Execution Copy
TRUMP'S CASTLE HOTEL & CASINO, INC., as Issuer
U.S. BANK NATIONAL ASSOCIATION, as Trustee
TRUMP'S CASTLE ASSOCIATES, L.P., as Guarantor
-----------------
INDENTURE
Dated as of April 17, 1998
-----------------
$5,000,000
10 1/4% Senior Secured Notes due 2003
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION ............. 1
Section 1.1 Definitions ..................................... 2
Section 1.2 Other Definitions ............................... 20
Section 1.3 Compliance Certificates and Opinions ............ 20
Section 1.4 Form of Documents Delivered to Trustee .......... 21
Section 1.5 Acts of Holders ................................. 22
Section 1.6 Notices, etc., to Trustee, the Issuer, the
Partnership, the CCC and the NJDGE ............................ 23
Section 1.7 Notice to Holders; Waiver ....................... 23
Section 1.8 Conflict with Trust Indenture Act ............... 24
Section 1.9 Effect of Headings and Table of Contents ........ 24
Section 1.10 Successors and Assigns .......................... 24
Section 1.11 Separability Clause ............................. 24
Section 1.12 Benefits of Indenture ........................... 24
Section 1.13 GOVERNING LAW ................................... 25
Section 1.14 Casino Control Act .............................. 25
Section 1.15 Legal Holidays .................................. 25
Section 1.16 Schedules ....................................... 25
Section 1.17 Counterparts .................................... 25
ARTICLE 2
FORM OF SENIOR NOTES ................................................ 25
Section 2.1 Forms Generally ................................. 25
Section 2.2 Form of Face of the Senior Notes ................ 26
Section 2.3 Form of Reverse of the Senior Notes ............. 29
Section 2.4 Form of Trustee's Certificate of Authentication . 32
Section 2.5 Form of Senior Guarantee ........................ 32
ARTICLE 3
THE SENIOR NOTES .................................................... 33
Section 3.1 Title and Terms ................................. 33
Section 3.2 Denominations ................................... 35
Section 3.3 Execution, Authentication, Delivery and Dating .. 35
Section 3.4 Temporary Securities ............................ 36
Section 3.5 Registration, Registration of Transfer
and Exchange .................................................. 37
Section 3.6 Mutilated, Destroyed, Lost and Stolen Senior
Notes ......................................................... 39
Section 3.7 Payment of Interest ............................. 39
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Section 3.8 Persons Deemed Owners ........................... 41
Section 3.9 Cancellation .................................... 41
Section 3.10 Computation of Interest ......................... 41
Section 3.11 Non-recourse .................................... 41
ARTICLE 4
DEFEASANCE AND COVENANT DEFEASANCE .................................. 42
Section 4.1 Option to Effect Defeasance or Covenant
Defeasance .................................................... 42
Section 4.2 Defeasance and Discharge ........................ 42
Section 4.3 Covenant Defeasance ............................. 43
Section 4.4 Conditions to Defeasance or Covenant Defeasance . 43
Section 4.5 Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions ........... 45
Section 4.6 Reinstatement ................................... 46
ARTICLE 5
REMEDIES ............................................................ 46
Section 5.1 Events of Default ............................... 46
Section 5.2 Acceleration of Maturity; Rescission and
Annulment ..................................................... 49
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee ........................................ 50
Section 5.4 Trustee May File Proofs of Claim ................ 51
Section 5.5 Trustee May Enforce Claims Without Possession
of the Senior Notes ........................................... 52
Section 5.6 Application of Money Collected .................. 52
Section 5.7 Limitation on Suits ............................. 53
Section 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest ............................... 53
Section 5.9 Restoration of Rights and Remedies .............. 54
Section 5.10 Rights and Remedies Cumulative .................. 54
Section 5.11 Delay or Omission Not Waiver .................... 54
Section 5.12 Control by Holders .............................. 54
Section 5.13 Waiver of Past Defaults ......................... 55
Section 5.14 Undertaking for Costs ........................... 55
Section 5.15 Waiver of Stay, Extension or Usury Laws ......... 55
Section 5.16 Unconditional Right of Holders to Institute
Certain Suits ................................................. 56
Section 5.17 Management of Casino-Hotel ...................... 56
ARTICLE 6
THE TRUSTEE ......................................................... 56
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Section 6.1 Duties of Trustee and Notice of Defaults ........ 56
Section 6.2 Certain Rights of Trustee ....................... 58
Section 6.3 Trustee Not Responsible for Recitals,
Dispositions of Senior Notes or Application of Proceeds
Thereof; etc .................................................. 60
Section 6.4 Trustee and Agents May Hold Senior Notes;
Collections; Etc. ............................................. 60
Section 6.5 Money Held in Trust ............................. 60
Section 6.6 Compensation and Indemnification of Trustee
and Its Prior Claim ........................................... 60
Section 6.7 Conflicting Interests ........................... 61
Section 6.8 Corporate Trustee Required; Eligibility ......... 62
Section 6.9 Resignation and Removal; Appointment of
Successor Trustee ............................................. 62
Section 6.10 Acceptance of Appointment by Successor .......... 64
Section 6.11 Merger, Consolidation or Succession to Business . 64
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER .................... 65
Section 7.1 Issuer to Furnish Trustee Names and Addresses
of Holders. ................................................... 65
Section 7.2 Disclosure of Names and Addresses of Holders .... 65
Section 7.3 Reports by Trustee .............................. 66
Section 7.4 Reports by the Issuer and the Partnership ....... 67
ARTICLE 8
CONSOLIDATION, MERGER,CONVEYANCE, TRANSFER OR LEASE ................. 68
Section 8.1 The Issuer or the Partnership May Consolidate,
Merge, etc., Only on Certain Terms ............................ 68
Section 8.2 Successor Substituted ........................... 70
ARTICLE 9
SUPPLEMENTAL INDENTURES ............................................. 71
Section 9.1 Supplemental Indentures and Agreements without
Consent of Holders ............................................ 71
Section 9.2 Supplemental Indentures and Agreements with
Consent of Holders ............................................ 72
Section 9.3 Execution of Supplemental Indentures and
Agreements .................................................... 73
Section 9.4 Effect of Supplemental Indentures ............... 74
Section 9.5 Conformity with Trust Indenture Act ............. 74
Section 9.6 Reference in Senior Notes to Supplemental
Indentures .................................................... 74
Section 9.7 Record Date ..................................... 74
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ARTICLE 10
COVENANTS ........................................................... 75
Section 10.1 Payment of Principal, Premium and Interest ...... 75
Section 10.2 Maintenance of Office or Agency ................. 75
Section 10.3 Money for Senior Note Payments to be Held
in Trust ...................................................... 75
Section 10.4 Issuer's and Partnership's Existence ............ 77
Section 10.5 Payment of Taxes and Other Claims ............... 77
Section 10.6 Maintenance of Properties ....................... 77
Section 10.7 Limitation on Partnership Indebtedness .......... 78
Section 10.8 Limitation on Liens ............................. 79
Section 10.9 Limitation on Restricted Payments ............... 79
Section 10.10 Limitation on Partnership Leases ................ 82
Section 10.11 Limitation on Preferred Stock of Subsidiaries
and Subsidiary Distributions .................................. 82
Section 10.12 Limitation on Payment Restrictions Affecting
Subsidiaries .................................................. 83
Section 10.13 Purchase of Senior Notes upon Change of Control . 83
Section 10.14 Limitations on Transactions with Affiliates ..... 85
Section 10.15 Restriction on Transfer of Assets ............... 86
Section 10.16 Limitation on Activities and Investments ........ 86
Section 10.17 Restriction on Payment of Services Fee .......... 86
Section 10.18 Provision of Financial Statements ............... 87
Section 10.19 Statement by Officers as to Default ............. 87
Section 10.20 Waiver of Certain Covenants ..................... 88
Section 10.21 Mortgage Notes and PIK Notes .................... 88
ARTICLE 11
REDEMPTION OF SENIOR NOTES .......................................... 88
Section 11.1 Senior Notes Redeemed Pursuant to Casino
Control Act ................................................... 88
Section 11.2 Optional Redemption ............................. 89
Section 11.3 Senior Notes Redeemed Pursuant to a Total Taking
or Casualty ................................................... 89
Section 11.4 Applicability of Article ........................ 89
Section 11.5 Notice to Truste ................................ 89
Section 11.6 Selection by Trustee of Senior Notes to Be
Redeemed ...................................................... 89
Section 11.7 Notice of Redemption ............................ 90
Section 11.8 Deposit of Redemption Price ..................... 91
Section 11.9 Senior Notes Payable on Redemption Date ......... 91
Section 11.10 Senior Notes Redeemed in Part ................... 91
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ARTICLE 12
TCHI NOTE MORTGAGE DOCUMENTS ........................................ 92
Section 12.1 TCHI Note Mortgage Documents .................... 92
Section 12.2 Recording, Opinion of Counsel, Etc. ............. 93
Section 12.3 Release of Collateral ........................... 93
Section 12.4 Trust Indenture Act Requirements ................ 94
Section 12.5 Disposition of Certain Collateral without
Requesting Release ............................................ 94
Section 12.6 Suits to Protect Cthe Collateral ................ 95
Section 12.7 Determinations Relating to Collateral ........... 95
Section 12.8 Impairment of Security Interest ................. 96
Section 12.9 Release Upon Termination of the Issuer's
Obligations ................................................... 96
Section 12.10 Authorization of Receipt of Funds by the
Trustee Under the TCHI Note Mortgage Documents ................ 97
ARTICLE 13
SATISFACTION AND DISCHARGE .......................................... 97
Section 13.1 Satisfaction and Discharge of Indenture ......... 97
Section 13.2 Application of Trust Money ...................... 98
ARTICLE 14
SENIOR GUARANTEE .................................................... 98
Section 14.1 Partnership Senior Guarantee .................... 98
Section 14.2 Continuing Guarantee; No Right of Set-Off;
Independent Obligation ........................................ 99
Section 14.3 Guarantee Absolute .............................. 100
Section 14.4 Right to Demand Full Performance ................ 102
Section 14.5 Waivers ......................................... 102
Section 14.6 The Partnership Remains Obligated in Event the
Issuer Is No Longer Obligated to Discharge Indenture
Obligations ................................................... 103
Section 14.7 Waiver of Rights. ............................... 103
Section 14.8 Senior Guarantee Is in Addition to Other
Security ...................................................... 103
Section 14.9 Release of Security Interests ................... 103
Section 14.10 No Bar to Further Actions ....................... 104
Section 14.11 Failure to Exercise Rights Shall Not Operate
As a Waiver; No Suspension of Remedies ........................ 104
Section 14.12 Successors and Assigns .......................... 104
Section 14.13 Release of Senior Guarantee ..................... 104
Section 14.14 Execution of Senior Guarantee ................... 105
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EXHIBIT A Form of Senior Partnership Upstream Note
EXHIBIT B Form of Senior Partnership Upstream Note Mortgage
EXHIBIT C Form of Senior Upstream Assignment Agreement
EXHIBIT D Form of TCHI Guarantee Mortgage
SCHEDULE I Permitted Indebtedness
SCHEDULE II Permitted Investments
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Reconciliation and tie between Trust
Indenture Act of 1939
and Indenture, dated as of April 17, 1998
Trust Indenture Indenture
Act Section Section
--------------- ---------
ss.310(a)(1) ............................ 6.8
(a)(2) ............................ 6.8
(b) ............................ 6.7, 6.9
ss.312(a) ............................ 7.1
(c) ............................ 7.2
ss.314(a) ............................ 7.4
(a)(4) ............................ 10.19
(b) ............................ 12.2
(c)(1) ............................ 1.3
(c)(2) ............................ 1.3
(e) ............................ 1.3
ss.315(b) ............................ 6.1
ss.316(a)(last
sentence)
(a)(1)(A) ............................ 1.1 ("Outstanding")
(a)(1)(A) ............................ 5.2, 5.12
(a)(1)(B) ............................ 5.13
(b) ............................ 5.8
(c) ............................ 9.7
ss.317(a)(1) ............................ 5.3
(a)(2) ............................ 5.4
ss.318(a) ............................ 1.8
----------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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INDENTURE, dated as of April 17, 1998, among TRUMP'S CASTLE HOTEL &
CASINO, INC., a New Jersey corporation (the "Issuer"), as issuer, U.S. BANK
NATIONAL ASSOCIATION, a national banking association ("Trustee"), as trustee,
and TRUMP'S CASTLE ASSOCIATES, L.P., a New Jersey limited partnership (the
"Partnership" or "Guarantor"), as guarantor.
RECITALS OF THE ISSUER AND THE PARTNERSHIP
The Issuer has duly authorized the creation of an issue of up to
$5,000,000 aggregate principal amount of its (a) 10 1/4% Series A Senior Secured
Notes due 2003 (the "Series A Notes") and (b) its 10 1/4% Series B Senior
Secured Notes due 2003 (the "Series B Notes" and collectively with the Series A
Notes, the "Senior Notes") of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Issuer has duly authorized the execution and
delivery of this Indenture.
The Partnership has duly authorized the issuance of a guarantee of the
Senior Notes (the "Senior Guarantee"), of substantially the tenor hereinafter
set forth, and to provide therefor the Partnership has duly authorized the
execution and delivery of this Indenture and the Senior Guarantee.
This Indenture is subject to, and shall be governed by, the provisions of
the Trust Indenture Act of 1939, as amended, that are required to be part of and
to govern indentures qualified under such Trust Indenture Act.
All acts and things necessary have been done to make (i) the Senior Notes,
when executed by the Issuer and authenticated and delivered hereunder and duly
issued by the Issuer, the valid obligations of the Issuer, (ii) the Senior
Guarantee, when executed by the Partnership and delivered hereunder, the valid
obligation of the Partnership and (iii) this Indenture a valid agreement of the
Issuer and the Partnership in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Senior
Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Senior Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them
in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(c) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(d) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision;
(e) "or" is not exclusive; and
(f) all references to $ or dollars shall refer to the lawful currency of
the United States of America.
Certain Definitions
"Acquired Indebtedness" means Indebtedness of a Person (a) existing at the
time such Person becomes a Subsidiary 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. Acquired 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.
"Adjusted Consolidated Interest Expense" means, without duplication, for
any period, the sum of (a) the interest expense of the Partnership and its
Consolidated Subsidiaries for such period, on a Consolidated basis, including,
without limitation, (i) amortization of debt discount, (ii) the net cost under
interest rate contracts (including amortization of discounts), (iii) the
interest portion of any deferred payment obligation and (iv) accrued interest
plus (b) the interest component of the Capital Lease Obligations paid, accrued
and/or scheduled to be paid, or accrued by the Partnership and its Consolidated
Subsidiaries during such period, in each case as determined in accordance with
GAAP consistently applied.
"Adjusted Consolidated Net Income (Loss)" means, for any period, the
Consolidated net income (or loss) of the Partnership and its Consolidated
Subsidiaries for such period as determined in accordance with GAAP consistently
applied, adjusted, to the extent included in
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calculating such net income (loss), by excluding (a) all extraordinary gains or
losses (less all fees and expenses relating thereto), (b) the portion of net
income (or loss) of the Partnership and its Consolidated Subsidiaries allocable
to minority interests in unconsolidated Persons to the extent that cash
dividends or distributions have not actually been received by the Partnership or
one of its Consolidated Subsidiaries, (c) net income (or loss) of any Person
combined with the Partnership or any of the Subsidiaries on a "pooling of
interests" basis attributable to any period prior to the date of combination,
(d) any gain or loss, net of taxes, realized upon the termination of any
employee pension benefit plan, (e) net gains or losses (less all fees and
expenses relating thereto) in respect of dispositions of assets other than in
the ordinary course of business, or (f) the net income of any Subsidiary to the
extent that the declaration of dividends or similar distributions by that
Subsidiary of that income is not at the time permitted, directly or indirectly,
by operation of the terms of its charter or any agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to that
Subsidiary or its shareholders.
"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 Capital Stock or
Equity Interest 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.
"Appraised Value" shall have the meaning set forth in Section 1 of the
Senior Partnership Upstream Note Mortgage.
"Assignment of Leases and Rents and Assignment of Operating Assets" means
collectively (i) the Assignment of Leases and Rents and Assignment of Operating
Assets dated as of the date hereof by the Partnership to the Issuer and (ii) the
Assignment of Leases and Rents and Assignment of Operating Assets dated as of
the date hereof by the Partnership to the Trustee.
"Average Life to Stated Maturity" means, as of the date of determination
with respect to any Indebtedness, the quotient obtained by dividing (a) the sum
of the products of (i) the number of years from the date of determination to the
date or dates of each successive scheduled principal payment of such
Indebtedness multiplied by (ii) the amount of each such principal payment by (b)
the sum of all such principal 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,
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liquidation, reorganization or relief of debtors or any amendment to, succession
to or change in any such law.
"Board of Directors" means, with respect to the Issuer, the board of
directors of the Issuer or, with respect to the Partnership, the board of
partner representatives, or any duly authorized committee of any such board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Issuer or the Partnership, as the case may be,
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in The City of New York are
authorized or obligated by law or executive order to close.
"Cage Cash" means the sum of $5,000,000 retained for daily operations of
the Casino.
"Capital Lease Obligation" of any Person means any obligation of such
Person and its subsidiaries on a Consolidated basis under any capital lease of
real or personal property which, in accordance with GAAP, has been recorded as a
capitalized lease obligation.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of such Person's
capital stock.
"Casino - Hotel" means the casino and hotel complex currently known as the
"Xxxxx Xxxxxx Hotel Casino" in Atlantic City, New Jersey and ancillary
structures, marina and other facilities and all furniture, fixtures and
equipment at any time contained therein, in each case owned by or leased to the
Partnership and covered by the lien of the Senior Partnership Upstream Note
Mortgage.
"Casualty" means any act or occurrence of any kind or nature which results
in damage, loss or destruction to any buildings or improvements on the Premises
and/or Tangible Personal Property (as such terms are defined in Section 1.1 of
the Senior Partnership Upstream Note Mortgage).
"CCC" means the New Jersey Casino Control Commission or any successor
entity thereto.
"Certificate of Appraised Value" shall have the meaning set forth in
Section 1.1 of the Senior Partnership Upstream Note Mortgage.
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"Change of Control" means an event as a result of which (a) the Permitted
Holder 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 the
Issuer and the Board of Partner Representatives of the Partnership or to control
the management of the Partnership; or (b) the Partnership is liquidated or
dissolved or adopts a plan of liquidation or dissolution, provided, however, a
Change of Control shall not be deemed to occur as a result of one or more Public
Offerings so long as (i) the Permitted Holder continues to own beneficially 20%
or more of the voting equity securities of the entity which conducted the Public
Offering and (ii) no other holder beneficially owns a greater percentage of
voting securities of such entity than the Permitted Holder.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means, collectively, all of the property and assets that are
from time to time subject to the Lien of the Senior Partnership Upstream Note
Mortgage.
"Consolidated Fixed Charge Coverage Ratio" means for any period the ratio
of (a) the sum of Adjusted Consolidated Net Income, Adjusted Consolidated
Interest Expense and Consolidated Income Tax Expense, plus, without duplication,
all depreciation, amortization and all other non-cash charges (excluding any
such non-cash charges constituting an extraordinary item of loss or any non-cash
charge which requires an accrual of or a reserve for cash charges for any future
period) in each case, for such period, of the Partnership and its Consolidated
Subsidiaries on a Consolidated basis, all determined in accordance with GAAP
consistently applied to (b) Adjusted Consolidated Interest Expense for such
period.
"Consolidated Income Tax Expense" means for any period the provision for
federal, state, local and foreign income taxes of the Partnership and its
Consolidated Subsidiaries for such period as determined in accordance with GAAP
consistently applied.
"Consolidated Net Worth" of any Person means the Consolidated
stockholders' equity (excluding Redeemable Capital Stock or Redeemable Equity
Interests) of such Person and its Consolidated subsidiaries, as determined in
accordance with GAAP consistently applied.
"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, or its agent, at
which at any particular time its corporate trust business shall be administered,
which office at the date of execution of this Indenture is located at 000 Xxxx
Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000.
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"CRDA" means the Casino Reinvestment Development Authority or any
successor entity thereto.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"EBITDA" means, for the relevant accounting period, an amount equal to the
sum of (i) the net income (or loss) of the Partnership for such period
determined in accordance with generally accepted accounting principles,
consistently applied, excluding any extraordinary, unusual or non-recurring
gains (including without limitation those gains arising from dispositions of
assets or from the purchase, redemption or discharge of any indebtedness), and
excluding any extraordinary, unusual or non-recurring losses arising from (A)
transactions or events approved by not less than two of the Noteholder
Representatives (so long as such approval includes an explicit finding that any
such losses arising from such transaction or event are to be so excluded
pursuant to this clause (A)) or (B) the purchase, redemption or discharge of any
indebtedness in respect of the Mortgage Notes or PIK Notes, plus (ii) all
amounts deducted in computing such net income (or loss) in respect of interest
(including the imputed interest portions of rentals under Capitalized Leases),
depreciation, amortization and taxes based upon or measured by income, plus
(iii) other non-cash charges arising from market value adjustments and
adjustments pertaining to contributions of deposits in each case in respect of
CRDA Bonds.
"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) of such Person in
equity.
"Event of Default" has the meaning specified in Article Five.
"Excess Available Cash" shall be calculated semi-annually on June 30 and
December 31 and means the sum of the Partnership's cash and cash equivalents as
shown on its balance sheet at such date less the sum of (1) the Partnership's
Cage Cash, (2) the Partnership's working capital reserve of $10 million less the
amount, if any, available to the Partnership under the Working Capital Facility,
(3) the aggregate amount required to meet the cash interest payments due on all
Permitted Indebtedness on the next respective interest payment dates, (4)
distributions to be made during the succeeding six month period in respect of
taxes as contemplated by clause (c) of Section 10.9(b)(ix) hereof, and (5) the
cash amounts required to meet the Partnership's Capital Expenditures (as defined
in the Partnership Agreement), CRDA bond payments and other fixed charges
projected during the succeeding six month period.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"F,F&E Financing Agreement" means an agreement which creates a Lien upon
any after-acquired Tangible Personal Property (as defined in the Senior
Partnership Upstream Note
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Mortgage) and/or other items constituting Operating Assets (as defined in the
Senior Partnership Upstream Note Mortgage), which are financed, purchased or
leased by the Partnership.
"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 Senior Notes redeemed under
Section 11.1, 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
Senior Notes shall have traded on such trading day, or (b) if no such sales of
such Senior Notes 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 Senior Notes are not listed or quoted on any national securities exchange or
the National Market System of NASDAQ, 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 Senior Notes 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 Senior Notes,
selected for such purpose by the Issuer, or (d) if none of clauses (a) through
(c) are applicable, the fair market value of such Senior Notes as of the date of
determination as determined in such manner as shall be satisfactory to the
Issuer, 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
Senior Notes.
"Funding" means Trump's Castle Funding, Inc., a New Jersey corporation.
"Funding Notes" means the Funding's 10 1/4% Senior Secured Notes due 2003
issued in an aggregate original principal amount of $62,000,000.
"Funding Note Indenture" means the Indenture dated the date hereof by and
between Funding, as issuer, the Partnership, as guarantor, and U.S. Bank
National Association, as trustee, with respect to the Funding Notes.
"Funding Note Mortgage Documents" means the "Senior Note Mortgage
Documents", as such term is defined in the Funding Note Indenture.
"Gaming Authority" means the CCC, the NJDGE or any other governmental
agency which regulates gaming in a jurisdiction in which the Partnership
conducts gaming activities.
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in the United States, consistently applied, which
are in effect on the date of this Indenture.
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"Guaranteed Debt" of any Person means, without duplication, all
Indebtedness of any other Person referred to in the definition of Indebtedness
contained in this section guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (a) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (b) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss, (c) to
supply funds to, or in any other manner invest in, the debtor (including any
agreement to pay for property or services without requiring that such property
be received or such services be rendered), (d) to maintain working capital or
equity capital of the debtor, or otherwise to maintain the net worth, solvency
or other financial condition of the debtor or (e) otherwise to assure a creditor
against loss; provided that the term "guarantee" shall not include endorsements
for collection or deposit, in either case in the ordinary course of business;
provided further, that the obligations of the Partnership pursuant to the
Services Agreement as in effect on the date of this Indenture shall not be
deemed to be Guaranteed Debt of the Partnership.
"Holder" means a Person in whose name a Senior Note is registered in the
Senior Note Register.
"Indebtedness" means, with respect to any Person, without duplication, (a)
all indebtedness of such Person for borrowed money or for the deferred 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 and in connection with any
agreement to purchase, redeem, exchange, convert or otherwise acquire for value
any Capital Stock or Equity Interest of such Person, or any warrants, rights or
options to acquire such Capital Stock or 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 or contracted for as payment in consideration of the purchase by such
Person or an Affiliate of such Person of the Capital Stock or Equity Interest 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 rate contracts of such Person, (f) all Capital 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,
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even though such Person has not assumed or become liable for the payment of such
Indebtedness, (h) all Guaranteed Debt of such Person, (i) all Redeemable Capital
Stock or Redeemable Equity Interests valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued and unpaid dividends,
and (j) any amendment, supplement, modification, deferral, renewal, extension or
refunding of any liability of the types referred to in clauses (a) through (i)
above. For purposes hereof, the "maximum fixed repurchase price" of any
Redeemable Capital Stock or Redeemable Equity Interest which does not have a
fixed repurchase price shall be calculated in accordance with the terms of such
Redeemable Capital Stock or Redeemable Equity Interest as if such Redeemable
Capital Stock or Redeemable Equity Interest 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
Redeemable Capital Stock or Redeemable Equity Interest, 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 Redeemable Capital Stock or
Redeemable Equity Interest.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Indenture Obligations" means the obligations of the Issuer, the
Partnership and any other obligor under this Indenture or under the Senior
Notes, to pay principal of, premium, if any, and interest when due and payable,
and all other amounts due or to become due under or in connection with this
Indenture, the Senior Notes and the performance of all other obligations to the
Trustee and the Holders under this Indenture, the Senior Notes and the Senior
Partnership Upstream Note Mortgage, according to the terms thereof.
"Intercreditor Agreement" means the Intercreditor Agreement of even date
herewith among the Issuer, Funding, the Partnership, the Trustee, the trustee
under the Funding Note Indenture, the trustee under the Mortgage Note Indenture,
and the trustee under the PIK Note Indenture.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Senior Notes.
"Investments" means, with respect to any Person, directly or indirectly,
any advance, loan or other extension of credit or capital contribution to (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), or any purchase or other
acquisition by such Person of any Capital Stock, Equity Interest, bonds, notes,
debentures or other securities or assets issued or owned by, any other Person.
"Issuer" means Trump's Castle Hotel & Casino, Inc., a corporation
incorporated under the laws of the State of New Jersey or any other obligor on
the Senior Notes (other than the
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Partnership), including any successor Person to Trump's Castle Hotel & Casino,
Inc. in accordance with Article Eight hereof.
"Issuer Request" or "Issuer Order" means a written request or order signed
in the name of the Issuer by any one of its Chairman of the Board, its Vice
Chairman, its President or a Vice President, and by any one of its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to
the Trustee.
"Legal Requirements" has the meaning set forth in Section 1.1 of the
Senior Partnership Upstream Note Mortgage.
"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.
"Marina Lease" means the lease agreement made September 1, 1990 between
the State of New Jersey, as Landlord, and the Partnership, as tenant, as
amended, respecting property known as the Senator Xxxxx X. Xxxxxx State Xxxxxx,
Atlantic City, New Jersey, being designated as a portion of Block B-4, Lot 11 on
the tax map of the City of Atlantic City, Atlantic County, New Jersey, together
with all amendments, restatements, extensions and renewals thereof.
"Maturity" when used with respect to any Senior Note means the date on
which the principal of such Senior Note becomes due and payable as therein
provided or as provided in this Indenture, whether at Stated Maturity, Change of
Control Purchase Date or the Redemption Date and whether by declaration of
acceleration, Change of Control Offer, call for redemption or otherwise.
"Mortgage Debt" means any Indebtedness secured by Liens (other than
involuntary Liens) on any portion of the Collateral.
"Mortgage Documents" shall have the meaning set forth in the Mortgage Note
Indenture.
"Mortgage Notes" means the 11-3/4% Mortgage Notes due 2003 issued by
Funding.
"Mortgage Note Indenture" means that certain indenture among Funding, as
issuer, the Partnership, as guarantor, and First Bank National Association (now
known as U.S. Bank National Association), as trustee, dated as of December 28,
1993, relating to the Issuer's 11 3/4% Mortgage Notes due 2003 as it may from
time to time be supplemented or amended by one or more indentures supplemental
thereto.
"NASDAQ" is defined under the definition of "Fair Market Value."
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"Net Cash Proceeds" of an issuance means the cash proceeds of such
issuance, net of attorney's fees, accountant's fees, brokerage, consultant,
underwriting and other fees and expenses actually incurred in connection with
such issuance, sale, conversion or exchange and net of taxes paid or payable as
a result thereof.
"NJDGE" means the New Jersey Division of Gaming Enforcement or any
successor entity thereto.
"Noteholder Representatives" shall have the meaning set forth in the
Partnership Agreement.
"Note Mortgage" shall have the meaning set forth in the Mortgage Note
Indenture.
"Officers' Certificate" means a certificate signed by a general partner or
the President or a Vice President, and by the Treasurer, Assistant Treasurer,
Secretary or an Assistant Secretary, of the Issuer or the Partnership and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Issuer or the Trustee.
"Outstanding" when used with respect to Senior Notes means, as of the date
of determination, all Senior Notes theretofore authenticated and delivered under
this Indenture, except:
(a) Senior Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Senior Notes, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Issuer) in trust or set aside and segregated in
trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the
Holders of such Senior Notes; provided that if such Senior Notes are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made; and
Senior Notes, except to the extent provided in Sections 4.2 and 4.3, with
respect to which the Issuer has effected defeasance or covenant defeasance as
provided in Article Four; and
(c) Senior Notes in exchange for or in lieu of which other Senior Notes
have been authenticated and delivered pursuant to this Indenture, other than any
such Senior Notes in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Senior Notes are held by a bona fide
purchaser in whose hands the Senior Notes are valid obligations of the Issuer;
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provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Senior Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Senior Notes
owned by the Issuer, the Partnership, or any other obligor upon the Senior Notes
or any Affiliate of the Issuer, the Partnership, any guarantor or such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Senior Notes which the Trustee knows to be so owned shall be so disregarded.
Senior Notes so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgor's right so to act with respect to such Senior Notes and that the pledgee
is not the Issuer, the Partnership or any other obligor upon the Senior Notes or
any Affiliate of the Issuer, the Partnership or such other obligor.
"Outstanding Amount" of any Indebtedness at any time means the principal
amount outstanding of such Indebtedness at such time, unless such Indebtedness
was issued at a discount, in which case the "Outstanding Amount" of such
Indebtedness means the original issue price of such Indebtedness plus the
accretion to such time of the original issue discount, determined in accordance
with Generally Accepted Accounting Principles.
"Pari Passu Indebtedness" means any Indebtedness of the Partnership that
is Pari Passu in right of payment to the Senior Guarantee.
"Partnership" means Trump's Castle Associates, L.P., a New Jersey limited
partnership, and any successor Person to Trump's Castle Associates, L.P. in
accordance with Article Eight hereof.
"Partnership Agreement" means the Partnership's Third Amended and Restated
Partnership Agreement dated as of October 7, 1996 as in effect on the date of
this Indenture.
"Partnership Note" means the Partnership Note dated as of December 28,
1993 in the principal amount of $242,141,304 made by the Partnership in favor of
Funding, evidencing the proceeds of the Mortgage Notes.
"Paying Agent" means any Person authorized by the Issuer to pay the
principal, premium, if any, or interest on any Senior Notes on behalf of the
Issuer.
"Permit" means any license, 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 the Collateral whether held by the Partnership or any other
Person (which may be temporary or permanent) (including, without limitation,
those required for the use of the Casino Hotel as a licensed casino facility),
in accordance with all applicable Legal Requirements.
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"Permitted Holder" means Xxxxxx X. Xxxxx and any corporation or other
entity that is controlled by Xxxxxx X. Xxxxx.
"Permitted Indebtedness" means the following:
(a) Indebtedness of the Partnership and the Issuer pursuant to this
Indenture and the TCHI Note Mortgage Documents;
(b) Indebtedness of the Partnership pursuant to another portion of the
Working Capital Facility;
(c) Indebtedness of the Partnership and Funding pursuant to the Funding
Note Indenture and the Senior Note Mortgage Documents;
(d) Indebtedness of the Partnership and Funding pursuant to the Mortgage
Note Indenture and the Mortgage Documents;
(e) Indebtedness of the Partnership and Funding pursuant to the PIK Note
Indenture and the Pledge Agreement (as defined in the PIK Note Indenture);
(f) Indebtedness of the Partnership outstanding on the date of this
Indenture and listed on Schedule I hereto;
(g) Indebtedness of the Partnership or any Wholly-owned Subsidiary to any
one or the other of them;
(h) Indebtedness of the Partnership or any Subsidiary represented by F,F&E
Financing Agreements; provided, however, that the aggregate principal amount of
Indebtedness permitted by this clause (h) shall not exceed at any one time
outstanding (i) $2,000,000 or (ii) $25,000,000 following the time at which the
Partnership shall have achieved EBITDA for any period of four consecutive fiscal
quarters in an amount not less than $45,000,000.
(i) Indebtedness in respect of Capital Lease Obligations or secured
purchase money security interests of the Partnership or any Subsidiary, in
either case not created by an F, F&E Financing Agreement; provided, however,
that the aggregate principal amount of all such Capital Lease Obligations
permitted by this clause (i) shall not exceed at any one time outstanding (i)
$10,000,000 or (ii) $15,000,000 following the time at which the Partnership
shall have achieved EBITDA for any period of four consecutive fiscal quarters in
an amount not less than $60,000,000 and provided, further, that the aggregate
principal amount of all such Indebtedness secured by purchase money security
interests shall not exceed at any one time outstanding $10,000,000; and
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(j) any renewals, extensions, substitutions, refundings, refinancings or
replacements of any Indebtedness described in clauses (a) through (j) of this
definition of "Permitted Indebtedness," including any successive renewals,
extensions, substitutions, refundings, refinancings or replacements so long as
the aggregate principal amount of Indebtedness represented thereby does not
exceed the principal amount of such Indebtedness being renewed, extended,
substituted, refunded, refinanced or replaced (or, if such Indebtedness provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration thereof, such lesser amount as of the date of
determination) plus accrued interest thereon, plus, in the case of refinancings,
the amount of any premium or other payment required to be paid under the terms
of the instrument governing such Indebtedness or the amount of any premium
reasonably determined by the Partnership as necessary to accomplish such
refinancing by means of a tender offer or privately negotiated purchase and, in
each case, actually paid, plus the amount of expenses of the Partnership
incurred in connection with such refinancing and such renewal, extension,
substitution, refinancing or replacement does not reduce the Average Life to
Stated Maturity or the final Stated Maturity of such Indebtedness.
"Permitted Investment" means (a) Investments in any of the Senior Notes,
Funding Notes, PIK Notes or Mortgage Notes; (b) Temporary Cash Investments; (c)
intercompany notes to the extent permitted under the definition of "Permitted
Indebtedness"; and (d) any Investments in existence on the date of this
Indenture and listed on Schedule II to this Indenture.
"Permitted Leases" means the following:
(i) the Marina Lease;
(ii) any Capital Lease Obligation permitted by clause (i) of the
definition of "Permitted Indebtedness"; and
(iii) Leases other than Capital Lease Obligations and the Marina Lease;
provided, however, that the aggregate fixed rental payments paid or accrued for
any period of four consecutive fiscal quarters commencing after the date hereof
under all such leases (including payments required to be made by the Lessee in
respect of taxes and insurance, whether or not denominated as rent), shall not
exceed for such period (a) $2,000,000 or (b) $7,500,000 following the times at
which the Partnership shall have achieved EBITDA for any period of four
consecutive fiscal quarters in an amount not less than $45,000,000.
"Permitted Liens" means:
(a) any Lien existing as of the date of this Indenture under the TCHI Note
Mortgage Documents, the Senior Note Mortgage Documents (including without
limitation, "Permitted Encumbrances" as defined in the Senior Note Mortgage),
the Senior Guarantee Mortgage, the Mortgage Documents (including without
limitation, "Permitted Encumbrances" and "Restricted Encumbrances", both as
defined in the Note Mortgage), the Pledge Agreement (as defined in the
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PIK Note Indenture), "Permitted Encumbrances" hereafter arising and permitted
under the TCHI Note Mortgage Documents, and any Lien hereafter arising under the
Working Capital Facility;
(b) Capital Lease Obligations and purchase money liens included in
Permitted Indebtedness;
(c) the Lien in favor of the Trustee pursuant to Section 6.6 of this
Indenture, the Lien in favor of the trustee pursuant to Section 6.6 of the
Mortgage Note Indenture, the Lien in favor of the trustee pursuant to Section
6.6 of the Funding Note Indenture, and the Lien in favor of the trustee pursuant
to Section 6.6 of the PIK Note Indenture;
(d) 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, 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; and
(e) any Lien arising by reason of any renewal, extension, substitution,
refunding, refinancing or replacement of any Indebtedness permitted by clause
(j) of the definition of Permitted Indebtedness.
"Person" means any individual, corporation, limited or general
partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PIK Note Indenture" means that certain indenture among Funding, as
issuer, the Partnership, as guarantor, and First Bank National Association (now
known as U.S. Bank National Association), as trustee, dated as of December 28,
1993, relating to the Issuer's PIK Notes as it may from time to time be
supplemented or amended by one or more indentures supplemental thereto.
"PIK Notes" means the Subordinated Pay-in-Kind Notes due 2005 issued by
Funding in an initial aggregate principal amount of $52,066,000 plus the
aggregate principal amount of PIK Notes issued as payment of interest thereon.
"Predecessor Senior Note" of any particular Senior Note means every
previous Senior Note evidencing all or a portion of the same debt as that
evidenced by such particular Senior Note; and, for the purposes of this
definition, any Senior Note authenticated and delivered under Section 3.6 in
exchange for a mutilated Senior Note or in lieu of a lost, destroyed or stolen
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Senior Note shall be deemed to evidence the same debt as the mutilated, lost,
destroyed or stolen Senior Note.
"Preferred Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's preferred or preference stock whether now outstanding, or issued after
the date of this Indenture, and including, without limitation, all classes and
series of preferred or preference stock.
"Public Offering" shall mean a registered public offering of a direct or
indirect equity interest in Funding.
"Qualified Capital Stock" of any Person means any and all Capital Stock of
such Person other than Redeemable Capital Stock.
"Qualified Equity Interest" of any Person means any Equity Interests of
such Person other than Redeemable Equity Interests.
"Redeemable Capital Stock" means any Capital Stock that, either by its
terms, by the terms of any security into which it is convertible or exchangeable
or otherwise, is or upon the happening of an event (other than the
disqualification of the holder thereof by the CCC) or passage of time would be,
required to be redeemed prior to any Stated Maturity of the principal of the
Senior Notes or is redeemable at the option of the holder thereof at any time
prior to any such Stated Maturity, or is convertible into or exchangeable for
debt securities at any time prior to any such Stated Maturity at the option of
the holder thereof.
"Redeemable Equity Interest" means any Equity Interest that, either by its
terms, by the terms of any security into which it is convertible or exchangeable
or otherwise, is or upon the happening of an event (other than the
disqualification of the holder thereof by the CCC) or passage of time would be,
required to be redeemed prior to any Stated Maturity of the principal of the
Senior Notes or is redeemable at the option of the holder thereof at any time
prior to any such Stated Maturity, or is convertible into or exchangeable for
debt securities at any time prior to any such Stated Maturity at the option of
the holder thereof.
"Redemption Date" when used with respect to any Senior Note to be redeemed
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Senior Note to be
redeemed means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrable Series A Notes" means the Series A Notes upon original
issuance thereof, and at all times subsequent thereto, until, in the case of any
such Series A Note, (A) a Registration Statement with respect to such Series A
Note has been declared effective under the Securities Act and such Series A Note
has been disposed of in accordance with such Registration
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Statement; (B) such Series A Note is distributed to the public pursuant to Rule
144 (or any successor provisions) promulgated under the Securities Act; (C) such
Series A Note has been otherwise transferred and new certificates for them not
bearing a legend restricting further transfer shall have been delivered by the
Issuer; or (D) such Series A Note ceases to be outstanding.
"Registration Rights Agreement" means the registration rights agreement of
even date herewith between the Issuer, the Partnership, Funding, certain
original purchasers of the Series A Notes and certain original purchasers of
Funding Notes.
"Regular Record Date" for the interest payable on any Interest Payment
Date means April 15 or October 15 (whether or not a Business Day) next preceding
such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee means any
officer assigned to the Corporate Trust Office or any agent of the Trustee
appointed hereunder, including any vice president, assistant vice president,
assistant secretary, or any other officer or assistant officer of the Trustee or
the agent of the Trustee appointed hereunder to whom any corporate trust matter
is referred because of his or her knowledge of and familiarity with the
particular subject.
"Restoration" shall have the meaning set forth in Section 1.1 of the
Senior Partnership Upstream Note Mortgage.
"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 Act" means the Securities Act of 1933, as amended.
"Senior Guarantee", means the guarantee by the Partnership of the Issuer's
obligations under this Indenture pursuant to the guarantee included herein.
"Senior Note Register" and "Senior Note Registrar" have the respective
meanings specified in Section 3.5.
"Senior Notes", means the Issuer's 10 1/4% Senior Secured Notes due 2003
issued pursuant to this Indenture in the aggregate original principal amount of
$5,000,000.
"Senior Partnership Note" means the Note dated as of the date hereof in
the principal amount of $62,000,000 made by the Partnership in favor of Funding,
evidencing the proceeds of the Funding Notes, and pledged to the trustee under
the Funding Note Indenture.
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"Senior Partnership Upstream Note" means the Note, dated the date hereof
in the principal amount of $5,000,000 made by the Partnership in favor of the
Issuer, evidencing the proceeds of the Senior Notes, and pledged to the Trustee.
"Senior Partnership Upstream Note Mortgage", means the Indenture of
Mortgage and Security Agreement, dated as of the date hereof, between the
Issuer, as mortgagee, and the Partnership, as mortgagor, a copy of which is
attached hereto as Exhibit B, securing the Senior Partnership Upstream Note.
"Senior Upstream Assignment Agreement" means the Senior Assignment
Agreement between the Issuer and the Trustee dated as of the date hereof, the
form of which is attached hereto as Exhibit C, providing for the assignment of
the Senior Upstream Partnership Note and the Senior Partnership Upstream Note
Mortgage to the Trustee by the Issuer and acknowledgment thereof by the
Guarantor.
"Series A Notes" and "Series B Notes", have the meanings specified in the
first recital of this Indenture.
"Services Agreement" means that certain services agreement, dated as of
December 28, 1993 between the Partnership and Xxxxx Casinos II, Inc. relating to
the provision of advertising and other consulting services to the Partnership.
"Services Fee" means, for any period, the amount of the fee payable by the
Partnership under the Services Agreement for such period.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to any Indebtedness or any
installment of interest thereon means the dates specified in such Indebtedness
as the fixed date on which the principal of such Indebtedness or such
installment of interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Partnership
subordinated in right of payment to the Senior Guarantee.
"Subsidiary" means any Person a majority of the equity ownership or the
Voting Stock of which is at the time owned, directly or indirectly, by the
Partnership or by one or more other Subsidiaries, or by the Partnership and one
or more other Subsidiaries.
"Taking" means the acquisition or condemnation by eminent domain of the
whole or any part of the Premises (as such term is defined in Section 1.1 of the
Senior Partnership Upstream Note Mortgage), by a competent authority, for any
public or quasi-public use or purpose.
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"TCHI Note Guarantee Mortgage", means the Indenture of Mortgage and
Security Agreement, dated as of the date hereof, between the Trustee as
mortgagee, and the Partnership, as mortgagor, a copy of which is attached hereto
as Exhibit D.
"TCHI Note Indenture", means this indenture, relating to the Issuer's
Senior Notes.
"TCHI Note Mortgage Documents" means (i) the Senior Partnership Upstream
Note, (ii) the Senior Guarantee, (iii) the Senior Partnership Upstream Note
Mortgage, (iv) the TCHI Note Guarantee Mortgage, (v) the Senior Upstream
Assignment Agreement, (vi) the Intercreditor Agreement, (vii) the Assignment of
Leases and Rents and the Assignment of Operating Assets and (viii) any other
security document to which the Partnership, the Issuer or the Trustee is a party
which is executed and delivered pursuant to or in connection with the foregoing
documents, as each may be amended, unsecured, extended, substituted, refinanced,
replaced, extended or otherwise modified from time to time in accordance with
the provisions of this TCHI Note Indenture and the TCHI Note Mortgage Documents.
"Temporary Cash Investments" 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 $300,000,000, 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 Corporation
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 Partnership) 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 Corporation 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 $300,000,000.
"Total Taking or Casualty" means a Taking or Casualty with respect to
which, pursuant to the provisions of the Senior Partnership Upstream Note
Mortgage, any proceeds resulting from such Taking or Casualty are to be used to
pay amounts due under the Senior Notes and the Senior Partnership Upstream Note
Mortgage and not for purposes of Restoration.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended.
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"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument, until a successor trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor trustee.
"Voting Stock" means stock of the class or classes pursuant to which the
holders thereof have the general voting power under ordinary circumstances to
elect at least a majority of the board of directors, managers or trustees of a
corporation (irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the happening of
any contingency).
"Wholly-owned Subsidiary" means a Subsidiary all the Capital Stock of
which is owned by the Partnership or by one or more Wholly-owned Subsidiaries or
by the Partnership and one or more Wholly-owned Subsidiaries; provided, however,
that the Issuer shall not be considered a Wholly-owned Subsidiary of the
Guarantor.
"Working Capital Facility" means one or more lending agreements or note
purchase agreements between the Partnership and responsible financing sources,
pursuant to which the Partnership may incur Indebtedness to meet its working
capital requirements in an aggregate principal amount at any one time
outstanding not to exceed $10,000,000 (it being understood that indebtedness of
the Partnership pursuant to the Senior Notes and the Senior Partnership Upstream
Note represents a part of the Working Capital Facility).
Section 1.2 Other Definitions.
Defined in
Term Section
---- -------
"Act" ..........................................................1.5(a)
"Change of Control Offer""......................................10.13
"Change of Control Purchase Date"...............................10.13
"Change of Control Purchase Price"..............................10.13
"covenant defeasance"...........................................4.3
"Defaulted Interest"............................................3.7
"defeasance"....................................................4.2
"Defeased Senior Notes".........................................4.1
"incorporated provision"........................................1.8
"Restricted Payment"............................................10.9
"Surviving Entity"..............................................8.1
"U.S. Government Obligations"...................................4.4
Section 1.3. Compliance Certificates and Opinions.
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Upon any application or request by the Issuer or the Partnership to the
Trustee to take any action under any provision of this Indenture, the Issuer,
the Partnership and any other obligor on the Senior Notes shall furnish to the
Trustee an Officers' Certificate stating that all conditions precedent, if any,
provided for in this Indenture (including any covenant compliance with which
constitutes a condition precedent) relating to the proposed action have been
complied with, and an Opinion of Counsel to the effect that in the opinion of
such counsel all such conditions precedent, if any, have been complied with,
except that, in the case of any such application or request as to which the
furnishing of any certificates and/or opinions is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every Officers' Certificate or Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(a) a statement to the effect that each individual or firm signing such
certificate or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) 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;
(c) a statement to the effect that, in the opinion of each such individual
or firm, he or it has made such examination or investigation as is necessary to
enable him or it to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual or
such firm, such condition or covenant has been complied with.
Section 1.4. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Issuer, the Partnership or
any other obligor of the Senior Notes may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any certificate or
opinion of such an officer or of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Issuer, the
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Partnership or other obligor of the Senior Notes with respect to such factual
matters and which contains a statement to the effect that the information with
respect to such factual matters is in the possession of the Issuer, the
Partnership, or other obligor of the Senior Notes, unless such officer or
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous. Opinions of Counsel required to be delivered to the Trustee may have
qualifications customary for opinions of the type required and counsel
delivering such opinions of Counsel may rely on certificates of the Issuer, the
Partnership or government or other officials customary for opinions of the type
required, including certificates certifying as to matters of fact, including
assertions as to compliance with various financial covenants.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.5. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is herein expressly required, to the Issuer. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient.
(c) The ownership of the Senior Notes shall be proved by the Senior Note
Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Senior Note shall bind every future Holder
of the Senior Notes or the Holder of every Senior Note issued upon the transfer
thereof or in exchange therefor or in lieu thereof, in respect of anything done,
suffered or omitted to be done by the Trustee, any Paying Agent or the Issuer in
reliance thereon, whether or not notation of such action is made upon such
Senior Note.
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Section 1.6. Notices, etc., to Trustee, the Issuer, the Partnership, the
CCC and the NJDGE.
Any request, demand, authorization, direction, notice, consent, waiver or
Act of the Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Issuer or the Partnership shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if made, given, furnished or filed, in writing, to or with the Trustee
at 000 Xxxx Xxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Department, or at any other address previously furnished in writing to the
Holders, the Issuer or the Partnership by the Trustee;
(b) the Issuer or the Partnership shall be sufficient for every purpose
(except as provided in Section 5.1(b) hereunder) if in writing and mailed,
first-class postage prepaid or delivered by recognized overnight courier, to the
Issuer or the Partnership addressed to it at Xxxxxxxxxx Xxxxxxxxx xxx Xxxxx
Xxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Chief Financial Officer, or
at any other address previously furnished in writing to the Trustee by the
Issuer or the Partnership, as the case may be;
(c) the CCC shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or filed, in
writing, to or with the CCC at Tennessee Avenue and Xxx Xxxxxxxxx, Xxxxxx
Xxxxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000; or
(d) the NJDGE shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or filed, in
writing to or with the NJDGE at Xxxxxx Xxxxxxx Xxxxxxx, XX-000, Xxxxxxx, Xxx
Xxxxxx 00000.
Section 1.7. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Senior Note Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Any notice when mailed to a Holder in the
aforesaid manner shall be conclusively deemed to have been received by such
Holder whether or not actually received by such Holder. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing
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shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause, it shall be impracticable to mail notice of any event as
required by any provision of this Indenture, then any method of giving such
notice as shall be reasonably satisfactory to the Trustee shall be deemed to be
a sufficient giving of such notice.
Section 1.8. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with the duties imposed by Sections 3.10 to 3.18,
inclusive, of the Trust Indenture Act, or conflicts with any provision (an
"incorporated provision") required by or deemed to be included in this Indenture
by operation of such Sections of the Trust Indenture Act, such imposed duties or
incorporated provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
Section 1.9. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.10 Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer and the
Partnership shall bind their successors and assigns, whether so expressed or
not.
Section 1.11 Separability Clause.
In case any provision in this Indenture or in the Senior Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.12 Benefits of Indenture.
Nothing in this Indenture or in the Senior Notes, express or implied,
shall give to any Person (other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders) any benefit or any legal or
equitable right, remedy or claim under this Indenture.
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Section 1.13 GOVERNING LAW.
THIS INDENTURE, THE SENIOR NOTES AND THE SENIOR GUARANTEE SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF).
Section 1.14 Casino Control Act.
Each of the provisions of this Indenture is subject to and shall be
enforced in compliance with the provisions of the New Jersey Casino Control Act,
unless such provisions are in conflict with the Trust Indenture Act in which
case the Trust Indenture Act shall control.
Section 1.15 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Senior Note shall not be a Business Day, then (notwithstanding
any other provision of this Indenture or of the Senior Notes) payment of
interest or principal or, premium, if any, need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity and no interest shall accrue with respect to such payment for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be, to the next succeeding Business Day.
Section 1.16 Schedules.
All schedules attached hereto are by this reference made a part hereof
with the same effect as if herein set forth in full.
Section 1.17 Counterparts.
This Indenture may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.
ARTICLE 2
FORM OF SENIOR NOTES
Section 2.1. Forms Generally.
The Senior Notes and the Trustee's certificate of authentication shall be
in substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and
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other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange, any organizational document or governing instrument or any
applicable law, including the federal securities laws, or as may, consistently
herewith, be determined by the officers executing such Senior Notes, as
evidenced by their execution of the Senior Notes. Any portion of the text of any
Senior Note may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Senior Note.
The definitive Senior Notes shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Senior
Notes may be listed, all as determined by the officers executing such Senior
Notes, as evidenced by their execution of such Senior Notes.
Section 2.2. Form of Face of the Senior Notes.
The form of the face of the Senior Notes shall be substantially as
follows:
TRUMP'S CASTLE HOTEL & CASINO, INC.
[If Series A Notes, then insert --
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM AND IN ANY EVENT MAY BE SOLD OR OTHERWISE
TRANSFERRED ONLY IN ACCORDANCE WITH THE INDENTURE, COPIES OF WHICH ARE AVAILABLE
FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE TRUSTEE. THE EXEMPTION
PROVIDED BY RULE 144A UNDER THE SECURITIES ACT MAY BE AVAILABLE TO PERMIT SALE
OR TRANSFER OF THIS SECURITY TO QUALIFIED INSTITUTIONAL BUYERS (WITHIN THE
MEANING OF RULE 144A) WITHOUT REGISTRATION.
EACH HOLDER OF THIS SECURITY REPRESENTS TO THE ISSUER THAT (A) SUCH HOLDER
WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY (WITHOUT CONSENT OF THE
ISSUER) PRIOR TO TWO YEARS FROM THE LATER OF APRIL 17, 1998 OR THE DATE ON WHICH
THIS SECURITY WAS LAST HELD BY AN AFFILIATE OF THE ISSUER OTHER THAN (I) TO A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A, (II) TO
A NON-U.S.
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PERSON IN A TRANSACTION COMPLYING WITH REGULATION S UNDER THE SECURITIES ACT,
(III) FOLLOWING ONE YEAR FROM SUCH TIME, IN A TRANSACTION COMPLYING WITH RULE
144 UNDER THE SECURITIES ACT OR (IV) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT (IT BEING UNDERSTOOD THAT AS A
CONDITION TO THE REGISTRATION OF TRANSFER OF ANY SECURITIES, THE ISSUER OR THE
TRUSTEE MAY IN CIRCUMSTANCES EITHER OF THEM BELIEVES APPROPRIATE, REQUIRE
EVIDENCE AS TO COMPLIANCE WITH ANY SUCH EXEMPTION) AND THAT (B) THE HOLDER WILL,
AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY
FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.]
[If Series A Notes, then insert -- 10 1/4% Series A Senior Secured Note
due 2003]
[If Series B Notes, then insert -- 10 1/4% Senior Secured Note due 2003]
No. _______ $_______________
TRUMP'S CASTLE HOTEL & CASINO, INC., a New Jersey corporation (herein
called the "Issuer," which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay
to ____________ or registered assigns, the principal sum of _______________
United States dollars on April 30, 2003 at the office or agency of the Issuer
referred to below, and to pay interest thereon semiannually on April 30 and
October 31 of each year commencing on October 31, 1998, or if any such day is
not a Business Day, on the next succeeding Business Day (each an "Interest
Payment Date") from the most recent Interest Payment Date on which interest has
been paid (or from the date hereof if no interest has been paid) at the rate of
10 1/4% per annum until the principal hereof is paid or duly provided for.
So long as this Senior Note constitutes a Registrable Series A Note (as
defined in the Indenture), the Holder hereof is entitled to certain liquidated
damages provided for in Section 4 of the Registration Rights Agreement in the
event, as more fully described therein, that, and so long as, the Issuer fails
to timely implement its commitment to register the Senior Notes under the
Securities Act (as defined in the Indenture).
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Senior Note (or one or more Predecessor Senior Notes) is
registered at the close of business on the Regular Record Date for such
interest, which shall be April 15 or October 15 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date. Any such interest
not so paid, or duly provided for, and interest on such defaulted interest at
the interest
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rate borne by the Senior Notes, to the extent lawful, shall forthwith cease to
be payable to the Holder on such Regular Record Date, and may be paid to the
Person in whose name this Senior Note (or one or more Predecessor Senior Notes)
is registered at the close of business on a Special Record Date for the payment
of such defaulted interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Senior Notes not less than ten days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Senior Notes may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
Payment of the principal of, premium, if any, and interest on this Senior
Note will be made at the office or agency of the Issuer maintained for that
purpose in The City of New York, or at such other office or agency of the Issuer
as may be maintained for such purpose, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that payment of interest may be
made at the option of the Issuer by check mailed to the address of the Person
entitled thereto as such address shall appear on the Senior Note Register.
Interest shall be computed on the basis of a 360-day year of twelve 30-day
months.
This Senior Note is one of the Senior Notes issued and to be issued from
time to time under and in accordance with, the Indenture, all equally secured by
an assignment to the Trustee by the Issuer of a promissory note made by Trump's
Castle Associates, L.P., and of an Indenture of Mortgage and Security Agreement,
dated as of even date with the Indenture referred to herein, (hereinafter as
amended and supplemented the "Senior Partnership Upstream Note Mortgage"), to
which Senior Partnership Upstream Note Mortgage reference is made for a
description of the property mortgaged and pledged, the return and extent of the
security, and the other provisions thereof.
Reference is hereby made to the further provisions of this Senior Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed by
the Trustee or by the authenticating agent appointed as provided in the
Indenture by manual signature, this Senior Note shall not be entitled to any
benefit under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers and its
corporate seal to be affixed or reproduced hereon.
Dated: TRUMP'S CASTLE HOTEL
& CASINO, INC.
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Attest:__________________ By _____________________
Name: Name:
Title: Title:
(SEAL]
Section 2.3 Form of Reverse of the Senior Notes
The form of the reverse of the Senior Notes shall be substantially as
follows:
This Senior Note is one of a duly authorized issue of Senior Notes of the
Issuer designated as its [If Series A Notes, then insert - 10 1/4% Series A
Senior Secured Notes due 2003 (the "Series A Notes")] [If Series B Notes, then
insert - 10 1/4% Senior Secured Notes due 2003 (the "Series B Notes")] issued
under an Indenture, dated as of April 17, 1998 (herein called the "Indenture"),
between the Issuer, U.S. Bank National Association, a national banking
association, as trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture) and Trump's Castle Associates, L.P., a
New Jersey limited partnership (the "Partnership"), as guarantor [If Series A
Notes, then insert - , together with the 10 1/4% Senior Secured Notes due 2003
of the Issuer (the "Series B Notes", and collectively with the Series A Notes,
the "Senior Notes")] [If Series B Notes, then insert - , together with the 10
1/4% Series A Senior Secured Notes due 2003 of the Issuer (the "Series A Notes,"
and collectively with the Series B Notes, the "Senior Notes")]. The Senior Notes
are limited in aggregate principal amount of up to $5,000,000. Reference is
hereby made to the Indenture and all indentures supplemental thereto for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Issuer, the Trustee, the Partnership, other
obligors thereunder and the Holders of the Senior Notes, and of the terms upon
which the Senior Notes are, and are to be, authenticated and delivered.
If the Issuer or the Partnership is served with notice of the
disqualification of any Holder under N.J.S.A. ss. 5:12-105(d) by the CCC, such
Holder will be prohibited under N.J.S.A. ss. 5:12-105(e) from (a) receiving
interest on the Senior Notes held by such Holder, (b) exercising directly or
through any trustee or nominee, any right conferred on such Senior Notes and (c)
receiving any remuneration in any form from any company licensed by the CCC
(including the Issuer, the Partnership and the Trustee) for services rendered or
otherwise.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness on this Senior Note and (b) certain restrictive covenants
and related Defaults and Events of Default, in each case upon compliance with
certain conditions set forth therein.
In the event of a Total Taking or Casualty, the Issuer or the Partnership
shall, within 60 days after receipt of any condemnation or insurance proceeds,
but in all events within one year after the occurrence of such Total Taking or
Casualty, redeem the Senior Notes at 100% of the
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principal amount thereof, in each case, together with accrued and unpaid
interest through the Redemption Date, all as provided in the Indenture.
Notwithstanding the foregoing, each Holder by accepting a Senior Note
agrees that if the CCC does not waive the qualification requirement as to the
Holder (whether the record owner or beneficial owner) of this Senior Note and
requires that the Holder be qualified under the New Jersey Casino Control Act,
then, in such event, the Holder must qualify under such Act. If the Holder does
not so qualify, the Holder must dispose of its interest in this Senior Note,
within 30 days (or within such earlier date as the CCC may require) after the
Issuer's receipt of notice of such finding, or the Issuer may redeem this Senior
Note at the lower of the Outstanding Amount and the Fair Market Value of this
Senior Note, without premium, all as provided in the Indenture.
In the case of any redemption of Senior Notes, interest installments whose
Stated Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Senior Notes (or one or more Predecessor Senior Notes), of
record at the close of business on the relevant Record Date referred to on the
face hereof. Senior Notes (or portions thereof) for whose redemption and payment
provision is made in accordance with the Indenture shall cease to bear interest
from and after the date fixed for redemption.
In the event of redemption of this Senior Note in part only, a new Senior
Note or Senior Notes for the unredeemed portion hereof shall be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, there may be
declared due and payable in the manner and with the effect provided in the
Indenture the principal of this Senior Note, plus all accrued and unpaid
interest to and including the date this Senior Note is paid.
If a Change of Control occurs at any time, each Holder shall have the
right to require that the Issuer repurchase such Holder's Senior Notes in whole
or in part in integral multiples of $1,000 at a purchase price in cash in an
amount equal to 101% of the principal amount thereof plus accrued and unpaid
interest (including any Defaulted Interest), if any, to the date of purchase.
The Indenture permits, with certain exceptions as therein provided,
amendments and modifications of the rights and obligations of the Issuer and the
Partnership and the rights of the Holders under the Indenture and the TCHI Note
Mortgage Documents at any time by the Issuer, the Partnership, and the Trustee
with the consent of the Holders of not less than a majority in aggregate
principal amount of the Senior Notes at the time Outstanding. The Indenture also
contains provisions permitting the Holders of specified percentages in aggregate
principal amount of the Senior Notes at the time Outstanding, on behalf of the
Holders of all the Senior Notes, to waive compliance by the Issuer or the
Partnership with certain provisions of the Indenture and certain past Defaults
under the Indenture and their consequences. Any such
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consent or waiver by or on behalf of the Holder of this Senior Note shall be
conclusive and binding upon such Holder and upon all future Holders of this
Senior Note and of any Senior Note issued upon the registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Senior Note.
No reference herein to the Indenture or to the TCHI Note Mortgage
Documents and no provision of this Senior Note or of the Indenture or of the
TCHI Note Mortgage Documents shall alter or impair the obligation of the Issuer,
the Partnership or any other obligor under the Senior Notes (in the event the
Partnership or any such obligor is obligated to make payments in respect of the
Senior Notes), which is absolute and unconditional, to pay the principal of,
premium, if any, and interest on this Senior Note at the times, place, and rate,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Senior Note is registrable on the Senior Note
Register of the Issuer, upon surrender of this Senior Note for registration of
transfer at the office or agency of the Issuer maintained for such purpose in
The City of New York or at such other office or agency of the Issuer as may be
maintained for such purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer and the Senior Note
Registrar duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Senior Notes, of authorized denominations
and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Senior Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, such Senior
Notes are exchangeable for a like aggregate principal amount of Senior Notes of
a different authorized denomination, as requested by the Holder surrendering the
same.
No service charge shall be made for any registration of transfer or
exchange or redemption of Senior Notes, but the Issuer may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to and at the time of due presentment of this Senior Note for
registration of transfer, the Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Person in whose name this Senior Note is registered as
the owner hereof for all purposes, whether or not this Senior Note is overdue,
and neither the Issuer, the Trustee nor any agent shall be affected by notice to
the contrary.
Notwithstanding anything herein (including the Senior Guarantee) or in any
other agreement, document, certificate, instrument, statement or omission
referred to below to the contrary, the Partnership and the Issuer are liable
hereunder only to the extent of the assets of the Partnership and the Issuer and
no other person or entity, including, but not limited to, any
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partner, officer, committee or committee member of the Partnership or any
partner therein or of any Affiliate of the Partnership, or any incorporator,
officer, director or shareholder of the Issuer, or any Affiliate or controlling
Person or entity of any of the foregoing, or any agent, employee or lender of
any of the foregoing, or any successor, personal representative, heir or assign
of any of the foregoing, in each case past, present, or as they may exist in the
future, shall be liable in any respect (including without limitation the breach
of any representation, warranty, covenant, agreement, condition or
indemnification or contribution undertaking contained herein or therein) under,
in connection with, arising out of, or relating to this Senior Note, the
Indenture, the TCHI Note Mortgage Documents or any other agreement, document,
certificate, instrument or statement (oral or written) related to, executed or
to be executed, delivered or to be delivered, or made or to be made, or any
omission made or to be made, in connection with any of the foregoing or any of
the transactions contemplated in any such agreement, document, certificate,
instrument or statement.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer or disposition of all or substantially all of the properties and assets
of the Issuer or the Partnership in accordance with the Indenture, subject to
the terms and conditions of the Indenture, the successor Person to such
transaction shall become the obligor or guarantor on this Senior Note and the
TCHI Note Mortgage Documents and the Issuer or Partnership, as the case may be,
shall be discharged from all obligations and covenants under this Senior Note,
the TCHI Note Mortgage Documents and the Indenture.
All terms used in this Senior Note which are defined in the Indenture and
not otherwise defined herein shall have the meanings assigned to them in the
Indenture.
Section 2.4 Form of Trustee's Certificate of Authentication
The form of certificate of authentication shall be substantially as
follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
U.S. BANK NATIONAL ASSOCIATION,
As Trustee
Dated: By
------------------ ------------------
Authorized Signatory
Section 2.5 Form of Senior Guarantee.
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The form of Senior Guarantee shall be set forth on the Senior Notes
substantially as follows:
SENIOR GUARANTEE BY
TRUMP'S CASTLE ASSOCIATES, L.P.
For value received, Trump's Castle Associates, L.P., a New Jersey limited
partnership, hereby unconditionally guarantees to the Holder of this Senior Note
the payment of principal of, premium, if any, and interest on this Senior Note
in the amounts and at the time when due and interest on the overdue principal
and interest, if any, of this Senior Note, if lawful, and the payment or
performance of all other obligations of the Issuer under the Indenture or the
Senior Notes, to the Holder of this Senior Note and the Trustee, all in
accordance with and subject to the terms and limitations of this Senior Note and
Article Fourteen of the Indenture. This Senior Guarantee is secured by a certain
Indenture of Mortgage and Security Agreement, dated of even date with the
Indenture referred to in this Senior Note, between Trump's Castle Associates,
L.P. as mortgagor, and U.S. Bank National Association, Trustee, as mortgagee, to
which reference is hereby made for a full statement of its terms and conditions.
This Senior Guarantee is without recourse to the partners of the Partnership and
will not become effective until the Trustee duly executes the certificate of
authentication on this Senior Note.
Dated: TRUMP'S CASTLE ASSOCIATES, L.P.
-------------------------- By Trump's Castle Hotel & Casino,
Inc., its General Partner
Attest: By
------------------------- -------------------------
Authorized Signature Name:
Title:
(SEAL)
ARTICLE 3
THE SENIOR NOTES
Section 3.1 Title and Terms.
The aggregate principal amount of Senior Notes which may be authenticated
and delivered under this Indenture is limited to $5,000,000, except for Senior
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Senior Notes pursuant to Section 3.3, 3.4,
3.5, 3.6, 9.6 or 10.13. The Senior Notes are being issued in two series, the
Series A Notes and the Series B Notes.
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The Series A Notes are initially being issued pursuant to an exemption
from registration under the Securities Act. After the initial issuance date of
the Series A Notes, Series B Notes will be issued in exchange for an equal
principal amount of outstanding Series A Notes (i) pursuant to the Registered
Exchange Offer (as defined in the Registration Rights Agreement), (ii) if a
registration statement covering the resale of Series B Notes has been declared
effective, in which case the Series A Notes will be exchanged for Series B Notes
immediately prior to the disposition of Series B Notes pursuant to the
registration statement, (iii) at the request of the Holder of the Series A
Notes, immediately prior to the disposition of such Senior Notes pursuant to
Rule 144, if the Holder of the Series A Notes delivers to the Trustee an Opinion
of Counsel stating that as a result of such disposition the Senior Notes being
disposed of will no longer be Restricted Securities or (iv) if the Holder of the
Series A Notes delivers to the Trustee an Opinion of Counsel stating that the
Series A Notes are no longer Restricted Securities.
Upon any such exchange the Series A Notes shall be cancelled in accordance
with Section 3.9 and shall no longer be deemed Outstanding for any purpose.
Subject to Section 3.6 hereof, in no event shall the aggregate principal amount
of both of the Series A Notes and Series B Notes Outstanding exceed $5,000,000.
The Series A Notes shall be known and designated as the " 10 1/4% Series A
Senior Secured Notes due 2003" of the Issuer and the Series B Notes shall be
known and designated as the " 10 1/4% Series B Senior Secured Notes due 2003" of
the Issuer. The Senior Notes shall be known and designated as the " 10 1/4%
Senior Secured Notes due 2003" of the Issuer. The Stated Maturity of the Senior
Notes shall be April 30, 2003. The Senior Notes, shall bear interest on the
principal amount thereof at the rate of 10 1/4% per annum (subject, in the case
of the Series A Notes, to certain liquidation damages provided for in the
Registration Rights Agreement), payable semiannually on April 30 and October 31
in each year, commencing October 31, 1998, until the principal thereof is paid
or duly provided for. Interest on any overdue principal, interest (to the extent
lawful) or premium, if any, shall be payable on demand.
The principal of, premium, if any, and interest on Senior Notes shall be
payable at the office or agency of the Issuer maintained for such purpose in The
City of New York, or at such other office or agency of the Issuer as may be
maintained for such purpose; provided, however, that at the option of the Issuer
interest may be paid by check mailed to addresses of the Persons entitled
thereto as such addresses shall appear on the Senior Note Register.
The Senior Notes shall be redeemable as provided in Article Eleven.
At the election of the Issuer and the Partnership, the entire indebtedness
on the Senior Notes or certain of the Issuer's or the Partnership's obligations
and covenants and certain Events of Default thereunder may be defeased as
provided in Article Four.
The Senior Notes shall be secured as provided in Article Twelve.
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If the Issuer or the Partnership is served with notice of the
disqualification of any Holder under N.J.S.A. ss.5:12-105(d) by the CCC, such
Holder will be prohibited under N.J.S.A. ss. 5:12-105(e) from (a) receiving
interest on the Senior Notes held by such Holder, (b) exercising directly or
through any trustee or nominee, any right conferred on such Senior Notes and (c)
receiving any remuneration in any form from any company licensed by the CCC
(including the Issuer, the Partnership and the Trustee) for services rendered or
otherwise.
Section 3.2 Denominations.
The Senior Notes shall be issuable only in registered form without coupons
and only in denominations of $1,000 and in integral multiples thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
The Senior Notes shall be executed on behalf of the Issuer by its Chairman
of the Board of Directors, Vice Chairman, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Senior Notes may be manual or facsimile.
Senior Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Senior Notes or did not
hold such offices on the date of such Senior Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Senior Notes executed by the Issuer to the
Trustee for authentication, together with an Issuer Order for the authentication
and delivery of such Senior Notes; and the Trustee in accordance with such
Issuer Order shall authenticate and deliver such Senior Notes as provided in
this Indenture and not otherwise.
Each Senior Note shall be dated the date of its authentication.
No Senior Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Senior Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Senior Note shall be conclusive evidence, and the only
evidence, that such Senior Note has been duly authenticated and delivered
hereunder.
In case the Issuer or the Partnership, pursuant to Article Eight, shall be
consolidated, merged with or into any other Person or shall sell, convey,
assign, transfer or lease substantially all of its properties and assets to any
Person, and the successor Person resulting from such consolidation, or surviving
such merger, or into which the Issuer or the Partnership shall have
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been consolidated or merged, or the Person which shall have received a
conveyance, transfer or lease as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article Eight, any of the
Senior Notes authenticated or delivered prior to such consolidation, merger,
conveyance, transfer or lease may, from time to time, at the request of the
successor Person, be exchanged for other Senior Notes executed in the name of
the successor Person with such changes in phraseology and form as may be
appropriate, but otherwise in substance of like tenor as the Senior Notes
surrendered for such exchange and of like principal amount; and the Trustee,
upon the request of the successor Person, shall authenticate and deliver Senior
Notes as specified in such Request for the purpose of such exchange. If Senior
Notes shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section in exchange or substitution for or
upon registration of transfer of any Senior Notes, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Senior Notes at the time Outstanding for Senior Notes
authenticated and delivered in such new name.
The Trustee may appoint an authenticating agent acceptable to the Issuer
to authenticate Senior Notes on behalf of the Trustee. Unless limited by the
terms of such appointment, an authenticating agent may authenticate Senior Notes
whenever the Trustee may do so except upon original issuance. Each reference in
this Indenture to authentication by the Trustee includes authentication by such
agent. An authenticating agent has the same rights as any Senior Note Registrar
or Paying Agent to deal with the Issuer and its Affiliates.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Senior Notes, the Issuer may
execute, and upon order of the Issuer the Trustee shall authenticate and
deliver, temporary Senior Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Senior Notes in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Senior Notes may determine, as
conclusively evidenced by their execution of such temporary Senior Notes.
If temporary Senior Notes are issued, the Issuer will cause definitive
Senior Notes to be prepared without unreasonable delay. After the preparation of
definitive Senior Notes, the temporary Senior Notes shall be exchangeable for
definitive Senior Notes upon surrender of the temporary Senior Notes at the
office or agency of the Issuer designated for such purpose pursuant to Section
10.2, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Senior Notes the Issuer shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Senior Notes of authorized denominations. Until so exchanged the
temporary Senior Notes shall in all respects be entitled to the same benefits
under this Indenture as definitive Senior Notes.
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Section 3.5 Registration, Registration of Transfer and Exchange.
The Issuer shall cause to be kept at the Corporate Trust Office of the
Trustee, or such other office as the Trustee may designate, a register (the
register maintained in such office and in any other office or agency designated
pursuant to Section 10.2 being herein sometimes referred to as the "Senior Note
Register") in which, subject to such reasonable regulations as the Senior Note
Registrar may prescribe, the Issuer shall provide for the registration of Senior
Notes and of transfers of Senior Notes. The Trustee is hereby initially
appointed "Senior Note Registrar" for the purpose of registering Senior Notes
and transfers of Senior Notes as herein provided.
Upon surrender for registration of transfer of any Senior Note in
certificated form at the office or agency of the Issuer designated pursuant to
Section 10.2, the Issuer shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Senior Notes of any authorized denomination or denominations, of a like
aggregate principal amount.
At the option of the Holder, Senior Notes may be exchanged for other
Senior Notes of any authorized denomination or denominations, of a like
aggregate principal amount, upon surrender of the Senior Notes to be exchanged
at such office or agency. Whenever any such Senior Notes are so surrendered for
exchange, the Issuer shall execute, and the Trustee shall authenticate and
deliver, the Senior Notes which the Holder making the exchange is entitled to
receive.
All Senior Notes issued upon any registration of transfer or exchange of
Senior Notes shall be the valid obligations of the Issuer, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Senior Notes surrendered upon such registration of transfer or exchange.
Every Senior Note presented or surrendered for registration of transfer,
or for exchange or redemption shall (if so required by the Issuer or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Issuer and the Senior Note Registrar, duly executed
by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any registration of
transfer or exchange or redemption of Senior Notes, but the Issuer may require
payment of a sum sufficient to pay all documentary, stamp or similar issue or
transfer taxes or other governmental charges that may be imposed in connection
with any registration of transfer or exchange of Senior Notes, other than
exchanges pursuant to Section 3.3, 3.4, 9.6, 10.13, or 11.10 not involving any
transfer.
The Issuer shall not be required (a) to issue, register the transfer of or
exchange any Senior Note during a period beginning at the opening of business 15
days before the mailing of a notice of redemption of the Senior Notes selected
for redemption under Section 11.6 and ending
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at the close of business on the day of such mailing, or (b) to register the
transfer of or exchange any Senior Note so selected for redemption in whole or
in part, except the unredeemed portion of Senior Notes being redeemed in part.
All Series A Notes issued hereunder shall bear the following legend:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM AND IN ANY EVENT MAY BE SOLD OR OTHERWISE
TRANSFERRED ONLY IN ACCORDANCE WITH THE INDENTURE, COPIES OF WHICH ARE AVAILABLE
FOR INSPECTION AT THE CORPORATE TRUST OFFICE OF THE TRUSTEE. THE EXEMPTION
PROVIDED BY RULE 144A UNDER THE SECURITIES ACT MAY BE AVAILABLE TO PERMIT SALE
OR TRANSFER OF THIS SECURITY TO QUALIFIED INSTITUTIONAL BUYERS (WITHIN THE
MEANING OF RULE 144A) WITH REGISTRATION.
EACH HOLDER OF THIS SECURITY REPRESENTS TO THE ISSUER THAT (A) SUCH HOLDER
WILL NOT SELL OR OTHERWISE TRANSFER THIS SECURITY (WITHOUT CONSENT OF THIS
ISSUER) PRIOR TO TWO YEARS FROM THE LATER OF APRIL 17, 1998 OR THE DATE ON WHICH
THIS SECURITY WAS LAST HELD BY AN AFFILIATE OF THE ISSUER OTHER THAN (I) TO A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION COMPLYING WITH RULE 144A, (II) TO
A NON-U.S. PERSON IN A TRANSACTION COMPLYING WITH REGULATION S UNDER THE
SECURITIES ACT, (III) FOLLOWING ONE YEAR FROM SUCH TIME, IN A TRANSACTION
COMPLYING WITH RULE 144 UNDER THE SECURITIES ACT OR (IV) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IT BEING
UNDERSTOOD THAT AS A CONDITION TO THE REGISTRATION OF TRANSFER OF ANY
SECURITIES, THE ISSUER OR THE TRUSTEE MAY IN CIRCUMSTANCES EITHER OF THEM
BELIEVES APPROPRIATE, REQUIRE EVIDENCE AS TO COMPLIANCE WITH ANY SUCH EXEMPTION)
AND THAT (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO NOTIFY
ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN
(A) ABOVE.
Each certificate evidencing a Series A Note (and all Senior Notes issued
in exchange therefor or substitution thereof), until such time as the same is no
longer a Series A Note, shall bear a legend in substantially the form set forth
on the Forms of Face of Security set forth in Section 2.2 hereof. Prior to any
transfer or exchange of a legended Series A Note for a Series B Note, the Issuer
shall deliver an Officer's Certificate to the Trustee directing it to transfer
or exchange such Security for another or unlegended Note.
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Section 3.6 Mutilated, Destroyed, Lost and Stolen Senior Notes.
If (a) any mutilated Senior Note is surrendered to the Trustee, or (b) the
Issuer and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Senior Note, and there is delivered to the
Issuer and the Trustee, such security or indemnity, in each case, as may be
required by them to save each of them harmless, then, in the absence of notice
to the Issuer or the Trustee that such Senior Note has been acquired by a bona
fide purchaser, the Issuer shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Senior Note or in lieu of any such destroyed, lost or stolen Senior Note, a
replacement Senior Note of like tenor and principal amount, bearing a number not
contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Senior Note has
become or is about to become due and payable, the Issuer in its discretion may,
instead of issuing a replacement Senior Note, pay such Senior Note.
Upon the issuance of any replacement Senior Notes under this Section, the
Issuer may require the payment of a sum sufficient to pay all documentary, stamp
or similar issue or transfer taxes or other governmental charges that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every replacement Senior Note issued pursuant to this Section in lieu of
any destroyed, lost or stolen Senior Note shall constitute an original
additional contractual obligation of the Issuer, the Partnership and any other
obligor under the Senior Notes, whether or not the destroyed, lost or stolen
Senior Note shall be at any time enforceable by anyone, and shall be entitled to
all benefits of this Indenture equally and proportionately with any and all
other Senior Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Senior Notes.
Section 3.7 Payment of Interest.
Interest on any Senior Note which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Senior Note (or one or more Predecessor Senior Notes) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Senior Note which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date and interest on such
defaulted interest at the then applicable interest rate borne by the Senior
Notes, to the extent lawful (such defaulted interest and interest thereon herein
collectively called "Defaulted Interest") shall forthwith cease to be
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payable to the Holder on the Regular Record Date; and such Defaulted Interest
may be paid by the Issuer, at its election in each case, as provided in
Subsection (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest to the
Persons in whose names the Senior Notes (or their respective Predecessor Senior
Notes) are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Issuer shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Senior Note and the date of the
proposed payment, and at the same time the Issuer shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Subsection provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Issuer in writing of such Special Record Date. In the name and at the expense of
the Issuer, the Trustee shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder at his address as it appears in the
Senior Note Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Senior Notes (or their respective Predecessor
Senior Notes) are registered on such Special Record Date and shall no longer be
payable pursuant to the following Subsection (b).
(b) The Issuer may make payment to the Persons in whose name the Senior
Notes are registered at the close of business on the Special Record Date of any
Defaulted Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Senior Notes may be listed,
and upon such notice as may be required by such exchange, unless, after written
notice given by the Issuer to the Trustee of the proposed payment pursuant to
this Subsection, such manner of payment shall not be deemed practicable by the
Trustee (acting reasonably). The Trustee shall give prompt written notice to the
Issuer of any such determination.
Subject to the foregoing provisions of this Section, each Senior Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Senior Note shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Senior Note.
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Section 3.8 Persons Deemed Owners.
Prior to and at the time of due presentment for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Person in whose name any Senior Note is registered as the owner of such Senior
Note for the purpose of receiving payment of principal of, premium, if any, and
(subject to Section 3.7) interest on such Senior Note and for all other purposes
whatsoever, whether or not such Senior Note is overdue, and neither the Issuer,
the Trustee nor any agent of the Issuer or the Trustee shall be affected by
notice to the contrary.
Section 3.9 Cancellation.
All Senior Notes surrendered for payment, purchase, redemption or
registration of transfer or exchange shall be delivered to the Trustee and, if
not already cancelled, shall be promptly cancelled by it. The Issuer and the
Partnership may at any time deliver to the Trustee for cancellation any Senior
Notes previously authenticated and delivered hereunder which the Issuer or the
Partnership may have acquired in any manner whatsoever, and all Senior Notes so
delivered shall be promptly cancelled by the Trustee. No Senior Notes shall be
authenticated in lieu of or in exchange for any Senior Notes cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Senior Notes held by the Trustee shall be destroyed and certification
of their destruction delivered to the Issuer unless by an Issuer Order the
Issuer shall direct that the cancelled Senior Notes be returned to it. The
Trustee shall provide the Issuer a list of all Senior Notes that have been
cancelled from time to time as requested by the Issuer.
Section 3.10 Computation of Interest.
Interest on the Senior Notes shall be computed on the basis of a 360-day
year of twelve 30-day months.
Section 3.11 Non-recourse.
Notwithstanding anything herein (including the Senior Guarantee) or in any
other agreement, document, certificate, instrument, statement or omission
referred to below to the contrary, the Issuer and the Partnership are liable
hereunder and under the Senior Notes only to the extent of the assets of the
Issuer and the Partnership and the interest of the Issuer in the Senior Notes
and no other person or entity, including, but not limited to, any partner,
officer, committee or committee member of the Partnership or any partner therein
or of any Affiliate of the Partnership, or any incorporator, officer, director
or shareholder of the Issuer, or any Affiliate or controlling Person or entity
of any of the foregoing, or any agent, employee or lender of any of the
foregoing, or any successor, personal representative, heir or assign of any of
the foregoing, in each case past, present, or as they may exist in the future,
shall be liable in any respect (including without limitation the breach of any
representation, warranty, covenant,
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agreement, condition or indemnification or contribution undertaking contained
herein or therein) under, in connection with, arising out of, or relating to
this Indenture or any other agreement, document, certificate, instrument or
statement (oral or written) related to, executed or to be executed, delivered or
to be delivered, or made or to be made, or any omission made or to be made, in
connection with any of the foregoing or any of the transactions contemplated in
any such agreement, document, certificate, instrument or statement.
Notwithstanding the foregoing, the Holders preserve any personal claims they may
have for fraud, liabilities under the Securities Act, and other liabilities that
cannot be waived under applicable federal and state laws in connection with the
purchase of the Senior Notes; provided, however, that such conduct shall not
constitute an Event of Default under this Indenture, the Senior Notes or the
Senior Partnership Upstream Note Mortgage or any document executed in
conjunction therewith or otherwise related thereto. Any agreement, document,
certificate, statement or other instrument to be executed simultaneously with,
in connection with, arising out of or relating to this Indenture, the Senior
Notes or any other agreement, document, certificate, statement or instrument
referred to above, or any agreement, document, certificate, statement or
instrument contemplated hereby shall contain language mutatis mutandis to this
paragraph and, if such language is omitted, shall be deemed to contain such
language.
ARTICLE 4
DEFEASANCE AND COVENANT DEFEASANCE
Section 4.1 Option to Effect Defeasance or Covenant Defeasance.
The Issuer or the Partnership may, at their option, by Board Resolution,
at any time, with respect to the Senior Notes, elect to have either Section 4.2
or Section 4.3 be applied to all of the Outstanding Senior Notes (the "Defeased
Senior Notes"), upon compliance with the conditions set forth below in this
Article Four.
Section 4.2 Defeasance and Discharge.
Upon the Issuer's or the Partnership's exercise under Section 4.1 of the
option applicable to this Section 4.2, each of the Issuer, the Partnership and
any other obligor under the Senior Notes shall be deemed to have been discharged
from its obligations with respect to the Defeased Senior Notes on the date the
conditions set forth below are satisfied (hereinafter, "defeasance"). For this
purpose, such defeasance means that the Issuer and the Partnership shall be
deemed to have paid and discharged the entire indebtedness represented by the
Defeased Senior Notes, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 4.5 and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all their other
obligations under such Senior Notes and this Indenture insofar as such Senior
Notes are concerned (and the Trustee, at the expense of the Issuer, and, upon
written request of the Issuer, shall execute proper instruments acknowledging
the same), except for the following
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which shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of Defeased Senior Notes to receive solely from the trust fund
described in Section 4.4 and as more fully set forth in such Section, payments
in respect of the principal of, premium, if any, and interest on such Senior
Notes when such payments are due, (b) the Issuer's obligations with respect to
such Defeased Senior Notes under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (c) the
rights, powers, trusts, duties, indemnities and immunities of the Trustee
hereunder and (d) this Article Four. Subject to compliance with this Article
Four, the Issuer and the Partnership may exercise their option under this
Section 4.2 notwithstanding the prior exercise of their option under Section 4.3
with respect to the Senior Notes.
Section 4.3 Covenant Defeasance.
Upon the Issuer's or the Partnership's exercise under Section 4.1 of the
option applicable to this Section 4.3, each of the Issuer, the Partnership and
any other obligor under the Senior Notes shall be released from its obligations
under any covenant or provision contained in Sections 8.1(a)(ii), (iii)(B), and
(v)(B), 8.1(b)(ii), (iv), (v) and (vii)(B), 10.5 through 10.17, 10.19 and 10.21,
and Article Twelve shall not apply with respect to the Defeased Senior Notes on
and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and the Defeased Senior Notes shall thereafter be deemed
to be 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 Defeased Senior Notes, the Issuer, the
Partnership and any such obligor may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
Section or Article, whether directly or indirectly, by reason of any reference
elsewhere herein, in such Defeased Senior Notes or in the TCHI Note Mortgage
Documents or other documents to any such Section or Article or by reason of any
reference in any such Section or Article to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under Section 5.1(c) but, except as specified above and in the
following sentence, the remainder of this Indenture and such Defeased Senior
Notes shall be unaffected thereby. Upon any covenant defeasance, the events set
forth in Sections 5.1(d), (e), (i) and (k) shall not constitute Defaults or
Events of Default hereunder and any cross-reference in the Senior Partnership
Upstream Note Mortgage to a Default or Event of Default under this Indenture
shall not be deemed to include such Defaults or Events of Default.
Section 4.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 4.2
or Section 4.3 to the Defeased Senior Notes:
(1) The Issuer or the Partnership shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 6.8 who
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shall agree to comply with the provisions of this Article Four applicable to it)
as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of such Senior Notes, (a) money in an amount, or (b) U.S. Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than one
day before the due date of any payment, money in an amount, or (c) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the principal
of, premium, if any, and interest on the Defeased Senior Notes on the Stated
Maturity of such principal or installment of principal or interest and (ii) any
mandatory payments applicable to the Outstanding Senior Notes on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and of such Senior Notes; provided, that the Trustee (or other
qualifying trustee) shall have been irrevocably instructed to apply such money
or the proceeds of such U.S. Government Obligations to said payments with
respect to the Senior Notes. For this purpose, "U.S. Government Obligations"
means securities that are (i) direct obligations of the United States of America
for the timely payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian
with respect to any such obligation or a specific payment of principal of or
interest on any such obligation held by such custodian for the account of the
holder of such depository receipt, provided, that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of principal of or interest on the U.S. Government Obligation evidenced by such
depository receipt.
(2) No Default or Event of Default shall have occurred and be continuing
on the date of such deposit or, insofar as subsections 5.1(g) and (h) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not cause the Trustee for
the Senior Notes to have a conflicting interest in violation of Section 6.7 and
for purposes of the Trust Indenture Act with respect to any securities of the
Issuer or any other obligor under the Senior Notes.
(4) Such defeasance or covenant defeasance shall not result in a breach or
violation of, or constitute a default or event of default under, this Indenture
or any other material agreement
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or instrument to which the Issuer, the Partnership or any other obligor under
the Senior Notes is a party or by which it is bound.
(5) In the case of an election under Section 4.2, the Issuer shall have
delivered to the Trustee an Opinion of Counsel stating that (x) the Issuer or
the Partnership, as the case may be, has received from, or there has been
published by, the Internal Revenue Service a ruling or (y) since the date
hereof, there has been a change in the applicable Federal income tax law, in
either case to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Senior Notes will not recognize income,
gain or loss for Federal income tax purposes as a result of such 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 defeasance had not
occurred.
(6) In the case of an election under Section 4.3, the Issuer or the
Partnership, as the case may be, shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Outstanding Senior Notes 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.
(7) The Issuer or the Partnership, as the case may be, shall have
delivered to the Trustee an Officers' Certificate stating that the deposit made
by the Issuer or the Partnership, as the case may be, pursuant to its election
under Section 4.2 or 4.3 was not made by the Issuer or the Partnership, as the
case may be, with the intent of preferring the Holders over the other creditors
of the Issuer or the Partnership with the intent of defeating, hindering,
delaying or defrauding creditors of the Issuer or the Partnership, as the case
may be, or others.
(8) The Issuer or the Partnership, as the case may be, shall have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel,
each stating that all conditions precedent (other than conditions requiring the
passage of time) provided for relating to either the defeasance under Section
4.2 or the covenant defeasance under Section 4.3 (as the case may be) have been
complied with as contemplated by this Section 4.4. Opinions required to be
delivered under this Section may have qualifications customary for opinions of
the type required.
Section 4.5 Deposited Money and U.S. Government Obligations to be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3, 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 4.5, the "Trustee") pursuant to Section 4.4 in respect of the Defeased
Senior Notes shall be held in trust and applied by the Trustee, in accordance
with the provisions of such Senior Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Issuer acting as its
own
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Paying Agent) as the Trustee may determine, to the Holders of such Defeased
Senior Notes of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other
funds except to the extent required by law.
The Issuer shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 4.4 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 Defeased Senior Notes.
Anything in this Article Four to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuer from time to time upon Issuer Request any
money or U.S. Government Obligations held by it as provided in Section 4.4
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent defeasance or covenant defeasance.
Section 4.6 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with Section 4.2 or 4.3, 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
Issuer's and the Partnership's obligations under this Indenture and the Senior
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 4.2 or 4.3, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money or U.S. Government Obligations
in accordance with Section 4.2 or 4.3, as the case may be; provided, however,
that if the Issuer makes any payment of principal, premium, if any, or interest
on any Senior Note following the reinstatement of its obligations, the Issuer
shall be subrogated to the rights of the Holders of such Senior Notes to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE 5
REMEDIES
Section 5.1 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
occasioned by the provisions of Article Twelve or be voluntary or involuntary or
be effected 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):
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(a) default in the payment of any interest (including any Defaulted
Interest) on any of the Senior Notes when the same becomes due and payable and
the default continues for a period of 30 days;
(b) default in the payment of the principal of (or premium, if any, on)
any of the Senior Notes when the same becomes due and payable at its Stated
Maturity, upon acceleration, optional redemption, required repurchase, scheduled
principal payment or otherwise;
(c)(i) default in the performance, or breach, of any covenant of the
Issuer or the Partnership under the Senior Notes, the Senior Guarantee or this
Indenture (other than a default in the performance, or breach, of a covenant
that is specifically dealt with elsewhere in this Section 5.1) that continues
for 30 days after written notice has been given, by registered or certified
mail, (x) to the Issuer by the Trustee or (y) to the Issuer and the Trustee by
Holders of at least 25% of the aggregate principal amount of Outstanding Senior
Notes, specifying such default and requiring that it be remedied; (ii) default
in the performance or breach of the provisions of Article Eight hereof; (iii)
the Issuer or the Partnership shall have failed to make or consummate a Change
of Control Offer in accordance with Section 10.13 hereof; or (iv) the Issuer or
the Partnership shall have failed to make or consummate a required purchase of
the PIK Notes or Mortgage Notes in accordance with Section 10.9;
(d)(i) so long as there are only Registrable Series A Notes outstanding
hereunder, default by the Partnership, the Issuer or any of the Subsidiaries in
the payment, when due (whether at maturity, required prepayment, acceleration,
demand or otherwise) of any Indebtedness in an aggregate principal amount in
excess of $10,000,000 or any interest or premium thereon and such failure shall
continue after the applicable grace period, if any, specified in the agreement
or instrument relating to such Indebtedness or any such Indebtedness shall be
declared to be due and payable or required to be prepaid (other than by a
regularly scheduled required prepayment) prior to the stated maturity thereof;
and (ii) on and after the date on which any of the events referred to in clauses
(A), (B) or (C) of the definition of Registrable Series A Notes has occurred,
the Partnership, the Issuer or any of the Subsidiaries shall fail to perform or
observe any term, covenant or agreement on its part to be performed or observed
under any agreement or instrument evidencing or securing or relating to any
Indebtedness in an aggregate principal amount in excess of $10,000,000 when
required to be performed or observed, if the effect of such failure is to
accelerate, or to permit the holder or holders of such Indebtedness to
accelerate, the maturity of such Indebtedness;
(e) one or more judgments, orders or decrees for the payment of money in
excess of $10,000,000, either individually or in the aggregate, shall be
rendered against the Issuer, the Partnership 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;
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(f) an "Event of Default" under any Indebtedness secured by a Lien on any
of the property or assets of the Issuer or any of the Subsidiaries having a book
value in excess of $500,000, which Lien is senior to the Lien on such property
or assets which secures the Senior Notes;
(g) 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 the Issuer, the
Partnership or any of the Subsidiaries in an involuntary case or proceeding
under any applicable Bankruptcy Law or (ii) a decree or order adjudging the
Issuer, the Partnership or any of the Subsidiaries bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Issuer, the Partnership or any of the Subsidiaries under any applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Issuer, the Partnership
or any of the Subsidiaries or of any substantial part of its property, or
ordering the winding-up or liquidation of its 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;
(h)(i) the Issuer, the Partnership or any of the 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) the Issuer,
the Partnership or any of the Subsidiaries consents to the entry of a decree or
order for relief in respect of the Issuer or such 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) the Issuer,
the Partnership or any of the Subsidiaries files a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or
the Issuer, the Partnership or any of the 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 the Issuer, the Partnership or such Subsidiary or of any substantial
part of its property, (2) the making by it of an assignment for the benefit of
creditors or (3) the admission by it in writing of its inability to pay its
debts generally as they become due, or (iv) the taking of corporate or
partnership action by the Issuer, the Partnership or any of the Subsidiaries in
furtherance of any such action in this paragraph (i);
(i) the revocation, suspension or involuntary loss of any Permit which
results in the cessation of a substantial portion of the operations of the
Casino-Hotel for a period of more than 90 consecutive days;
(j) the Senior Guarantee, the TCHI Note Guarantee Mortgage, or the Senior
Partnership Upstream Note Mortgage shall for any reason cease to be in full
force and effect or enforceable in accordance with its terms;
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(k) an "Event of Default" under the Senior Partnership Upstream Note
Mortgage, Funding Note Indenture, Senior Note Mortgage Documents, the PIK Note
Indenture or the Mortgage Note Indenture, shall have occurred and is continuing;
(l) an entity, which at the time, directly or indirectly, holds general
partnership interests in both of Xxxxx Plaza Associates and Xxxxx Xxx Mahal
Associates, which general partnership interests had previously been held by
Xxxxxx X. Xxxxx and his Affiliates, sells through an initial public distribution
its equity securities without having first acquired all the direct and indirect
partnership interests in the Partnership held by Xxxxxx X. Xxxxx as of the date
of this Indenture; and
(m) the Issuer ceases to be the general partner of the Partnership.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(g) or (h)) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Senior Notes may, and the Trustee upon the request of the Holders of
not less than 25% in aggregate principal amount of the Outstanding Senior Notes
shall, declare the principal of all the Senior Notes to be due and payable
immediately in an amount equal to the principal amount of the Senior Notes,
together with accrued and unpaid interest to the date the Senior Notes become
due and payable, by a notice in writing to the Issuer (and to the Trustee, if
given by the Holders) unless on or prior to such amounts having become due and
payable the Issuer shall have discharged or paid in full the Indebtedness, if
any, that is the subject of such Event of Default and shall have given written
notice of such cure to the Trustee (which notice in the case of an Event of
Default specified in Section 5.1(d) shall be countersigned by the holders of the
Indebtedness that is the subject of such Event of Default or by a trustee,
fiduciary or agent for such Holders). If an Event of Default specified in
Section 5.1(g) or (h) occurs and is continuing, then the principal of all the
Senior Notes shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
At any time after such declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Senior Notes, by written notice
to the Issuer and the Trustee, may rescind and annul such declaration and its
consequences if:
(a) the Issuer has paid or deposited with the Trustee a sum sufficient to
pay
(i) all amounts due the Trustee under Section 6.6 and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel,
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(ii) all overdue interest on all such Senior Notes,
(iii) the principal of and premium, if any, on any Senior Notes which have
become due otherwise than by such declaration of acceleration and interest
thereon at the rate borne by the Senior Notes, and
(iv) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate borne by such Senior Notes; and
(b) all Events of Default, other than the non-payment of principal of
Senior Notes which have become due solely by such declaration of acceleration,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon as provided in Section 5.13.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Issuer and the Partnership covenants that if
(a) default is made in the payment of any interest on any Senior Note when
such interest becomes due and payable and such default continues for a period of
30 days, or
(b) default is made in the payment of the principal of or premium, if any,
on any Senior Note at the Stated Maturity thereof,
the Issuer and the Partnership will, upon demand of the Trustee, pay to it, for
the benefit of the Holders of such Senior Notes, the whole amount then due and
payable on such Senior Notes for principal and premium, if any, and interest,
with interest upon the overdue principal and premium, if any, and, to the extent
that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the rate borne by the Senior Notes; and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Issuer or the Partnership, as the case may be, fails to pay such
amounts forthwith upon such demand, the Trustee, in its own name and as trustee
of an express trust, may institute a judicial proceeding for the collection of
the sums so due and unpaid and may prosecute such proceeding to judgment or
final decree, and may enforce the same against the Issuer, the Partnership or
any other obligor upon the Senior Notes and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the
Issuer, the Partnership or any other obligor upon the Senior Notes, wherever
situated.
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If an Event of Default occurs and is continuing, the Trustee may in its
discretion (i) proceed to protect and enforce its rights and the rights of the
Holders under this Indenture, the Senior Guarantee or the Senior Partnership
Upstream Note Mortgage (subject to the terms thereof) by such appropriate
private or judicial proceedings as the Trustee shall deem most effectual to
protect and enforce such rights, including, without limitation, any rights or
powers conferred on the Trustee pursuant to the Senior Partnership Upstream Note
Mortgage and seeking recourse against the Partnership pursuant to the terms of
the Senior Guarantee, or (ii) to proceed to protect and enforce the rights of
the Trustee and the Holders of Senior Notes under the Senior Partnership
Upstream Note Mortgage by such appropriate private or judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in the Senior
Partnership Upstream Note Mortgage or in aid of the exercise of any power
granted therein, or to enforce any other proper remedy, including, without
limitation, seeking recourse against the Partnership pursuant to the terms of
the Senior Guarantee, appointment of a receiver for the Collateral and
foreclosure, realization and sale of the Collateral pursuant to the terms of the
Senior Partnership Upstream Note Mortgage. The Trustee shall be entitled to xxx
and recover judgment as aforesaid or to xxx to enforce any Lien under the Senior
Partnership Upstream Note Mortgage, in either case, either before, after or
during the pendency of any other proceeding for the enforcement of any Lien
under the Senior Partnership Upstream Note Mortgage, and the right of the
Trustee to recover such judgment shall not be affected by any sale under the
Senior Partnership Upstream Note Mortgage or by the exercise of any right, power
or remedy for the enforcement of the provisions of the Senior Partnership
Upstream Note Mortgage, or the foreclosure or enforcement of any Lien of the
Senior Partnership Upstream Note Mortgage. No recovery of any such judgment upon
any property of the Issuer or the Partnership shall affect or impair the Lien on
the Collateral or any rights, powers or remedies of the Trustee or the Holders.
Section 5.4 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 Issuer, the Partnership or any other obligor
upon the Senior Notes or the property of the Issuer, the Partnership or such
other obligor, the Trustee (irrespective of whether the principal of the Senior
Notes 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 Issuer for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of principal, and
premium, if any, and interest owing and unpaid in respect of the Senior Notes
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 agents
and counsel) and of the Holders allowed in such judicial proceeding; and
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(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, 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 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 6.6.
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 Senior
Notes 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 5.5 Trustee May Enforce Claims Without Possession of the Senior
Notes.
All rights of action and claims under this Indenture or the Senior Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Senior Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name and as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Senior Notes in respect of which such
judgment has been recovered.
Section 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied, subject to applicable law, in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal, premium, if any, or interest, upon presentation of the Senior
Notes and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.6;
SECOND: To the payment of the amounts then due and unpaid upon the Senior
Notes for principal, premium, if any, and interest, 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 Senior
Notes for principal, premium, if any, and interest;
THIRD: The balance, if any, to the Person or Persons entitled thereto,
including the Issuer.
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Section 5.7 Limitation on Suits.
No Holder of any Senior Notes shall have any right 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 the
Outstanding Senior Notes 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
indemnity against the costs, expenses and liabilities 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 Senior Notes;
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 or the Senior Partnership Upstream Note Mortgage or the Senior
Guarantee 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 provided in this
Indenture, the Senior Guarantee or the Senior Partnership Upstream Note Mortgage
and for the equal and ratable benefit of all of the Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Senior Note shall have the right on the terms stated herein, which is absolute
and unconditional, to receive payment of the principal of, premium, if any, and
(subject to Sections 3.1 and 3.7) interest on such Senior Note on the respective
Stated Maturities expressed in such Senior Note (or, in the case of redemption,
on the Redemption 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.
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Section 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture, the Senior Guarantee or the Senior
Partnership Upstream Note Mortgage 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 such case the Issuer, the Partnership, any other
obligor under the Senior Notes, the Trustee and the Holders shall, subject to
any determination in such proceeding, 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.
Section 5.10 Rights and Remedies Cumulative.
Except as provided in Section 3.6, 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 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Senior Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article 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 5.12 Control by Holders.
The Holders of a majority in principal amount of the outstanding Senior
Notes 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 on the Trustee hereunder or under the Senior Partnership
Upstream Note Mortgage, provided that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture, the Senior Guarantee Mortgage or the Senior Partnership Upstream
Note Mortgage or expose the Trustee to personal liability; and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
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Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Senior Notes may on behalf of the Holders of all the Senior Notes
waive any past Default hereunder and its consequences, except a Default:
(a) in the payment of the principal of, premium, if any, or interest on
any Senior Note, or
(b) in respect of a covenant or provision hereof which under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Senior Note affected.
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 any right consequent thereon.
Section 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Senior Note by
his 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 the TCHI Note Mortgage Documents, or in any suit against the
Trustee for any action taken, suffered or omitted 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 shall not apply 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 principal amount of the
Outstanding Senior Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, premium, if any, or interest on
any Senior Note on or after the respective Stated Maturities expressed in such
Senior Note (or, in the case of redemption, on or after the Redemption Date).
Section 5.15 Waiver of Stay, Extension or Usury Laws.
Each of the Issuer, the Partnership and any other obligor under the Senior
Notes covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Issuer, the Partnership or any such obligor from paying all or any
portion of the principal of, premium, if any, or interest on the Senior Notes
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contemplated herein or in the Senior Notes or which may affect the covenants or
the performance of this Indenture; and each of the Issuer, the Partnership and
any such obligor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will 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 5.16 Unconditional Right of Holders to Institute Certain Suits.
Notwithstanding any other provision in this Indenture and any other
provision of any Senior Note, the right of any Holder of any Senior Note to
receive payment of the principal of, premium, if any, and interest on such
Senior Note on or after the respective due dates expressed in such Senior Note,
or to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or affected without the consent of such
Holder.
Section 5.17 Management of Casino-Hotel.
Notwithstanding any provision of this Article Five to the contrary,
(a) following an Event of Default under the Senior Partnership Upstream
Note Mortgage and the exercise by the Trustee of any of its rights under Section
3.9 thereof or other taking of possession of the Collateral by the Trustee, the
Trustee shall be authorized, in addition to the rights and powers of the Trustee
set forth elsewhere in this Indenture and the Senior Partnership Upstream Note
Mortgage, to retain one or more experienced operators of hotels and/or casinos
to manage the Casino-Hotel on behalf of the Holders, provided that any such
operator shall have all necessary legal qualifications, including all Permits,
to manage the Casino-Hotel; and
(b) no Holder shall have any right to take possession of, operate or
manage all or any portion of, the Casino-Hotel, individually or as a member of a
group, unless such Holder shall have all necessary legal qualifications,
including all Permits, to do so and shall otherwise be qualified to be retained
to manage the Casino-Hotel under Subsection (a) of this Section 5.17.
ARTICLE 6
THE TRUSTEE
Section 6.1 Duties of Trustee and Notice of Defaults.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, the Senior Partnership Upstream
Note Mortgage
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and the TCHI Note Guarantee Mortgage, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
(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 therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements to this Indenture or
the Senior Partnership Upstream Note Mortgage or the TCHI Note Guarantee
Mortgage; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture, the Senior Partnership
Upstream Note Mortgage and the TCHI Note Guarantee Mortgage.
(b) In case of 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
such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this Subsection (c) shall not be construed to limit the effect of
Subsection (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of a majority in aggregate principal amount of the Outstanding Senior
Notes relating to the time, method and place of conducting any proceeding for
any remedy available to Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture; and
(4) 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 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.
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(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
6.1.
(e) Within 30 days after the occurrence of any Default, the Trustee shall
transmit by mail to all Holders, as their names and addresses appear in the
Senior Note Register, notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the principal of, premium, if
any, or interest on any Senior Note, the Trustee shall be protected in
withholding such notice if and so long as a trust committee of Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders; and provided, further, that in the
case of any Default of the character specified in Section 5.1(c) no such notice
to Holders shall be given until at least 15 days after the occurrence thereof.
The Trustee shall not be deemed to have knowledge of any Default (other than a
Default under Section 5.1(a) or (b) hereunder) unless and until the Trustee
shall have received notice of such Default or obtained actual knowledge thereof.
Section 6.2 Certain Rights of Trustee.
Subject to the provisions of Section 315 of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall be
sufficiently evidenced by an Issuer Request or Issuer Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) the Trustee may consult with counsel and any advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby in compliance with such
request or direction;
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(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture other than any liabilities
arising out of the negligence of the Trustee;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, approval,
appraisal, bond, debenture, note, coupon, security or other paper or document
unless requested in writing so to do by the Holders of not less than a majority
in aggregate principal amount of the Senior Notes then Outstanding; provided
that, if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or liabilities as
a condition to proceeding; the reasonable expenses of every such investigation
shall be paid by the Partnership or, if paid by the Trustee or any predecessor
Trustee, shall be repaid by the Partnership upon demand; provided, further, the
Trustee in its discretion may make such further inquiry or investigation into
such facts or matters as it may deem fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Partnership, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(h) 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 in the exercise of any of its rights or
powers;
(i) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(j) in addition to and not in limitation of its other powers hereunder,
the Trustee shall have such power and authority as may be necessary to enter
into and accept delivery of any document as may be necessary to effect on behalf
of the Holders of the Senior Notes (1) the pari passu nature of the indebtedness
and Liens in respect of the Senior Notes to (A) any other portion of the Working
Capital Facility and the Liens securing the same and (B) the Funding Notes and
the Liens securing the same, and (2) the priority of the indebtedness and Liens
in respect of the Senior Notes to (A) the indebtedness and Liens in respect of
the Mortgage Notes and (B) the indebtedness and Liens in respect of the PIK
Notes, and upon written request of the Issuer or the Partnership, the Trustee
shall enter into such agreements on behalf of the Holders.
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Section 6.3 Trustee Not Responsible for Recitals, Dispositions of Senior
Notes or Application of Proceeds Thereof; etc.
The recitals contained herein and in the Senior Notes, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Issuer, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Senior Notes, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the Senior
Notes and perform its obligations hereunder and that the statements made by it
in a Statement of Eligibility and Qualification on Form T-1 to be supplied to
the Issuer will be true and accurate subject to the qualifications set forth
therein. The Trustee shall not be accountable for the use or application by the
Issuer of Senior Notes or the proceeds thereof. The Trustee shall not be deemed
to have knowledge of any Event of Default (other than an Event of Default under
Section 5.1(a) or (b) hereunder) unless and until the Trustee shall have
received notice of such Event of Default or obtained actual knowledge thereof.
The Trustee's receipt of reports and documents pursuant to Section 7.4 and
Section 10.18 hereof shall not constitute constructive knowledge of any
information contained therein or determinable from information contained
therein, including compliance with the covenants set forth in Article 10 hereof.
Except as expressly provided in this Indenture and except with respect to
Section 10.1 hereof, the Trustee shall not have an affirmative duty to inquire
as to the compliance with the covenants set forth in Article 10 hereof.
Section 6.4 Trustee and Agents May Hold Senior Notes; Collections; Etc.
The Trustee, any Paying Agent, Senior Note Registrar or any other agent of
the Issuer, in its individual or any other capacity, may become the owner or
pledgee of Senior Notes, with the same rights it would have if it were not the
Trustee, Paying Agent, Senior Note Registrar or such other agent and, subject to
Sections 310 and 311 of the Trust Indenture Act, may otherwise deal with the
Issuer and receive, collect, hold and retain collections from the Issuer with
the same rights it would have if it were not the Trustee, Paying Agent, Senior
Note Registrar or such other agent.
Section 6.5 Money Held in Trust.
All moneys received by the Trustee shall, until used or applied as herein
provided, be held in trust for the purposes for which they were received, but
need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
Section 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim.
The Issuer and the Partnership covenant and agree to pay to the Trustee
from time to time, and the Trustee shall be entitled to, reasonable compensation
for all services rendered by it
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hereunder (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Partnership covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made
by or on behalf of it in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its
counsel and of all agents and other persons not regularly in its employ), except
any such expense, disbursement or advance as may arise from such Trustee's
negligence or bad faith. The Issuer and the Partnership also covenant to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any loss, liability, tax, assessment or other governmental charge
(other than taxes applicable to the Trustee's compensation hereunder) or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of this Indenture or the trusts
hereunder and its duties hereunder including enforcement of this Section 6.6 and
also including any liability which the Trustee may incur as a result of failure
to withhold, pay or report any tax, assessment or other governmental charge, and
the costs and expenses of defending itself against or investigating any claim of
liability in the premises. The obligations of the Issuer and the Partnership
under this Section to compensate and indemnify the Trustee and each predecessor
Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute an additional obligation
hereunder and shall survive the satisfaction and discharge of this Indenture.
To secure the Issuer's and the Partnership's payment obligations in this
Section 6.6, the Trustee shall have a Lien prior to the Senior Notes on all
money and property held or collected by the Trustee or any receiver Trustee,
assignee, liquidator, sequestrator, custodian or similar officer in Trustee's
stead except such money or property held in trust to pay principal of (or
premium, if any) and interest on particular Senior Notes. Such Lien shall
survive satisfaction and discharge of this Indenture, and will be an additional
obligation of the Partnership hereunder.
Section 6.7 Conflicting Interests.
(a) If the Trustee has or acquires any conflicting interest, as defined in
Section 310(b) of the Trust Indenture Act, it shall, within ninety days after
ascertaining that it has such conflicting interest, either eliminate such
conflicting interest or resign in the manner and with the effect set forth in
Section 6.9(b).
(b) In the event that the Trustee shall fail to comply with the provisions
of the preceding subsection (a) of this Section, the Trustee shall, within ten
days after the expiration of such ninety day period, transmit notice of such
failure to the Holders, in the manner and to the extent provided in Section 7.3
with respect to reports.
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Section 6.8 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America or of any state or territory or District of Columbia, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $100,000,000, subject to supervision or examination by
federal, state, territorial or District of Columbia supervising or examining
authority, and having a Corporate Trust Office in The City of New York to the
extent there is such an institution eligible and willing to serve. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of such supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 6.9 Resignation and Removal; Appointment of Successor Trustee.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.10.
(b) The Trustee, or any trustee or trustees hereafter appointed, may at
any time resign by giving written notice thereof to the Issuer. Upon receiving
such notice of resignation, the Issuer shall promptly appoint a successor
trustee by written instrument executed by authority of the Board of Directors of
the Issuer, a copy of which shall be delivered to the resigning Trustee and a
copy to the successor trustee. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may, or any Holder
who has been a bona fide Holder of a Senior Note for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee. Such court
may thereupon, after such notice, if any, as it may deem proper, appoint a
successor trustee.
(c) The Trustee may be removed at any time by an Act of the Holders of a
majority in principal amount of the then Outstanding Senior Notes, delivered to
the Trustee and to the Issuer.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of Section 6.7
after written request therefor by the Issuer or by any Holder who has been a
bona fide Holder of a Senior Note for at least six months, or
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(2) the Trustee shall cease to be eligible under Section 6.8 hereof and
shall fail to resign after written request therefor by the Issuer or by any such
Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent, or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, or
(4) the CCC determines that the Trustee is required to be licensed or
found qualified or suitable and the Trustee does not become so licensed or found
qualified or suitable within such period as may be prescribed by the CCC,
then, in any such case, (i) the Issuer by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14 hereof, the Holder of any Senior Note
who has been a bona fide Holder of a Senior Note for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, remove the Trustee and appoint a successor
trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, the Issuer,
by a Board Resolution, shall promptly, upon approval of the CCC, appoint a
successor Trustee which Trustee shall be licensed or found qualified or suitable
under the New Jersey Casino Control Act. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Senior Notes delivered to the Issuer, upon
approval by the CCC and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment, become the successor
Trustee and supersede the successor Trustee appointed by the Issuer. If no
successor Trustee shall have been so appointed by the Issuer or the Holders of
the Senior Notes and accepted appointment in the manner hereinafter provided,
the Holder of any Senior Note who has been a bona fide Holder for at least six
months may, subject to Section 5.14 hereof, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Issuer shall give notice of each resignation and each removal of
the Trustee and each appointment of a successor Trustee by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Senior Notes as their names and addresses appear in the Senior Note Register.
Each notice shall include the name of the successor Trustee and the address of
its Corporate Trust Office.
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Section 6.10 Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Issuer and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee as if originally named as Trustee hereunder; but,
nevertheless, on the written request of the Issuer or the successor Trustee,
upon payment of its charges then unpaid, such retiring Trustee shall pay over to
the successor Trustee all moneys at the time held by it hereunder and shall
execute and deliver an instrument transferring to such successor Trustee all
such rights, powers, duties and obligations.
Upon request of any such successor Trustee, the Issuer shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights and powers. Any Trustee ceasing to act
shall, nevertheless, retain a prior claim upon all property or funds held or
collected by such Trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
No successor Trustee with respect to the Senior Notes shall accept
appointment as provided in this Section 6.10 unless at the time of such
acceptance such successor Trustee shall be eligible to act as Trustee under the
provisions of Section 310(a) of the Trust Indenture Act and shall have a
combined capital and surplus of at least $100,000,000 and have a Corporate Trust
Office in The City of New York.
Upon acceptance of appointment by any successor Trustee as provided in
this Section 6.10, the Issuer shall give notice thereof to the Holders of the
Senior Notes, by mailing such notice to such Holders at their addresses as they
shall appear on the Senior Note Register. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.9. If the Issuer fails to give such notice within 10 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be given at the expense of the Issuer.
Section 6.11 Merger, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be eligible under Section 310(a) of the Trust
Indenture Act and shall have a combined capital and surplus of at least
$100,000,000 and have a Corporate Trust Office in the City of New York, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto.
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In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Senior Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee and deliver such Senior
Notes so authenticated; and, in case at that time any of the Senior Notes shall
not have been authenticated, any successor to the Trustee may authenticate such
Senior Notes either in the name of any predecessor hereunder or in the name of
the successor Trustee; and in all such cases such certificate shall have the
full force which it is anywhere in the Senior Notes or in this Indenture
provided that the certificate of the Trustee shall have; provided that the right
to adopt the certificate of authentication of any predecessor Trustee or to
authenticate Senior Notes in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
ARTICLE 7
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND ISSUER
Section 7.1 Issuer to Furnish Trustee Names and Addresses of Holders.
The Issuer will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 10 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Regular Record Date; and
(b) at such other times as the Trustee may request in writing, within 30
days after receipt by the Issuer of any such request, a list of similar form and
content as of a date not more than 15 days prior to the time such list is
furnished;
provided, however, that if and so long as the Trustee shall be the Senior Note
Registrar, no such list need be furnished pursuant to clause (a) or (b) of this
Section 7.1.
Section 7.2 Disclosure of Names and Addresses of Holders.
Every Holder of Senior Notes, by receiving and holding the same, agrees
with the Issuer and the Trustee that neither the Issuer nor the Trustee shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders in accordance with the New Jersey Casino Control
Act or Section 312 of the Trust Indenture Act, regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 312 of the Trust Indenture Act.
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Section 7.3 Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with May 15, 1998,
the Trustee shall transmit by mail to all Holders, as their names and addresses
appear in the Senior Note Register, as provided in Section 313(c) of the Trust
Indenture Act, a brief report dated as of such May 15 in accordance with and to
the extent required by Section 313(a) of the Trust Indenture Act.
(b) The Trustee will provide the CCC and the Director of the NJDGE 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 Senior
Notes and a list of Holders eight months and two months prior to the expiration
date of each then-current gaming Permit held by the Partnership;
(3) notice of any Event of Default under this Indenture or of any event,
occurrence or condition which, with the giving of notice or lapse of time or
both would constitute an Event of 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
Senior Partnership Upstream Note Mortgage, 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 not in respect of the Senior Notes) or the Senior Partnership Upstream Note
Mortgage within five Business Days thereof; and
(6) a copy of any amendment to the Senior Notes, this Indenture (including
the Senior Guarantee) or the Senior Partnership Upstream Note Mortgage 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 6.1. 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
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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 the CCC and the Director of NJDGE in order to provide the CCC and
said Director with information and documentation relevant to compliance with
clause (3) above and as otherwise required by the New Jersey Casino Control Act.
The Partnership will advise the Trustee of the expiration date of the
then-current gaming Permit held by the Partnership at least 90 days prior to the
expiration thereof and the Trustee until so advised may assume that such Permit
has not expired.
Section 7.4 Reports by the Issuer and the Partnership.
The Issuer and the Partnership shall:
(a) file with the Trustee, in accordance with Section 10.18 hereof within
15 days after the Issuer or the Partnership, as the case may be, is required to
file the same with the SEC, copies of the annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may from time to time by rules and regulations prescribe) which the
Issuer or the Partnership, as the case may be, may be required to file with the
SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the
Issuer or the Partnership, as the case may be, is not required to file
information, documents or reports pursuant to either of said Sections, then it
shall file with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, such of the supplementary
and periodic information, documents and reports which may be required pursuant
to Section 13 of the Exchange Act in respect of a security listed and registered
on a national securities exchange as may be prescribed from time to time in such
rules and regulations;
(b) file with the Trustee and the SEC, in accordance with the rules and
regulations prescribed from time to time by the SEC, such additional
information, documents and reports with respect to compliance by the Issuer or
the Partnership, as the case may be, with the conditions and covenants of this
Indenture as may be required from time to time by such rules and regulations;
and
(c) transmit by mail to all Holders, as their names and addresses appear
in the Senior Note Register, within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act, such summaries of any information, documents and reports required
to be filed by the Issuer pursuant to Subsections (a) and (b) of this Section as
may be required by rules and regulations prescribed from time to time by the
SEC.
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ARTICLE 8
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 8.1 The Issuer or the Partnership May Consolidate, Merge, etc.,
Only on Certain Terms.
(a) The Partnership shall not 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 other Person or group of affiliated Persons or permit any
of the 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 Partnership and the Subsidiaries on a
consolidated basis to any other Person or group of affiliated Persons, unless:
(i) either (a) the Partnership shall be the continuing Person, or (b) the
Person (if other than the Partnership) formed by such consolidation or into
which the Partnership is merged or the Person which acquires by conveyance,
transfer, lease or disposition the properties and assets of the Partnership (the
"Surviving Entity") shall be a corporation or partnership duly organized and
validly existing under the laws of the United States of America, any state
thereof or the District of Columbia and shall, in either case, expressly assume,
by an indenture supplemental to this Indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the Senior Guarantee and the
performance and observance of every covenant of this Indenture and the Senior
Partnership Upstream Note Mortgage on the part of the Partnership to be
performed or observed and this Indenture and the Senior Partnership Upstream
Note Mortgage shall remain in full force and effect;
(ii) immediately after giving effect to such transaction on a pro forma
basis (and treating any Indebtedness not previously an obligation of the
Partnership or a Subsidiary which becomes the obligation of the Partnership or
any of its Subsidiaries in connection with or as a result of such transaction as
having been incurred at the time of such transaction), the Consolidated Net
Worth of the Partnership (or the Surviving Entity if the Partnership is not the
continuing obligor under this Indenture) is at least equal to the Consolidated
Net Worth of the Partnership immediately prior to such transaction or series of
transactions;
(iii) immediately before and immediately after giving effect to such
transaction on a pro forma basis (and treating any Indebtedness not previously
an obligation of the Partnership or a Subsidiary which becomes the obligation of
the Partnership or any of its Subsidiaries in connection with or as a result of
such transaction as having been incurred
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at the time of such transaction), (A) no Default or Event of Default, shall have
occurred and be continuing and (B) the Partnership (or the Surviving Entity if
the Partnership is not the continuing obligor under this Indenture) after giving
effect to such transaction, could incur $1.00 of additional Indebtedness (other
than Permitted Indebtedness), under the provisions of Section 10.7;
(iv) immediately after such transaction, the Partnership or the Surviving
Entity 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 from the CCC) to operate its business; and
(v) in connection with any consolidation, merger, transfer or lease
contemplated hereby, the Partnership shall deliver, or cause to be delivered, to
the Trustee, in the form and substance reasonably satisfactory to the Trustee,
an Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, transfer or lease and the supplemental indenture in
respect thereto comply with the provisions described herein and that (A) all
conditions precedent herein provided for relating to such transaction have been
complied with and (B) the transaction shall not impair the Lien of the Senior
Partnership Upstream Note Mortgage, this Indenture and the Senior Notes and the
rights and powers of the Trustee and Holders thereunder.
(b) The Issuer shall not consolidate with or 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 in one
transaction or series of related transactions) to any other Person or group of
affiliated Persons unless:
(i) either (1) the Issuer shall be the continuing corporation or (2) the
Person (if other than the Issuer) formed by such consolidation, or into which
the Issuer is merged or the Person which acquires by sale, assignment,
conveyance, transfer, lease or disposition the properties and assets of the
Issuer (the "Surviving Entity") shall be a corporation, partnership or trust
organized and validly existing under the laws of the United States of America,
any state thereof or the District of Columbia and shall, in either case,
expressly assume by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all the obligations of the
Issuer under the Senior Notes, this Indenture and the Senior Partnership
Upstream Note Mortgage;
(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 and be continuing;
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(iii) the Partnership shall have by supplemental indenture confirmed that
its obligations under the Senior Guarantee and the Senior Partnership Upstream
Note Mortgage shall apply to such Person's obligations under this Indenture and
the Senior Notes;
(iv) immediately after giving effect to such transaction on a pro forma
basis (and treating any Indebtedness not previously an obligation of the
Partnership or a Subsidiary which becomes the obligation of the Partnership or
any Subsidiary in connection with or as a result of such transaction as having
been incurred at the time or such transaction), the Consolidated Net Worth of
the Issuer (or the Surviving Entity if the Issuer is not the continuing obligor
under this Indenture) is at least equal to the Consolidated Net Worth of the
Issuer immediately prior to such transaction or series of transactions;
(v) immediately before and immediately after giving effect to such
transaction on a pro forma basis (and treating any Indebtedness not previously
an obligation of the Partnership or a Subsidiary which becomes the obligation of
the Partnership or any of its Subsidiaries in connection with or as a result of
such transaction as having been incurred at the time of such transaction), the
Partnership or its successor, after giving effect to such transaction, could
incur at least $1.00 of additional Indebtedness (other than Permitted
Indebtedness), under the provisions of Section 10.7;
(vi) immediately after such transaction, the Issuer or the Surviving
Entity holds all Permits required for the operation of the business of the
Issuer and immediately after such transaction, the Partnership or its successor
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 from the CCC) to operate its business; and
(vii) the Issuer shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, conveyance, transfer, lease or disposition and such
supplemental indenture comply with this Indenture, and that (A) all conditions
precedent herein relating to such transaction have been complied with and (B)
the transaction shall not impair the lien and security of the Senior Partnership
Upstream Note Mortgage, this Indenture and the Senior Notes and the rights and
powers of the Trustee and Holders thereunder.
Section 8.2 Successor Substituted.
Upon any consolidation or merger, or any sale, assignment, conveyance,
transfer or disposition of all or substantially all of the properties and assets
of the Issuer or the Partnership in accordance with Section 8.1 (other than a
lease), the successor Person formed by such consolidation or into which the
Issuer or the Partnership, as the case may be, is merged or the
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successor Person to which such sale, assignment, conveyance, transfer or
disposition is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Issuer or the Partnership, as the case may be,
under this Indenture and/or the Senior Guarantee, as the case may be, and the
Senior Partnership Upstream Note Mortgage with the same effect as if such
successor had been named as the Issuer or the Partnership, as the case may be,
herein and/or the Senior Guarantee, as the case may be; and thereafter, except
in the case of a lease, the Issuer or the Partnership, as the case may be, shall
be discharged from all obligations and covenants under this Indenture, the
Senior Notes and the TCHI Note Mortgage Documents, as the case may be.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures and Agreements without Consent of
Holders.
Without the consent of any Holders, the Issuer and the Partnership when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto or agreements or
other instruments with respect to any Collateral, the Senior Guarantee, the TCHI
Note Guarantee Mortgage, or the Senior Partnership Upstream Note Mortgage, in
form and substance satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another Person to the Issuer or the
Partnership and the assumption by any such successor of the covenants of the
Issuer or the Partnership herein and in the Senior Notes, in the Senior
Guarantee, the TCHI Note Guarantee Mortgage, and in the Senior Partnership
Upstream Note Mortgage;
(b) to add to the covenants of the Issuer or the Partnership for the
benefit of the Holders, or to surrender any right or power herein conferred upon
the Issuer or the Partnership, as applicable, herein or in the Senior
Partnership Upstream Note Mortgage or the Senior Guarantee;
(c) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, the TCHI
Note Mortgage Documents or the Senior Guarantee, or to clarify any other
provisions with respect to matters or questions arising under this Indenture,
the TCHI Note Mortgage Documents or the Senior Guarantee; provided that, in each
case, such provisions shall not adversely affect the interests of the Holders;
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(d) to comply with the requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act, as
contemplated by Section 9.5 or otherwise;
(e) to add a guarantor of the Indenture Obligations;
(f) to evidence and provide the acceptance of the appointment of a
successor Trustee hereunder;
(g) to mortgage, pledge, hypothecate or grant a security interest in favor
of the Trustee for the benefit of the Holders as additional security for the
payment and performance of the Indenture Obligations, in any property or assets,
including any which are required to be mortgaged, pledged or hypothecated, or in
which a security interest is required to be granted to the Trustee pursuant to
this Indenture or the Senior Partnership Upstream Note Mortgage or otherwise; or
(h) to enter into the agreements described in Section 6.2(j) hereof.
The terms of any document entered into pursuant to this Section shall be
subject to prior approval, if required, of the CCC and the NJDGE.
Section 9.2 Supplemental Indentures and Agreements with Consent of
Holders.
With the consent of the Holders of not less than a majority in aggregate
principal amount of the Outstanding Senior Notes, by Act of said Holders
delivered to the Issuer, the Partnership and the Trustee, the Issuer and the
Partnership when authorized by Board Resolutions, and the Trustee may enter into
an indenture or indentures supplemental hereto or agreements or other
instruments with respect to the Collateral, the Senior Partnership Upstream Note
Mortgage or the Senior Guarantee in form and substance satisfactory to the
Trustee for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture, the Senior Notes, the
Senior Guarantee, the TCHI Note Guarantee Mortgage, or the Senior Partnership
Upstream Note Mortgage; provided, however, that no such supplemental indenture,
agreement or instrument shall, without the consent of the Holder of each
Outstanding Senior Note affected thereby:
(a) change the Stated Maturity of the principal of, or any installment of
interest on, any Senior Note or reduce the principal amount thereof or the rate
of interest thereon or any premium payable upon the redemption thereof, or
change the coin or currency in which any Senior Note or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date);
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(b) modify the obligation of the Issuer and the Partnership to make and
consummate the Change of Control Offer under Section 10.13 (or modify any of the
provisions or definitions with respect thereto in a manner which adversely
affects the rights of Holders);
(c) reduce the percentage in principal amount of the Outstanding Senior
Notes, the consent of whose Holders is required for any such supplemental
indenture or amendment to the TCHI Note Mortgage Documents, or the consent of
whose Holders is required for any waiver (of compliance with certain provisions
of this Indenture or certain Defaults hereunder and their consequences) provided
for in this Indenture, or with respect to the Senior Guarantee or the TCHI Note
Mortgage Documents;
(d) modify any of the provisions of this Section or Section 5.13 and
10.20, except to increase any such percentage or to provide that certain other
provisions of this Indenture or the TCHI Note Mortgage Documents cannot be
modified or waived without the consent of the Holder of each Senior Note
affected thereby; or
(e) except as otherwise permitted by Article Eight, consent to the
assignment or transfer by the Issuer or the Partnership of any of its rights and
obligations under this Indenture; or to the release of any Collateral from the
Liens created by the TCHI Note Mortgage Documents except in accordance with this
Indenture and the TCHI Note Mortgage Documents.
Upon the written request of the Issuer and the Partnership accompanied by
a copy of a Board Resolution authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Issuer, the Partnership
and any other obligor under the Senior Notes in the execution of such
supplemental indenture.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
The terms of any document entered into pursuant to this Section shall be
subject to prior approval, if required, of the CCC and the NJDGE.
Section 9.3 Execution of Supplemental Indentures and Agreements.
In executing, or accepting the additional trusts created by, any
supplemental indenture, agreement or instrument permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel and an Officers' Certificate stating that the execution of such
supplemental indenture, agreement or instrument is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into any
such supplemental
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indenture, agreement or instrument which affects the Trustee's own rights,
duties or immunities under this Indenture, the Senior Guarantee, the TCHI Note
Mortgage Documents or otherwise.
Section 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Senior Notes theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.6 Reference in Senior Notes to Supplemental Indentures.
Senior Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Senior Notes so modified as to conform, in the opinion of the Trustee and
the Board of Directors, to any such supplemental indenture may be prepared and
executed by the Issuer, the Partnership and any other obligor upon the Senior
Notes and authenticated and delivered by the Trustee in exchange for Outstanding
Senior Notes.
Section 9.7 Record Date.
The Issuer may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any supplemental
indenture, agreement or instrument or any waiver, and shall promptly notify the
Trustee of any such record date. If a record date is fixed those Persons who
were Holders at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to consent to such supplemental indenture,
agreement or instrument or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such record date. The
record date shall be a date no more than 30 days prior to the first solicitation
of Holders generally in connection therewith and no later than the date such
solicitation is completed. No such consent shall be valid or effective for more
than 90 days after such record date.
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ARTICLE 10
COVENANTS
Section 10.1 Payment of Principal, Premium and Interest.
The Issuer will duly and punctually pay the principal of, premium, if any,
and interest on the Senior Notes in accordance with the terms of the Senior
Notes and this Indenture.
Section 10.2 Maintenance of Office or Agency.
The Issuer will maintain in The City of New York, an office or agency
where Senior Notes may be presented or surrendered for payment, where Senior
Notes may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Issuer in respect of the Senior Notes and
this Indenture may be served. The office of the Trustee at its Corporate Trust
Office shall be such office or agency of the Issuer, unless the Issuer shall
designate and maintain some other office or agency for one or more of such
purposes. The Issuer will give prompt written notice to the Trustee of any
change in the location of any such office or agency. If at any time the Issuer
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 Corporate Trust Office, and the
Issuer hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Issuer may from time to time designate one or more other offices or
agencies (in or outside of The City of New York) where the Senior Notes may be
presented or surrendered for any or all such purposes, and may from time to time
rescind such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
an office or agency in The City of New York for such purposes. The Issuer will
give prompt written notice to the Trustee of any such designation or rescission
and any change in the location of any such office or agency.
Section 10.3 Money for Senior Note Payments to be Held in Trust.
If the Issuer shall at any time act as its own Paying Agent, it will, on
or before each due date of the principal of, premium, if any, or interest on any
of the Senior Notes, segregate and hold in trust for the benefit of the Holders
entitled thereto a sum sufficient to pay the principal, premium, if any, or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
If the Issuer is not acting as Paying Agent, the Issuer will, on or before
each due date of the principal of, premium, if any, or interest on, any Senior
Notes, deposit with a Paying Agent
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a sum in same day funds sufficient to pay the principal, premium, if any, or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Issuer will promptly notify the Trustee of such action
or any failure so to act.
If the Issuer is not acting as Paying Agent, the Issuer will cause each
Paying Agent other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of, premium,
if any, or interest on the Senior Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any Default by the Issuer or the
Partnership (or any other obligor upon the Senior Notes) in the making of any
deposit of principal, premium, if any, or interest;
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent; and
(d) acknowledge, accept and agree to comply in all aspects with the
provisions of this Indenture relating to the duties, rights and disabilities of
such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Issuer
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Issuer or such Paying Agent, as the case may be, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Issuer, in trust for the payment of the principal of, premium, if any, or
interest on any Senior Note and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall (if
held by the Trustee or any Paying Agent) be paid to the Issuer on Issuer
Request, and shall be discharged from such trust; and the Holder of such Senior
Note shall thereafter, as an unsecured general creditor, look only to the Issuer
for payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Issuer as trustee thereof,
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
Issuer 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
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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 Issuer.
Section 10.4 Issuer's and Partnership's Existence.
Subject to Article Eight, the Issuer and the Partnership will do or cause
to be done all things necessary to preserve and keep in full force and effect
the respective corporate or partnership existence, rights (charter and
statutory) and franchises of the Issuer and the Partnership; provided, however,
that the Issuer and the Partnership shall not be required to preserve any such
right or franchise if the Board of Directors of the Issuer shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Issuer and the Partnership and that the loss thereof is not
disadvantageous in any material respect to the Holders.
Section 10.5 Payment of Taxes and Other Claims.
The Issuer and the Partnership each will, and will cause the Subsidiaries
to, pay or discharge or cause to be paid or discharged, before any fine,
penalty, interest or cost may be added for nonpayment, (a) all taxes,
assessments and governmental charges levied or imposed upon the Issuer, the
Partnership or any Subsidiary or upon the income, profits or property of the
Issuer, the Partnership or any Subsidiary and (b) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a lien upon the
property of the Issuer, the Partnership or any Subsidiary and shall otherwise
comply with the Senior Partnership Upstream Note Mortgage; provided, however,
that neither the Issuer, the Partnership nor any Subsidiary 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 properly instituted and diligently
conducted and in respect of which appropriate reserves (in the good faith
judgment of management of the Issuer or the Partnership) are being maintained in
accordance with Generally Accepted Accounting Principles consistently applied.
Section 10.6 Maintenance of Properties.
The Issuer and the Partnership will, and will cause the Subsidiaries to,
cause all properties owned by the Issuer, the Partnership or any Subsidiary or
used or held for use in the conduct of the Issuer's or the Partnership's
business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order (excepting reasonable wear and tear) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereof, all as in
the judgment of the Issuer or the Partnership may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Issuer or the Partnership from discontinuing or allowing the
discontinuance of the maintenance of any of such properties if such
discontinuance is, in the
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judgment of the Issuer or the Partnership, desirable in the conduct of their
respective businesses or the business of any Subsidiary and not disadvantageous
in any material respect to the Holders. Nothing in this Section 10.6 shall
diminish the obligations of the Issuer or the Partnership with respect to the
Collateral as set forth in the Senior Partnership Upstream Note Mortgage.
Section 10.7 Limitation on Partnership Indebtedness.
The Partnership will not, and will not permit any of the Subsidiaries to,
create, incur, assume, or directly or indirectly guarantee or in any other
manner become directly or indirectly liable for the payment of, any Indebtedness
(including any Acquired Indebtedness, but excluding Permitted Indebtedness)
unless, in the case of Indebtedness of the Partnership and Acquired
Indebtedness, (a) the Partnership's Consolidated Fixed Charge Coverage Ratio for
the four full fiscal quarters immediately preceding such event, taken as one
period (and after giving pro forma effect to: (i) the incurrence of such
Indebtedness and (if applicable) the application of the net proceeds therefrom,
including to refinance other Indebtedness, as if such Indebtedness were incurred
and the application of such proceeds occurred at the beginning of such
four-quarter period; (ii) the incurrence, repayment or retirement of any other
Indebtedness by the Partnership or the Subsidiaries since the first day of such
four-quarter period as if such Indebtedness were incurred, repaid or retired at
the beginning of such four-quarter period (except that, in making such
computation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during such four-quarter period); and (iii) the acquisition (whether by
purchase, merger or otherwise) or disposition (whether by sale, merger or
otherwise) of any company, entity or business acquired or disposed of by the
Partnership or the Subsidiaries, as the case may be, since the first day of such
four-quarter period, as if such acquisition or disposition occurred at the
beginning of such four-quarter period), would have been at least equal to a
ratio of 1.75 to 1.
and (b) except in the case of Permitted Indebtedness, Acquired Indebtedness or
Pari Passu Indebtedness, such Indebtedness created, incurred, assumed or
guaranteed pursuant to this Section (i) has an Average Life to Stated Maturity
that exceeds the remaining Average Life to Stated Maturity of the Senior Notes
and (ii) has a Stated Maturity for its final scheduled principal payment later
than the Stated Maturity for the final scheduled principal payment of the Senior
Notes and (c) if such Indebtedness created, incurred, assumed or guaranteed
pursuant to this Section is Pari Passu Indebtedness which is not Permitted
Indebtedness or Acquired Indebtedness, such Indebtedness shall have (i) an
Average Life to Stated Maturity no shorter than the remaining Average Life to
Stated Maturity of the Senior Notes and (ii) a Stated Maturity for its final
scheduled principal payment that is not earlier than the Stated Maturity for the
final scheduled principal payment of the Senior Notes.
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Section 10.8 Limitation on Liens.
Neither the Issuer nor the Partnership will, nor will any Subsidiary be
permitted to, create, incur, assume or suffer to exist any Liens upon any of
their respective assets, except for the Lien of the TCHI Note Mortgage Documents
and Permitted Liens.
Section 10.9 Limitation on Restricted Payments.
(a) Neither the Issuer, Funding nor the Partnership will, nor will any
Subsidiary be permitted to, directly or indirectly:
(i) declare or make any distribution on the Issuer's Capital Stock,
Funding's Capital Stock or the Partnership's Equity Interests, as the case may
be, (other than distributions payable in the Issuer's Qualified Capital Stock,
Funding's Qualified Capital Stock or the Partnership's Qualified Equity
Interests or in options, warrants or other rights to purchase such Qualified
Capital Stock or Qualified Equity Interests);
(ii) purchase, redeem or otherwise acquire or retire for value any such
Capital Stock or Equity Interests, or any options, warrants or other rights to
acquire such Capital Stock or Equity Interests;
(iii) make any principal payment on or redeem, repurchase, defease or
otherwise acquire or retire for value prior to any scheduled principal payment
or maturity, any Pari Passu Indebtedness (other than Permitted Indebtedness) or
Subordinated Indebtedness of the Partnership other than pursuant to clause
(a)(3) below; or
(iv) incur, create, assume or suffer to exist any guarantee (other than
guarantees existing on the date of this Indenture and any renewals, extensions,
substitutions, refinancings or replacements of such guarantees) of Indebtedness
of any Affiliate of the Partnership or the Issuer;
(the foregoing actions set forth in clauses (i) through (iv) being referred to
as "Restricted Payments"), except that the Partnership may apply up to 50% of
its Excess Available Cash to make a Restricted Payment if: at the time of such
Restricted Payment and after giving effect thereto, (1) no Default or Event of
Default shall have occurred and be continuing; (2) the Partnership's
Consolidated Fixed Charge Coverage Ratio for the four full fiscal quarters
immediately preceding the Restricted Payment, taken as one period (after giving
pro forma effect to the Restricted Payment and (if applicable) the application
of the net proceeds therefrom and any events set forth in clauses (a)(ii) and
(a)(iii) under Section 10.7) would have been at least equal to 1.75 to 1; and
(3) prior to making such Restricted Payment, Funding or the Partnership shall
have used an amount equal to such Restricted Payment to purchase Mortgage Notes
or PIK Notes on the open market or pursuant to a tender offer which purchase
shall not be deemed to be a Restricted Payment.
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(b) Notwithstanding the foregoing, and so long as there is no Default or
Event of Default continuing, the foregoing provisions will not prohibit:
(i) payments made pursuant to the terms of the Services Agreement as in
effect on the date hereof;
(ii) distributions in respect of the Limited Partner Xxxxx Priority
Capital (as defined in the Partnership Agreement) to the extent permitted under
the Amended Partnership Agreement as in effect on the date hereof;
(iii) payment of an annual bonus to Xxxxxx X. Xxxxx that has been approved
by a majority of the Noteholder Representatives;
(iv) dividend payments within 60 days after declaration if such payments
would comply with the foregoing provision;
(v) the repurchase, redemption or other acquisition or retirement of any
shares of any class of Capital Stock of the Issuer or Funding or Equity Interest
of the Partnership 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 issue and sale (other
than to a Subsidiary) of, other shares of Capital Stock of the Issuer or Equity
Interests of the Partnership, as the case may be (other than Redeemable Capital
Stock or Redeemable Equity Interests, as the case may be);
(vi) (I) the redemption, repayment, defeasance, repurchase or other
acquisition or retirement for value of any Subordinated Indebtedness or Pari
Passu Indebtedness of the Partnership (other than Redeemable Equity Interests)
in exchange for or out of the net cash proceeds of a substantially current issue
and sale of (A) new Indebtedness of the Partnership or Funding or (B) Equity
Interests of the Partnership (other than Redeemable Equity Interests) or Capital
Stock of the Issuer or Funding (other than Redeemable Capital Stock), provided
that, with respect to clause (A), (1) the aggregate principal amount of any such
new Indebtedness does not exceed the aggregate principal amount of such
Subordinated or Pari Passu Indebtedness (or, if such Subordinated or Pari Passu
Indebtedness provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration thereof, then such lesser
amount as of the date of determination) plus accrued interest thereon plus the
amount of any premium or other payment required to be paid under the terms of
the instrument governing such Subordinated or Pari Passu Indebtedness or the
amount of any premium reasonably determined by the Partnership as necessary to
accomplish such refinancing by means of a tender offer or privately negotiated
purchase and, in each case, actually paid, plus the amount of expenses of the
Partnership incurred in connection with
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such refinancing, (2) if the Indebtedness so redeemed, repaid, defeased,
repurchased, acquired or retired is Subordinated Indebtedness, any such new
Indebtedness (x) has an Average Life to Stated Maturity that exceeds the Average
Life to Stated Maturity of the Senior Notes and a Stated Maturity that is not
earlier than the final Stated Maturity of the Senior Notes and (y) is expressly
subordinated in right of payment to the Senior Guarantee at least to the same
extent as the Subordinated Indebtedness to be redeemed, repaid, defeased,
repurchased, acquired or retired and (3) if the Indebtedness so redeemed,
repaid, defeased, repurchased, acquired or retired is Pari Passu Indebtedness,
any such new Indebtedness has an Average Life to Stated Maturity that is not
less than the Average Life to Stated Maturity of such Indebtedness and a Stated
Maturity that is not earlier than the final Stated Maturity of such
Indebtedness; or (II) the redemption, repayment, defeasance, repurchase or other
acquisition or retirement for value of any Redeemable Equity Interests of the
Partnership through the issuance of new shares of Redeemable Equity Interests of
the Partnership, provided that any such new Redeemable Equity Interests (1) do
not have a maturity or are otherwise redeemable at the option of the holder
prior to the Stated Maturity of the Senior Notes and (2) are expressly
subordinated in right of payment to the Senior Guarantee at least to the same
extent as Redeemable Equity Interests to be redeemed, repurchased or otherwise
acquired or retired for value;
(vii) the redemption of any share of any class of Capital Stock of the
Issuer or Funding or any Equity Interest of the Partnership or Indebtedness of
the Partnership, Funding or the Issuer, if (A) the holder thereof delivers an
Opinion of Counsel to the Trustee that failure to so redeem would subject the
holder thereof to an adverse action by a Gaming Authority (or, if applicable, a
failure to act by a Gaming Authority that is adverse to the holder) and (B) the
Board of Directors of the Partnership determines (as evidenced by a Board
Resolution 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 such holder;
(viii) (A) (i) distributions or intercompany loans to Funding by the
Partnership to pay interest in cash on the Outstanding Mortgage Notes in
accordance with the terms thereof and (ii) distributions or intercompany loans
to Funding by the Partnership to pay interest in cash on the Outstanding Funding
Notes in accordance with the terms thereof, (B) distributions or intercompany
loans of up to 50% of the Partnership's Excess Available Cash to Funding by the
Partnership to purchase, redeem or otherwise acquire Outstanding PIK Notes in
accordance with the terms thereof, provided that the Partnership's Consolidated
Fixed Charge Coverage Ratio for the four full fiscal quarters immediately
preceding the Restricted Payment, taken as one period (after giving pro forma
effect to the Restricted Payment and (if applicable) the application of the net
proceeds therefrom and any events set forth in clauses (a)(ii) and (a)(iii) of
Section 10.7 above) would have been at least equal to 1.50 to 1, (C)
distributions or intercompany loans to Funding by the Partnership to pay
interest in cash on the Outstanding PIK Notes
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in accordance with the terms thereof, provided that the condition described in
Clause (a) in Section 10.7 is at that time satisfied and (D) distributions or
intercompany loans to Funding or the Issuer by the Partnership to pay any tax
liability of the Issuer resulting from any distribution or intercompany loan
made in compliance with (A), (B) or (C) above;
(ix) distributions or intercompany loans by the Partnership, pursuant to
the Partnership Agreement as in effect on the date of this Indenture, to pay (a)
reasonable general and administrative expenses, including directors' fees and
premiums for directors' and officers' liability insurance of any corporate
partners and (b) to make indemnification payments as required by the Certificate
of Incorporation of TCHI or Funding or the Partnership Agreement, each as in
effect on the date hereof; and (c) to make distributions by the Partnership,
pursuant to the Partnership Agreement, to Partners in amounts in respect of any
tax year of the Partnership which do not exceed the Partners' tax liability in
respect of the Partnership's income for such year computed as if the Partners
were each taxpayers deriving items of income, gain, loss or deduction only from
the Partnership for such year and by applying the sum of the higher of (x) the
highest federal income tax rate imposed on individuals for such year or (y) the
highest federal income tax rate imposed on corporations for such year, plus (z)
in either case, eight percent (8%) as the rate applicable to such year's
results; and
(x) guarantees by the Partnership of Indebtedness of any special purpose
financing Affiliate of the Partnership, if the incurrence of such guarantee is
made in accordance with Section 10.7 hereof and the net proceeds of any such
Indebtedness are provided to the Partnership.
Section 10.10 Limitation on Partnership Leases.
The Partnership will not, and will not permit any of the Subsidiaries to,
lease as tenant or subtenant real or personal property (except Permitted
Leases), unless the Partnership's Consolidated Fixed Charge Coverage Ratio for
the four full fiscal quarters immediately preceding such event, taken as one
period (and after giving pro forma effect to any such lease as if such lease was
entered into at the beginning of such four-quarter period and any events set
forth in clauses (a)(ii) and (a)(iii) of Section 10.7), would have been at least
equal to a ratio of 1.75 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 rent over the term of such
lease and (ii) rent payable for the first four fiscal quarters.
Section 10.11 Limitation on Preferred Stock of Subsidiaries and Subsidiary
Distributions.
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(a) The Partnership will not permit any of the Subsidiaries to, directly
or indirectly, issue or sell any Preferred Stock (except to the Partnership or a
Wholly-owned Subsidiary thereof).
(b) The Partnership will not permit any of the Subsidiaries to, directly
or indirectly, (i) declare or pay any dividend or make any distribution on the
Capital Stock of such Subsidiary or to the holders of such Subsidiary's Capital
Stock (other than dividends or distributions payable in Capital Stock of such
Subsidiary) or (ii) purchase, redeem or otherwise acquire or retire for value
any such Capital Stock; provided that this covenant shall not prevent the
payment by any Subsidiary of dividends or other distributions to the Partnership
or a Wholly-owned Subsidiary or the redemption or repurchase by any Subsidiary
of any of its Capital Stock owned by the Partnership or a Wholly-owned
Subsidiary.
Section 10.12 Limitation on Payment Restrictions Affecting Subsidiaries.
The Partnership will not, nor will any of the Subsidiaries be permitted
to, create or otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of the
Partnership or such Subsidiary to (a) pay dividends or make any other
distributions on the Partnership's Equity Interests or such Subsidiary's Capital
Stock or pay any Indebtedness owed to the Partnership or any other Subsidiary,
(b) make any loans or advances to the Partnership or any other Subsidiary or (c)
transfer any of its property or assets to the Partnership or any other
Wholly-owned Subsidiary, except (i) 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 Partnership (but not created
in contemplation of such Person becoming a Subsidiary), (ii) 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
Capital Stock or assets of such Subsidiary, (iii) any encumbrance or restriction
pursuant to an agreement in effect at or entered into on the date of this
Indenture, and (iv) any restrictions existing under any agreement which
refinances or replaces the agreements containing the restrictions in clauses
(i), (ii) and (iii), provided that the terms and conditions of any such
agreement are no less favorable to holders of the Senior Notes than those under
or pursuant to the agreement evidencing the Indebtedness refinanced.
Section 10.13 Purchase of Senior Notes upon Change of Control.
(a) If a Change of Control shall occur at any time, then each Holder shall
have the right to require that the Issuer or the Partnership repurchase such
Holder's Senior Notes in whole or in part in integral multiples of $1,000, at a
purchase price (the "Change of Control Purchase Price") in cash in an amount
equal to 101% of the principal amount thereof, plus accrued and unpaid interest
(including any Defaulted Interest), if any, to the date of purchase, pursuant to
the offer described in the following paragraph (the "Change of Control Offer")
and the other procedures set forth in this Section.
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(b) Within 30 days following any Change of Control, the Issuer or the
Partnership shall send by first-class mail, postage prepaid, to the Trustee and
to each Holder, at his address appearing in the Senior Note Register, a notice
stating:
(1) that a Change of Control has occurred and that such Holder has the
right to require the Issuer or the Partnership to repurchase such Holder's
Senior Notes at the Change of Control Purchase Price;
(2) the circumstances and relevant facts regarding such Change of Control
(including but not limited to information with respect to pro forma historical
income, cash flow and capitalization after giving effect to such Change of
Control);
(3) the purchase date (the "Change of Control Purchase Date") which shall
be a Business Day no earlier than 45 days nor later than 60 days from the date
such notice is mailed (subject to applicable law);
(4) the Change of Control Purchase Price;
(5) that any Senior Note not tendered will continue to accrue interest;
(6) that, unless the Issuer or the Partnership defaults in payment of the
Change of Control Purchase Price, any Senior Notes accepted for payment pursuant
to the Change of Control Offer shall cease to accrue interest after the Change
of Control Purchase Date; and
(7) the instructions such Holder must follow in order to have its Senior
Notes repurchased (and the instructions it must follow to withdraw its election
to have such Senior Notes repurchased) in accordance with paragraph (c) of this
Section.
Notwithstanding the foregoing, within 20 days following any Change of Control,
the Issuer shall notify the Trustee that a Change of Control has occurred.
(c) Holders electing to have Senior Notes purchased will be required to
surrender such Senior Notes to the Paying Agent at the address specified in the
notice at least two Business Days prior to the Change of Control Purchase Date.
Subject to applicable law, Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than two Business Days prior to the
Change of Control Purchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount and serial
numbers of the Senior Notes delivered for purchase by the Holder as to which its
election is to be withdrawn and a statement that such Holder is withdrawing his
election to have such Senior Notes purchased. Holders whose Senior Notes are
purchased only in part will be issued new Senior Notes equal in principal amount
to the unpurchased portion of the Senior Notes surrendered.
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(d) Not later than the Change of Control Purchase Date, the Issuer or the
Partnership, as the case may be, shall (i) accept for payment Senior Notes or
portions thereof tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent money sufficient, in immediately available funds by 12:00
noon (New York City Time), to pay the purchase price of all Senior Notes or
portions thereof so tendered and (iii) deliver to the Paying Agent an Officers'
Certificate stating the Senior Notes or portions thereof accepted for payment by
the Issuer or the Partnership. The Paying Agent shall promptly mail or release
to Holders of Senior Notes so accepted payment in an amount equal to the Change
of Control Purchase Price of the Senior Notes purchased from each such Holder,
and the Issuer shall execute and the Trustee shall promptly authenticate and
mail or release to such Holders a new Senior Note equal in principal amount to
any unpurchased portion of the Senior Note surrendered. The Issuer or the
Partnership, as the case may be, will publicly announce the results of the
Change of Control Offer on the Change in Control Purchase Date. For purposes of
this Section 10.13, the Issuer shall choose a Paying Agent which shall not be
the Issuer or the Partnership.
(e) The Issuer and the Partnership will not, and will not permit any
Subsidiary to, create or permit to exist or become effective any restriction
(other than restrictions existing under Indebtedness as in effect on the date of
this Indenture) that would materially impair the ability of the Issuer or the
Partnership to make a Change of Control Offer to purchase the Senior Notes or,
if such Change of Control offer is made, to pay for the Senior Notes tendered
for purchase.
Section 10.14 Limitations on Transactions with Affiliates.
Neither the Issuer nor the Partnership will, nor will any of the
Subsidiaries be permitted to, directly or indirectly, enter into or suffer to
exist any 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 Issuer or the Partnership (other than a
Wholly-owned Subsidiary) unless (a) such transaction or series of related
transactions is on terms that are no less favorable to the Issuer, the
Partnership 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 $5,000,000, such transaction or series of related
transactions is approved by a majority of the Noteholder Representatives and (b)
the Issuer or the Partnership, as the case may be, 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)
the operations under the Services Agreement as in effect on the date of this
Indenture, (2) the payment of compensation to the senior executive officers of
the Issuer (excluding Xxxxxx X. Xxxxx) which has been approved by a majority of
the Noteholder Representatives, (3) the payment of an annual bonus to Xxxxxx X.
Xxxxx which has been approved by a majority of the Noteholder Representatives,
(4) the payment of director fees (other than to Xxxxxx X. Xxxxx) not in excess
of those in effect as of the date of this Indenture, (5) payments made pursuant
to the Partnership Agreement as in effect on the date of this Indenture, (6)
payments pursuant to the Senior
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Partnership Note, the Senior Partnership Upstream Note, or with respect to any
Subordinated Indebtedness, and (7) Restricted Payments otherwise permitted
pursuant to the provisions of Section 10.9.
Section 10.15 Restriction on Transfer of Assets.
The Partnership will not sell, convey, transfer, lease or otherwise
dispose of its assets or property to any of the Subsidiaries.
Section 10.16 Limitation on Activities and Investments.
Neither the Partnership nor any of the Subsidiaries will engage in any
business or investment activities other than those necessary or appropriate for,
incident to, in connection with or arising out of, developing, financing, owning
and operating the Casino-Hotel.
The Partnership will not, and will not permit any Subsidiary to, make any
investment other than a Permitted Investment.
The Issuer will not conduct any business (including having any Subsidiary)
whatsoever, other than (i) to collect the amounts due and owing under the Senior
Partnership Upstream Note and any Subordinated Indebtedness, (ii) to preserve
its rights under the Senior Partnership Upstream Note; (iii) to do or cause to
be done all things necessary or appropriate to protect the property included in
the Lien of the Senior Partnership Upstream Note Mortgage and any further
security and to preserve its rights therein and otherwise to comply with its
obligations under this Indenture and the Senior Notes; and (iv) to serve as the
general partner of the Partnership.
The Issuer will not incur or otherwise become liable for any Indebtedness
(other than (x) the Senior Notes and renewal, extension, substitution,
refunding, refinancing or replacement thereof in accordance with this Indenture,
and (y) any intercompany loan from the Partnership) nor issue any Preferred
Stock.
Section 10.17 Restriction on Payment of Services Fee.
The Issuer and the Partnership will not, and will not permit the
Subsidiaries to, pay any Services Fee under the Services Agreement or to pay or
reimburse any expenses relating thereto if a Default or Event of Default has
occurred and is continuing. The terms of the Services Agreement cannot 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
Partnership, and the Partnership will not, and will not permit the Subsidiaries
to, enter into any management or consulting agreement with any Affiliate
relating to the Casino Hotel other than the Services Agreement.
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Section 10.18 Provision of Financial Statements.
Whether or not the Issuer or the Partnership is subject to Section 13(a)
or 15(d) of the Exchange Act, the Issuer and the Partnership will, to the extent
permitted under the Exchange Act, file with the SEC the annual reports,
quarterly reports and other documents which the Issuer or the Partnership would
have been required to file with the SEC pursuant to such Section 13(a) or 15(d)
if the Issuer or the Partnership were so subject, such documents to be filed
with the SEC on or prior to the respective dates (the "Required Filing Dates")
by which the Issuer or the Partnership would have been required so to file such
documents if the Issuer or the Partnership were so subject. The Issuer or the
Partnership will also in any event (x) within 15 days of each Required Filing
Date (i) transmit by mail to all Holders, as their names and addresses appear in
the Senior Note Register, without cost to such Holders and (ii) file with the
Trustee copies of the annual reports, quarterly reports and other documents
which the Issuer or the Partnership would have been required to file with the
SEC pursuant to Section 13(a) or 15(d) of the Exchange Act if the Issuer or the
Partnership were subject to such Sections and (y) if filing such documents by
the Issuer or the Partnership with the SEC is not permitted under the Exchange
Act, promptly upon written request, supply copies of such documents to a
prospective holder of the Senior Notes at the Issuer's cost.
Section 10.19 Statement by Officers as to Default.
(a) The Issuer will deliver to the Trustee, on or before a date not more
than 60 days after the end of each fiscal quarter and not more than 120 days
after the end of each fiscal year of the Issuer ending after the date hereof, a
written statement signed by the President or a Vice President, and by the
Treasurer, an Assistant Treasurer, the Comptroller, an Assistant Comptroller,
the Secretary or an Assistant Secretary of the Issuer, and in any event at least
one person signing such certificate shall be the principal executive officer,
principal financial officer or principal accounting officer of the Issuer,
setting forth the Consolidated Net Worth of the Issuer as of the end of such
fiscal quarter and stating whether or not, after a review under each signer's
supervision of the activities of the Issuer during such year and of the Issuer's
performance under this Indenture, to the best knowledge, based on such review,
of the signers thereof, the Issuer has fulfilled all its obligations under this
Indenture throughout such year, and, if there has been a Default specifying each
Default and the nature and status thereof.
(b) When any Default or Event of Default has occurred and is continuing,
or if the Trustee or any Holder or the trustee for or the holder of any other
evidence of Indebtedness of the Issuer or any Subsidiary gives any notice or
takes any other action with respect to a claimed default (other than with
respect to Indebtedness (other than any Mortgage Debt) in the principal amount
of less than $10,000,000), the Issuer shall deliver to the Trustee by registered
or certified mail or by telegram, telex or facsimile transmission followed by
hard copy an Officers' Certificate specifying such event, notice or other action
within five Business Days of its occurrence.
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Section 10.20 Waiver of Certain Covenants.
The Issuer and the Partnership may omit in any particular instance to
comply with any covenant or condition set forth in Sections 8.1(a)(ii) and
(iii)(B) or Sections 10.5 through 10.12, Sections 10.14, 10.15, 10.17, 10.19 and
10.21, if, before or after the time for such compliance, the Holders of not less
than a majority in aggregate principal amount of the then Outstanding Senior
Notes shall, by Act of such Holders, waive such compliance in such instance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Issuer and the Partnership
and the duties of the Trustee in respect of any such covenant or condition shall
remain in full force and effect.
Section 10.21 Mortgage Notes and PIK Notes.
Notwithstanding anything to the contrary contained in this Indenture,
without the consent of the Holders of not less than a majority in the aggregate
principal amount of the then Outstanding Senior Notes by Act of such Holders
delivered to the Partnership, neither the Partnership nor Funding shall directly
or indirectly effect (i) any amendment or supplement to the Mortgage Note
Indenture which causes or permits (a) any change to the stated maturity date of
the Mortgage Notes to before November 15, 2003 or (b) any redemptions of the
Mortgage Notes (including, without limitation, any open market purchases or
purchases made pursuant to a tender offer) except as permitted in and on terms
included in the Mortgage Note Indenture as in effect on the date hereof; (ii)
any redemption of the Mortgage Notes (including, without limitation, any open
market purchases or purchases made pursuant to a tender offer), except in
connection with making a Restricted Payment, as required by clause (3) of
Section 10.9(a) hereof; or (iii) any amendment or supplement to the PIK Note
Indenture which causes or permits (a) any change to the stated maturity date of
the PIK Notes to before November 15, 2005 or (b) any redemptions of the PIK
Notes (including, without limitation, any open market purchases or purchases
made pursuant to a tender offer) except as permitted in and on terms included in
the PIK Note Indenture as in effect on the date hereof.
ARTICLE 11
REDEMPTION OF SENIOR NOTES
Section 11.1 Senior Notes Redeemed Pursuant to Casino Control Act.
Notwithstanding any provisions of this Article Eleven to the contrary, if
the CCC does not waive the qualification requirements as to any Holder (whether
the record owner or beneficial owner) and requires that such Holder be qualified
under the New Jersey Casino Control Act, then, in such event, such Holder must
qualify under such Act. If such Holder does not so qualify, such Holder must
dispose of its interest in the Senior Notes, within 30 days after the
Partnership's receipt of notice of such finding (or within such earlier date as
the CCC may
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require), or the Issuer or the Partnership may redeem such Senior Notes at the
lower of the Outstanding Amount and the Fair Market Value (as certified to the
Trustee) of such Senior Notes.
Section 11.2 Optional Redemption
The Issuer or the Partnership may at their election, redeem all, but not
less than all of the Senior Notes at 100% of the principal amount thereof, in
each case, together with accrued and unpaid interest through the Redemption
Date; provided, however, that no redemption of Senior Notes shall be made
pursuant to this Section 11.2 unless the Partnership or Funding concurrently
redeems all of the Funding Notes pursuant to Section 11.2 of the Funding Note
Indenture.
Section 11.3 Senior Notes Redeemed Pursuant to a Total Taking or Casualty.
In the event of a Total Taking or Casualty, the Issuer or the Partnership
shall, within 60 days after receipt of any condemnation or insurance proceeds
but within one year after the occurrence of such Total Taking or Casualty,
redeem the Senior Notes at 100% of the principal amount thereof, in each case,
together with accrued and unpaid interest through the Redemption Date, in
accordance with this Article Eleven.
Section 11.4 Applicability of Article.
Redemption of Senior Notes as required by any provision of this Indenture,
shall be made in accordance with such provision and this Article.
Section 11.5 Notice to Trustee.
In case of any redemption in accordance with Sections 11.1, 11.2 or 11.3
hereof, the Issuer or the Partnership, as the case may be, shall, at least 60
days prior to the Redemption Date fixed by the Issuer or the Partnership (unless
a shorter notice period shall be satisfactory to the Trustee) notify the Trustee
in writing of such Redemption Date and of the principal amount of Senior Notes
to be redeemed.
Section 11.6 Selection by Trustee of Senior Notes to Be Redeemed.
If less than all the Senior Notes are to be redeemed, the particular
Senior Notes or portions thereof to be redeemed shall be selected not more than
60 days prior to the Redemption Date by the Trustee, from the Outstanding Senior
Notes not previously called for redemption pro rata, by lot or by any other
method as the Trustee shall deem fair and reasonable, and the amounts to be
redeemed may be equal to $1,000 or any integral multiple thereof.
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The Trustee shall promptly notify the Issuer, the Partnership and the
Senior Note Registrar in writing of the Senior Notes selected for redemption
and, in the case of any Senior Notes selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to redemption of Senior Notes shall relate, in the case
of any Senior Note redeemed or to be redeemed only in part, to the portion of
the principal amount of such Senior Note which has been or is to be redeemed.
Section 11.7 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 30 nor more than 60 days prior to the Redemption Date, to
each Holder of Senior Notes to be redeemed, at his address appearing in the
Senior Note Register.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all outstanding Senior Notes are to be redeemed, the
identification of the particular Senior Notes to be redeemed;
(d) in the case of a Senior Note to be redeemed in part, the principal
amount of such Senior Note to be redeemed and that after the Redemption Date
upon surrender of such Senior Note, new Senior Note or Senior Notes in the
aggregate principal amount equal to the unredeemed portion thereof will be
issued;
(e) that Senior Notes called for redemption must be surrendered to the
Paying Agent to collect payment of the Redemption Price;
(f) that on the Redemption Date the Redemption Price will become due and
payable upon each such Senior Note or portion thereof, and that (unless the
Issuer or the Partnership shall default in payment of the Redemption Price)
interest thereon shall cease to accrue on and after said date;
(g) the place or places where such Senior Notes are to be surrendered for
payment of the Redemption Price;
(h) the CUSIP number, if any, relating to such Senior Notes; and
(i) if applicable, that such redemption is a result of a Total Taking or
Casualty.
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Notice of redemption of Senior Notes to be redeemed shall be given by the
Issuer or, at the Issuer's written request, by the Trustee in the name and at
the expense of the Issuer.
The notice if mailed in the manner herein provided shall be conclusively
presumed to have been given, whether or not the Holder receives such notice. In
any case, failure to give such notice by mail or any defect in the notice to the
Holder of any Senior Note designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other
Senior Note.
Section 11.8 Deposit of Redemption Price.
On or prior to any Redemption Date, the Issuer or the Partnership shall
deposit with the Trustee or with a Paying Agent (or, if the Issuer or the
Partnership is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money in same day funds sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Senior Notes or portions thereof
which are to be redeemed on that date.
Section 11.9 Senior Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Senior Notes so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Issuer or the Partnership shall default in the payment of the Redemption Price
and accrued interest) such Senior Notes shall cease to bear interest. Upon
surrender of any such Senior Note for redemption in accordance with said notice,
such Senior Note shall be paid by the Issuer or the Partnership, as the case may
be, at the Redemption Price together with accrued and unpaid interest (including
Defaulted Interest) to the Redemption Date; provided, however, that installments
of interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Senior Notes, or one or more Predecessor Senior
Notes, registered as such on the relevant Regular Record Dates according to the
terms and the provisions of Section 3.7.
If any Senior Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the rate borne by such
Senior Note.
Section 11.10 Senior Notes Redeemed in Part.
Any Senior Note which is to be redeemed only in part shall be surrendered
to the Paying Agent at the office or agency maintained for such purpose pursuant
to Section 10.2 (with, if the Issuer, the Partnership, the Senior Note Registrar
or the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Issuer, the Partnership, the Senior Note
Registrar or the Trustee duly executed by, the Holder thereof or such Holder's
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attorney duly authorized in writing), and the Issuer shall execute, and the
Trustee shall authenticate and deliver to the Holder of such Senior Note without
service charge, a new Senior Note or Senior Notes, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to,
and in exchange for, the unredeemed portion of the principal of the Senior Note
so surrendered that is not redeemed.
ARTICLE 12
TCHI NOTE MORTGAGE DOCUMENTS
Section 12.1 TCHI Note Mortgage Documents.
(a) In order to secure the due and punctual payment of the Indenture
Obligations, the Issuer, the Partnership and the Trustee have entered into the
TCHI Note Mortgage Documents dated of even date herewith to create the security
interests thereunder and for related matters. The Issuer and the Partnership
covenant and agree that they have full right, power and lawful authority to
grant, bargain, sell, release, convey, hypothecate, assign, mortgage, pledge,
transfer, confirm and grant a security interest in the property constituting the
Collateral, in the manner and form done in the TCHI Note Mortgage Documents or
intended to be done, and that (a) each will forever warrant and defend the title
to the same against the claims of all Persons whatsoever in each case free and
clear of all Liens whatsoever, except Permitted Liens, (b) each will execute,
acknowledge and deliver to the Trustee such further assignments, transfers,
assurances or other instruments as the Trustee may reasonably require or
request, and (c) each will do or cause to be done all such acts and things as
may be necessary or proper, or as may be reasonably required by the Trustee, to
assure and confirm to the Trustee its interest in the Collateral, or any part
thereof, as from time to time constituted, and the right, title and interest in
and to the TCHI Note Mortgage Documents so as to render the same available for
the security and benefit of this Indenture and of the Senior Notes.
(b) Each Holder, by accepting a Senior Note, consents and agrees to all of
the terms and provisions of the TCHI Note Mortgage Documents, as the same may be
amended from time to time pursuant to the provisions of the TCHI Note Mortgage
Documents and this Indenture, and authorizes and directs the Trustee to enter
into the TCHI Note Mortgage Documents to which it is a party and to perform its
obligations and exercise its rights thereunder in accordance therewith;
provided, however, that if any provision of the TCHI Note Mortgage Documents
limits, qualifies, or conflicts with the duties imposed by the provisions of the
Trust Indenture Act, the Trust Indenture Act controls.
(c) As amongst the Holders, 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 security for the Indenture
Obligations.
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Section 12.2 Recording, Opinion of Counsel, Etc.
The Issuer and the Partnership will cause, at their own expense, this
Indenture, the Senior Notes, the TCHI Note Mortgage Documents, and all
amendments or supplements thereto, to be registered, recorded and filed and/or
re-recorded and/or re-filed and/or renewed in such manner and in such place or
places, if any, as may be required by law in order fully to preserve and protect
the Liens of the TCHI Note Mortgage Documents and all parts of the Collateral
and to effectuate and preserve the security of the Holders and all rights of the
Trustee.
The Issuer and the Partnership shall furnish to the Trustee:
(a) promptly after the execution and delivery of this Indenture and each
of the TCHI Note Mortgage Documents or other instrument of further assurance, an
Opinion of Counsel stating that, in the opinion of such Counsel, the TCHI Note
Mortgage Documents and other instruments of further assurance have been properly
recorded, endorsed, registered and filed, so as to make effective the Lien
intended to be created thereby, and reciting the details of such action or
stating that, in the opinion of such Counsel, no such action is necessary to
make such Liens effective; and
(b) within 60 days after November 30 in each year beginning with the year
1998, an Opinion of Counsel, dated as of such date, either stating that, in the
opinion of such Counsel, such action has been taken with respect to the
recording, registering, filing, re-recording, re-registering and re-filing of
this Indenture and the TCHI Note Mortgage Documents, financing statements,
supplemental indentures, continuation statements or other instruments of further
assurance as is necessary to maintain the Lien of the TCHI Note Mortgage
Documents and reciting the details of such action, or stating that, in the
opinion of counsel, no such action prior to November 30 of the subsequent year
is necessary to maintain such Lien.
The Trustee shall hold in its possession the TCHI Note Mortgage Documents,
except as it from time to time may be required for actions, suits or proceedings
relating to the TCHI Note Mortgage Documents or for the purpose of enforcing or
realizing upon any right or value thereby represented. The Trustee may, from
time to time, in its sole discretion, for the purpose of convenient location of
the TCHI Note Mortgage Documents, appoint one or more agents to hold physical
custody, for the account of the Trustee, of the TCHI Note Mortgage Documents.
Section 12.3 Release of Collateral.
To the extent applicable, the Issuer, the Partnership and each other
obligor on the Senior Notes shall cause ss. 314(d) of the Trust Indenture Act
relating to the release of property or securities from the Liens of the TCHI
Note Mortgage Documents to be complied with.
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Section 12.4 Trust Indenture Act Requirements.
The release of any Collateral from the terms of the TCHI Note Mortgage
Documents or the release, in whole or in part, of the Liens created by any of
the TCHI Note Mortgage Documents, will not be deemed to impair the security
interests thereunder 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 TCHI Note Mortgage Documents and pursuant to,
and in accordance with, the terms hereof. As set forth in Section 12.3, to the
extent applicable, without limitation, the Issuer, the Partnership and each
other obligor on the Senior Notes shall cause ss. 314(d) of the Trust Indenture
Act relating to the release of property or securities from the Liens of the TCHI
Note Mortgage Documents to be complied with. Any certificate or opinion required
by ss. 314(d) of the Trust Indenture Act may be made by two officers of the
company, except in cases in which ss. 314(d) of the Trust Indenture Act requires
that such certificate or opinion be made by an independent Person.
Section 12.5 Disposition of Certain Collateral without Requesting Release.
(a) Notwithstanding the provisions of Sections 12.3 and 12.4 hereof, the
Partnership may, pursuant to and in accordance with the TCHI Note Mortgage
Documents and this Indenture, without requesting the release or consent of the
Trustee:
(i) sell or dispose of, free from the Lien of the TCHI Note Mortgage
Documents, any Tangible Personal Property which, in its reasonable opinion, may
have become obsolete or unfit for use or which is no longer necessary in the
conduct of its businesses or the operation of the Collateral or the disposal of
cash free from the Lien of the TCHI Note Mortgage Documents in the ordinary
course of business;
(ii) alter, repair, replace, change the location or position of and add to
any Tangible Personal Property;
(iii) renew, extend, surrender, terminate, modify or amend any leases of
Tangible Personal Property, when, in its reasonable opinion, it is prudent to do
so; and
(iv) enter into all non-material title encumbrances described within the
definition of "Permitted Encumbrances" under the Senior Partnership Upstream
Note Mortgage, and including without limitation those transactions described in
Section 5.3 of the Senior Partnership Upstream Note Mortgage.
(b) Notwithstanding the provisions of Subsection (a) above, (x) the
Partnership shall not dispose of or transfer (by lease, assignment, sale or
otherwise), or pledge, mortgage or otherwise encumber (other than Permitted
Liens), Collateral pursuant to the provisions of Section 12.5(a) with a fair
value to the obligor equal to 10% or more of the aggregate fair value of all
Collateral then existing (as determined in the good faith judgment of the Issuer
or the
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Partnership and, if required by the Trust Indenture Act, an independent
appraiser), in any transaction or any series of related transactions without
complying with Sections 12.3 and 12.4; and (y) the right of the Partnership to
rely upon the provisions of Section 12.5(a) from the date of this Indenture to
June 30, 1998 and for each semiannual period thereafter shall be conditioned
upon the Partnership delivering to the Trustee, on or before August 31, 1998 and
thereafter within 60 days following each February 28 and August 31, an Officers'
Certificate to the effect that all of such dispositions by the Partnership
during such semiannual period (other than those such dispositions, collections
or payments wherein the Partnership has complied with Sections 12.3 and 12.4)
were in the ordinary course of the Partnership's business and that the proceeds
therefrom were used by the Partnership in connection with its business.
(c) Any disposition of Collateral made in compliance with the provisions
of this Section 12.5 shall be deemed not to impair the Liens of the TCHI Note
Mortgage Documents in contravention of the provisions of this Indenture.
(d) Upon receipt of an Issuer Request, the Trustee shall execute and
deliver, within five business days from the receipt of the Issuer Request, any
instrument deemed by the Partnership to be necessary or appropriate to dispose
of portions of the Collateral pursuant to this Section 12.5 if the provisions of
this Section 12.5 have been complied with.
Section 12.6 Suits to Protect the Collateral.
Subject to the provisions of the TCHI Note Mortgage Documents, (i) the
Trustee may, in its sole discretion and without the consent of the Holders, take
all actions it deems necessary or appropriate in order to (a) enforce any of the
terms of the TCHI Note Mortgage Documents and (b) collect and receive any and
all amounts payable in respect of the obligations of the Issuer and the
Partnership and (ii) the Trustee 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 TCHI
Note Mortgage Documents or this Indenture, including such suits and proceedings
as the Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders in the Collateral and in the principal, interest,
issues, profits, rents, revenues and other income arising therefrom (including
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 if the enforcement of,
or compliance with, such enactment, rule or order would impair the security
interests or be prejudicial to the interests of the Holders or the Trustee).
Section 12.7 Determinations Relating to Collateral.
In the event (i) the Trustee shall receive any written request from the
Issuer or the Partnership under any TCHI Note Mortgage Documents for consent or
approval with respect to any matter or thing relating to any Collateral or the
Issuer's or the Partnership's obligations with
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respect thereto or (ii) there shall be due to or from the Trustee under the
provisions of the TCHI Note Mortgage Documents any material performance or the
delivery of any material instrument or (iii) the Trustee shall become aware of
any nonperformance by the Issuer or the Partnership of any covenant or any
breach of any representation or warranty of the Issuer or the Partnership set
forth in the TCHI Note Mortgage Documents, then, in each such event, the Trustee
shall be entitled to hire experts, consultants, agents and attorneys to advise
the Trustee on the manner in which the Trustee should respond to such request or
render any requested performance or respond to such nonperformance or breach.
The Trustee shall be fully protected in the taking of any action recommended or
approved by any such expert, consultant, agent or attorney or agreed to by the
Holders of a majority in principal amount of the Outstanding Senior Notes
pursuant to Section 5.12.
Section 12.8 Impairment of Security Interest.
The Issuer and the Partnership will not, and will not permit any
Subsidiary to, take or omit to take any action which reasonably might or would
have the result of affecting or impairing the security interests with respect to
the Collateral in contravention of this Indenture, and the Issuer and the
Partnership shall not (and shall cause the Subsidiaries not to) grant to, or
suffer to exist in favor of, any Person any interest whatsoever in the
Collateral except as permitted by the TCHI Note Mortgage Documents or this
Indenture. The Issuer and the Partnership will not, and will not permit any
Subsidiary to, enter into any agreement or instrument that by its terms
expressly requires that the proceeds received from the sale of any Collateral be
applied to repay, redeem or otherwise retire any Indebtedness of any Person
other than as set forth in this Article Twelve and in the TCHI Note Mortgage
Documents.
Section 12.9 Release Upon Termination of the Issuer's Obligations.
(a) In the event that the Issuer delivers an Officers' Certificate
certifying that all of the Indenture Obligations have been indefeasibly
satisfied and discharged by complying with the provisions of Article Thirteen or
Sections 4.2 or 4.3, the Trustee shall deliver to the Issuer at the Issuer's
expense a notice stating that, subject to Section 4.6, the Trustee, on behalf of
the Holders, disclaims and gives up any and all rights it has in or to the
Collateral, and any rights it has under the TCHI Note Mortgage Documents, and on
demand of and at the expense of the Issuer or the Partnership, the Trustee shall
also execute and deliver proper instruments acknowledging the satisfaction and
discharge of this Indenture and all TCHI Note Mortgage Documents and, upon and
after the receipt by the Issuer of such notice, the Trustee shall not be deemed
to hold the security interests in the Collateral for the benefit of the Holders
and shall deliver to the Issuer any Collateral in its possession.
(b) Any release of any portion of the Collateral made strictly in
compliance with the provisions of this Section 12.9 shall not be deemed to
impair the security interests in the Collateral created by the TCHI Note
Mortgage Documents in contravention of the provisions of this Indenture.
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Section 12.10 Authorization of Receipt of Funds by the Trustee Under the
TCHI Note Mortgage Documents.
The Trustee is authorized to receive any funds for the benefit of Holders
of Senior Notes distributed under the TCHI Note Mortgage Documents, and to make
further distributions of such funds to the Holders according to the provisions
of this Indenture.
ARTICLE 13
SATISFACTION AND DISCHARGE
Section 13.1 Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to surviving
rights of registration of transfer or exchange of Senior Notes herein expressly
provided for) and the Trustee, on demand of and at the expense of the Issuer or
the Partnership, shall execute and deliver proper instruments acknowledging
satisfaction and discharge of this Indenture and all TCHI Note Mortgage
Documents, when
(a) either
(1) all Senior Notes theretofore authenticated and delivered (other than
(i) Senior Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6 and (ii) Senior Notes for whose
payment funds have theretofore been deposited in trust or segregated and held in
trust by the Issuer and thereafter repaid to the Issuer or discharged from such
trust, as provided in Section 10.3) have been delivered to the Trustee for
cancellation; or
(2) all such Senior Notes not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year,
or
(iii) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Issuer and the Partnership,
and the Issuer or the Partnership, in the case of (2)(i), (ii) or (iii) above,
has irrevocably deposited or caused to be deposited with the Trustee as trust
funds in trust an amount in cash in lawful currency of the United States of
America or U.S. Government Obligations
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sufficient to pay and discharge the entire Indebtedness on such Senior Notes not
theretofore delivered to the Trustee for cancellation, including principal of,
premium, if any, and accrued interest on such Senior Notes, at such Stated
Maturity or Redemption Date;
(b) the Issuer and the Partnership have paid or caused to be paid all
other sums payable hereunder by the Issuer or the Partnership; and
(c) the Issuer and the Partnership have delivered to the Trustee an
Officers' Certificate and an opinion of Counsel each stating that (i) all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with and (ii) such satisfaction
and discharge will 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 Issuer or the Partnership is a party or by which the Issuer or the
Partnership is bound.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer and the Partnership to the Trustee under Section 6.6
and, if money shall have been deposited with the Trustee pursuant to subclause
(2) of Subsection (a) of this Section, the obligations of the Trustee under
Section 4.2 and the last paragraph of Section 10.3 shall survive.
Section 13.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all funds
deposited with the Trustee pursuant to Section 13.1 shall be held in trust and
applied by it, in accordance with the provisions of the Senior Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal of, premium, if
any, and interest on the Senior Notes for whose payment such funds have been
deposited with the Trustee.
ARTICLE 14
SENIOR GUARANTEE
Section 14.1 Partnership Senior Guarantee.
For value received, the Partnership in accordance with this Article
Fourteen and, subject to Section 3.11 hereof, hereby absolutely, unconditionally
and irrevocably guarantees to the Trustee and the Holders, as if the Partnership
were the principal debtor, the punctual payment and performance when due of all
Indenture Obligations (which for purposes of this Senior Guarantee shall also be
deemed to include all commissions, fees, charges, costs and other expenses
(including reasonable legal fees and disbursements of one counsel) arising out
of or
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incurred by the Trustee or the Holders in connection with the enforcement of
this Senior Guarantee).
Section 14.2 Continuing Guarantee; No Right of Set-Off; Independent
Obligation.
(a) This Senior Guarantee shall be a continuing guarantee of the payment
and performance of all Indenture Obligations and shall remain in full force and
effect until the payment in full of all of the Indenture Obligations and shall
apply to and secure any ultimate balance due or remaining unpaid to the Trustee
or the Holders; and this Senior Guarantee shall not be considered as wholly or
partially satisfied by the payment or liquidation at any time or from time to
time of any sum of money for the time being due or remaining unpaid to the
Trustee or the Holders. The Partnership covenants and agrees to comply with all
obligations, covenants, agreements and provisions applicable to it in this
Indenture including those set forth in Article Eight. Without limiting the
generality of the foregoing, the Partnership's liability shall extend to all
amounts which constitute part of the Indenture Obligations and would be owed by
the Issuer under this Indenture and the Senior Notes but for the fact that they
are unenforceable, reduced, limited, impaired, suspended or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Issuer.
(b) The Partnership hereby guarantees that the Indenture Obligations will
be paid to the Trustee without set-off or counterclaim or other reduction
whatsoever (whether for taxes, withholding or otherwise) in lawful currency of
the United States of America.
(c) The Partnership guarantees that the Indenture Obligations shall be
paid strictly in accordance with their terms regardless of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Holders of the Senior Notes.
(d) The Partnership's liability to pay or perform or cause the performance
of the Indenture Obligations under this Senior Guarantee shall arise forthwith
after demand for payment or performance by the Trustee has been given to the
Partnership in the manner prescribed in Section 1.6 hereof.
(e) Except as provided herein, the provisions of this Article Fourteen
cover all agreements between the parties hereto relative to this Senior
Guarantee and none of the parties shall be bound by any representation, warranty
or promise made by any Person relative thereto which is not embodied herein; and
it is specifically acknowledged and agreed that this Senior Guarantee has been
delivered by the Partnership free of any conditions whatsoever and that no
representations, warranties or promises have been made to the Partnership
affecting its liabilities hereunder, and that the Trustee shall not be bound by
any representations, warranties or promises now or at any time hereafter made by
the Issuer to the Partnership.
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Section 14.3 Guarantee Absolute.
The obligations of the Partnership hereunder are independent of the
obligations of the Issuer under the Senior Notes and this Indenture and a
separate action or actions may be brought and prosecuted against the Partnership
whether or not an action or proceeding is brought against the Issuer and whether
or not the Issuer is joined in any such action or proceeding. The liability of
the Partnership hereunder is irrevocable, absolute and unconditional and (to the
extent permitted by law) the liability and obligations of the Partnership
hereunder shall not be released, discharged, mitigated, waived, impaired or
affected in whole or in part by:
(a) any defect or lack of validity or enforceability in respect of any
indebtedness or other obligation of the Issuer or any other Person under this
Indenture or the Senior Notes, or any agreement or instrument relating to any of
the foregoing;
(b) any grants of time, renewals, extensions, indulgences, releases,
discharges or modifications which the Trustee or the Holders may extend to, or
make with, the Issuer, the Partnership or any other Person, or any change in the
time, manner or place of payment of, or in any other term of, all or any of the
Indenture Obligations, or any other amendment or waiver of, or any consent to or
departure from, this Indenture or the Senior Notes, including any increase or
decrease in the Indenture Obligations;
(c) the taking of security from the Issuer, the Partnership or any other
Person, and the release, discharge or alteration of, or other dealing with, such
security;
(d) the occurrence of any change in the laws, rules, regulations or
ordinances of any jurisdiction by any present or future action of any
governmental authority or court amending, varying, reducing or otherwise
affecting, or purporting to amend, vary, reduce or otherwise affect, any of the
Indenture Obligations and the obligations of the Partnership hereunder;
(e) the abstention from taking security from the Issuer, the Partnership
or any other Person or from perfecting, continuing to keep perfected or taking
advantage of any Lien of the Senior Partnership Upstream Note Mortgage;
(f) any loss, diminution of value or lack of enforceability of any Senior
Note received from the Issuer, the Partnership or any other Person, and
including any other guarantees received by the Trustee;
(g) any other dealings with the Issuer, the Partnership or any other
Person, or with any Senior Note;
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(h) the Trustee's or the Holder's acceptance of compositions from the
Issuer or the Partnership;
(i) the application by the Holders or the Trustee of all monies at any
time and from time to time received from the Issuer, the Partnership or any
other Person on account of any indebtedness and liabilities owing by the Issuer
or the Partnership to the Trustee or the Holders, in such manner as the Trustee
or the Holders deems best and the changing of such application in whole or in
part and at any time or from time to time, or any manner of application of
collateral, or proceeds thereof, to all or any of the Indenture Obligations, or
the manner of sale of any Collateral;
(j) the release or discharge of the Issuer or the Partnership or of any
other guarantor of the Senior Notes or of any Person liable directly as surety
or otherwise by operation of law or otherwise for the Senior Notes, other than
an express release in writing given by the Trustee, on behalf of the Holders, of
the liability and obligations of the Partnership hereunder;
(k) any change in the name, business, capital structure or governing
instrument of the Issuer or the Partnership or any refinancing or restructuring
of any of the Indenture Obligations;
(l) the sale of the Issuer's or the Partnership's business or any part
thereof;
(m) any merger or consolidation, arrangement or reorganization of the
Issuer, the Partnership, any Person resulting from the merger or consolidation
of the Issuer or the Partnership with any other Person or any other successor to
such Person or merged or consolidated Person or any other change in the
corporate existence, structure or ownership of the Issuer or the Partnership;
(n) the insolvency, bankruptcy, liquidation, winding-up, dissolution,
receivership or distribution of the assets of the Issuer or its assets or any
resulting discharge of any obligations of the Issuer (whether voluntary or
involuntary) or of the Partnership of the loss of corporate existence;
(o) any arrangement or plan of reorganization affecting the Issuer or the
Partnership;
(p) any other circumstance (including any statute of limitations) that
might otherwise constitute a defense available to, or discharge of, the Issuer
or the Partnership; or
(q) any modification, compromise, settlement or release by the Trustee, or
by operation of law or otherwise, of the Indenture Obligations or the liability
of the Issuer or any other obligor under the Senior Notes, or of any Collateral,
in whole
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or in part, and any refusal of payment by the Trustee, in whole or in part, from
any other obligor or other guarantor in connection with any of the Indenture
Obligations, whether or not with notice to, or further assent by, or any
reservation of rights against, the Partnership.
Section 14.4 Right to Demand Full Performance.
In the event of any demand for payment or performance by the Trustee from
the Partnership hereunder, the Trustee or the Holders shall have the right to
demand its full claim and to receive all dividends or other payments in respect
thereof until the Indenture Obligations have been paid in full, and the
Partnership shall continue to be liable hereunder for any balance which may be
owing to the Trustee or the Holders by the Issuer under this Indenture and the
Senior Notes. The retention by the Trustee or the Holders of any Senior Note,
prior to the realization by the Trustee or the Holders of its rights to such
Senior Note upon foreclosure thereon, shall not, as between the Trustee and the
Partnership, be considered as a purchase of such Senior Note, or as payment,
satisfaction or reduction of the Indenture Obligations due to the Trustee or the
Holders by the Issuer or any part thereof.
Section 14.5 Waivers.
(a) The Partnership hereby expressly waives (to the extent permitted by
law) notice of the acceptance of this Senior Guarantee and notice of the
existence, renewal, extension or the non-performance, non-payment, or
non-observance on the part of the Issuer of any of the terms, covenants,
conditions and provisions of this Indenture or the Senior Notes or any other
notice whatsoever to or upon the Issuer or the Partnership with respect to the
Indenture Obligations. The Partnership hereby acknowledges communication to it
of the terms of this Indenture and the Senior Notes and all of the provisions
therein contained and consents to and approves the same. The Partnership hereby
expressly waives (to the extent permitted by law) diligence, presentment,
protest and demand for payment.
(b) Without prejudice to any of the rights or recourses which the Trustee
or the Holders may have against the Issuer, the Partnership hereby expressly
waives (to the extent permitted by law) any right to require the Trustee or the
Holders to:
(i) initiate or exhaust any rights, remedies or recourse against the
Issuer, the Partnership or any other Person;
(ii) value, realize upon, or dispose of any Senior Note of the
Issuer or any other Person held by the Trustee or the Holders; or
(iii) initiate or exhaust any other remedy which the Trustee or the
Holders may have in law or equity;
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before requiring or becoming entitled to demand payment from the Partnership
under this Guarantee.
Section 14.6 The Partnership Remains Obligated in Event the Issuer Is No
Longer Obligated to Discharge Indenture Obligations.
It is the express intention of the Trustee and the Partnership that if for
any reason the Issuer has no legal existence, is or becomes under no legal
obligation to discharge the Indenture Obligations owing to the Trustee or the
Holders by the Issuer or if any of the Indenture Obligations owing by the Issuer
to the Trustee or the Holders becomes irrevocable from the Issuer by operation
of law or for any reason whatsoever, this Senior Guarantee and the covenants,
agreements and obligations of the Partnership contained in this Article Fourteen
shall nevertheless be binding upon the Partnership, as principal debtor, until
such time as all such Indenture Obligations have been paid in full to the
Trustee and all Indenture Obligations owing to the Trustee or the Holders by the
Issuer have been discharged, or such earlier time as Section 4.2 shall apply to
the Senior Notes and the Partnership shall be responsible for the payment
thereof to the Trustee or the Holders upon demand.
Section 14.7 Waiver of Rights.
The Partnership agrees (to the extent permitted by law) that it hereby
waives and will not in any manner whatsoever claim or take the benefit or
advantage of, any rights of reimbursement, exoneration, contribution, indemnity
or subrogation (whether contractual, under Section 509 of Title Eleven of the
United States Code, under common law or otherwise) or any similar rights or
"claims" (as such term is defined under Title Eleven of the United States Code),
against the Issuer or any Subsidiary arising from the existence of, or
performance by, the Partnership under this Senior Guarantee.
Section 14.8 Senior Guarantee Is in Addition to Other Security.
This Senior Guarantee shall be in addition to and not in substitution for
any other guarantees or other security which the Trustee may now or hereafter
hold in respect of the Indenture Obligations owing to the Trustee or the Holders
by the Issuer and (except as may be required by law) the Trustee shall be under
no obligation to marshal in favor of the Partnership any other guarantees or
other security or any moneys or other assets which the Trustee may be entitled
to receive or upon which the Trustee or the Holders may have a claim.
Section 14.9 Release of Security Interests.
Without limiting the generality of the foregoing and except as otherwise
provided in this Indenture, the Partnership hereby consents and agrees, to the
fullest extent permitted by applicable law, that the rights of the Trustee
hereunder, and the liability of the Partnership hereunder, shall not be affected
by any and all releases for any purpose of any Collateral, if any,
-103-
from the Liens and security interests created by the Senior Partnership Upstream
Note Mortgage and that this Senior Guarantee shall continue to be effective or
be reinstated, as the case may be, if at any time any payment of any of the
Indenture Obligations is rescinded or must otherwise be returned by the Trustee
upon the insolvency, bankruptcy or reorganization of the Issuer or otherwise,
all as though such payment had not been made.
Section 14.10 No Bar to Further Actions.
Except as provided by law, no action or proceeding brought or instituted
under Article Fourteen and this Senior Guarantee and no recovery or judgment in
pursuance thereof shall be a bar or defense (other than a defense of payment) to
any further action or proceeding which may be brought under Article Fourteen and
this Senior Guarantee by reason of any further default or defaults under Article
Fourteen and this Senior Guarantee or in the payment of any of the Indenture
Obligations owing by the Issuer.
Section 14.11 Failure to Exercise Rights Shall Not Operate As a Waiver; No
Suspension of Remedies.
(a) No failure to exercise and no delay in exercising, on the part of the
Trustee or the Holders, any right, power, privilege or remedy under this Article
Fourteen and this Senior Guarantee shall operate as a waiver thereof, nor any
single or partial exercise of any right, power, privilege or remedy preclude any
other or further exercise thereof, or the exercise of any other rights, powers,
privileges or remedies. The rights and remedies herein provided for are
cumulative and not exclusive of any rights or remedies provided in law or
equity.
(b) Nothing contained in this Article Fourteen shall limit the right of
the Trustee or the Holders to take any action to accelerate the maturity of the
Senior Notes pursuant to Article Five or to pursue any rights or remedies
hereunder or under applicable law.
Section 14.12 Successors and Assigns.
All terms, agreements and conditions of this Article Fourteen shall extend
to and be binding upon the Partnership and its successors and permitted assigns
and shall enure to the benefit of and may be enforced by the Trustee and its
successors and assigns; provided, however, that the Partnership may not assign
any of its rights or obligations hereunder other than in accordance with Article
Eight.
Section 14.13 Release of Senior Guarantee.
Concurrently with the payment in full of all of the Indenture Obligations,
the Partnership shall be released from and relieved of its obligations under
this Article Fourteen. Upon the delivery by the Issuer to the Trustee of an
Officers' Certificate and, if requested by the Trustee, an Opinion of Counsel to
the effect that the transaction giving rise to the release of this Senior
-104-
Guarantee was made by the Issuer in accordance with the provisions of this
Indenture and the Senior Notes, the Trustee shall execute any documents
reasonably required in order to evidence the release of the Partnership from its
obligations under this Senior Guarantee and the TCHI Note Mortgage Documents if
any of the Indenture Obligations are revived and reinstated after the
termination of this Senior Guarantee, then all of the obligations of the
Partnership under this Senior Guarantee shall be revived and reinstated as if
this Senior Guarantee had not been terminated until such time as the Indenture
Obligations are paid in full, and the Partnership shall enter into an amendment
to this Senior Guarantee, reasonably satisfactory to the Trustee, evidencing
such revival and reinstatement.
This Senior Guarantee shall terminate upon a merger or consolidation of
the Partnership with the Issuer, in accordance with Article Eight.
Section 14.14 Execution of Senior Guarantee.
To evidence the Senior Guarantee, the Partnership hereby agrees to execute
a guarantee substantially in the form set forth in Section 2.5, to be endorsed
on each Senior Note authenticated and delivered by the Trustee and that this
Indenture shall be executed on behalf of the Partnership by one of its general
partners or its President or one of its Vice Presidents. The signature of any of
these officers on the Senior Notes may be manual or facsimile.
If an officer whose signature is on this Indenture no longer holds that
office at the time the Trustee authenticates a Senior Note on which this Senior
Guarantee is endorsed, such Senior Guarantee shall be valid nevertheless.
* * * * * *
-105-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
TRUMP'S CASTLE HOTEL & CASINO, INC.,
as Issuer
Attest: /s/ R. Xxxxx XxXxx By /s/ Xxxxxxxx X. Xxxxx
---------------------- ------------------------------------
Name: R. Xxxxx XxXxx Xxxxxxxx X. Xxxxx
Title: Vice President President and Chief Executive Officer
TRUMP'S CASTLE ASSOCIATES, L.P.
By: TRUMP'S CASTLE HOTEL & CASINO,
INC., its General Partner
Attest: /s/ R. Xxxxx XxXxx By /s/ Xxxxxxxx X. Xxxxx
---------------------- ------------------------------------
Name: R. Xxxxx XxXxx Xxxxxxxx X. Xxxxx
Title: Vice President President and Chief Executive Officer
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
Attest: /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxxxx X. Xxxxxxxx
---------------------- ------------------------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxxx
Title: Trust Officer Title: Assistant Vice President
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 15th day of April, 1998, before me personally came Xxxxxxxx X.
Xxxxx, to me known, who, being by me duly sworn, did depose and say that he is
President and Chief Executive Officer of Trump's Castle Hotel & Casino, Inc.,
one of the corporations described in and which executed the above instrument;
that he knows the corporate seal of such corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed pursuant to
authority of the Board of Directors of such corporation; and that he signed his
name thereto pursuant to like authority.
(NOTARIAL SEAL)
/s/ Xxxxxx Xxxxxxx
-------------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on April 15, 1998, before me, the subscriber,
personally appeared Xxxxxxxx X. Xxxxx, the President and Chief Executive Officer
of Trump's Castle Hotel & Casino, Inc., a New Jersey corporation, which is the
general partner of Trump's Castle Associates, L.P., a New Jersey limited
partnership, who, I am satisfied, is the person who has signed the within
instrument on behalf of such entities, and I having first made known to him the
contents thereof he thereupon acknowledged that he signed and delivered the said
instrument in his capacity as aforesaid, and that the within instrument is the
voluntary act and deed of said entities.
(NOTARIAL SEAL)
/s/ Xxxxxx Xxxxxxx
------------------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the 15th day of April, 1998, before me personally came Xxxxxxx X.
Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is an Assistant Vice President of U.S. Bank National Association, one of the
entities described in and which executed the above instrument; that he knows the
corporate seal of such entity; that the seal affixed to said instrument is such
corporate seal; that it was so affixed pursuant to authority of the board of
directors of such corporation; and that he signed his name thereto pursuant to
like authority.
(NOTARIAL SEAL)
/s/ Xxxxx X. Xxxxxxx
-------------------------
SCHEDULE I TO TCHI NOTE INDENTURE
OTHER PERMITTED INDEBTEDNESS
DESCRIPTION AMOUNT
----------- ------
NONE $0
SCHEDULE II TO TCHI NOTE INDENTURE
OTHER PERMITTED INVESTMENTS
DESCRIPTION AMOUNT
----------- ------
NONE $0
