EXHIBIT 10.20
DISBURSEMENT AGREEMENT
among
RESORTS INTERNATIONAL HOTEL AND CASINO, INC.
AND
BANKERS TRUST COMPANY,
AS DISBURSEMENT AGENT AND TRUSTEE
DATED AS OF MARCH 22, 2002
TABLE OF CONTENTS
Page
SECTION 1. Defined Terms ................................................................... 2
SECTION 2. Duties of Disbursement Agent .................................................... 5
SECTION 2.1. Maintenance of Construction Disbursement Account ........................... 5
SECTION 2.2. Review of Construction Disbursement Requests ............................... 6
SECTION 2.3. Maintenance of Liquidity Disbursement Account .............................. 6
SECTION 2.4. Disbursements from Liquidity Disbursement Requests ......................... 6
SECTION 2.5. Final Disbursement from the Liquidity Disbursement Account ................. 6
SECTION 2.6. Disbursement of Funds To Trustee ........................................... 6
SECTION 3. Construction Disbursement Budget, Plans, Contracts, Segregated Account .......... 7
SECTION 3.1. Allocation of Contingency; Amendments to Construction Disbursement Budget .. 7
SECTION 3.2. Amendments to Plans ........................................................ 7
SECTION 3.3. Major Contracts and Permits ................................................ 8
SECTION 3.4. Segregated Account ......................................................... 8
SECTION 4. Conditions Precedent to Construction Disbursement Account Disbursement .......... 8
SECTION 4.1. General Conditions ......................................................... 9
SECTION 4.2. Initial Disbursement ....................................................... 9
SECTION 4.3. Final Disbursement Following Operating Date ................................ 9
SECTION 4.4. Representations and Warranties ............................................. 10
SECTION 5. Concerning the Disbursement Agent ............................................... 10
SECTION 5.1. Compensation ............................................................... 10
SECTION 5.2. Limitation of Liability, Etc ............................................... 10
SECTION 5.3. Indemnity .................................................................. 11
SECTION 5.4. Termination ................................................................ 11
SECTION 5.5. Substitution of Disbursement Agent ......................................... 12
SECTION 5.6. Survival ................................................................... 12
SECTION 6. Security Interest in the Accounts ............................................... 12
SECTION 7. Additional Contribution ......................................................... 12
SECTION 8. Miscellaneous ................................................................... 12
SECTION 8.1. Waiver ..................................................................... 13
SECTION 8.2. Invalidity ................................................................. 13
SECTION 8.3. No Authority ............................................................... 13
SECTION 8.4. Assignment ................................................................. 13
SECTION 8.5. Benefit .................................................................... 13
SECTION 8.6. Choice of Law .............................................................. 13
SECTION 8.7. Entire Agreement; Amendments ............................................... 13
SECTION 8.8. Notices .................................................................... 13
SECTION 8.9. Counterparts ............................................................... 14
SECTION 8.10. Captions ................................................................... 14
SECTION 8.11. Gaming Authorities ......................................................... 14
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TABLE OF EXHIBITS
Exhibit A Form of Architect's Certificate
Exhibit B Form of Construction Disbursement Budget
Exhibit C Form of Construction Schedule
Exhibit D Form of Construction Manager's Certificate
Exhibit E Form of Construction Disbursement Request
Exhibit F Form of Liquidity Disbursement Request
Exhibit G Form of Construction Budget Certification
TABLE OF ANNEXES
Annex A Project Drawings, Plans and Specifications
TABLE OF SCHEDULES
Schedule 1 Fee and Leasehold Mortgages
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DISBURSEMENT AGREEMENT
This DISBURSEMENT AGREEMENT (this "Agreement") is dated as of March 22,
2002, by and among RESORTS INTERNATIONAL HOTEL AND CASINO, INC., a New Jersey
corporation ("RIHC") and Bankers Trust Company, as disbursement agent (the
"Disbursement Agent") and as trustee (the "Trustee") under the Indenture (as
defined below).
RECITALS
WHEREAS, RIHC has entered into the Indenture dated as of March 22, 2002
(as the same may be amended, supplemented, restated or otherwise modified from
time to time, the "Indenture") between RIHC and the Trustee pursuant to which
RIHC will issue up to $180,000,000 of its 11 1/2% First Mortgage Notes due 2009
(as the same may be amended, supplemented, restated, exchanged, replaced or
otherwise modified from time to time, the "Notes"). Portions of the net proceeds
of the issuance of the Notes are to be deposited into the Accounts maintained by
the Disbursement Agent pursuant to this Agreement;
WHEREAS, the Notes are secured by, among other collateral, the Project
Mortgages;
WHEREAS, portions of the net proceeds of the sale of the Notes and the
CRDA Funds are to be used to pay the Project Costs of the Project;
WHEREAS, in connections with the offering of the Notes Holdings will
make an equity contribution into RIHC and RIHC shall deposit $10.0 million of
such proceeds (the "Additional Equity Contribution") into the Liquidity
Disbursement Account;
WHEREAS, the parties have entered into this Agreement in order to set
forth the conditions upon which, and the manner in which, funds will be
disbursed from the Construction Disbursement Account to RIHC in order to permit
RIHC to pay Project Costs for the construction and opening of the Project. Funds
disbursed to RIHC hereunder will be deposited by the Disbursement Agent into the
Segregated Account. Funds held in the Construction Disbursement Account or the
Segregated Account will be owned beneficially by RIHC, subject to the terms and
conditions of this Agreement and subject also to the security interest granted
in favor of the Trustee under the Security Agreement;
WHEREAS, the parties have also entered into this Agreement in order to
set forth the conditions upon which, and the manner in which, funds will be
disbursed from the Liquidity Disbursement Account to RIHC to be used by RIHC in
the ordinary course of business of RIHC and its Subsidiaries;
WHEREAS, this Agreement is made for the benefit of, and intended to be
enforceable by the Trustee, for the benefit of the Holders of the Notes, as lien
holder under the Project Mortgages.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
AGREEMENT:
SECTION 1
DEFINED TERMS
Terms not otherwise defined in this Agreement shall have the meanings
provided in the Indenture. In addition, the following terms shall have the
meanings set forth below.
"Accounts" means the Segregated Account, the Construction Disbursement
Account and the Liquidity Disbursement Account.
"Additional Contribution" means such additional deposits as are made
(i) at the discretion of RIHC, (ii) pursuant to Sections 3.1, 3.2 or 7 hereof,
or (iii) to avoid an Event of Default under the Indenture, in all cases in cash
deposited by RIHC into the Construction Disbursement Account.
"Additional Equity Contribution" has the meaning specified in the
recitals of this Agreement.
"Architect" means ▇▇▇▇▇▇▇, Walls & Associates Ltd. and its successors
and assigns as the Architect hereunder selected by RIHC and identified by RIHC
by written notice to the Disbursement Agent and Trustee.
"Architect's Certificate" means a certificate of the appropriate
Architect substantially in the form of Exhibit A hereto at any date of
determination.
"Available Funds" means the sum of (a) the unspent funds contained in
the Segregated Account, (b) the unspent funds contained in the Construction
Disbursement Account (including any Additional Contribution), (c) the amount of
the remaining commitments of CRDA Funds, and (d) Estimated Future Interest, to
the extent not yet received on deposits in the Construction Disbursement Account
and the Segregated Account.
"Construction Disbursement Account" means a special account maintained
with the Trustee, Account No. 33614, in the name of RIHC but under the sole
dominion and control of the Trustee hereunder and subject to the terms of the
Security Agreement and this Agreement.
"Construction Disbursement Budget" means an itemized schedule in the
form of Exhibit B hereto setting forth on a line item basis all Project Costs
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which RIHC estimates will be incurred by it in connection with the Project
through the Operating Date, as such Construction Disbursement Budget may be
amended from time to time pursuant to Section 3.1 hereof.
"Construction Disbursement Request" has the meaning specified in
Section 2.2.
"Construction Manager" means Perini Building Company, Inc. and its
successors and assigns as the Construction Manager hereunder selected by RIHC
and identified by RIHC by written notice to the Disbursement Agent and Trustee.
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"Construction Manager's Certificate" means a certificate of the
appropriate Construction Manager substantially in the form of Exhibit D hereto.
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"Construction Schedule" means a schedule in the form of Exhibit C
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hereto describing the sequencing of the components of work to be undertaken in
connection with the Project, as may be amended from time to time.
"Contracts" means the contracts pertaining to the construction of the
Project, including without limitation any contracts, subcontracts, licenses and
performance and payment bonds or guarantees.
"CRDA" means the public body in the State of New Jersey established
pursuant to P.L. 1984, c218, as amended and supplemented, or the CRDA Act.
"CDRA Funds" means the funds appropriated to RIHC in connection with
the Project pursuant to the Credit Agreement entered into by RIH and the CRDA on
February 26, 2002.
"Disbursement" means (x) a disbursement from the Construction
Disbursement Account to the Segregated Account, including both Payment
Disbursements and Reimbursement Disbursements and (y) a disbursement from the
Liquidity Disbursement Account to an account designated by RIHC.
"Estimated Future Interest" means, from time to time, investment
income, less any losses or costs associated therewith, which RIHC reasonably
determines will be earned on funds in the Construction Disbursement Account and
the Segregated Account through the Operating Date.
"GMP" has the meaning specified in Section 3.3.
"Hard Costs" means the costs and expenses in supplying goods, materials
and labor for the construction of the Project.
"Liquidity Disbursement Account" means a special account maintained
with the Trustee, Account No. 33613, in the name of RIHC but under the sole
dominion and control of the Trustee hereunder and subject to the terms of the
Security Agreement and this Agreement.
"Liquidity Disbursement Request" means a certificate of RIHC in
substantially the form of Exhibit F hereto.
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"Major Contract" means any Contract or series of related Contracts
entered into by RIHC for Hard Costs for $500,000 or more.
"Mortgages" means certain fee mortgages and fee and leasehold mortgages
listed on Schedule 1.
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"Operating" means the time at which RIHC delivers to the Trustee and
the Disbursement Agent, a certificate stating that (i) the Project is
substantially complete in all material respects, (ii) the RIH Hotel together
with the Project is in a condition, including fixtures, furniture and equipment,
to
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receive customers in the ordinary course of business, and (iii) the Minimum
Facilities are open to the general public in accordance with applicable law.
"Operating Date" means that date by which the RIH Hotel is Operating.
"Payment Disbursement" means a disbursement from the Construction
Disbursement Account to the Segregated Account for the payment of amounts due
but not yet paid in accordance with the Construction Disbursement Budget.
"Plans" means all drawings, plans and specifications, prepared by or on
behalf of RIHC and attached hereto as Annex A, as the same may be amended or
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supplemented from time to time as specified herein and in accordance with the
terms of the GMP, and, if required, submitted to and approved by the appropriate
regulatory authorities, which describe and show the Project and the Labor and
materials necessary for the construction thereof.
"Project" means those improvements to be constructed on or adjacent to
real property in Atlantic City, New Jersey known as the Resorts Atlantic City in
accordance with the Plans.
"Project Costs" means Hard Costs and Soft Costs.
"Project Liens" means, at any time, any and all present and future
liens upon the Project (other than inchoate liens) voluntarily granted or
available as a matter of law to any Person supplying services, goods, material,
labor or other items of value to the Project, whether provided or contracted for
at or prior to such time or at some future time and whether such lien was
granted, claimed, filed or perfected at such time or could be granted, claimed
or filed or perfected at some future time, except only the Project Mortgages.
"Project Mortgages" means the Mortgages and the Security Agreement.
"Property" means the real property described on Exhibit A to each of
the Project Mortgages, as applicable.
"Realized Savings" means the excess of the amount budgeted in the
Construction Disbursement Budget for a line item over the amount of funds
expended or owed by RIHC to complete the tasks set forth in such line item and
for the materials and services used to complete such tasks, but (i) Realized
Savings for any line item shall be deemed to be zero if such savings are
obtained in a manner that materially detracts from the overall quality and
amenities of the Project, and (ii) Realized Savings for each line item shall in
all cases be deemed to be zero until RIHC has (x) satisfied or provided for in
all material respects the obligations arising out of the completion of that line
item or (y) obtained contracts for the completion of all tasks set forth in such
line item and for all materials and services required for such tasks for a fixed
or guaranteed maximum price.
"Reimbursement Disbursement" means a disbursement from the Construction
Disbursement Account to the Segregated Account for reimbursement of payments
previously made from the Segregated Account in accordance with the Construction
Disbursement Budget.
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"Remaining Costs" means the amount necessary to pay, through completion
of the Project, all theretofore unpaid Project Costs to be incurred in
connection with the Project, in accordance with the Plans.
"Retainage" means with respect to the any Contract an amount to be
withheld until the contractor thereunder has completed the performance of
certain obligations and such performance has been accepted by RIHC.
"Security Agreement" means that certain Security Agreement dated as of
the date hereof, from RIHC as debtor in favor of Trustee as secured party.
"Segregated Account" means a special account maintained with the
Trustee, Account No. 33612, in the name of RIHC but under the sole dominion and
control of the Trustee hereunder and subject to the terms of the Security
Agreement and this Agreement.
"Soft Costs" means all costs other than Hard Costs that are related to
the Project, including, without limitation, finance and pre-opening costs.
"Title Insurer" means First American Title Insurance Company.
"Title Policy" means the lender's policy of title insurance to be
provided by the Title Insurer to the Trustee, together with all endorsements
thereto.
SECTION 2
Duties of Disbursement Agent
The parties hereto agree, for the benefit of the Holders and the
Trustee that:
SECTION 2.1. Maintenance of Construction Disbursement Account. Upon
receipt of the proceeds of the sale of the Notes to the Holders (net of
financing and other transaction costs), RIHC shall deposit at least $89.0
million of such proceeds into the Construction Disbursement Account. Any funds
received by RIHC under any Contract, including without limitation penalties and
damages, shall be deposited into the Construction Disbursement Account. Such
funds deposited to (x) the Construction Disbursement Account and the Segregated
Account will be held by the Trustee subject to the terms of this Agreement and
the Security Agreement and will not be commingled with any other funds or
deposits. All funds contained in the Construction Disbursement Account and the
Segregated Account shall be invested in such investments permitted under
Security Agreement and the Indenture as are specified, from time to time, by
RIHC in writing to the Trustee. Any interest income on the funds deposited in
the Construction Disbursement Account or the Segregated Account shall be
disbursed by the Trustee at the direction of the Disbursement Agent into any
account specified by RIHC for use in any manner not prohibited by the Indenture.
The Disbursement Agent will be the only authorized person with respect to the
giving of disbursement instructions to the Trustee.
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SECTION 2.2. Review of Construction Disbursement Requests. RIHC may, no
more than once every two weeks, submit to the Disbursement Agent, a written
request for the disbursement of funds from the Construction Disbursement Account
in the form of Exhibit E attached hereto (together with the appropriate
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Architect's Certificates and the appropriate Construction Manager's
Certificates, the "Construction Disbursement Request"). The Disbursement Agent
shall not give disbursement instructions to the Trustee in connection with such
Construction Disbursement Request unless the applicable conditions set forth in
Section 4 hereof are satisfied. If such conditions are satisfied, the
Disbursement Agent, within three (3) Business Days following receipt of a
Construction Disbursement Request, shall direct the Trustee to disburse to the
Segregated Account the funds requested in such Construction Disbursement
Request. The Disbursement Agent shall notify RIHC and the Trustee promptly if
(i) any conditions set forth in Section 4 remain unsatisfied with respect to any
particular Construction Disbursement Request or (ii) the Disbursement Agent has
actual knowledge of a Project Lien.
SECTION 2.3. Maintenance of Liquidity Disbursement Account. Upon
receipt of the proceeds of an equity contribution from Holdings, RIHC shall
deposit the Additional Equity Contribution into the Liquidity Disbursement
Account. All funds contained in the Liquidity Disbursement Account shall be
invested in such investments permitted under the Security Agreement and the
Indenture as are specified, from time to time, by RIHC in writing to the
Trustee. The Disbursement Agent will be the only authorized person with respect
to the giving of disbursement instructions to the Trustee.
SECTION 2.4. Disbursements from Liquidity Disbursement Requests. Within
five business days of the required date of delivery of financial statements
pursuant to Section 4.03(a)(i) of the Indenture any four fiscal quarter period
(a "Test Period") ending on or prior to December 31, 2004, RIHC shall deliver to
the Disbursement Agent a Liquidity Disbursement Request stating whether or not
the Adjusted Consolidated EBITDA of RIHC for the Test Period is less than $28.0
million. So long as no Default or Event of Default exists and if the Adjusted
Consolidated EBITDA of RIHC for such Test Period is less than $28.0 million, the
Disbursement Agent, within three Business Days following receipt of a Liquidity
Disbursement Request, shall direct the Trustee to disburse to an account
designated by RIHC the funds from the Liquidity Disbursement Account (such
amount, the "Released Amount") equal to the difference between $28.0 million and
the Adjusted Consolidated EBITDA for such Test Period. The Additional Equity
Contribution shall be retained in the Liquidity Disbursement Account until such
time as it is permitted to be released pursuant to the terms of this Section 2.4
or Section 2.5 hereof. Any Released Amount shall be used by RIHC in the ordinary
course of business of RIHC and its Subsidiaries.
SECTION 2.5. Final Disbursement from the Liquidity Disbursement
Account. Provided no Default or Event of Default has occurred and is continuing,
if any funds remain in the Liquidity Disbursement Account following the final
Test Period and after making any disbursement required by Section 2.4 hereof,
the Disbursement Agent shall direct the Trustee to disburse all remaining funds
(the "Remaining Funds") in the Liquidity Disbursement Account into an account
specified by RIHC for use in any manner not prohibited by the Indenture.
SECTION 2.6. Disbursement of Funds To Trustee. Upon receipt of a
certificate executed by the Trustee, which certifies that an Event of Default
has occurred and is continuing under the
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Indenture, and that pursuant to the Indenture, the Trustee is entitled to
possession of any funds in any of the Accounts, then the Disbursement Agent,
without the approval of any other party, shall direct the Trustee to disburse
such funds in any manner specified by the Trustee.
SECTION 3
Construction Disbursement Budget, Plans, Contracts, Segregated Account
SECTION 3.1. Allocation of Contingency; Amendments to Construction
Disbursement Budget. All Realized Savings shall be reallocated to the
"Contingency" line item of the Construction Disbursement Budget. In addition,
RIHC may allocate the "Contingency" line item and amend the Construction
Disbursement Budget from time to time to reflect any changes in the amounts
allocated for specific line item components of the work required to complete the
Project. Any such amendment shall be in writing and shall identify with
particularity the line item to be changed, the amount of the change, and, if any
line item is increased, the amount from the "Contingency" line item in the
Construction Disbursement Budget to be reallocated or the Additional
Contributions which will be utilized to pay for the increase. In connection with
any amendment providing for an increase in the Construction Disbursement Budget
in excess of $50,000 RIHC shall certify (in an Officer's Certificate, as defined
in the Indenture) that the following conditions have been satisfied:
(a) all line item increases, if any, are reasonably necessary
in order to complete the work represented by such line item;
(b) the costs represented by any such line item increases do
not exceed the "Contingency" line item and Additional Contributions, in
each case to the extent not previously expended or dedicated to the
payment of items contained in the Construction Disbursement Budget
(other than in the "Contingency" line item), and
(c) immediately following such increases (i) the Construction
Disbursement Budget provides for construction of improvements which are
substantially consistent with the Project and the Plans, (ii) as of
such date the Construction Disbursement Budget reasonably establishes
the line item components of the work required to be undertaken in order
to complete construction of the Project, and reasonably establishes the
cost of completing each line item component of such work, and (iii) the
Remaining Costs will not exceed the Available Funds and the amount of
unspent funds available from the FF&E Financing.
SECTION 3.2. Amendments to Plans. RIHC may amend the Plans from time to
time to amend the scope of the Project, subject to the provisions of this
Section 3.2. Any such amendment shall be in writing and shall identify with
particularity the changes to the Plans, and the corresponding changes to the
Construction Disbursement Budget and each line item to be changed, the amount of
the change, and the amount from the "Contingency" line item in the Construction
Disbursement Budget to be reallocated or Additional Contributions which will be
utilized to pay for the increase. Any such amendment shall become effective if,
and only if, RIHC certifies (in an Officer's Certificate, as defined in the
Indenture) that the following conditions have been satisfied:
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(a) all such changes to the Plans are in the best interest of
RIHC and the Project, and in no material way detracts from or decreases
the original scope or quality of the Project;
(b) all line item increases, if any, are reasonably necessary
in order to complete the work represented by such line item;
(c) the costs represented by such line item increases do not
exceed the "Contingency" line item and Additional Contributions, in
each case to the extent not previously expended or dedicated to the
payment of items contained in the Construction Disbursement Budget
(other than the "Contingency" line item); and
(d) immediately following such increases (i) the Construction
Disbursement Budget provides for construction of improvements which are
substantially consistent with the Project and the Plans as amended,
(ii) the Construction Disbursement Budget reasonably establishes the
line item components of the work required to be undertaken in order to
complete construction of the Project, and reasonably establishes the
cost of completing each line item component of such work, and (iii) the
Remaining Costs will not exceed the Available Funds and the amount of
unspent funds available from the FF&E Financing.
SECTION 3.3. Major Contracts and Permits. RIHC shall not enter into,
nor permit any of its Affiliates to enter into, any Major Contract (other than
the principal contract with the Construction Manager for the construction of the
Expansion Project (the "GMP") unless a Retainage of at least 5% is provided for
until substantial completion of the applicable work (as determined by the
Architect) if the Major Contract is of a type typically subject to Retainage. No
material amendments shall be made to the Retainage provisions of the GMP as in
effect on the Issue Date. RIHC shall gather and deliver (without duplication of
previous such deliveries) to the Trustee every 30 days copies of (i) all Major
Contracts, together with all amendments and modifications thereof and (ii) all
work permits, building permits and other permits required to construct and open
the Project.
SECTION 3.4. Segregated Account. (a) All funds disbursed from the
Construction Disbursement Account will be deposited in the Segregated Account
and RIHC will use such funds solely to pay the Project Costs specified in the
pertinent Construction Disbursement Request. Such funds will not be commingled
with any other funds or deposits. Provided that no Event of Default has occurred
and is continuing, any funds remaining in the Segregated Account upon the
Operating Date shall first be used to pay Remaining Costs, and then shall be
released to RIHC for use in any manner not prohibited by the Indenture as
specified in an Officers' Certificate.
(b) Concurrently with the funding of the initial disbursement pursuant
to Section 4.2 hereof, and provided that all conditions to the initial
disbursement have been fulfilled, RIHC shall authorize in writing disbursement
of the sum of Fifty Thousand Dollars ($50,000) from the Construction
Disbursement Account to the Segregated Account to be used as contemplated
herein.
SECTION 4
Conditions Precedent to Construction Disbursement Account Disbursement
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SECTION 4.1. General Conditions. The Disbursement Agent's obligation to
direct the Trustee to disburse funds requested in any Construction Disbursement
Request is subject to the satisfaction of the following conditions:
(a) RIHC must have submitted a Construction Disbursement
Request to the Disbursement Agent, accompanied by the appropriate
Architect's Certificate(s) and the appropriate Construction Manager's
Certificate(s), except that such Architect's Certificate shall not be
required for amounts advanced pursuant to the GMP, but not paid with
regard to construction in place.
(b) The Disbursement Agent must have received copies of unpaid
invoices, bills, receipts, other evidence of amounts due or paid in
connection with the Construction Disbursement Request as the
Disbursement Agent may reasonably request and such other information as
the Disbursement Agent may reasonably request.
(c) The Disbursement Agent must not have received any notice
from the Trustee that any Default or Event of Default has occurred and
is continuing under the Indenture.
(d) RIHC shall have cured any material inaccuracy in the
Construction Disbursement Request brought to the attention of the
Disbursement Agent.
(e) On the date of such requested Disbursement, RIHC shall
have paid all amounts then owed under Section 5 of this Agreement.
(f) RIHC shall have delivered a certificate substantially in
the form of Exhibit G hereto dated the later of March 22, 2002 and the
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date of the latest amendment to the Construction Disbursement Budget.
(g) With respect to each Construction Disbursement Request
immediately following completion of foundation for the Project, the
Title Insurer shall have issued a foundation endorsement insuring that
such foundation is constructed wholly within the boundaries of the
Property, and does not encroach on any easement or violate any
covenants, conditions or restrictions of record, and shall have
delivered such endorsement to the Trustee.
SECTION 4.2. Initial Disbursement. In addition to the requirements of
Section 4.1 hereof, as a condition to the initial disbursement, the Disbursement
Agent shall have received a certificate from RIHC representing performance
bonds, naming Trustee for the benefit of the holders of the Notes as an
additional beneficiary, have been issued with respect to the contract of the
Construction Manager.
SECTION 4.3. Final Disbursement Following Operating Date. Provided no
Event of Default has occurred and is continuing, if any funds remain in the
Construction Disbursement Account on the Operating Date, the Disbursement Agent
shall disburse all remaining funds in the Construction Disbursement Account into
any account specified by RIHC in writing first to pay any Remaining Costs, and
then for use in any manner not prohibited by the Indenture.
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SECTION 4.4. Representations and Warranties. RIHC hereby represents and
warrants as follows, as of the date hereof:
(a) The Construction Disbursement Budget accurately and
completely sets forth (i) the anticipated Project Costs through the
Operating Date, and (ii) the various components of the Project
identified thereon as line items and the respective anticipated line
item amounts.
(b) Giving effect to the funding of the offering of the Notes,
there are sufficient Available Funds together with the amount of
unspent funds available from the FF&E Financing (other than any
Additional Contributions) to pay for the anticipated Remaining Costs.
SECTION 5
Concerning the Disbursement Agent
SECTION 5.1. Compensation. The Disbursement Agent shall receive from
RIHC a fee of $10,000 per annum appropriately apportioned for a partial year for
all services rendered hereunder and under the Indenture and the Collateral
Documents and continuing until the Disbursement Agent's performance hereunder is
terminated, in consideration for its services hereunder during the term of this
Agreement, payable annually. RIHC shall also pay the Disbursement Agent's
expenses and the fees and expenses of its attorneys as set forth in the
Indenture.
SECTION 5.2. Limitation of Liability, Etc. (a) The Disbursement Agent
(i) shall not be liable for, and does not represent, warrant or guarantee the
performance of any obligation of RIHC, any Architect, any Construction Manager,
any subcontractor or provider of materials or services in connection with
construction of the Project or any other Person, (ii) shall have no
responsibility to RIHC, any Holders, the Trustee or any other Person for any
action taken or omitted by, or relating to the performance hereunder of, the
Disbursement Agent except negligence or willful misconduct of the Disbursement
Agent, (iii) except as expressly set forth herein, is not obligated to
supervise, inspect or inform RIHC or any third party of any aspect of the
construction of the Project or any other matter referred to above, and (iv) owes
no duty of care to RIHC to protect against, or to inform RIHC of, any negligent,
faulty, inadequate or defective design or construction of the Project. RIHC
shall remain solely responsible for all aspects of its business and conduct in
connection with the Project, including but not limited to the quality and
suitability of the Plans, the supervision of the work of construction, the
qualifications, financial condition and performance of all architects,
engineers, contractors, subcontractors, suppliers, consultants and property
managers, the accuracy of all applications for payment, and the proper
application of all disbursements. The Trustee shall not be liable for any action
taken or omitted by, or relating to the performance hereunder of, the
Disbursement Agent.
(b) The Disbursement Agent shall have no duties or
responsibilities whatsoever with respect to the Accounts except as are
specifically set forth herein. The Disbursement Agent in such capacity
shall neither be responsible for or under, nor chargeable with
knowledge of the terms and conditions of, any other agreement,
instrument or document in connec-
-10-
tion herewith. The Disbursement Agent may conclusively rely upon, and
shall be fully protected from all liability, loss, cost, damage or
expense in acting or omitting to act pursuant to, any written notice,
instrument, request, consent, certificate, document, letter, telegram,
electronic mail, opinion, order, resolution or other writing hereunder
without being requested to determine the authenticity thereof, the
correctness of any fact stated therein, the propriety of the service
thereof or the capacity, identity or authority of any party purporting
to sign or deliver the same. The Disbursement Agent shall have no
responsibility for the contents of any such writing contemplated herein
and may conclusively rely without any liability upon the contents
thereof.
(c) The Disbursement Agent may consult with and retain legal
counsel, independent public accountants and other exports or
professionals selected by it and shall not be liable for any action
taken or omitted to be taken by it in good faith in accordance with the
advice of such counsel, accountants or experts.
(d) The Disbursement Agent shall not be liable for loss or
diminution in value of amounts in the Accounts arising out of any
investment, sale or liquidation made by the Disbursement Agent in
accordance with the terms of this Agreement, the Indenture or the other
Collateral Documents. The Disbursement Agent shall not be liable for
any loss due to changes in market rates or conditions or penalties for
early redemption or sale of any amounts in the Accounts or the failure
to provide written instructions to the Disbursement Agent in a timely
manner.
SECTION 5.3. Indemnity. RIHC SHALL INDEMNIFY, HOLD HARMLESS AND DEFEND
THE DISBURSEMENT AGENT, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND
AFFILIATES AGAINST ANY AND ALL LOSSES, LIABILITIES OR EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES) INCURRED BY IT ARISING OUT OF OR IN CONNECTION WITH
THE ACCEPTANCE OR ADMINISTRATION OF ITS DUTIES UNDER THIS AGREEMENT, INCLUDING
THE COSTS AND EXPENSES OF ENFORCING THIS AGREEMENT AGAINST RIHC AND DEFENDING
ITSELF AGAINST ANY CLAIM (WHETHER ASSERTED BY RIHC OR ANY HOLDER OR ANY OTHER
PERSON) OR LIABILITY IN CONNECTION WITH THE EXERCISE OR PERFORMANCE OF ANY OF
ITS POWERS OR DUTIES HEREUNDER, EXCEPT TO THE EXTENT ANY SUCH LOSS, LIABILITY OR
EXPENSE MAY BE ATTRIBUTABLE TO ITS NEGLIGENCE OR BAD FAITH. THE DISBURSEMENT
AGENT SHALL NOTIFY RIHC PROMPTLY OF ANY CLAIM FOR WHICH IT MAY SEEK INDEMNITY.
FAILURE BY THE TRUSTEE TO SO NOTIFY RIHC SHALL NOT RELIEVE RIHC OF ITS
OBLIGATIONS HEREUNDER. RIHC SHALL DEFEND THE CLAIM AND THE TRUSTEE SHALL
COOPERATE IN THE DEFENSE. THE TRUSTEE MAY HAVE SEPARATE COUNSEL AND RIHC SHALL
PAY THE REASONABLE FEES AND EXPENSES OF SUCH COUNSEL. RIHC NEED NOT PAY FOR ANY
SETTLEMENT MADE WITHOUT ITS PRIOR WRITTEN CONSENT, WHICH CONSENT SHALL NOT BE
UNREASONABLY WITHHELD.
SECTION 5.4. Termination. The Disbursement Agent's performance under
this Agreement shall terminate automatically upon disbursement of all funds
remaining in the Construction Disbursement Account and the Liquidity
Disbursement Account, unless sooner terminated pursuant to
-11-
Section 5.5 hereof. The obligations of RIHC under Section 5.3 hereof shall
survive termination of this Agreement.
SECTION 5.5. Substitution of Disbursement Agent. Upon an Event of
Default under the Indenture, the Trustee shall have the right to terminate the
performance of the Disbursement Agent at any time, so long as it promptly
selects a substitute disbursement agent to serve hereunder. Any substitute
disbursement agent hereunder shall be subject to approval by the New Jersey
Casino Control Commission. Upon selection of such substitute disbursement agent,
the Trustee, RIHC and the substitute disbursement agent shall enter into an
agreement substantially identical to this Agreement and, thereafter, the
Disbursement Agent shall be relieved of its duties and obligations to perform
hereunder, except that the Disbursement Agent shall transfer to the substitute
disbursement agent upon request therefor copies of all books, records, plans and
other documents in the Disbursement Agent's possession relating to the Notes,
the Project or this Agreement and all funds remaining on deposit in the
Construction Disbursement Account. The Disbursement Agent may resign in the same
manner as the Trustee may resign under the Indenture.
SECTION 5.6. Survival. The provisions of this Section 5 shall survive
the resignation or removal of the Disbursement Agent or the termination or
expiration of this Agreement.
SECTION 6
Security Interest the Accounts
RIHC hereby confirms that the security interest granted by the Security
Agreement extends and attaches to the Accounts and all moneys now or hereafter
placed or deposited therein. The parties also acknowledge that all moneys in the
Accounts are Trust Moneys and subject to the Indenture and Security Agreement.
The Disbursement Agent shall note in its respective records that all funds and
other assets in the Accounts have been pledged to the Trustee.
SECTION 7
Additional Contribution
If at any time Available Funds together with the amount of unspent
funds available from the FF&E Financing are less than the amount required to pay
Remaining Costs, either (x) an Additional Contribution in the amount of such
shortfall shall be made within sixty (60) days, or (y) within sixty (60) days
RIHC shall deliver a certificate to the Trustee stating that Available Funds
together with the amount of unspent funds available from the FF&E Financing are
sufficient to pay Remaining Costs.
SECTION 8
Miscellaneous
SECTION 8.1. Waiver. Any party hereto may specifically waive any breach
of this Agreement by any other party, but no such waiver shall be deemed to have
been given unless such waiver is in writing, signed by the waiving party and
specifically designates the breach waived, nor shall any such waiver constitute
a continuing waiver of similar or other breaches.
SECTION 8.2. Invalidity. If, for any reason whatsoever, any one or more
of the provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other provisions
of this Agreement inoperative, unenforceable or invalid, and the inoperative,
unenforceable or invalid provision shall be construed as if it were written so
as to effectuate, to the maximum extent possible, the parties' intent.
SECTION 8.3. No Authority. The Disbursement Agent is acting solely for
its own account, is not acting as agent or fiduciary for, and shall have no
authority to act or speak for, any Holder, the Trustee, RIHC or any other party,
except that the Disbursement Agent shall be deemed to be acting as agent for the
Trustee and on behalf of the Holders pursuant to this Agreement solely for
purposes of and only to the extent necessary for maintaining the perfection and
priority of the security interest of the Trustee in the Segregated Account.
SECTION 8.4. Assignment. The rights and duties of any party hereunder
shall not be assignable except with the prior written consent of the other
parties.
SECTION 8.5. Benefit. The parties hereto shall be bound hereby and
entitled to the benefits hereof.
SECTION 8.6. Choice of Law. The existence, validity, construction,
operation and effect of any and all terms and provisions of this Agreement shall
be determined in accordance with and governed by the laws of the State of New
York.
SECTION 8.7. Entire Agreement; Amendments. This Agreement contains the
entire agreement among the parties with respect to the subject matter hereof and
supersedes any and all prior agreements, understandings and commitments, whether
oral or written. This Agreement may be amended only by a writing signed by duly
authorized representatives of all parties.
SECTION 8.8. Notices. All notices and other communications required or
permitted to be given or made under this Agreement shall be in writing and shall
be deemed to have been duly given and received, regardless of when and whether
received, either (i) on the day of hand delivery or (ii) on the day sent, when
sent by United States certified mail, postage and certification fee prepaid,
return receipt requested, addressed as follows:
To RIHC: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇'▇▇▇▇▇
To the Trustee
and
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Disbursement
Agent: Bankers Trust Company
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency Services
or at such other address as the specified entity most recently may have
designated in writing in accordance with this paragraph to the others.
SECTION 8.9. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
SECTION 8.10. Captions. Captions in this Agreement are for convenience
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
SECTION 8.11. Gaming Authorities. Nothing in this Agreement shall
require the Disbursement Agent to take any action contrary to the New Jersey
Casino Control Act or any other Gaming Law or the rules, regulations or
determinations promulgated by any Gaming Authority.
-14-
IN WITNESS WHEREOF, the parties have executed and delivered this
Disbursement Agreement as of the day first above written.
RESORTS INTERNATIONAL HOTEL AND
CASINO, INC.,
a Delaware Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇'▇▇▇▇▇
Title: Vice President
BANKERS TRUST COMPANY,
as Trustee and Disbursement Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
-15-
EXHIBIT A
---------
FORM OF CERTIFICATE OF ARCHITECT
[Date]
Bankers Trust Company
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Re: Construction Disbursement Request (herein so called) dated ________
Resorts International Hotel and Casino, Inc. ("RIHC")
Ladies and Gentlemen:
▇▇▇▇▇▇▇, Walls & Associates Ltd. ("Architect") hereby represents as
follows:
1. With respect to the above referenced Construction Disbursement
Request and reference is made to the Disbursement Agreement dated March 22,
2002, to which RIHC is a party, to the extent necessary to understand the
defined terms contained herein and in the Construction Disbursement Request that
are incorporated by reference from the Disbursement Agreement and to provide the
certification contained herein.
2. With respect to those provisions of the Plans prepared by Architect,
and based solely on Architect's knowledge, information and belief, Architect
hereby represents that the quality of construction performed as of the date
hereof is generally in accordance with the Plans, and the Disbursement (herein
so called) requested by the Construction Disbursement Request is appropriate in
light of the percentage of construction completed and the amount of stored
materials.
The foregoing representations are true and correct and Disbursement
Agent is entitled to rely on the foregoing in instructing the Trustee to make
the Disbursement.
A-1
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Disbursement Agreement.
▇▇▇▇▇▇▇, WALLS & ASSOCIATES LTD.,
as Architect
By:
------------------------------
Name:
Title:
A-2
EXHIBIT B
---------
CONSTRUCTION DISBURSEMENT BUDGET
Line Item Budget
--------- ------
Hard Costs $85,000,000
Contingency $8,500,000
Soft Costs $7,200,000
FF&E $14,800,000
-------------------
Total Construction Disbursement Budget $115,500,000
B-1
EXHIBIT C
---------
CONSTRUCTION SCHEDULE
Phase Description Date
----------------- ----
Mobilization & begin construction 15-Jul-02
Utility relocation complete 23-Aug-02
Demolition complete 18-Oct-02
Foundation complete 29-Jan-03
Superstructure top out 09-Sep-03
FF&E installation begins 01-Jan-04
Project Completion 15-Apr-04
C-1
EXHIBIT D
---------
FORM OF CONSTRUCTION MANAGER'S CERTIFICATE
[Date]
Bankers Trust Company
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency Services
Re: Construction Disbursement Request (herein so called) dated _________
Resorts International Hotel and Casino, Inc. ("RIHC")
Ladies and Gentlemen:
Perini Building Company, Inc. ("Construction Manager") hereby certifies
as follows:
1. Construction Manager has reviewed the above referenced Construction
Disbursement Request and the Disbursement Agreement dated March 22, 2002, to
which RIHC is a party to the extent necessary to understand the defined terms
contained herein and in the Construction Disbursement Request that are
incorporated by reference from the Disbursement Agreement and to provide the
certification contained herein.
2. Construction Manager hereby certifies that with respect to all work
to be performed by Construction Manager or for which Construction Manager is
responsible pursuant to its contract with RIHC: (i) the construction performed
as of the date hereof is substantially in accordance with the Plans, (ii) the
Disbursement (herein so called) requested by the Construction Disbursement
Request is appropriate in light of the percentage of construction completed and
the amount of stored materials or otherwise in compliance with the GMP and (iii)
the Construction Disbursement Budget in effect on the date hereof and attached
hereto or previously furnished to you sets forth the anticipated costs of
competing all such work.
3. Construction Manager hereby certifies that lien releases have been
received for all work, materials and/or services performed and paid for in
connection with the work to be performed by Construction Manager or for which
Construction Manager is responsible pursuant the GMP.
The foregoing representations, warranties and certifications are true
and correct and Disbursement Agent is entitled to rely on the foregoing in
instructing the Trustee to make the Disbursement.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Disbursement Agreement.
D-1
PERINI BUILDING COMPANY, INC.,
as Construction Manager
By:
-------------------------------
Name:
Title:
D-2
EXHIBIT E
---------
FORM OF CONSTRUCTION DISBURSEMENT REQUEST
[Date]
Bankers Trust Company
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency Services
Re: Construction Disbursement Request of $
Ladies and Gentlemen:
Resorts International Hotel and Casino, a Delaware corporation ("RIHC")
requests that a disbursement of $___________ (the "Disbursement") be made on
_____________, ____ to Account No. [ ] at [ ] (the "Segregated Account"), for
use by RIHC. Capitalized Terms used herein shall have the meanings afforded them
under that certain Disbursement Agreement dated as of March 22, 2002, to which
you are a party. In connection with the requested Disbursement, the undersigned
hereby represents, warrants and certifies as follows:
1. The Disbursement consists of $___________ as a Payment Disbursement,
and $___________ as a Reimbursement Disbursement, each for payment of the
Project Costs set forth on the attached schedule.
2. The Reimbursement Disbursement is required to replenish the
Segregated Account for expenditures previously made in accordance with the
Construction Disbursement Budget and the Plans. Following disbursement of the
funding requested pursuant to this Construction Disbursement Request, the
balance of the Segregated Account will not exceed $50,000 plus the amount of any
Payment Disbursement hereunder. RIHC will utilize the excess of (x) the balance
of the Segregated Account over (y) any unused Payment Disbursements in the
Segregated Account only for working capital purposes pursuant to the
Construction Disbursement Budget.
3. The construction performed as of the date hereof is substantially in
accordance with the Plans and the Disbursement is appropriate in light of the
Construction Disbursement Budget and the percentage of construction completed
and the amount of stored materials.
4. RIHC does not have any knowledge of nor has RIHC received any notice
of any Project Lien filed against the Project, or if RIHC has knowledge or has
received notice of such a filed Project Lien, such Project Lien has been
discharged, insured or otherwise bonded.
E-1
5. The Construction Disbursement Budget in effect on the date hereof
and attached hereto sets forth the anticipated costs of completing the Project,
and there are sufficient Available Funds together with the amount of unspent
funds available from the FF&E Financing to complete the construction of each
component of the Project within the Construction Disbursement Budget therefor.
6. No Event of Default exists under the Indenture and RIHC is in
compliance in all material respects with each representation, warranty and
covenant contained therein.
7. All Additional Contributions required to have been made under the
Disbursement Agreement on or before the date of this Construction Disbursement
Request have been made.
8. All permits and approvals necessary at the phase of construction as
of the date of this Construction Disbursement Request have been obtained and are
in full force and effect.
9. Neither the building being constructed by the Construction Manager,
nor any part thereof nor any equipment or any other property to be installed
thereon or attached thereto has suffered any material damage by fire or any
other casualty or otherwise (in each case other than any damage for which an
insurance claim has been submitted or has been theretofore repaired or
restored).
10. [Attached hereto is the Architect's Certificate referred to in
clause 4.1(a).] [The amounts requested pursuant to this Disbursement Request are
for amounts advanced pursuant to the GMP, but not paid with regard to
construction in place.]
The foregoing representations, warranties and certifications are true
and correct and Disbursement Agent is entitled to rely on the foregoing in
authorizing and making the Disbursement.
E-2
Attached to this Construction Disbursement Request and Certificate are
the appropriate Architect's Certificate(s) and the Construction Manager's
Certificate(s), which form an integral part of this Construction Disbursement
Request and Certificate.
RESORTS INTERNATIONAL HOTEL AND
CASINO, INC.,
a Delaware Corporation
By:
---------------------------------
Name:
Title:
E-3
EXHIBIT F
---------
FORM OF LIQUIDITY DISBURSEMENT REQUEST
Bankers Trust Company
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency Services
Re: Liquidity Disbursement Request of $
Ladies and Gentlemen:
Resorts International Hotel and Casino, a Delaware corporation ("RIHC")
hereby certifies that the Adjusted Consolidated EBITDA of RIHC for the Test
Period last ended was $[ ] million and the Released Amount for such Test Period
is $[0/ [other amount]] and that no Default or Event of Default exists.
Pursuant to Section 2.5 of the Disbursement Agreement, you are hereby
directed to direct the Trustee to Account No. [ ] at [ ] the Released
Amount from the Liquidity Disbursement Account for use by RIHC. Capitalized
Terms used herein shall have the meanings afforded them under that certain
Disbursement Agreement dated as of March 22, 2002, to which you are a party.
The foregoing representations, warranties and certifications are true
and correct and the Disbursement Agent is entitled to rely on the foregoing in
directing the making the Disbursement.
RESORTS INTERNATIONAL HOTEL AND
CASINO, INC.,
a Delaware Corporation
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
F-1
EXHIBIT G
---------
FORM OF CONSTRUCTION DISBURSEMENT BUDGET CERTIFICATION
March 22, 2002
The undersigned hereby certify that the attached Construction
Disbursement Budget dated March 22, 2002 sets forth the anticipated costs of
completing the Project and the Construction Disbursement Budget is adequate to
complete the Project substantially in accordance with the Plans, without
material deviation therefrom.
RESORTS INTERNATIONAL HOTEL AND
CASINO, INC.,
a Delaware Corporation
By:
-------------------------------
Name:
Title:
G-1
ANNEX A
PROJECT DRAWINGS, PLANS AND SPECIFICATIONS
SCHEDULE 1
FEE AND LEASEHOLD MORTGAGES
1. Mortgage, Assignment of Leases, Security Agreement and Fixture Filing
by Resorts International Hotel and Casino, Inc., as mortgagor, in
favor of Bankers Trust Company, as mortgagee, dated as of March 22,
2002.
2. Fee and Leasehold Mortgage, Assignment of Leases, Security Agreement
and Fixture Filing by Resorts International Hotel, Inc., as mortgagor,
in favor of Bankers Trust Company, as mortgagee, dated as of March 22,
2002.
3. Mortgage, Assignment of Leases, Security Agreement and Fixture Filing
by New Pier Operating Company, Inc., as mortgagor, in favor of Bankers
Trust Company, as mortgagee, dated as of March 22, 2002.