Exhibit 4.31
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XXXXX ATLANTIC CITY ASSOCIATES
XXXXX ATLANTIC CITY FUNDING II, INC.
Issuers
XXXXX PLAZA ASSOCIATES
XXXXX XXX MAHAL ASSOCIATES
XXXXX ATLANTIC CITY CORPORATION
XXXXX CASINO SERVICES, L.L.C.
XXXXX COMMUNICATIONS, L.L.C.
Guarantors
and
U.S. BANK NATIONAL ASSOCIATION
Trustee
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INDENTURE
Dated as of December 10, 1997
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$75,000,000 11 1/4% First Mortgage Notes (TAC II) 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
i
(e)........................................................... 12.5
(f)........................................................... N.A.
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
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.................................................... 1
SECTION 1.2 Incorporation by Reference of TIA.............................. 29
SECTION 1.3 Rules of Construction.......................................... 30
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.............................................. 30
SECTION 2.2 Execution and Authentication................................. 31
SECTION 2.3 Registrar and Paying Agent................................... 32
SECTION 2.4 Paying Agent to Hold Assets in Trust......................... 33
SECTION 2.5 Securityholder Lists......................................... 33
SECTION 2.6 Transfer and Exchange........................................ 33
SECTION 2.7 Replacement Securities....................................... 40
SECTION 2.8 Outstanding Securities....................................... 40
SECTION 2.9 Treasury Securities.......................................... 41
SECTION 2.10 Temporary Securities......................................... 41
SECTION 2.11 Cancellation................................................. 41
SECTION 2.12 Defaulted Interest........................................... 42
SECTION 2.13 CUSIP Numbers................................................ 42
ARTICLE III
REDEMPTION
SECTION 3.1 Right of Redemption.......................................... 42
SECTION 3.2 Redemption Pursuant to Applicable Laws....................... 43
SECTION 3.3 Notices to Trustee........................................... 43
SECTION 3.4 Selection of Securities to Be Redeemed....................... 43
SECTION 3.5 Notice of Redemption......................................... 44
SECTION 3.6 Effect of Notice of Redemption............................... 45
SECTION 3.7 Deposit of Redemption Price.................................. 45
SECTION 3.8 Securities Redeemed in Part.................................. 46
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PAGE
ARTICLE IV
SECURITY
SECTION 4.1 Security Interest............................................ 46
SECTION 4.2 Recording; Opinions of Counsel............................... 47
SECTION 4.3 Disposition of Certain Collateral............................ 48
SECTION 4.4 Certain Releases of Collateral............................... 50
SECTION 4.5 Payment of Expenses.......................................... 50
SECTION 4.6 Suits to Protect the Collateral.............................. 50
SECTION 4.7 Trustee's Duties............................................. 50
SECTION 4.8 Restricted Funds Account..................................... 51
ARTICLE V
COVENANTS
SECTION 5.1 Payment of Securities........................................ 51
SECTION 5.2 Maintenance of Office or Agency.............................. 52
SECTION 5.3 Limitation on Restricted Payments............................ 53
SECTION 5.4 Corporate and Partnership Existence.......................... 54
SECTION 5.5 Payment of Taxes and Other Claims............................ 54
SECTION 5.6 Maintenance of Insurance..................................... 55
SECTION 5.7 Compliance Certificate; Notice of Default.................... 55
SECTION 5.8 Provision of Financial Statements............................ 56
SECTION 5.9 Waiver of Stay, Extension or Usury Laws...................... 56
SECTION 5.10 Limitation on Transactions with Affiliates................... 57
SECTION 5.11 Limitation on Incurrence of Additional Indebtedness.......... 57
SECTION 5.12 Restriction on Sale and Issuance of Subsidiary Stock......... 59
SECTION 5.13 Limitation on Dividends and Other Payment Re-
strictions Affecting Subsidiaries............................ 59
SECTION 5.14 Limitation on Liens.......................................... 60
SECTION 5.15 Limitation on Sales of Assets and Subsidiary Stock;
Event of Loss................................................ 60
SECTION 5.16 Future Subsidiary Guarantors................................. 64
SECTION 5.17 Limitation on Activities of Funding II....................... 64
SECTION 5.18 Rule 144A Information Requirement............................ 65
SECTION 5.19 Limitation on Lines of Business.............................. 65
SECTION 5.20 Restriction on Certain Agreements............................ 65
SECTION 5.21 Limitation on Leases......................................... 65
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PAGE
SECTION 5.22 Limitation on Status as Investment Company................... 66
SECTION 5.23 Future Collateral Agreements................................. 66
SECTION 5.24 Limitations on Use of Proceeds from the Offering............. 66
ARTICLE VI
SUCCESSORS
SECTION 6.1 Limitation on Merger, Sale or Consolidation.................. 67
SECTION 6.2 Successor Substituted........................................ 68
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1 Events of Default............................................ 69
SECTION 7.2 Acceleration of Maturity Date; Rescission and Annulment...... 72
SECTION 7.3 Collection of Indebtedness and Suits for Enforcement by
Trustee...................................................... 73
SECTION 7.4 Trustee May File Proofs of Claim............................. 73
SECTION 7.5 Trustee May Enforce Claims Without Possession of
Securities................................................... 74
SECTION 7.6 Priorities................................................... 74
SECTION 7.7 Limitation on Suits.......................................... 75
SECTION 7.8 Unconditional Right of Holders to Receive Princi-
pal, Premium and Interest.................................... 76
SECTION 7.9 Rights and Remedies Cumulative............................... 76
SECTION 7.10 Delay or Omission Not Waiver................................. 76
SECTION 7.11 Control by Holders........................................... 76
SECTION 7.12 Waiver of Past Default....................................... 77
SECTION 7.13 Undertaking for Costs........................................ 77
SECTION 7.14 Restoration of Rights and Remedies........................... 78
ARTICLE VIII
TRUSTEE
SECTION 8.1 Duties of Trustee............................................ 78
SECTION 8.2 Rights of Trustee............................................ 79
SECTION 8.3 Individual Rights of Trustee................................. 80
SECTION 8.4 Trustee's Disclaimer......................................... 80
SECTION 8.5 Notice of Default............................................ 80
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PAGE
SECTION 8.6 Reports by Trustee to Holders................................ 81
SECTION 8.7 Compensation and Indemnity................................... 82
SECTION 8.8 Replacement of Trustee....................................... 83
SECTION 8.9 Successor Trustee by Merger, Etc............................. 84
SECTION 8.10 Eligibility; Disqualification................................ 84
SECTION 8.11 Preferential Collection of Claims against Issuers............ 84
ARTICLE IX
LEGAL DEFEASANCE AND COVENANT DEFEASANCE;
SATISFACTION AND DISCHARGE
SECTION 9.1 Option to Effect Legal Defeasance or Covenant Defeasance..... 84
SECTION 9.2 Legal Defeasance and Discharge............................... 85
SECTION 9.3 Covenant Defeasance.......................................... 85
SECTION 9.4 Conditions to Legal or Covenant Defeasance................... 86
SECTION 9.5 Deposited U.S. Legal Tender and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions.......... 87
SECTION 9.6 Repayment to Issuers......................................... 87
SECTION 9.7 Reinstatement................................................ 88
SECTION 9.8 Satisfaction and Discharge of Indenture...................... 88
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1 Supplemental Indentures Without Consent of Holders........... 89
SECTION 10.2 Amendments, Supplemental Indentures and Waivers
with Consent of Holders...................................... 90
SECTION 10.3 Compliance with TIA.......................................... 91
SECTION 10.4 Revocation and Effect of Consents............................ 91
SECTION 10.5 Notation on or Exchange of Securities........................ 92
SECTION 10.6 Trustee to Sign Amendments, Etc.............................. 92
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PAGE
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1 Repurchase of Securities at Option of the Holder
Upon Change of Control....................................... 93
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 TIA Controls................................................. 96
SECTION 12.2 Notices...................................................... 96
SECTION 12.3 Communications by Holders with Other Holders................. 98
SECTION 12.4 Certificate and Opinion as to Conditions Precedent........... 98
SECTION 12.5 Statements Required in Certificate or Opinion................ 98
SECTION 12.6 Rules by Trustee, Paying Agent, Registrar.................... 99
SECTION 12.7 Legal Holidays............................................... 99
SECTION 12.8 Governing Law................................................ 99
SECTION 12.9 No Interpretation of Other Agreements........................ 100
SECTION 12.10 No Recourse against Others................................... 100
SECTION 12.11 Successors................................................... 100
SECTION 12.12 Duplicate Originals.......................................... 100
SECTION 12.13 Severability................................................. 100
SECTION 12.14 Table of Contents, Headings, Etc............................. 100
SECTION 12.15 Gaming Laws.................................................. 101
SECTION 12.16 Registration Rights.......................................... 101
ARTICLE XIII
GUARANTY
SECTION 13.1 Guaranty..................................................... 101
SECTION 13.2 Execution and Delivery of Guaranty........................... 103
SECTION 13.3 Certain Bankruptcy Events.................................... 103
SECTION 13.4 Rights Under the Guaranty.................................... 103
SECTION 13.5 Severability................................................. 104
SECTION 13.6 Merger or Consolidation of Guarantors........................ 104
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PAGE
EXHIBITS
Exhibit A Form of First Mortgage Note (TAC II) due 2006................... A-1
Exhibit B Form of Guaranty................................................ B-1
viii
INDENTURE, dated as of December 10, 1997, between Xxxxx Atlantic
City Associates, a New Jersey partnership (the "Company"), Xxxxx Atlantic
City Funding II, Inc., a Delaware corporation and a wholly-owned subsidiary
of the Company ("Funding II" and, together with the Company, the "Issuers"),
as joint and several obligors; Xxxxx Plaza Associates, a New Jersey
partnership ("Plaza Associates"), and Xxxxx Xxx Mahal Associates, a New
Jersey partnership ("Taj Associates"), Xxxxx Atlantic City Corporation, a
Delaware corporation and a wholly owned subsidiary of the Company ("TACC"),
Xxxxx Casino Services, L.L.C., a New Jersey limited liability company and a
wholly-owned subsidiary of the Company ("TCS"), Xxxxx Communications L.L.C.,
a New Jersey limited liability company and a wholly-owned subsidiary of the
Company ("Xxxxx Communications" and, together with Taj Associates, Plaza
Associates, TACC, TCS and such other persons as may be required from time to
time to execute a Guaranty hereunder, the "Guarantors"); and U.S. 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 Company's
11 1/4% Series A First Mortgage Notes (TAC II) due 2006 and the class of
11 1/4% Series B First Mortgage Notes (TAC II) due 2006 to be exchanged for
the 111/4% Series A First Mortgage Notes (TAC II) 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 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.
"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.
"Assignments of Leases and Rents" means collectively, those
Assignments of Leases and Rents dated the date hereof between each of Plaza
Associates and Taj Associates, respectively, and the Collateral Agent as the
same may be amended from time to time in accordance with their terms and, to
the extent applicable, the terms of this Indenture.
"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 Xxxxx Atlantic City Holding, Inc. ("Xxxxx XX
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 Xxxxx XX Holding; (ii) in the case of Funding II, any Authorized
Representative of the Company (with Funding II, 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
2
designated by the Board of Directors of Xxxxx XX Holding to be an "Authorized
Representative" of such person under this Indenture.
"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 Xxxxx 00, Xxxxxx Xxxxxx 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 Existing Notes on April
17, 1996 (including proceeds from the exercise of the underwriters' over
allotment option) except for such contributions of proceeds therefrom in
excess of $270 million, less amounts received therefrom by the Company from
the sale of its Qualified Capital Stock to THCR Holdings.
3
"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 Indebtedness 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 Xxxxx'x
Investors Service, Inc. or any successor rating agency, or "A-1" (or higher)
according to Standard & Poor's Ratings Service, a division of XxXxxx-Xxxx,
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
Xxxxx'x Investors Service, Inc. or any successor rating agency, or "A-1" (or
higher) according to Standard & Poor's Ratings Service, a division of
XxXxxx-Xxxx, 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 "Xxxxx 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 which are covered by the Lien of
the Mortgage Documents and (ii) the casino and hotel complex currently known
as the "Xxxxx Xxx 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 which are covered by the Lien of the
Mortgage Documents.
4
"Casino Sale" shall have the meaning specified in Section 5.15
hereof.
"Change of Control" means any of the following events:
(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, 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 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 II (together with any new directors whose election by such Board of
Directors or whose nomination for election by the stockholders of THCR or
Funding II, as applicable, is approved by the Permitted Holder or by a vote
of the 66 2/3% of the directors of THCR or Funding II,
5
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 II, as applicable, then in office.
"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, Plaza
Associates or Taj Associates which, at the time in question, is subject to
the Liens created by the Mortgage Documents or this Indenture.
"Collateral Agency Agreement" means that agreement dated April 17,
1996 by and among the Issuers, Funding, the Guarantors, the Collateral Agent,
and the Trustee, as well as such other persons as may be permitted to become
parties thereunder pursuant to the terms thereof, as it may be amended from
time to time in accordance with its terms.
"Collateral Agent" shall mean U.S. Bank National Association
(formerly First Bank National Association), as collateral agent under the
Collateral Agency Agreement.
"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
6
(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
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
7
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 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, (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 and (e) net gains or losses in respect of the
redemption or repurchase of (i) the 11.35% Mortgage Bonds Series A, due 1999
of Xxxxx Xxx Xxxxx Funding, Inc., (ii) the 10 7/8% First Mortgage Notes due
2001 of Xxxxx Plaza Funding, Inc. pursuant to the retirement thereof (and, in
respect of the defeased portion thereof, net losses relating to unamortized
loan costs) or (iii) the 121/2% Pay-in-Kind Notes due 2003 of the Company. 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.
8
"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.
"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.
"Corporate Trust Office" means the office of the Trustee in the
Borough of Manhattan, The City of New York and 000 Xxxx Xxxxx Xxxxxx, Xx.
Xxxx, Xxxxxxxxx 00000.
"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.
9
"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.
"Definitive Securities" means Securities that are in the form of
Security attached hereto as Exhibit A that do not include the information
called for by Footnotes 3 and 6 thereof.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in global form, the person specified in Section
2.3 as the Depositary with respect to the Securities, until a successor shall
have been appointed and become such pursuant to the applicable provision of
this Indenture, and, thereafter, "Depositary" shall mean or include such
successor.
"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
Plaza 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 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 each of
the Mortgages.
"Excess Proceeds" shall have the meaning specified in Section 5.15.
10
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Securities" means the 11 1/4% Series B First Mortgage Notes
(TAC II) due 2006, as supplemented from time to time in accordance with the
terms hereof, to be issued pursuant to this Indenture in connection with the
offer to exchange Exchange Securities for the Initial Securities that may be
made by the Company pursuant to the Registration Rights Agreement that
contain the information referred to in footnotes 1, 2 and 8 to the form of
Security attached hereto as Exhibit A.
"Existing Notes" means the 11 1/4% First Mortgage Notes due 2006
issued by the Company and Funding pursuant to the Existing Note Indenture.
"Existing Note Indenture" means the indenture dated April 17, 1996
between the Company, Funding, the guarantors named therein and First Bank
National Association (now known as U.S. Bank National Association) pursuant
to which the Existing Notes were issued.
"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 each of the
Mortgages.
"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 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 II, 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 II, 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.
11
"Funding" means Xxxxx Atlantic City Funding, Inc., a co-issuer of
the Existing Notes.
"Funding II" means Xxxxx Atlantic City Funding II, Inc. until a
successor replaces it as an Issuer pursuant to this Indenture, and thereafter
means such successor.
"Funding III" means Xxxxx Atlantic City Funding III, Inc., a
co-issuer of the TAC III Notes.
"Future Collateral Agreements" means collectively those collateral
agreements in favor of the Collateral Agent for the benefit of the Holders
and the other lenders secured thereby pursuant to the Collateral Agency
Agreement, by the Company or any of its Subsidiaries, as the case may be,
including, without limitation, those which are required to be executed and
delivered under Section 5.22.
"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.
"Global Security" means a Security that contains the information
referred to in footnotes 3 and 6 to the form of Security attached hereto as
Exhibit A.
"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.
12
"Ground Lease" means the ground lease, as amended or supplemented in
accordance with the Mortgage Documents, which expires on December 31, 2078,
pursuant to which Plaza Associates is the current lessee, and Plaza Hotel
Management Company (the "PHMC Lease") is the current lessor.
"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; and provided, further, that
the obligations of Plaza Associates pursuant to the TPM Services Agreement or
the Ground Lease, 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, TACC, TCS,
Xxxxx Communications and each existing or future subsidiary of the Company
(other than Funding, Funding II and Funding III).
"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 either or both of the
Casino Hotels, 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.
13
"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, premium, if any, and interest and Liquidated Damages, if any, 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
14
the extent lawful) interest, if any, 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
Xxxxx or any of his Affiliates.
"Initial Purchaser" means Xxxxxxxxx Xxxxxx & Xxxxxxxx Securities
Corporation.
"Initial Securities" means the 11 1/4% First Mortgage Notes (TAC II)
due 2006, as supplemented from time to time in accordance with the terms
hereof, issued under this Indenture that contain the information referred to
in footnotes 4, 5 and 7 to the form of Security attached hereto as Exhibit A.
"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.
15
"Issuers" shall mean, collectively, the Company and Funding
II.
"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 by an
Issuer or Guarantor.
"Liquidated Damages" shall have the meaning specified in the
Registration Rights Agreement.
"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.
"Mortgages" means collectively, the Taj Mortgage and the
Plaza Mortgage.
"Mortgage Documents" means the Mortgages, the Assignments of
Leases and Rents, the Security Agreement, the Trademark Security
Agreements, any Future Collateral Agreements and any UCC-1 financing
statements which may be filed in connection therewith.
"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 for this purpose 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,
franchise, 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.
16
"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).
"Notes" means, collectively, the Initial Securities and, when
and if issued as provided in the Registration Rights Agreement, the
Exchange Securities, which, together with the Guaranty, form the
Securities.
"Note Register" means the list of names and addresses of
Holders held by the Registrar of the Securities.
"Obligation" means any principal, premium or interest
payment, or Liquidated Damages 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.
"Offering" means the Securities being offered and issued by
the Issuers and the Guarantors pursuant to this Indenture.
"Offering Memorandum" means the final Offering Memorandum of
the Issuers dated December 5, 1997, relating to the offering of the
Initial Securities in a transaction exempt from the requirements of
Section 5 of the Securities Act.
"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 each
of the Mortgages.
"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 each
of the Mortgages.
17
"Parking Parcel Mortgage" shall have the meaning given to it
in the Plaza Mortgage.
"Partners" means each of THCR Holdings and Xxxxx XX 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.
"Partnership Agreement" means the Amended and Restated
Partnership Agreement of the Company, dated April 17, 1996, 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 Xxxxx and the spouse and descendants
of Xxxxx (including any related grantor trusts controlled by, and
established and maintained for the sole benefit of, Xxxxx 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 existing on the Issue Date.
"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
18
"Permitted Indebtedness"; (d) loans, advances or investments 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.
"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 or referred to in the Mortgages (including
schedules thereto), 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 existing on the Issue Date, and Liens
securing Refinancing Indebtedness in respect of secured Indebtedness
(including the Securities, provided, that the Securities are secured by
the assets securing such Refinancing Indebtedness in respect of the
Securities on a senior or an equal and ratable basis pursuant to the
terms of the Collateral Agency Agreement) existing on the Issue Date;
(b) the Lien of the Trustee and the Collateral Agent as
provided for in this Indenture and in the Mortgage Documents and the
Lien of the trustee under the TAC III Note Indenture as provided for in
the TAC III Note Indenture and the mortgage documents relating thereto;
(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) INTENTIONALLY LEFT BLANK
(e) INTENTIONALLY LEFT BLANK
19
(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
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,
individually or in the aggregate, do not 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 thereof 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;
20
(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;
(m) Liens on the Equity Interests of the Company or any of
its Subsidiaries in favor of or to the extent required to be pledged
for the benefit of holders of the Senior Notes or of any Refinancing
Indebtedness in respect thereof; and
(n) a notice of intention filed by a mechanic, materialman
or laborer under the New Jersey mechanic's lien law, or a building
contract filed by a contractor or subcontractor thereunder.
"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
II 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.
21
"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" means Xxxxx Plaza Associates, a
Wholly-owned Subsidiary of the Company.
"Plaza Mortgage" means that certain Indenture of Mortgage and
Security Agreement by Plaza Associates and the Collateral Agent dated
the date hereof in favor of the Holders and the other lenders secured
thereby pursuant to the Collateral Agency Agreement as the same may be
amended from time to time in accordance with its terms..
"Pleasantville Warehouse" means that warehouse and office
facility owned by Taj Associates and located on the premises known as
Xxx 00 Xxxxx 000 on the official tax maps of Pleasantville, New Jersey
and Xxx 0 Xxxxx 000 of the official tax maps of the Township of Egg
Harbor, New Jersey, containing approximately 23,000 square feet of
space.
"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.
"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 April 17, 1996 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 April 17, 1996 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 Xxxx 0, 00, 00, 00, 00, 00
xx Xxxxx 119 and Lots 23, 33, 44,
22
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 pursuant to
Paragraph 5 in the form of Security attached hereto as Exhibit A, which
shall include, without duplication, in each case, accrued and unpaid
interest and Liquidated Damages, if any, to the Redemption Date.
"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.
23
"Registrar" shall have the meaning specified in Section 2.3.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of the date hereof by and between the Initial
Purchaser, the Issuers and the Guarantors, as such agreement may be
amended, modified or supplemented from time to time in accordance with
the terms thereof.
"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 II 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 pursuant to the Security 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
24
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 Subsidiary Guarantor.
"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, collectively, the Initial Securities and,
when and if issued as provided in the Registration Rights Agreement,
the Exchange Securities.
"Securities Act" means the Securities Act of 1933, as
amended.
"Securities Custodian" means the Trustee, as custodian with
respect to the Securities in global form, or any successor entity
thereto.
"Security Agreement" means the security agreement dated April
17, 1996 among the Collateral Agent, the Issuers and the Guarantors, as
it may be amended or supplemented from time to time in accordance with
its terms.
"Securityholder." See "Holder."
"Senior Notes" means the 15 1/2% Senior Secured Notes due 2005
of THCR Holdings and Xxxxx 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 May 1, 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
25
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 Xxxxx Plaza Management Corp.,
as Lessee, as it may be amended to modify the expiration date 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" means those certain mortgages, each as
in effect on the Issue Date, known as the "Xxxxxxxxxx," "CFS," "Wozo"
and "Arbor" mortgages, securing the Plaza Garage Parcel, the Egg Harbor
Parcel and certain property used or to be used for surface parking, as
more fully described in the Mortgage Documents.
"TAC III Notes" means the 111/4% First Mortgage Notes (TAC
III) due 2006 issued by the Company and Funding III pursuant to the TAC
III Notes Indenture, contemporaneously with the issue of the Notes.
"TAC III Notes Indenture" means the indenture dated the date
hereof between the Company, Funding III, the guarantors named therein
and U.S. Bank National Association pursuant to which the TAC III Notes
were issued.
"TACC" means Xxxxx Atlantic City Corporation, a Wholly-owned
Subsidiary of the Company.
"Taj Associates" means Xxxxx Xxx Xxxxx Associates, a
Wholly-owned Subsidiary of the Company.
"Taj Mortgage" means that certain Indenture of Mortgage and
Security Agreement dated the date hereof between Taj Associates and the
Collateral Agent, for the benefit of the Holders and the other lenders
secured thereby pursuant to the terms of the Collateral Agency
Agreement as it may be amended from time to time in accordance with its
terms.
"Tangible Personal Property" shall have the meaning given to
it in the Mortgages.
"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 (treating the Company as if it were an
individual) for such year as determined in good faith by the Board of
Directors of Funding II and (B) the Tax Percentage and (ii) the product
of (A) the alternative minimum
26
taxable income attributable to the Company (treating the Company as if
it were an individual) for such year as determined in good faith by the
Board of Directors of Funding II 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, 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.
"TCS" means Xxxxx Casino Services, L.L.C., a Wholly-owned
Subsidiary of the Company.
"THCR" means Xxxxx Hotels & Casino Resorts, Inc., a Delaware
corporation.
"THCR Holdings" means Xxxxx 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
Xxxxx Plaza Management Corp.
"Trademark Security Agreements" means the trademark security
agreements dated April 17, 1996 between Plaza Associates and Taj
Associates, respectively, and the Collateral Agent as they may be
amended or supplemented from time to time in accordance with the terms
thereof.
"Transfer Restricted Securities" means Securities that bear
or are required to bear the legend set forth in Section 2.6.
"Xxxxx" means Xxxxxx X. Xxxxx.
27
"Xxxxx XX Holding" shall mean Xxxxx Atlantic City Holding,
Inc., a Delaware corporation.
"Xxxxx Communications" means Xxxxx Communications, L.L.C., a
wholly-owned Subsidiary of the Company.
"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.
"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, TACC, TCS, Xxxxx Communications, Funding, Funding II, 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 (to the extent such amount is in excess of $0.00) 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
28
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 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.
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.
29
"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 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 Note
attached as Exhibit A hereto or the form of
30
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.
Each Global Security shall represent such of the outstanding
Securities as shall be specified therein and each shall represent the
aggregate amount of outstanding Securities that may from time to time
be reduced or increased, as appropriate, to reflect exchanges,
repurchases and redemptions. Any endorsement of a Global Security to
reflect the amount of any increase or decrease in the amount of
outstanding Securities represented thereby shall be made by the Trustee
or the Securities Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by
Section 2.6.
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 Initial Securities for
original issue in the aggregate principal amount of up to $75,000,000
and shall authenticate Exchange Securities for original issue in the
aggregate principal amount of up to $75,000,000, in each case upon a
written order of the Issuers in the form of an Officers' Certificate;
provided that such Exchange Securities shall be issuable only upon the
valid surrender for cancellation of Initial Securities of a like
aggregate principal amount in accordance with the Registration Rights
Agreement. 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 $75,000,000, 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.
31
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.
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.
The Issuers initially appoint The Depositary Trust Company
("DTC"), to act as Depositary with respect to the Global Securities.
The Issuers initially appoint the Trustee to act as
Securities Custodian with respect to the Global Securities.
32
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 (or
Liquidated Damages, if any) 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.
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.
(a) Transfer and Exchange of Definitive Securities.
When Definitive Securities are presented to the Registrar with a
request:
(x) to register the transfer of such Definitive
Securities; or
(y) to exchange such Definitive Securities for an
equal principal amount of Definitive Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive Securities surrendered for
registration of transfer or exchange:
33
(i) shall be duly endorsed or
accompanied by a written instrument of transfer in
form reasonably satisfactory to the Issuers and the
Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing; and
(ii) in the case of Transfer Restricted
Securities that are Definitive Securities, shall be
accompanied by the following additional information
and documents, as applicable:
(A) if such Transfer Restricted Security is being
delivered to the Registrar by a Holder for registration in
the name of such Holder, without transfer, a certification
from such Holder to that effect (in substantially the form
set forth on the reverse of the Security); or
(B) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (within the
meaning of Rule 144A promulgated under the Securities Act)
that is aware that any sale of Securities to it will be made
in reliance on Rule 144A under the Securities Act and that is
acquiring such Transfer Restricted Security for its own
account or for the account of another such "qualified
institutional buyer," a certification from such Holder to
that effect (in substantially the form set forth on the
reverse of the Security); or
(C) if such Transfer Restricted Security is being
transferred pursuant to an exemption from registration in
accordance with Rule 144, or outside the United States in an
offshore transaction in compliance with Rule 904 under the
Securities Act, or pursuant to an effective registration
statement under the Securities Act, a certification from such
Holder to that effect (in substantially the form set forth on
the reverse of the Security); or
(D) if such Transfer Restricted Security is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act and with all
applicable securities laws of the States of the United
States, a certification from such Holder to that effect (in
substantially the form set forth on the reverse of the
Security) and an Opinion of Counsel reasonably acceptable to
the Issuers and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(b) Restrictions on Transfer of a Definitive Security
for a Beneficial Interest in a Global Security. A Definitive Security
may not be exchanged for a beneficial interest in a Global Security
except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a Definitive Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
34
(i) if such Definitive Security is a
Transfer Restricted Security, certification,
substantially in the form set forth on the reverse
of the Security, that such Definitive Security is
being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the
Securities Act) in accordance with Rule 144A under
the Securities Act; and
(ii) whether or not such Definitive
Security is a Transfer Restricted Security, written
instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an
endorsement on the Global Security to reflect an
increase in the aggregate principal amount of the
Securities represented by the Global Security,
then the Trustee shall cancel such Definitive Security and cause, or
direct the Securities Custodian to cause, in accordance with the
standing instructions and procedures existing between the Depositary
and the Securities Custodian, the aggregate principal amount of
Securities represented by the Global Security to be increased
accordingly. If no Global Securities are then outstanding, the Issuers
shall issue and the Trustee shall authenticate a new Global Security in
the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The
transfer and exchange of Global Securities or beneficial interests
therein shall be effected through the Depositary, in accordance with
this Indenture (including applicable restrictions on transfer set forth
herein, if any) and the procedures of the Depositary therefor.
(d) Transfer of a Beneficial Interest in a Global
Security for a Definitive Security.
(i) Any Person having a beneficial
interest in a Global Security may upon request
exchange such beneficial interest for a Definitive
Security. Upon receipt by the Trustee of written
instructions or such other form of instructions as
is customary for the Depositary, from the
Depositary or its nominee on behalf of any Person
having a beneficial interest in a Global Security,
and upon receipt by the Trustee of a written
instruction or such other form of instructions as
is customary for the Depositary or the Person
designated by the Depositary as having such a
beneficial interest in a Transfer Restricted
Security only, the following additional information
and documents (all of which may be submitted by
facsimile):
(A) if such beneficial interest is being
transferred to the Person designated by the Depositary as
being the beneficial owner, a certification from
35
the transferor to that effect (in substantially the form set
forth on the reverse of the Security); or
(B) if such beneficial interest is being
transferred to a "qualified institutional buyer" (within the
meaning of Rule 144A promulgated under the Securities Act),
that is aware that any sale of Securities to it will be made
in reliance on Rule 144A under the Securities Act and that is
acquiring such beneficial interest in the Transfer Restricted
Security for its own account or the account of another such
"qualified institutional buyer", a certification to that
effect from the transferor (in substantially the form set
forth on the reverse of the Security); or
(C) if such beneficial interest is being
transferred pursuant to an exemption from registration in
accordance with Rule 144, or outside the United States in an
offshore transaction in compliance with Rule 904 under the
Securities Act, or pursuant to an effective registration
statement under the Securities Act, a certification from the
transferor to that effect (in substantially the form set
forth on the reverse of the Security); or
(D) if such beneficial interest is being
transferred in reliance on another exemption from the
registration requirements of the Securities Act and in
accordance with all applicable securities laws of the States
of the United States, a certification to that effect from the
transferor (in substantially the form set forth on the
reverse of the Security) and an Opinion of Counsel from the
transferee or transferor reasonably acceptable to the Issuers
and to the Registrar to the effect that such transfer is in
compliance with the Securities Act,
then the Trustee or the Securities Custodian, at the direction of
the Trustee, will cause, in accordance with the standing
instructions and procedures existing between the Depositary and
the Securities Custodian, the aggregate principal amount of the
Global Security to be reduced and, following such reduction, the
Issuers will execute and, upon receipt of an authentication order
in the form of an Officers' Certificate, the Trustee's
authenticating agent will authenticate and deliver to the
transferee a Definitive Security in the appropriate principal
amount.
(ii) Definitive Securities issued in
exchange for a beneficial interest in a Global
Security pursuant to this Section 2.6(d) shall be
registered in such names and in such authorized
denominations as the Depositary, pursuant to
instructions from its direct or indirect
participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver such Definitive
Securities to the persons in whose names such
Securities are so registered.
(e) Restrictions on Transfer and Exchange of Global
Securities. Notwithstanding any other provisions of this Indenture
(other than the provisions set forth in
36
subsection (f) of this Section 2.6), a Global Security may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor
Depositary.
(f) Authentication of Definitive Securities in Absence
of Depositary. If at any time:
(i) the Depositary for the Securities
notifies the Issuers that the Depositary is
unwilling or unable to continue as Depositary for
the Global Securities and a successor Depositary
for the Global Securities is not appointed by the
Issuers within ninety days after delivery of such
notice; or
(ii) the Issuers, in its sole
discretion, notifies the Trustee in writing that it
elects to cause the issuance of Definitive
Securities under this Indenture, then the Issuers
will execute, and the Trustee, upon receipt of an
Officers' Certificate requesting the authentication
and delivery of Definitive Securities, will, or its
authenticating agent will, authenticate and deliver
Definitive Securities, in an aggregate principal
amount equal to the principal amount of the Global
Securities, in exchange for such Global Securities.
(g) Legends.
(i) Except as permitted by the following
paragraphs (ii) and (iii) each Security certificate
evidencing the Global Securities and the Definitive
Securities (and all Securities issued in exchange
therefor or substitution thereof) shall bear a
legend in substantially the following form:
"THE NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH IN THE THIRD SENTENCE HEREOF BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING THIS NOTE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULA-
37
TION D UNDER THE SECURITIES ACT) (AN "IAI"), (2) AGREES THAT
IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT (A)
TO THE ISSUERS OR ANY OF THEIR SUBSIDIARIES, (B) TO A PERSON
WHOM THE SELLER REASONABLY BELIEVES IS A QIB PURCHASING FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904
OF THE SECURITIES ACT, (D) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (E) TO AN
IAI THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE TRUSTEE WITH
A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF
WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH TRANSFER
IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
ISSUERS THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUERS)
OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND,
IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER APPLICABLE JURISDICTION AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN INTEREST
HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO
THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT.
THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO
REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF
THE FOREGOING."
(ii) Upon any sale or transfer of a
Transfer Restricted Security (including any
Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 under the Act
or an effective registration statement under the
Securities Act:
(A) in the case of any Transfer Restricted
Security that is a Definitive Security, the Registrar shall
permit the Holder thereof to exchange such Transfer
Restricted Security for a Definitive Security that does not
bear the legend set forth above and rescind any restriction
on the transfer of such Transfer Restricted Security; and
38
(B) any such Transfer Restricted Security
represented by a Global Security shall not be subject to the
provisions set forth in (i) above (such sales or transfers
being subject only to the provisions of Section 2.6(c)
hereof); provided, however, that with respect to any request
for an exchange of a Transfer Restricted Security that is
represented by a Global Security for a Definitive Security
that does not bear a legend, which request is made in
reliance upon Rule 144, the Holder thereof shall certify in
writing to the Registrar that such request is being made
pursuant to Rule 144 (such certification to be substantially
in the form set forth on the reverse of the Security).
(iii) Any Exchange Securities issued in
connection with the Exchange Offer shall not bear
the legend set forth in (i) above and the Trustee
shall rescind any restriction on the transfer of
such Exchange Securities.
(h) Cancellation and/or Adjustment of Global Security.
At such time as all beneficial interests in a Global Security have
either been exchanged for Definitive Securities, redeemed, repurchased
or cancelled, such Global Security shall be returned to or retained and
cancelled by the Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Security is exchanged for
Definitive Securities, redeemed, repurchased or cancelled, the
principal amount of Securities represented by such Global Security
shall be reduced and an endorsement shall be made on such Global
Security, by the Trustee or the Securities Custodian, at the direction
of the Trustee, to reflect such reduction.
(i) Obligations with respect to Transfers and Exchanges
of Definitive Securities.
(i) To permit registrations of transfers
and exchanges, the Company shall execute and the
Trustee or any authenticating agent of the Trustee
shall authenticate Definitive Securities and Global
Securities at the Registrar's request.
(ii) No service charge shall be made to
a Holder 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 (fourth
paragraph), 2.10, 3.7, 4.14 (clause 8 of the fifth
paragraph), 9.5, or 10.1 hereof).
(iii) The Registrar shall not be
required to register the transfer of or exchange of
(a) any Definitive Security selected for redemption
in whole or in part pursuant to Article III, except
39
the unredeemed portion of any Definitive 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 Article X or Section 4.14 hereof or
redemption of Securities pursuant to Article III hereof and
ending at the close of business on the day of such mailing.
(iv) The Trustee shall have no
obligation or duty to monitor, determine or inquire
as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable
law with respect to any transfer of any interest in
any Security (including any transfers between or
among Depositary participants or beneficial owners
of interests in any Global Security) other than to
require delivery of such certificates and other
documentation or evidence as are expressly required
by, and to do so if and when expressly required by
the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form
with the express requirements thereof.
(j) Prior to due presentment for the registration of a
transfer of any Security, the Trustee, any Agent and the Issuers may
deem and treat the Person in whose name any Security is registered as
the absolute owner of such Security for all purposes, and none of the
Trustee, any Agent or the Issuers shall be affected by notice to the
contrary.
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.
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 (including any Security
represented by a Global Security) except those cancelled by it, those
delivered to it for cancellation and those described in this Section
2.8 as not
40
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 (and Liquidated
Damages, if any) 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.
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
41
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.
SECTION 2.13 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers
(if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and
any such redemption shall not be affected by any defect in or omission
of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
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 May 1, 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 and Liquidated Damages, if any, 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.
42
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 the Securities of
such Holder, in whole or in part, pursuant to, and in accordance with,
a Required Regulatory Redemption. Notwithstanding any other provision
of this Indenture, the Securities of such Holder 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 and
Liquidated Damages, if any, 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 and Liquidated Damages, if any, 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 and
Liquidated Damages, if any, 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
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appropriate and in such manner as complies with any applicable
Depositary legal and stock exchange requirements.
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 law 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 and Liquidated Damages, if any, 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
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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;
(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 (and Liquidated Damages, if any) 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 (and Liquidated Damages, if any) 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 and Liquidated Damages, if any, 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,
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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 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.
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, 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 and the Collateral Agency Agreement, as applicable, as this
Indenture and the Mortgage Documents and the Collateral Agency
Agreement 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 lenders secured thereby
pursuant to the Collateral Agency Agreement. The Collateral is to be
held by the Collateral Agent for the benefit of the Trustee acting for
the equal and ratable benefit of the Holders and for the benefit of any
other Designated Representative, 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
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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, Plaza Associates and Taj
Associates warrants and represents that it has caused to be executed
and delivered 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 as
required under the Mortgage Documents. Each of the Issuers, Plaza
Associates and Taj Associates 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 Plaza Associates and
Taj Associates warrants and represents that it has caused to be
executed and delivered, 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 as
required under the Mortgage Documents. Each of Plaza Associates and
Taj Associates 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 security interests under the Mortgage Documents and herein.
(b) The Issuers shall furnish to the Trustee and the
Collateral Agent, concurrently with or promptly after 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 May 1, of each year commencing in 1998, 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
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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) 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;
(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;
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(vii) alter, repair, replace, change shall the location or
position of and add to any 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 (ii)
through (viii) above shall be held in a Restricted Funds Account,
pending application (which shall be restricted only as provided in
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 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 Issuers request the Trustee to furnish a written
disclaimer, release or quitclaim of any interest in such property under
the Mortgage Documents, the Trustee shall execute (or if appropriate,
request the Collateral Agent to execute) such an instrument prepared by
the Issuers or a Guarantor, upon delivery to the Trustee 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
or the Holders; provided, that the Trustee 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.
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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.
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 (to the extent not
granted to the Collateral Agent pursuant to the Collateral Agency
Agreement) 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 or the Trustee. 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
50
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 4.8 Restricted Funds Account.
The Company or any of its Subsidiaries shall maintain and
establish a Restricted Funds Account as provided in the Security
Agreement, 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 the
other lenders 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 30 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.
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 (and
Liquidated Damages, if any) on the Securities on the dates and in the
manner provided in the Securities and this Indenture. An installment
of principal of or interest (and Liquidated Damages, if any) 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
to the extent necessary to provide the funds to the
51
Depositary in accordance with the Depositary's procedures 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 (and Liquidated Damages, if any) 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.
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 recession 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.
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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
April 17, 1997, 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 April
17, 1996, 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 April 17, 1996 and on or prior to the
date of such proposed Restricted Payment from (i) the sale of its
Qualified Capital Stock (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 prior to or
substantially concurrent with the issuance of the Existing Notes on
April 17, 1996, including the exercise of the underwriters' over
allotment option, except for amounts the Company received therefrom
(including by Capital Contribution) in excess of $270 million) or (ii)
(without duplication) 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 April 17, 1996 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 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 (I) $50.0 million in the aggregate
minus (II) the aggregate amount of any Restricted Payments made
pursuant to clause (w) of the second paragraph of Section 5.3 contained
in the Existing Note Indenture on or prior to the Issue Date, 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
53
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
the Existing Notes substantially concurrent with a purchase by the
Company of Notes pursuant to a Change of Control Offer or an Asset Sale
Offer, provided, that in the case of a purchase pursuant to an Asset
Sale Offer, such purchase of Notes represents a pro rata application of
the Asset Sale Offer Amount to the Notes and the Existing Notes, based
upon the aggregate principal amount then outstanding. 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 II 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.
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
54
of the Issuers or any of their Subsidiaries; provided, however, that
neither the Issuers nor their Subsidiaries shall 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 land, leaseholds and the other portions of the
Collateral deemed real estate under applicable law, as constituted on the
Issue Date, subject to certain exceptions, in an amount not less than the
principal amount of the Securities (for the benefit of all holders of
Indebtedness secured pursuant to the Collateral Agency Agreement) 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 Trustee 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 subject to
the Material Instrument Requirement), with no recourse against the Trustee
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. The
Company may effect the insurance required under this Section 5.6 under
blanket and/or umbrella policies covering properties owned or leased by
Affiliates of the Company; provided, that such policies otherwise comply with
this Indenture and the Mortgages.
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 or
55
has caused to be, kept, observed, performed and fulfilled its
obligations under this Indenture 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 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 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.
56
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 (or Liquidated Damages, if any) 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 of the
Company) 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 II,
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 April 17, 1996, or (3)
certain existing arrangements as in effect on April 17, 1996 which are
described under the caption "Certain Transactions" in the prospectus
dated April 11, 1996 in connection with the offering of the Existing
Notes.
Funding II 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
57
"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
November 1, 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, Funding II and the Guarantors may
incur Indebtedness evidenced by the Securities and represented by this
Indenture and the Company and Funding III and the Guarantors may incur
Indebtedness evidenced by the TAC III Notes, the guarantees in favor of
such TAC III Notes and represented by the TAC III Notes Indenture;
(c) INTENTIONALLY LEFT BLANK;
(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, as if incurred
hereunder, any Indebtedness outstanding under Section 5.11(d) of the
Existing Note Indenture as of the Issue Date and any Indebtedness
issued to refinance, refund or replace such Indebtedness) or any
Indebtedness incurred under this Section 5.11(d));
(e) INTENTIONALLY LEFT BLANK;
(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) and (b) of this Section or (except with respect to any
Indebtedness incurred under Section 5.11(d) or 5.11(h) of the Existing
Note Indenture) which is
58
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, as if
incurred hereunder, any Indebtedness outstanding under Section 5.11(h) of the
Existing Note Indenture as of the Issue Date and any Indebtedness issued to
refinance, replace, or refund such Indebtedness or any Indebtedness incurred
under this clause (h)) 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 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, other
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
59
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, the Existing
Note Indenture, the TAC III Note 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) or clause (d),
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.
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
60
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 is 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.
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, which Asset Sale shall be deemed to
occur upon receipt of such proceeds. All Net Cash Proceeds from an
Event of Loss shall be reinvested or used to repurchase the Securities,
all within the applicable periods and as otherwise provided above in
clause (1) 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 Asset Sale Offer
Amount, plus an amount equal to accrued interest, to the purchase of
all Securities tendered (on a pro rata basis if the Asset Sale Offer
Amount 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 Existing Notes are outstanding at the date of
commencement thereof, then the Asset Sale Offer shall be made
concurrently with an asset sale offer under the Existing Note
Indenture, and the holders which elect to have purchased will be
accepted pro rata in proportion to the aggregate principal amount
thereof; provided, that in so repurchasing such Existing Notes the
Company is in compliance with the provisions of Section 5.3.
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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 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 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 Subsidiaries of the
Company; and
(v) the Company and its subsidiaries
may, without complying with the foregoing, 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.
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
62
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 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 and Liquidated Damages, if any), 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
63
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);
(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, Funding II and Funding III) 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 basis, the Indenture Obligations.
SECTION 5.17 Limitation on Activities of Funding II
Funding II will not conduct any business (including having
any Subsidiary) whatsoever, other than to comply with its obligations
under this Indenture, the Securities and its obligations as a guarantor
of the Existing Notes under the Existing Note Indenture. Funding II
will not incur or otherwise become liable for any Indebtedness (other
than the Securities, the Existing Notes and any renewal, extension,
substitution, refunding, refinancing or replacement
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thereof in accordance with this Indenture or the Existing Note
Indenture, as applicable) or make any Restricted Payments.
SECTION 5.18 Rule 144A Information Requirement.
The Company shall furnish to the Holders of the Securities
and prospective purchasers of Securities designated by the Holders of
Transfer Restricted Securities, upon their request, the information
required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act until such time as either the Company has concluded an
offer to exchange the Exchange Securities for the Initial Securities or
a registration statement relating to resales of the Securities has
become effective under the Securities Act. The Company shall also
furnish such information during the pendency of any suspension of
effectiveness of such resale registration statement.
SECTION 5.19 Limitation on Lines of Business.
Neither the Company nor any of its 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 II is a Related
Business. The Company shall own or lease, as applicable, substantially
all of its consolidated assets through the Company, Plaza Associates
and Taj Associates.
SECTION 5.20 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 II, the Company will not, and will
not permit any of its Subsidiaries to, enter into any management,
services or consulting agreement with Xxxxx or any Affiliate of Xxxxx,
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 Xxxxx Plaza Management Corp. and (ii) to Xxxxx 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 Xxxxx 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 5.21 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
65
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 April 17, 1996..............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 5.22 Limitation on Status as Investment Company.
None of the Company and its 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 5.23 Future Collateral Agreements.
The Company, Plaza Associates and Taj Associates hereby agree
and consent that 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, Plaza Associates and Taj Associates (including, without
limitation, fee title to any Leased Land) shall immediately upon the
acquisition thereof by the Company, Plaza Associates and Taj
Associates, 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, Plaza Associates and Taj Associates.
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
necessary, including as the Collateral Agent shall reasonably require,
for accomplishing the express purposes of the Indenture and the
Mortgage Documents (including the preceding sentence).
SECTION 5.24 Limitations on Use of Proceeds from the
Offering.
The Company and its Subsidiaries shall use the proceeds from
the Offering (after deducting discounts and commissions and reasonable
expenses of the Offering) only for further acquisitions, renovations or
construction of Improvements with respect to, or related to (including
related demolitions), the Casino Hotels or the financing of equipment
to be used therein, and for no other purpose.
ARTICLE VI
SUCCESSORS
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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 II, 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 II,
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 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.
Funding II 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)
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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 II, 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 II,
as applicable, and the Company or Funding II 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):
(a) the failure by the Issuers to pay any installment of
interest (including any defaulted interest) or Liquidated Damages, if any, 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
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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 II 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 II 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;
(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
69
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 sum due under the Taj
Mortgage or the Plaza Mortgage, and the continuance of such default for a
period of 30 days after there has been given to the Issuers and respective
Mortgagor a notice specifying such default and requiring it to be remedied
and stating that such notice is a "Notice of Default" under the respective
Mortgage; or
(k) default in the performance, or breach, of any covenant of
Taj Associates or Plaza Associates in the Taj Mortgage or the Plaza Mortgage,
as applicable (other than a covenant, a default in the performance or breach
of which is elsewhere in the applicable Mortgage specifically dealt with) in
any material respect, and continuance of such default or breach for a period
of 30 days after there has been given to Taj Associates or Plaza Associates,
as applicable, a notice specifying such default or breach and requiring it to
be remedied and stating that such notice is a "Notice of Default" under the
Taj Mortgage or the Plaza Mortgage, as applicable, 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) Taj Associates or Plaza Associates, as applicable, delivers
an Officers' Certificate to the Collateral Agent within such 30-day period
stating (A) the applicability of the provisions of clause (i) to such default
or breach, (B) Taj Associates' or Plaza Associates', as applicable, intention
to remedy such default or breach with reasonable diligence and (C) the steps
which Taj Associates or Plaza Associates, as applicable, has undertaken or
intends to undertake to remedy such default or breach and (iii) Taj
Associates or Plaza Associates, as applicable, delivers to the Collateral
Agent 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 same, provided that Taj Associates
or Plaza Associates, as applicable, is then proceeding and thereafter
continues to proceed to cure the same with reasonable diligence; or
(l) default by Taj Associates or Plaza
Associates under any of the terms of any Facility Lease forming a portion of
the Collateral other than the Xxxxxxxxxx Lease
70
(as defined therein) 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 Taj Associates or Plaza Associates under any of
the terms of the Egg Harbor Mortgage or the Parking Parcel 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) if any representation or warranty of Taj Associates or
Plaza Associates, as applicable, set forth in the respective Mortgage or in
any notice, certificate, demand or request delivered to the Collateral Agent
pursuant to the respective Mortgage shall prove to be incorrect as of the
time when made and which has or could reasonably be expected to have a
material adverse effect on the business, financial condition or operations of
the Company or its Subsidiaries, taken as a whole; or
(o) the declaration or payment of any dividend or other
distribution in respect of Equity Interests of any Guarantor in the event
that there shall exist a "default" or "event of default" (as defined therein)
under the Indenture governing the Senior Notes or any Refinancing
Indebtedness in respect thereof; or
(p) an event of default under any of the Mortgage Documents
(without duplication of those items otherwise recited in this Section 7).
An Event of Default shall not be deemed to exist by reason of any
event under paragraph (j) or (l) through (n) above which Taj Associates or
Plaza Associates, as applicable, is contesting in compliance with the
provisions of Section 5.09 of the respective 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 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
71
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
(and Liquidated Damages, if any) 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 and Liquidated Damages,
if any, 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
(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.
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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
Liquidated Damages, 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 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 and Liquidated Damages, if any) shall be entitled and empowered, by
intervention in such proceeding or otherwise to take any and all actions
under the TIA, including
73
(i) to file and prove a claim for the whole
amount of principal (and premium, if any) and interest (and
Liquidated Damages, if any) 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 (or Liquidated Damages, if any), upon
presentation of the 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;
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SECOND: To the Holders in payment of the amounts then
due and unpaid for principal of, premium (if any) and interest
(and Liquidated Damages, if any) 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 (and Liquidated Damages, if any),
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 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.
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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 (and Liquidated Damages, if
any) 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,
(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
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(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 (or Liquidated Damages, if any)
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 (or Liquidated Damages, if any) on, any Security on or after
the Maturity of such Security.
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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.
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(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.
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(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
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Default or an Event of Default in payment of principal (or premium, if
any) of, or interest (or Liquidated Damages, if any) on, 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 Sections 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
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(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' 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
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for any settlement made without their written consent. The Issuers need not
reimburse any expense 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
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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.
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;
SATISFACTION AND DISCHARGE
SECTION 9.1 Option to Effect Legal Defeasance or Covenant
Defeasance.
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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 (insofar as they relate to the Securities or the Guaranties) and
the Liens of the Collateral Agent thereunder shall be deemed to have been
paid and discharged, 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 (and Liquidated Damages,
if any) 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, 5.21, 5.23, 5.24 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 Collateral
Agent under the Mortgage Documents (insofar as they relate to the Securities
or the Guaranties) shall be deemed to have been paid and discharged, but,
except as specified above, the remainder of this Indenture and such
Securities shall be unaffected
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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
(and Liquidated Damages, if any) 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;
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(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 (and Liquidated Damages,
if any), 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
(and Liquidated Damages, if any) on any Security and remaining unclaimed for
two years after such principal or interest (and Liquidated Damages, if any)
has become due and payable shall be paid to the Issuers on their
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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 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.
SECTION 9.8 Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further
effect (except as to surviving rights of registration of transfer or exchange
of Securities herein expressly provided for) and the Trustee, on demand of
and at the expense of the Company and the Guarantors, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture when
all Securities theretofore authenticated and delivered (other than (i)
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.7 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 9.6) have been delivered to the
Trustee for cancellation; the Issuers and the Guarantors have paid or caused
to be paid all other sums payable hereunder by the Issuers and the
Guarantors; and the Issuers and the Guarantors have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Issuers and the Guarantors to the Trustee under
Section 7.6 shall survive.
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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 Mortgage
Documents, 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;
(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.
(7) to provide for the issuance and
authorization of the Exchange Securities.
The terms of any document entered into pursuant to this
Section shall be subject to prior approval, if required, of any
applicable Gaming Authority.
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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
Mortgage Documents, 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 Mortgage Documents,
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 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
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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.
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
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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 (and Liquidated Damages, if
any) 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.
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.
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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 and Liquidated Damages, 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 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;
(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;
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(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 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;
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(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 (and
Liquidated Damages, if applicable) 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 (and
Liquidated Damages, if applicable) 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 and Liquidated
Damages, if any) 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 Liquidated Damages, if
any), 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.
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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 Xxxxx Atlantic City Associates:
Xxxxx Atlantic City Associates
Xxxxxxxxxxx Xxxxxx xxx Xxx Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
if to Xxxxx Atlantic City Funding II, Inc.:
Xxxxx Atlantic City Funding II, Inc.
0000 Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
if to Xxxxx Plaza Associates:
Xxxxx Plaza Associates
0000 Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
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if to Xxxxx Xxx Xxxxx Associates:
Xxxxx Xxx Mahal Associates
0000 Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
if to Xxxxx Atlantic City Corporation:
Xxxxx Atlantic City Corporation
0000 Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
if to Xxxxx Casino Services, L.L.C.:
Xxxxx Casino Services, L.L.C.
0000 Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
if to Trump Communications, L.L.C.:
Trump Communications, L.L.C.
0000 Xxxxxxxxx
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Corporate Secretary
Telephone: (000) 000-0000
if to the Trustee:
U.S. Bank National Association
000 X. 0xx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
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
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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.
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
98
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.
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
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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.
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
100
hereof.
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 and the Collateral
Agency Agreement with respect to the Collateral will be subject to the
Gaming Regulations.
SECTION 12.16 Registration Rights.
Certain Holders of the Securities may be entitled to certain
registration rights with respect to such Securities pursuant to, and
subject to the terms of, the Registration Rights Agreement.
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 on a senior basis, which
guarantee (in the case of Plaza Associates and Taj Associates) shall be
secured by a perfected security interest in all of the Collateral owned
by Plaza Associates and Taj Associates as applicable pursuant to the
Mortgage Documents (collectively, 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 (and Liquidated Damages,
if any) 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 (and Liquidated Damages, 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
101
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 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
102
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 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.
103
(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.
(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 in form reasonably satisfactory to the
Trustee, pursuant to which such Person shall unconditionally guarantee,
on a senior basis, all of such Guarantor's obligations under such
Guarantor's guarantee and this Indenture 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.
104
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.
105
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
XXXXX ATLANTIC CITY ASSOCIATES
By: XXXXX ATLANTIC CITY HOLDING,
INC.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Attest: /s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
XXXXX ATLANTIC CITY FUNDING II, INC.
By: /s/ Xxxxxxxx X Xxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Chief Executive officer and President
Attest: /s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
U.S. BANK NATIONAL
ASSOCIATION, as Trustee
By: /s/ S. Christopharson
--------------------------
Name: S. Christopharson
Title: Vice President
GUARANTORS
XXXXX PLAZA ASSOCIATES
By: XXXXX ATLANTIC CITY CORPORATION,
its general partner
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Attest: /s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
XXXXX XXX XXXXX ASSOCIATES
By: XXXXX ATLANTIC CITY CORPORATION,
its general partner
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Attest: /s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
XXXXX ATLANTIC CITY CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Attest: /s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
XXXXX CASINO SERVICES, L.L.C.
By: XXXXX ATLANTIC CITY CORPORATION,
member
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Attest: /s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
XXXXX COMMUNICATIONS, L.L.C.
By: XXXXX ATLANTIC CITY CORPORATION,
member
By: /s/ Xxxxxxxx X. Xxxxx
--------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Attest: /s/ Xxxx X. Xxxxx
------------------
Xxxx X. Xxxxx
EXHIBIT A
[FORM OF SECURITY]
XXXXX ATLANTIC CITY ASSOCIATES
XXXXX ATLANTIC CITY FUNDING II, INC.
11 1/4% SERIES A (1) FIRST MORTGAGE NOTES (TAC II) DUE 2006
CUSIP No. ______________
No. $
Xxxxx Atlantic City Associates, a New Jersey partnership, and
Xxxxx Atlantic City Funding II, Inc., a Delaware corporation
(hereinafter collectively called the "Issuers," which term includes any
successors under the Indenture hereinafter referred to), for value
received, hereby promises to pay to _____, or registered assigns, the
principal sum of _____ Dollars, on May 1, 2006.
Interest Payment Dates: May 1 and November 1
Record Dates: April 15 and October 15
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.
_________
1 Series A should be replaced with Series B in the Exchange
Securities.
IN WITNESS WHEREOF, the Issuers has caused this Instrument to
be duly executed under their respective corporate seals .
Dated:
XXXXX ATLANTIC CITY ASSOCIATES
By: XXXXX ATLANTIC CITY HOLDING, INC.,
its managing general partner
Attest: By:
----------------------------------
Name:
Title:
--------------------------
Secretary
XXXXX ATLANTIC CITY FUNDING II, INC.
By:
----------------------------------
Name:
Title:
Attest:
---------------------
Name:
Title:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By
---------------------------------
Authorized Signatory
Dated:
XXXXX ATLANTIC CITY ASSOCIATES
XXXXX ATLANTIC CITY FUNDING II, INC.
11 1/4% Series A (2) First Mortgage Notes (TAC II) due 2006
Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or
by a nominee of the Depositary to the Depositary or another nominee of
the Depositary or by the Depositary or any such nominee to a successor
Depositary or a nominee of such successor Depositary. Unless this
certificate is presented by an authorized representative of The
Depositary Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx) ("XXX"),
to the Company or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of
DTC (and any payment is made to Cede & Co. or such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an
interest herein.(3)
"THE NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED,
SOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS,
EXCEPT AS SET FORTH IN THE THIRD SENTENCE HEREOF BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB"), (B) IT IS ACQUIRING THIS NOTE IN
AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER
THE SECURITIES ACT OR (C) IT IS AN INSTITUTIONAL "ACCREDITED
INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) (AN "IAI"), (2) AGREES
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE ISSUERS OR ANY OF THEIR SUBSIDIARIES, (B)
TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN
A TRANSACTION
_________
2 Series A should be replaced with Series B in the Exchange Securities.
3 This paragraph should only be added if the Security is issued in global
form.
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE TRANSACTION
MEETING THE REQUIREMENTS OF RULE 903 OR RULE 904 OF THE SECURITIES
ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE WITH A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE
(THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUERS THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE
TO THE ISSUERS) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO
THEM BY RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE
INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO
REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING."
1. Interest.
Xxxxx Atlantic City Associates, a New Jersey partnership, and Xxxxx
Atlantic City Funding II, 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 111/4% 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 May 1 and November 1, commencing May 1, 1998, to the person in
whose name this Security is registered at the close of business on April 15 or
October 15, 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 (and Liquidated Damages, if any) 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 (and Liquidated Damages, if any) 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, U.S. 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
December 10, 1997 (the "Indenture"), between the Issuers, the Guarantors named
therein and the Trustee. Capitalized 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 $75,000,000.
5. Redemption.
The Securities are redeemable in whole or from time to time in part at
any time on and after May 1, 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 May 1 of each of the
years indicated below, in each case, together with any accrued but unpaid
interest to 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
May 1, 2001 105.625%
May 1, 2002 103.750%
May 1, 2003 101.875%
May 1, 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 or by
order of any Gaming Authority).
Any redemption of the Securities shall comply with Article III of the
Indenture.
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 law 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 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 therefor), 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, as applicable, 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 aggre-
gate 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.
14. Security.
In order to secure the obligations under the Indenture, the Issuers,
Plaza Associates, Taj Associates 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, Plaza Associates and Taj
Associates.
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, (and Liquidated Damages, 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.
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 II, 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.
[FORM OF ASSIGNMENT]
I or we assign this Security to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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(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: ________________________________________________
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(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee (*)
_________
(*) NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The New
York Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee program
acceptable to the Trustee.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to Section 4.14 or Article X of the Indenture, check the appropriate
box: Section 4.14 Article X.
If you want to elect to have only part of this Security purchased by
the Issuers pursuant to Section 4.14 or Article X of the Indenture, as the case
may be, state the amount you want to be purchased: $________.
Date: ________________ Signature: ______________________________________
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee (**)
_________
(**) NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs:
(i) The Securities Transfer Agent Medallion Program (STAMP); (ii) The
New York Stock Exchange Medallion Program (MNSP); (iii) The Stock
Exchange Medallion Program (SEMP); or (iv) in such other guarantee
program acceptable to the Trustee.
SCHEDULE OF EXCHANGES OF DEFINITIVE SECURITIES (6)
The following exchanges of a part of this Global Security for
Definitive Securities have been made:
Amount of Amount of Signature of
decrease in increase in Principal Amount authorized
Principal Principal of this Global officer of
Amount Amount of this Security following Trustee or
Date of of this Global Global such decrease (or Securities
Exchange Security Security increase) Custodian
-------- -------------- -------------- ------------------- ------------
_________
(6) This schedule should only be added if the Security is issued in global
form.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
TRANSFER RESTRICTED SECURITIES (7)
Re: 11 1/4% SERIES A FIRST MORTGAGE NOTES (TAC II) DUE 2006 OF XXXXX ATLANTIC
CITY ASSOCIATES AND XXXXX ATLANTIC CITY FUNDING II, INC.
This Certificate relates to $______ principal amount of Securities held in
(check applicable space) _____ book-entry or ______ definitive form by
_________________ (the "Transferor").
The Transferor (check applicable box):
/ / has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a Security
or Securities in definitive, registered form of authorized denominations and an
aggregate principal amount equal to its beneficial interest in such Global
Security (or the portion thereof indicated above); or
/ / has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
/ / In connection with such request and in respect of each such Security,
the Transferor does hereby certify that Transferor is familiar with the
Indenture relating to the above-captioned Securities and as provided in Section
2.6 of such Indenture, the transfer of this Security does not require
registration under the Securities Act (as defined below) because:
/ / Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.6(a)(ii)(A) or Section
2.6(d)(i)(A) of the Indenture).
/ / Such Security is being transferred to a "qualified institutional
buyer" (within the meaning of Rule 144A promulgated under the Securities Act),
that is aware that any sale of Securities to it will be made in reliance on Rule
144A under the Securities Act and that is acquiring such Transfer Restricted
Security for its own account, or for the account of another such "qualified
institutional buyer" (in satisfaction of Section 2.06(a)(ii)(B) or Section
2.06(d)(i)(B) of the Indenture).
/ / Such Security is being transferred pursuant to an exemption from
registration in accordance with Rule 144, or outside the United States in an
Offshore Transaction in compliance with Rule 904 under the Securities Act, or
pursuant to an effective registration statement under the Securities Act (in
satisfaction of Section 2.6(a)(ii)(C) or Section 2.6(d)(i)(C) of the Indenture).
__________
(7) This Certificate shall be included only for Initial Securities.
Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities Act and
in accordance with applicable securities laws of the states of the United
States, other than as provided in the immediately preceding paragraph. An
Opinion of Counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate (in
satisfaction of Section 2.6(a)(ii)(D) or Section 2.6(d)(i)(D) of the Indenture).
___________________________________
[INSERT NAME OF TRANSFEROR]
By:________________________________
Date: _____________________________
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
SECURITIES (8)
Re: 11 1/4% SERIES B FIRST MORTGAGE NOTES (TAC II) DUE 2006.
This Certificate relates to $______ principal amount of Securities
held in (check applicable box) _____ book-entry or ______ definitive form by
_____ (the "Transferor").
The Transferor (check applicable box):
/ / has requested the Trustee by written order to deliver in exchange
for its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations and an aggregate principal amount equal to its beneficial interest
in such Global Security (or the portion thereof indicated above); or
/ / has requested the Registrar by written order to exchange or
register the transfer of a Security or Securities.
_________
(8) This certificate shall be included only for the Exchange Securities.
EXHIBIT B
FORM OF GUARANTY
For value received, _______________, a ____________ corporation/partnership,
hereby irrevocably, unconditionally guarantees, on a senior basis, to the Holder
of any 111/4% First Mortgage Note (TAC II) due 2006 (the "Security") of Xxxxx
Atlantic City Associates and Xxxxx Atlantic City Fund ___, Inc. (collectively,
the "Issuers") upon which this Guaranty is endorsed, the due and punctual
payment as set forth in the Indenture (the "Indenture") among the Issuers, the
guarantors named therein and U.S. Bank National Association, as trustee (the
'Trustee") 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:_________________________________
