abbreviations and Defined Terms.
-------------------------------
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
23. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on
Uniform Security Identification Procedures, the Issuers will cause CUSIP
numbers to be printed on the Securities as a convenience to the Holders of the
Securities. No representation is made as to the accuracy of such numbers as
printed on the Securities and reliance may be placed only on the other
identification numbers printed hereon.
A-8
[FORM OF ASSIGNMENT]
I or we assign this Security to
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of
assignee _________________ and irrevocably appoint ___________ agent to
transfer this Security on the books of the Issuers. The agent may substitute
another to act for him.
Dated: __________ Signed:
----------------------------------------
(Sign exactly as your name appears on the other side
- ------------------------
of this Security)
- --------------------------------------------------------------------
Signature guarantee should be made by a guarantor institution participating in
the Securities Transfer Agents Medallion Program or in such other guarantee
program acceptable to the Trustee.
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to any of the following provisions of the Indenture, check the
appropriate box:
[_] Section 5.15; [_] Article XI.
If you want to elect to have only part of this Security purchased
by the Issuers pursuant to the Indenture, state the principal amount you want
to be purchased: $________
Date: ________________ Signature:
--------------------------------
(Sign exactly as your name appears on the
other side of this Security)
A-10
EXHIBIT B
---------
FORM OF GUARANTY
----------------
For value received, __________________, a __________________
[corporation/partnership], hereby irrevocably, unconditionally guarantees, on a
senior secured basis, to the Holder of the Security upon which this Guaranty is
endorsed the due and punctual payment, as set forth in the Indenture pursuant
to which such Security and this Guaranty were issued, of the principal of,
premium (if any) and interest on such Security when and as the same shall
become due and payable for any reason according to the terms of such Security
and Article XIII of the Indenture. The Guaranty of the Security upon which
this Guaranty is endorsed will not become effective until the Trustee signs the
certificate of authentication on such Security.
-------------------------------------
By:
-------------------------------
Attest:
-----------------------------
B-1