EXHIBIT 10.1
EXECUTION COPY
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VOTING AGREEMENT
DATED AS OF APRIL 28, 1999
TABLE OF CONTENTS
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1. Voting Agreement; Restriction on Transfer........................................ - 2 -
2. Conditions to Consummation of the Financial Restructuring........................ - 5 -
3. Financial Restructuring; The Joint Plan.......................................... - 6 -
4. Payments......................................................................... - 7 -
5. Representations of the Consenting Holders........................................ - 8 -
6. Representations of the GBCC Group and HCC........................................ - 9 -
7. Forbearance...................................................................... - 15 -
8. Termination of Agreement......................................................... - 15 -
9. Further Acquisition of Securities................................................ - 17 -
10. Amendments....................................................................... - 17 -
11. Governing Law; Jurisdiction...................................................... - 17 -
12. Headings......................................................................... - 17 -
13. Successors and Assigns........................................................... - 17 -
14. Prior Negotiations............................................................... - 17 -
15. Counterparts..................................................................... - 18 -
16. No Third-Party Beneficiaries..................................................... - 18 -
17. Consideration.................................................................... - 18 -
18. Notices.......................................................................... - 18 -
19. GBHC Payments.................................................................... - 18 -
20. Payments to Indenture Trustee for Existing PRT Notes Prior to Effective Date..... - 18 -
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21. Refinancing...................................................................... - 19 -
22. Professional Fees................................................................ - 21 -
23. Cooperation in Sands Bankruptcy.................................................. - 21 -
24. Specific Performance............................................................. - 22 -
25. Survival and Assignment.......................................................... - 22 -
Exhibits and Schedules
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Exhibit A - Form of Joint Reorganization Plan
Exhibit B - Reorganization Budget
Schedule 6(b)(i) - Liens, Claims and Encumbrances and Liabilities of GBHC to HCC
Schedule 6(b)(iv) - Liabilities of PRT, PCC and NJMI
Schedule 6(b)(v) - Contracts of PRT, PCC and NJMI
Exhibit 21(b) - Term Sheet for New PCC Notes and Exchange Alternative
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VOTING AGREEMENT
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This Voting Agreement (the "Agreement") is entered into this 28th day of
April, 1999, among Greate Bay Casino Corporation ("GBCC"), ▇▇▇▇▇ Casino
Corporation ("PCC"), PRT Funding Corp. ("PRT"), New Jersey Management, Inc.
("NJMI," and together with GBCC, PCC and PRT, collectively the "GBCC Group"),
Hollywood Casino Corporation ("HCC") and the undersigned holders, severally and
neither jointly nor jointly and severally (collectively, and together with any
other persons who become signatories hereto, the "Consenting Holders").
R E C I T A L S
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A. PRT has issued and there remains outstanding $85 million principal amount
of 11-5/8% Senior Notes (the "Existing PRT Notes").
B. PCC has guaranteed the payment of the Existing PRT Notes (the "PCC
Guarantee").
C. The Consenting Holders hold approximately $82.823 million of the Existing
PRT Notes in the principal amounts, respectively, set forth on the signature
pages hereto.
D. The GBCC Group, HCC and the Consenting Holders desire to implement a
financial restructuring (the "Financial Restructuring") of the Existing PRT
Notes substantially on the terms and conditions set forth in the Joint
Reorganization Plan attached hereto as Exhibit A (the "Joint Plan"). The
principal component of the Financial Restructuring is the payment to the holders
of the Existing PRT Notes, by substantial consummation of a plan of
reorganization, of at least $40,329,375 on the terms provided in Section 6.2(Q)
of the Joint Plan (the "Cash Take-Out").
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E. In order to implement the Financial Restructuring, PCC, PRT and NJMI will
commence (the date of such commencement being the "Petition Date") proceedings
under Chapter 11 of the Bankruptcy Code (the "Chapter 11 Proceedings") and seek
to obtain court approval of the Joint Plan and a disclosure statement in respect
thereof (the "Disclosure Statement").
F. This Agreement is being entered into in order to facilitate the
implementation of the Financial Restructuring, by the Consenting Holders in
consideration of PCC's, PRT's and NJMI's agreement to commence the Chapter 11
Proceedings and to file and seek confirmation of the Joint Plan and of GBCC's
and HCC's agreement to participate in the Financial Restructuring, and by the
GBCC Group and HCC in consideration of the Consenting Holders' agreement to vote
their claims to accept the Joint Plan and otherwise agree to the terms of the
Financial Restructuring as set forth below.
A G R E E M E N T
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Now, therefore, in consideration of the premises and the mutual covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Voting Agreement; Restriction on Transfer.
(a) Each Consenting Holder, severally and neither jointly nor jointly and
severally, hereby agrees that it shall:
(i) Subject to its receipt of appropriate disclosure and solicitation
materials meeting the requirements of the Bankruptcy Code, timely
vote its claims (or claims otherwise subject to such Consenting
Holder's right to vote or
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direct the disposition thereof) in respect of the Existing PRT
Notes owned on the date hereof or hereafter acquired to accept
the Joint Plan (and not revoke or withdraw such vote);
(ii) Refrain from the sale, transfer, pledge or any other assignment
of any of the Existing PRT Notes, or any voting interest therein
to any person unless such person is a "qualified institutional
buyer" within the meaning of Rule 144A promulgated under the
Securities Act of 1933, as amended (the "Securities Act"), and
such person agrees in writing to become a party to, and be bound
by the terms and conditions of, this Agreement (it being
expressly acknowledged for the avoidance of doubt that any
Consenting Holder may disclose the terms of this Agreement and
any other information relating to the parties hereto to any
transferee or prospective transferee of the PRT Notes);
(iii) Not take any position in the Chapter 11 Proceedings that
conflicts with its obligations hereunder;
(iv) Vote its Existing PRT Notes and any other claims it might have
or acquire to reject any bankruptcy plan of reorganization for
PCC, PRT or NJMI other than the Joint Plan; and
(v) Take such other and further actions as the GBCC Group and HCC
shall reasonably request to effectuate the Financial
Restructuring, including waiving the requirement of New Jersey
Casino Control Commission approval of the Newco Warrants (as
defined in the Joint Plan) if GBCC
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requests such waiver because it reasonably concludes that such
approval will materially delay the closing of the Financial
Restructuring.
Notwithstanding the foregoing, nothing in this Agreement shall require a
Consenting Holder to take any action which is prohibited by the Bankruptcy Code
or by other applicable law or regulation or by any order or direction of any
court or any federal or state governmental authority.
(b) The obligations of the Consenting Holders under subsection (a) of this
Section 1 shall be at all times subject to the continuing conditions that:
(i) the plan of reorganization being considered in the Chapter 11
Proceedings is substantially in the form of the Joint Plan;
(ii) an Agreement Termination Event (as defined in Section 8 below)
shall not have occurred; and
(iii) HCC shall either (A) be actively pursuing the HCC Refinancing
(defined in Section 21(a) below), on a schedule and with an
intention to close not later than June 30, 1999 or (B) have
consummated the HCC Refinancing and the escrow established in
connection therewith shall still have funds available to fund
the Cash Take-Out.
(c) If GBCC receives a waiver from the Consenting Holders of New Jersey
Casino Control Commission approval of the Newco Warrants and there is
a closing of the Financial Restructuring, GBCC shall cause PPI
Corporation to cause Newco (as defined in the Joint Plan) to use its
reasonable best efforts to obtain such
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approval until such time as a plan is confirmed in the Sands
Bankruptcy (as defined in Section 2 hereof).
2. Conditions to Consummation of the Financial Restructuring.
Consummation of the Financial Restructuring will be subject to the
following closing conditions:
(i) Receipt of all required government approvals, consents and
authorizations;
(ii) The absence of any pending or threatened action, suit, or
proceeding before any court or quasi-judicial or administrative
agency of any federal, state, local, or foreign jurisdiction
that is reasonably likely to result in an unfavorable
injunction, judgment, order, decree, ruling, or charge that
would (A) prevent the Cash Take-Out or (B) permit any or all of
the payments made in the Cash Take-Out to be rescinded;
(iii) The execution and delivery of all documentation relating to the
liquidating trust contemplated by the Joint Plan (but not the
assets to be delivered into such trust), in form and substance
reasonably satisfactory to the Consenting Holders and consistent
with the terms of the Joint Plan;
(iv) The entry of orders of the Bankruptcy Court, which orders shall
be reasonably satisfactory in form and substance to the
Consenting Holders and, unless finality is waived by the
Consenting Holders, shall have become final and non-appealable:
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(a) confirming the Joint Plan and, among other things, allowing
the claims in respect of the Existing PRT Notes as the only
allowed general unsecured claims in Class 1 under the Joint
Plan;
(b) disallowing any and all general unsecured claims in Class 8
in the Joint Plan (except for (1) any reasonable unpaid fees
and expenses of the Indenture Trustee for the Existing PRT
Notes (the "Indenture Trustee"), (2) any claims fully
covered by liability insurance and (3) up to $50,000 payable
in connection with claims insurable but subject to NJMI's
deductible under existing insurance policies), including,
without limitation, all claims asserted by the debtors or
any other party acting on behalf of the debtors' estates in
the jointly administered Chapter 11 cases (the "Sands
Bankruptcy") of Greate Bay Hotel and Casino, Inc. ("GBHC"),
GB Holdings, Inc. ("GBH") and GB Property Funding Corp. ("GB
Funding"), Case Nos. 98-10001, 98-10002, 98-10003 (JW) in
the United States Bankruptcy Court for the District of New
Jersey, including estate representatives, examiners or
official committees of creditors; and
(c) allowing or estimating claims of the IRS in an amount not to
exceed $250,000.
3. Financial Restructuring; The Joint Plan. Each member of the GBCC Group
agrees to commence, forthwith after the closing of the HCC Refinancing, the
Chapter 11 Proceedings.
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Each member of the GBCC Group and HCC agrees (i) to take all such steps as shall
be reasonably necessary and desirable to consummate the Financial Restructuring,
including obtaining confirmation of the Joint Plan, as promptly as practicable
and (ii) to submit this Agreement and the Joint Plan to the appropriate
regulatory authorities for their approval. In the event that it becomes
impractical to pursue the Joint Plan and still consummate the Cash Take-Out by
January 31, 2000, each member of the GBCC Group agrees that it shall use its
reasonable best efforts to cause the Cash Take-Out to be consummated on terms
and conditions as near as possible to those set forth in the Joint Plan; and
will not take any steps that are inconsistent with such terms and conditions
without first consulting with and obtaining the approval of the Consenting
Holders. In the event that it becomes impractical to pursue the Joint Plan and
still consummate the Cash Take-Out by January 31, 2000, HCC agrees that it will
maintain the escrow established in the HCC Refinancing (defined below), for the
purposes of effecting the Cash Take-Out, until the earlier of January 31, 2000
and an Agreement Termination Event.
4. Payments. The Consenting Holders acknowledge and agree (i) that PCC, PRT
or NJMI shall make the payments described in Exhibit "B" (subject to Bankruptcy
Court approval, as necessary) and (ii) that the dollar amounts for the payments
described in Exhibit "B" as restructuring costs and ordinary course corporate
expenses are estimates and may vary from the actual payments that are made.
PCC, PRT and NJMI represent that the dollar amounts set forth in Exhibit "B" for
restructuring costs and ordinary course corporate expenses represent their good
faith estimate of such payments through August 31, 1999 (the assumed date of
consummation of the Financial Restructuring), it being acknowledged that PCC,
PRT
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and NJMI have relied on the Consenting Holders' estimates of such Consenting
Holders' professional fees and expenses in making such estimate.
5. Representations of the Consenting Holders. Each Consenting Holder,
severally and neither jointly nor jointly and severally, represents and warrants
to the GBCC Group and HCC that each of the following statements is true, correct
and complete:
(a) Corporate Power and Authority. It has all requisite corporate or
trust power and authority to enter into this Agreement and to carry
out the transactions contemplated by, and to perform its respective
obligations under, this Agreement;
(b) Authorization. The execution and delivery of this Agreement and the
performance of its obligations hereunder have been duly authorized by
all necessary corporate or trust action;
(c) No Conflicts. The execution, delivery and performance of this
Agreement do not and shall not (i) subject to receipt of all necessary
governmental approvals, consents or authorizations, violate any
provision of law, rule or regulation applicable to it, or its
certificate of incorporation or its bylaws, or its agreement and
declaration of trust, or (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under
any of its material contractual obligations;
(d) Binding Obligation. This Agreement has been duly executed and
delivered and is a legal, valid and binding obligation, enforceable
against it in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency,
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reorganization, moratorium or other similar laws relating to or
limiting creditors' rights generally or by equitable principles
relating to enforceability; and
(e) Ownership of Existing PRT Notes. It is the beneficial owner of,
and/or the investment adviser or manager for the beneficial owners of
(with the power to vote and dispose on behalf of such beneficial
owners), the principal amount of Existing PRT Notes set forth opposite
its signature hereto.
6. Representations of the GBCC Group and HCC.
(a) Each member of the GBCC Group and HCC represents and warrants to each
Consenting Holder that each of the following statements is true,
correct and complete with respect to it:
(i) Corporate Power and Authority. It has all requisite corporate
power and authority to enter into this Agreement and to carry
out the transactions contemplated by, and to perform its
respective obligations under, this Agreement;
(ii) Authorization. The execution and delivery of this Agreement and
the performance of its obligations hereunder have been duly
authorized by all necessary corporate action;
(iii) No Conflicts. The execution, delivery and performance of this
Agreement do not and shall not (i) subject to receipt of
required government approvals, consents and authorizations,
violate any provision of law, rule or regulation applicable to
it or any of its subsidiaries or its
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certificate of incorporation or bylaws, or (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of
time or both) a default under any of its material contractual
obligations or those of any of its subsidiaries;
(iv) Binding Obligation. This Agreement has been duly executed and
delivered and is the legal, valid and binding obligation of each
member of the GBCC Group and HCC, enforceable against each in
accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability;
(v) Agreements. Each of (i) the Agreement dated as of September 2,
1998 among GBHC, GBH, GB Funding, certain entities in the GBCC
Group, HCC and certain individual affiliates thereof (the
"Settlement Agreement"), and (ii) the Agreement dated June 27,
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1998 among GBHC, Advanced Casino Systems International, Inc.,
certain members of the GBCC Group, PCC, PRT, NJMI and HCC (the
"Interim Settlement Agreement") is legal, valid, binding,
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enforceable, and in full force and effect. There is no existing
breach or default of either the Interim Settlement Agreement or
the Settlement Agreement. To its knowledge, no regulatory
actions are pending or threatened that would affect the
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legality, validity or enforceability of either the Interim
Settlement Agreement or the Settlement Agreement;
(vi) Management Contract Payments. The Management Services Agreement
dated as of June 21, 1991 among Aurora Riverboats, Inc. and
Greate Bay Casino Corporation (as amended and in effect, the
"Aurora Management Contract") gives rise to payments each
calendar quarter to ▇▇▇▇▇ Management, L.P. ("PMLP") and
corresponding distributions in respect of the limited
partnership interest in PMLP owned by PCC under the terms of the
Limited Partnership Agreement of PMLP dated as of February 17,
1994. Those agreements provide that such payments and
corresponding distributions are made not later than the twenty-
fifth day following the end of each calendar quarter. PMLP has
received all such amounts due to it for the first quarter of
1999, and has made all corresponding distributions to PCC, such
that as of April 28, 1999 PMLP has cash not in excess of $330;
(vii) There is no pending or threatened action, suit, or proceeding
before any court or quasi-judicial or administrative agency of
any federal, state, local, or foreign jurisdiction that is
reasonably likely to result in an unfavorable injunction,
judgment, order, decree, ruling, or charge that would (A)
prevent the Cash Take-Out or (B) permit any or all of the cash
payments made in the Cash Take-Out to be rescinded; and
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(viii) Disclosure. The representations and warranties contained in
this Section 6 by or with respect to it do not contain any
untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and
information contained in this Section not misleading.
(b) Each member of the GBCC Group represents and warrants to each
Consenting Holder that each of the following statements is true,
correct and complete:
(i) Notes. (A) PRT is the sole legal and beneficial owner, with
marketable title, of a $10 million principal amount
subordinated note dated February 17, 1994, together with
accrued interest as of January 5, 1998 in the approximate
amount of $2,754,375, due from GBHC to PRT; and (B) PCC is the
sole legal and beneficial owner, with marketable title, of a $5
million principal amount subordinated note dated January 14,
1997, together with accrued interest as of January 5, 1998 in
the approximate amount of $728,000, due from GBHC to PCC (the
two notes, collectively, the "Notes"). Except as disclosed on
Schedule 6(b)(i), the Notes are free and clear of all liens,
security interests, or other charges or encumbrances (except
for the subordination provisions of the Notes), or any other
type of preferential arrangement having the practical effect of
constituting a security interest; the Notes are not subject to
any defense, counterclaim or set-off other than those that may
arise solely on account of the Sands Bankruptcy; other than the
Notes, there is no other indebtedness of GBHC owed to any
member of the GBCC Group or any
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of their affiliates other than indebtedness incurred in the
ordinary course of business or that may arise solely on account
of the Sands Bankruptcy, the "Deferred Fee" provided under the
Interim Settlement Agreement, and the "Confirmation Payment"
provided under the Settlement Agreement;
(ii) Ownership of NJMI. PCC is the sole record and beneficial owner
of, and has good and marketable title to, all of the stock of
NJMI, free and clear of any and all liens, charges,
encumbrances, options and other adverse claims or rights
whatsoever;
(iii) Financial Statements. (A) The audited balance sheets and
statements of operations, changes in stockholders' equity, and
cash flow (collectively, the "Financial Statements") as of and
for the fiscal years ended December 31, 1998 and December 31,
1997 contained in Forms 10-K filed by PCC and PRT with the
Securities and Exchange Commission (the "SEC Reports") have been
prepared in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
covered thereby (except as noted therein), are correct and
complete in all material respects and present fairly the
consolidated financial condition of PCC and the financial
condition of PRT as of such dates and the consolidated results
of operations of PCC and the results of operation of PRT for
such periods and are consistent in all material respects with
the books and records of PCC, PRT and NJMI, and (B) the
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unaudited balance sheet, statement of operations and cash flow as
of and for the fiscal quarter ended March 31, 1999 for PCC on a
consolidated basis, when filed with the SEC, will have been
prepared in accordance with GAAP applied on a consistent basis
throughout the period covered thereby (except as noted therein),
will be correct and complete in all material respects, and will
present fairly the consolidated financial condition of PCC, and
the consolidated results of operations of PCC for such period,
and will be consistent in all material respects with the books
and records of PCC;
(iv) Undisclosed Liability. Except as set forth in Schedule 6(b)(iv),
none of PCC, PRT or NJMI has any liability, except for (i)
liabilities set forth on the face of the most recent balance
sheets included in the Financial Statements and (ii) liabilities
which have arisen after the date of the most recent balance
sheets included in the Financial Statements in the ordinary
course of business (none of which liabilities results from,
arises out of, related to, is in the nature of, or was caused by
any breach of contract, breach of warranty, tort, infringement,
or violation of law); and
(v) Contracts. Schedule 6(b)(v) lists all contracts and other
agreements to which any of PCC, PRT or NJMI is a party, including
any tax sharing agreements.
(c) Indebtedness. Except as set forth in Schedule 6(b)(i), HCC represents
and warrants to each Consenting Holder that there is no indebtedness
of GBHC,
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GBH or GB Funding owed to it or any of its affiliates other than
indebtedness incurred in the ordinary course of business or that may
arise solely on account of the Sands Bankruptcy.
7. Forbearance. So long as no Agreement Termination Event shall have
occurred, each of the Consenting Holders hereby agrees, severally and neither
jointly nor jointly and severally, to forbear from enforcing the PRT Notes or
the PCC Guarantee.
8. Termination of Agreement. Except for obligations pursuant to Section 21(b)
and 21(c), all obligations hereunder shall terminate automatically upon the
occurrence of any Agreement Termination Event, unless the occurrence of such
Agreement Termination Event is waived in writing by all of the parties hereto.
If any Agreement Termination Event occurs (and has not been waived) at a time
when court permission shall be required for a Consenting Holder to change or
withdraw (or cause to be changed or withdrawn) its vote in favor of the Joint
Plan, the members of the GBCC Group shall not oppose any attempt by such
Consenting Holder to change or withdraw (or cause to be changed or withdrawn)
such vote.
An "Agreement Termination Event" shall mean any of the following:
(a) HCC shall not have consummated the HCC Refinancing by June 30, 1999;
(b) The Chapter 11 Proceedings shall not have been commenced or the Joint
Plan and Disclosure Statement shall not have been filed by July 2,
1999;
(c) The order of the Bankruptcy Court confirming the Joint Plan shall not
have been entered and the effective date of the Joint Plan shall not
have occurred by January 31, 2000;
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(d) There shall not have been final approval of the Financial
Restructuring by New Jersey Casino Control Commission by January 31,
2000 (for purposes of this subsection, final approval means that any
applicable appeal period shall have passed, no appeal of such approval
shall be pending, and the approval of the Commission shall not have
been overturned on appeal;)
(e) PCC, PRT or NJMI shall file or support confirmation or fail to
actively oppose confirmation of a plan of reorganization embodying
terms materially different from those contemplated by the Joint Plan;
(f) The Joint Plan shall not have been substantially consummated pursuant
to section 1101(2) of the Bankruptcy Code by January 31, 2000;
(g) The Bankruptcy Court shall have entered an order pursuant to Section
1104 of the Bankruptcy Code appointing a trustee or examiner with
respect to any of PCC, PRT or NJMI;
(h) The Bankruptcy Court shall have entered an order dismissing any of the
Chapter 11 Proceedings or an order pursuant to Section 1112 of the
Bankruptcy Code converting any of the Chapter 11 Proceedings to cases
under Chapter 7 of the Bankruptcy Code;
(i) PRT, PCC and/or NJMI shall not have paid the Accumulated Cash (as
defined in Section 20 below) to the Indenture Trustee as required by
Section 20(a);
(j) PRT, PCC and/or NJMI shall not have paid any Excess Cash (as defined
in Section 20 below) to the Indenture Trustee as required by Section
20(b);
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(k) An injunction, judgment, order, decree, ruling or charge shall have
been entered which prevents consummation of the Cash Take-Out.
(l) Any breach of this Agreement by the Consenting Bondholders.
9. Further Acquisition of Securities. This Agreement shall in no way be
construed to preclude the Consenting Holders from acquiring additional Existing
PRT Notes.
10. Amendments. This Agreement may not be modified, amended or supplemented
except in writing signed by all of the parties hereto.
11. Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to any conflicts of law provision which would require the application of
the law of any other jurisdiction.
12. Headings. The Headings of the Sections, paragraphs and subsections of this
Agreement are inserted for convenience only and shall not affect the
interpretation hereof.
13. Successors and Assigns. This Agreement is intended to bind and inure to
the benefit of the parties and their respective successors, assigns, heirs,
executors, administrators and representatives. The agreements, representations
and obligations of the Consenting Holders under this Agreement are several and
neither joint nor joint and several in all respects. Except as set forth herein,
no party may assign any of its rights or obligations hereunder without the prior
consent of all other parties.
14. Prior Negotiations. This Agreement supersedes all prior negotiations,
understandings and agreements with respect to the subject matter hereof.
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15. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original and all of which shall constitute one
and the same Agreement.
16. No Third-Party Beneficiaries. Unless expressly stated herein, this
Agreement shall be solely for the benefit of the parties hereto and no other
person or entity shall be a third-party beneficiary hereof.
17. Consideration. It is hereby acknowledged by the parties that no
consideration shall be due or paid to the Consenting Holders for their agreement
to vote to accept the Joint Plan and to reject any other plan in accordance with
the terms and conditions of this Agreement other than the GBCC Group's agreement
to commence the Chapter 11 Proceedings and to file and seek confirmation of the
Joint Plan.
18. Notices. All notices and communications in connection with this Agreement
shall be in writing and shall be delivered by hand, overnight courier, certified
mail, return receipt requested, or facsimile transmission, at the addresses set
forth in the signature pages hereto.
19. GBHC Payments. Within two days of execution of this Agreement, NJMI shall
pay amounts owing to GBHC as indicated on the proof of claim of NJMI filed in
the Sands Bankruptcy and miscellaneous postpetition amounts owing, not to exceed
$42,000 in the aggregate.
20. Payments to Indenture Trustee for Existing PRT Notes Prior to Effective
Date.
(a) Within two days of execution of this Agreement, PRT shall pay to the
Indenture Trustee all of the cash held by PCC, PRT and NJMI (the
"Accumulated Cash") after deducting (collectively the "Payables
Reserve") (i) the amounts set forth in
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Exhibit B, (ii) $250,000 to be delivered to the liquidating trust
contemplated by the Joint Plan, (iii) an additional $50,000 to be held
in reserve exclusively for the payment of any deductible on NJMI's
applicable policies of insurance and (iv) an amount necessary to pay
any ordinary course liabilities of PCC, PRT and NJMI accrued and
outstanding at the time of execution of this Agreement. Such payment
shall be made to the Indenture Trustee for application to outstanding
amounts owed to the holders of the Existing PRT Notes.
(b) Prior to the Effective Date of the Joint Plan, and for so long as no
Agreement Termination Event has occurred, and subject to Bankruptcy
Court approval following the Petition Date, PRT, PCC and NJMI shall
pay to the Indenture Trustee, within 30 days after the end of each
calendar quarter, any cash held by PCC, PRT and/or NJMI ("Excess
Cash") after deducting the Payables Reserve. Such payments shall be
made to the Indenture Trustee for application to outstanding amounts
owed to the holders of the Existing PRT Notes.
21. Refinancing.
(a) Pending Refinancing. HCC hereby confirms and represents that it is
actively pursuing a refinancing (the "HCC Refinancing") of the HCC
Notes (defined below) in an amount sufficient to deposit, and with the
intention of depositing, cash in escrow in the amount of $40,329,375,
which is to be paid to the holders of Class 1 claims in the Chapter 11
Cases pursuant to Sections 4.1(A) and 6.2(Q) of the Joint Plan.
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(b) Exchange Alternative. The parties to this Agreement hereby agree that
if the HCC Refinancing is no longer being actively pursued or if it is
not consummated by June 30, 1999, then each of them will enter into an
exchange and voting agreement contemplating the issuance of new notes
by PCC (the "New PCC Notes") to the holders of Existing PRT Notes on
the terms set forth in Exhibit 21(b) through a plan of reorganization
substantially similar to the Joint Plan, subject to the recognition by
such parties that certain issues arising under the Investment Company
Act of 1940 shall be resolved on a mutually agreeable basis.
(c) General Agreement. In the event that the parties are obligated to
pursue the transaction contemplated by Section 21(b), HCC hereby
agrees, to the extent permitted by the Indenture relating to its
existing 12 3/4% Senior Secured Notes due 2003 (the "HCC Notes"), that
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in the event that it refinances the HCC Notes in full (including
transactions in which 90% or more of the HCC Notes are refinanced with
covenant-stripping amendments to the indenture or defeasance of the
remaining HCC Notes), and in the event that such refinancing occurs
more than 5 1/2 months prior to maturity of the HCC Notes, it will
also refinance the New PCC Notes as part of such refinancing. It is
HCC's intention to refinance the HCC Notes, and to refinance the New
PCC Notes concurrently therewith, as soon as market conditions permit.
In the event of a refinancing of the HCC Notes and the New PCC Notes
by HCC, the holders of the New PCC Notes will have the right to
receive and the obligation to take, in exchange for
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the New PCC Notes, (i) cash and/or (ii) new notes issued pursuant to
the same indenture as those notes by HCC to the HCC Noteholders ("New
---
Notes"), in an aggregate amount (for these purposes, counting the New
-----
Notes at their issue price), equal to 102.75% of the principal amount
of the New PCC Notes and in the same proportion that holders of the
HCC Notes receive cash and New Notes in the HCC refinancing. If two or
more tranches of New Notes are issued in connection with such
refinancing, the holders of PCC Notes will have the right to a pro
rata participation in each tranche.
22. Professional Fees. PCC, PRT and NJMI jointly and severally agree to pay,
subject to Bankruptcy Court approval if necessary, the reasonable fees and
expenses of Ropes & ▇▇▇▇ as counsel for the Consenting Holders, incurred through
the earlier of the effective date of the Joint Plan or the date of an Agreement
Termination Event. PCC, PRT and NJMI also agree to actively support, including
joining in, a motion of the Consenting Holders for payment of such fees as a
substantial contribution to the case pursuant to Bankruptcy Code Section
503(b)(3)(D).
23. Cooperation in Sands Bankruptcy.
(a) Each member of the GBCC Group shall take all actions reasonably
requested by any of PRT, PCC, NJMI and the Consenting Holders, in assisting in
the prosecution of the claims of PCC, PRT and NJMI against the Sands. Except for
reimbursement of actual out of pocket expenses (and not including time), such
assistance shall be provided at no additional cost to PRT, PCC, NJMI or the
Consenting Holders. The GBCC Group shall not be required to have any of their
personnel devote more time to the prosecution of such claims than a reasonable
non-affiliated party would if prosecuting such claims for itself.
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(b) Without limiting the foregoing, the GBCC Group shall consult with the
Consenting Holders regarding developments in the Sands Bankruptcy and will take
such actions in the Sands Bankruptcy as may reasonably be requested by the
Consenting Holders that do not conflict with fiduciary duties owed to other
creditors or shareholders, applicable laws or regulations, the Interim
Settlement Agreement or the Settlement Agreement.
(c) HCC and NJMI agree that the Services Agreement between them dated as
of January 1, 1994 has been terminated and that HCC hereby releases any claim
for damages, against PCC, PRT or NJMI arising therefrom or related thereto.
24. Specific Performance. It is understood and agreed by each of the parties
hereto that money damages would not be a sufficient remedy for any breach of
this Agreement by any party and each non-breaching party shall be entitled to
specific performance and injunctive or other equitable relief as a remedy of any
such breach.
25. Survival and Assignment. The agreements and covenants contained in
Sections 10, 11, 12, 13, 14, 15, 16, 18, 22, 23 and 24 shall survive substantial
consummation of the Joint Plan. The representation and warranties of HCC and the
GBCC Group contained in Section 6(a)(i)-(v) and the representations and
warranties of the GBCC Group contained in Section 6(b)(i) shall survive
substantial consummation of the Joint Plan. The covenants of HCC, the GBCC Group
and the Consenting Holders contained in Sections 21(b) and 21(c) shall survive
the Agreement Termination Date.
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SIGNED this 28th day of April, 1999.
GREATE BAY CASINO CORPORATION
Two Galleria Tower, Suite 2200
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Its: Chairman
------------------------------
▇▇▇▇▇ CASINO CORPORATION
Two Galleria Tower, Suite 2200
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Its: Chairman
------------------------------
PRT FUNDING CORP.
Two Galleria Tower, Suite 2200
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Its: Chairman
------------------------------
NEW JERSEY MANAGEMENT, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Its: Chairman
------------------------------
HOLLYWOOD CASINO CORPORATION
Two Galleria Tower, Suite 2200
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Its: Chairman
------------------------------
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ Existing PRT Notes $ 20,143,000.00
---------------------- --------------------
Its: Vice President
----------------------
SUNAMERICA INC.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Existing PRT Notes $ 26,090,000
---------------------- -------------------
Its: Authorized Agent
----------------------
THE ▇▇▇▇▇▇ ADVISORY COMPANY, INC.
as investment adviser of:
Ameritech Pension Trust
▇▇▇▇▇▇ Offshore Funds (Cayman) Ltd. - ▇▇▇▇▇▇ Diversified Income Fund
Strategic Global Fund - High Yield Fixed Income (▇▇▇▇▇▇) Fund
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Existing PRT Notes $350,000
---------------------- ------------------
Its: Senior Vice President
----------------------
▇▇▇▇▇▇ FIDUCIARY TRUST COMPANY
as investment adviser of:
▇▇▇▇▇▇ High Yield Managed Trust
▇▇▇▇▇▇ High Yield Fixed Income Fund, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Existing PRT Notes $1,295,000.00
---------------------- --------------------
Its: Senior Vice President
----------------------
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▇▇▇▇▇▇ INVESTMENT MANAGEMENT, INC.
as investment adviser of:
▇▇▇▇▇▇ Variable Trust - ▇▇▇▇▇▇ VT High Yield Fund
▇▇▇▇▇▇ Asset Allocation Funds - Balanced Portfolio
▇▇▇▇▇▇ High Yield Trust
▇▇▇▇▇▇ Asset Allocation Funds - Conservative Portfolio
▇▇▇▇▇▇ High Yield Advantage Fund
▇▇▇▇▇▇ High Income Convertible and Bond Fund
▇▇▇▇▇▇ Asset Allocation Funds - Growth Portfolio
▇▇▇▇▇▇ Managed High Yield Trust
The ▇▇▇▇▇▇ ▇▇▇▇▇▇ Fund of Boston
▇▇▇▇▇▇ Convertible Opportunities and Income Trust
▇▇▇▇▇▇ Master Income Trust
▇▇▇▇▇▇ Premier Income Trust
▇▇▇▇▇▇ Master Intermediate Income Trust
▇▇▇▇▇▇ Diversified Income Trust
▇▇▇▇▇▇ Variable Trust - ▇▇▇▇▇▇ VT Diversified Income Fund
▇▇▇▇▇▇ Balanced Retirement Fund
Travelers Series Fund, Inc. - ▇▇▇▇▇▇ Diversified Income Portfolio
Lincoln National Global Asset Allocation Fund, Inc.
▇▇▇▇▇▇ Variable Trust - ▇▇▇▇▇▇ VT Global Asset Allocation Fund
▇▇▇▇▇▇ Strategic Income Fund
▇▇▇▇▇▇ Funds Trust - ▇▇▇▇▇▇ High Yield Total Return Fund
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Existing PRT Notes $34,945,000.00
---------------------- --------------------
Its: Senior Vice President
----------------------
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