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NOTE PURCHASE AGREEMENT
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$62,000,000
10 1/4% Series A Senior Secured Notes due 2003
of
TRUMP'S CASTLE FUNDING, INC.
Guaranteed by
TRUMP'S CASTLE ASSOCIATES, L.P.
and
$5,000,000
10 1/4% Series A Senior Secured Notes due 2003
of
TRUMP'S CASTLE HOTEL & CASINO, INC.
Guaranteed by
TRUMP'S CASTLE ASSOCIATES, L.P.
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April 17, 1998
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TABLE OF CONTENTS
Page
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SECTION 1. DEFINITIONS .................................................... 1
SECTION 2. PURCHASE AND SALE OF SENIOR NOTES .............................. 7
2.1. Issuance of Senior Notes and Senior Guarantee ............ 7
2.1.1. Issuance of the Funding Notes and Related
Senior Guarantee ......................................... 7
2.1.2. Issuance of the TCHI Notes and Related
Senior Guarantee ......................................... 7
2.2. Sale and Purchase of the Senior Notes; the Closing ....... 7
2.2.1. Sale and Purchase of the Funding Notes ..... 7
2.2.2. Sale and Purchase of the TCHI Notes ........ 8
2.2.3. Closing .................................... 8
2.2.4. Use of Proceeds ............................ 8
2.3. Each Fund's Representations .............................. 9
2.3.1. Authorization and Authority ................ 9
2.3.2. Investment Intent; Transfer of Senior
Notes .................................................... 9
2.3.3. ERISA ...................................... 10
2.3.4. Registered Investment Company .............. 10
2.4. Failure to Deliver ....................................... 10
2.4.1. No Closing ................................. 11
2.4.2. Failure to Notify .......................... 11
2.5. Expenses ................................................. 12
2.6. Indemnification .......................................... 12
2.6.1. Scope of Indemnification ................... 12
2.6.2. Indemnification Procedures ................. 13
2.7. Contribution ............................................. 14
2.7.1. Indemnification Provisions Unenforceable ... 14
2.7.2. No Pro Rata Allocation ..................... 15
2.7.3. Survival of Obligations .................... 15
2.8. Further Actions .......................................... 15
SECTION 3. CLOSING CONDITIONS .............................................. 15
3.1. Conditions to the Funds' Obligations ..................... 15
3.1.1. Opinion of Counsel ......................... 16
3.1.2. Officers' Certificates ..................... 16
3.1.3. Issue of Senior Notes ...................... 16
3.1.4. Representations and Warranties True; No
Event of Default ......................................... 16
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3.1.5. Compliance with Agreements ................. 17
3.1.6. Purchase Permitted by Applicable Laws;
Legal Investment ......................................... 17
3.1.7. The Indentures, the Registration Rights
Agreement and the Security Documentation ................. 17
3.1.8. Consents and Permits ....................... 18
3.1.9. Proceedings Satisfactory ................... 18
3.1.10. No Material Adverse Change ................ 18
3.1.11. No Material Judgment or Order ............. 18
3.2. Conditions to the Obligations of Funding and TCHI ......... 18
3.2.1. Sale of Senior Notes ....................... 19
3.2.2. Funds' Representations and Warranties ...... 19
3.2.3. No Material Judgment or Order .............. 19
3.2.4. The Sale by Funding and TCHI Permitted by
Applicable Laws .......................................... 19
3.2.5. Consents and Permits ....................... 19
SECTION 4. THE FUNDS' SPECIAL RIGHTS ....................................... 20
4.1. Delivery Expenses ........................................ 20
4.2. Issue Taxes .............................................. 20
4.3. Direct Payment ........................................... 20
4.4. Inspection ............................................... 21
4.5. Financial Statements ..................................... 21
4.5.1. Delivery ................................... 21
4.5.2. Disclosure; Officer's Certificate .......... 22
4.5.3. Additional Information ..................... 22
4.6. ERISA Compliance ......................................... 22
4.7. No Bond Necessary ........................................ 22
SECTION 5. REPRESENTATIONS AND WARRANTIES .................................. 23
5.1. Organization, Standing and Qualification ................. 23
5.1.1. Organization; Standing ..................... 23
5.1.2. Authority .................................. 23
5.2. Authorization of Agreement and Other Documents ........... 24
5.3. No Violation ............................................. 24
5.3.1. Existing Violations ........................ 24
5.3.2. Execution of Agreement ..................... 24
5.4. No Default ............................................... 25
5.5. Full Disclosure .......................................... 25
5.6. ERISA .................................................... 25
5.7. Compliance with Laws ..................................... 26
5.8. Consents ................................................. 26
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5.9. No Violation of Regulations of Board of Governors of
Federal Reserve System ................................... 26
5.10. Private Offering ......................................... 27
5.10.1. Sale Exempt ............................... 27
5.10.2. No General Solicitation ................... 27
5.11. Governmental Regulations ................................. 27
5.12. Survival of Indemnification and Contribution and
Representations and Warranties ........................... 28
SECTION 6. MISCELLANEOUS ................................................... 28
6.1. Notices .................................................. 28
6.2. Successors and Assigns ................................... 29
6.3. Amendment and Waiver ..................................... 29
6.4. Counterparts ............................................. 29
6.5. Headings ................................................. 29
6.6. Governing Law ............................................ 29
6.7. Entire Agreement ......................................... 30
6.8. Severability ............................................. 30
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EXHIBITS
Exhibit A Form of Funding Note Indenture
Exhibit B Form of TCHI Note Indenture
Exhibit C Form of Registration Rights Agreement
Exhibit D Form of Indenture of Mortgage and Security Agreement (Senior Note
Mortgage)
Exhibit E Form of Indenture of Mortgage and Security Agreement (Senior
Guarantee Mortgage)
Exhibit F Form of Indenture of Mortgage and Security Agreement (Senior
Partnership Upstream Note Mortgage)
Exhibit G Form of Indenture of Mortgage and Security Agreement (TCHI Note
Guarantee Mortgage)
Exhibit H Form of Intercreditor Agreement
Exhibit I Form of Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
Exhibit J Form of Opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Exhibit K Form of Opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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TRUMP'S CASTLE FUNDING, INC.
TRUMP'S CASTLE HOTEL & CASINO, INC.
TRUMP'S CASTLE ASSOCIATES, L.P.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
As of April 17, 1998
THE FUNDS AND ACCOUNTS LISTED ON SCHEDULES I, II, III, and IV HERETO
c/▇ ▇▇▇▇▇▇ Investment Management
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: 10 1/4% Series A Senior Secured Notes due 2003
Ladies and Gentlemen:
Each of Trump's Castle Funding, Inc., a New Jersey corporation
("Funding"), Trump's Castle Hotel & Casino, Inc., a New Jersey corporation
("TCHI") and Trump's Castle Associates, L.P., a New Jersey limited partnership
(the "Partnership"), hereby agrees with each of you (each of you individually
being hereinafter referred to as a "Fund", and all of you collectively as the
"Funds") as follows:
I. SECTION DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
"accumulated funding deficiency" shall have the meaning specified in
Section 4.6 hereof.
"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any Person, means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
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"Agreement" means this Note Purchase Agreement, as the same may be
amended, supplemented or modified from time to time in accordance with the terms
hereof.
"Applicable Law" means any Federal, state, local or foreign statute, law,
ordinance, governmental rule or regulation or any judgment, decree, rule or
order of any court or governmental agency or authority applicable to the
Partnership or any of its Subsidiaries or any of their respective properties,
assets or operations.
"Assignment of Leases and Rents and Assignment of Operating Assets" means
collectively (i) the Assignment of Leases and Rents and Assignment of Operating
Assets dated as of the date hereof, by the Partnership to Funding; (ii) the
Assignment of Leases and Rents and Assignment of Operating Assets dated as of
the date hereof, by the Partnership to the Funding Note Trustee; (iii) the
Assignment of Leases and Rents and Assignment of Operating Assets dated as of
the date herof, by the Partnership to TCHI; and (iv) the Assignment of Leases
and Rents and Assignment of Operating Assets dated as of the date herof, by the
Partnership to the TCHI Note Trustee.
"Business Day" means a day that is not a Saturday, a Sunday or a day on
which banking institutions in either the State of New Jersey or the State of New
York are not required to be open.
"Charter Documents" means the Articles or Certificate of Incorporation and
By-Laws, limited partnership agreement or similar organizational documents, as
amended to the Closing Date, of the applicable Person.
"Closing" shall have the meaning specified in Section 2.2.3 hereof.
"Closing Date" shall have the meaning specified in Section 2.2.3 hereof.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission.
"complete withdrawal" shall have the meaning specified in Section 4.6
hereof.
"Default" means any event, act or condition that is, or after notice or
passage of time or both would constitute, an Event of Default.
"disqualified person" shall have the meaning specified in Section 2.3.3
hereof.
"Documents" means all documents delivered in connection with the
transactions contemplated by this Agreement, including without limitation, the
Senior Notes, the Funding Note Indenture, the TCHI Note Indenture, the
Registration Rights Agreement, Senior
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Partnership Note, the Senior Partnership Upstream Note and the Security
Documentation, collectively, or each of such documents singularly, and any
documents or instruments contemplated by or executed in connection with any of
them or any of the transactions contemplated hereby or thereby.
"employee benefit plan" shall have the meaning specified in Section 2.3.3
hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA Affiliate" shall have the meaning specified in Section 4.6 hereof.
"Event of Default" means any event defined as an Event of Default in
either the Funding Note Indenture or the TCHI Note Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the Commission thereunder.
"Funds" shall have the meaning specified in the first paragraph hereof.
"Funding" means Trump's Castle Funding, Inc., a New Jersey corporation,
and any successor thereto.
"Funding Note Indenture" means the Indenture, dated as of the date hereof,
by and between Funding, as issuer, the Partnership, as guarantor, and U.S. Bank
National Association, as trustee, in substantially the form of Exhibit A hereto,
as the same may be amended from time to time in accordance with the terms
thereof.
"Funding Notes" means the $62,000,000 aggregate original principal amount
10 1/4 Series A Senior Secured Notes due 2003 of Funding, and any other debt
securities issued in exchange for such notes.
"Indemnified Parties" shall have the meaning specified in Section 2.6.1
hereof.
"Intercreditor Agreement" means the Intercreditor Agreement, dated as of
the date hereof, by and among U.S. Bank National Association, as trustee under
the Mortgage Note Indenture, U.S. Bank National Association, as trustee under
the Funding Note Indenture, U.S. Bank National Association, as trustee under the
PIK Note Indenture, U.S. Bank National Association, as trustee under the TCHI
Note Indenture, Funding, TCHI and the Partnership in substantially the form of
Exhibit H hereto, as the same may be amended from time to time in accordance
with the terms thereof.
"Lien" shall have the meaning specified in the Funding Note Indenture and
the TCHI Note Indenture.
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"Losses" shall have the meaning specified in Section 2.6.1 hereof.
"Material Adverse Effect" means a material adverse effect on the
properties, business, operations, earnings, assets, liabilities or financial
condition of the Partnership, TCHI and Funding, taken as a whole, or on the
ability of the Partnership, TCHI or Funding to perform their respective
obligations under this Agreement, the Senior Notes or any of the other
Documents.
"Mortgage Note Indenture" means that certain indenture among Funding, as
issuer, the Partnership, as guarantor, and First Bank National Association, (now
known as U.S. Bank National Association), as trustee, dated as of December 28,
1993, relating to Funding's 11 3/4% Mortgage Notes due 2003, as the same may be
amended from time to time in accordance with the terms thereof.
"Most Recent 10-K" means the annual report of the Partnership and Funding
on Form 10-K for the fiscal year ended December 31, 1997, as filed with the
Commission (Commission File Number 1-9029), including all exhibits thereto and
all material incorporated by reference therein.
"Multiemployer Plan" shall have the meaning specified in Section 4.6
hereof.
"Old Senior Notes" means the 11 1/2% Senior Secured Notes due 2000 of
Funding issued pursuant to an Indenture dated as of December 28, 1993 among
Funding, as issuer, First Bank National Association (now known as U.S. Bank
National Association), as trustee, and Trump's Castle Associates, as Guarantor.
"partial withdrawal" shall have the meaning specified in Section 4.6
hereof.
"Partnership" means Trump's Castle Associates, L.P., a New Jersey limited
partnership, and any successor thereto.
"party in interest" shall have the meaning specified in Section 2.3.3
hereof.
"Person" means any individual, partnership, corporation, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or agency or political subdivision thereof, or other
entity.
"PIK Note Indenture" means that certain indenture among Funding, as
issuer, the Partnership, as guarantor, and First Bank National Association (now
known as U.S. Bank National Association), as trustee, dated as of December 28,
1993, relating to Funding's Subordinated Pay-in-Kind Notes due 2005.
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"Privately Outstanding Notes" means any or all of the Senior Notes upon
the original issuance thereof and at all times subsequent thereto until, in the
case of any Senior Note, (i) the registered exchange offer provided for in
Section 2 of the Registration Rights Agreement shall have been consummated and
such Senior Note shall have been resold by the Fund which purchased such Senior
Note, (ii) the sale or other public distribution of such Senior Note shall have
been registered pursuant to the Securities Act and such Senior Note shall have
been disposed of by the Fund which purchased such Senior Note in accordance with
such registration, or (iii) such Senior Note shall have been resold by the Fund
pursuant to Rule 144, Rule 144A or other resale exemption from the registration
requirements of the Securities Act.
"Proceeding" means an action, claim, suit or proceeding (including,
without limitation, an investigation or partial proceeding, such as a
deposition), whether commenced or to the knowledge of TCHI, Funding or the
Partnership, threatened.
"prohibited transaction" shall have the meaning specified in Section 4.6
hereof.
"qualified trust" shall have the meaning specified in Section 2.3.3
hereof.
"Registration Rights Agreement" means the Registration Rights Agreement of
even date herewith by and among TCHI, Funding, the Partnership and the Funds,
relating to the registration of the Senior Notes pursuant to the Securities Act
and in substantially the form of Exhibit B hereto.
"reportable event" shall have the meaning specified in Section 4.6 hereof.
"Rule 144" means Rule 144 as promulgated by the Commission pursuant to the
Securities Act, and any successor rule or regulation thereto.
"Rule 144A" means Rule 144A as promulgated by the Commission pursuant to
the Securities Act, and any successor rule or regulation thereto.
"Scheduled Closing Date" shall have the meaning specified in Section
2.4.2.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the Commission pursuant thereto.
"Security Documentation" means the Indenture of Mortgage and Security
Agreement (Senior Note Mortgage), dated the date hereof, by and between the
Partnership, as mortgagor and debtor, and Funding, as mortgagee and secured
party; the Indenture of Mortgage and Security Agreement (Senior Guarantee
Mortgage), dated the date hereof, by and between the Partnership, as mortgagor
and debtor, and U.S. Bank National Association, as trustee under the Funding
Note Indenture, as mortgagee and secured party, the Indenture of Mortgage and
Security Agreement (Senior Partnership Upstream Note Mortgage), dated the date
hereof, by
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and between the Partnership as mortgagor and debtor and TCHI, as mortgagee and
secured party, the Indenture of Mortgage and Security Agreement (TCHI Note
Guarantee Mortgage), dated the date hereof, by and between the Partnership, as
mortgagor and debtor, and the U.S. Bank National Association, as trustee under
the TCHI Note Indenture, as mortgagee and secured party, in substantially the
forms of Exhibits D, E, F and G hereto, respectively, the Senior Assignment
Agreement, the Senior Partnership Upstream Assignment Agreement, the Assignment
of Leases and Rents and Assignment of Operating Leases, the Intercreditor
Agreement and the other agreements and documents entered into or delivered in
connection with the foregoing.
"Senior Assignment Agreement" means the Senior Assignment Agreement dated
as of the date hereof, by Funding to the Trustee, as trustee under the Funding
Note Indenture.
"Senior Notes" means the TCHI Notes and the Funding Notes.
"Senior Partnership Note" means the Note, dated the date hereof, in the
original principal amount of $62,000,000 made by the Partnership in favor of
Funding.
"Senior Partnership Upstream Assignment Agreement" means the Senior
Partnership Upstream Assignment Agreement dated as of the date hereof, by TCHI
to the Trustee, as trustee under the TCHI Note Indenture.
"Senior Partnership Upstream Note" means the Note, dated the date hereof
in the original principal amount of $5,000,000 made by the Partnership in favor
of TCHI.
"Subsidiary" means, with respect to any Person, (i) a corporation a
majority of whose capital stock with voting power, under ordinary circumstances,
to elect directors is owned, directly or indirectly, by such Person or by one or
more other Subsidiaries of such Person, or by such Person and one or more
Subsidiaries thereof or (ii) any other Person (other than a corporation) in
which such Person, or one or more other Subsidiaries of such Person or such
Person and one or more other Subsidiaries thereof, directly or indirectly, has
at least a majority ownership and power to direct the policies, management and
affairs thereof.
"TCHI" means Trump's Castle Hotel & Casino, Inc., a New Jersey
corporation.
"TCHI Note Indenture" means the Indenture, dated as of the date hereof, by
and between TCHI, as issuer, the Partnership, as guarantor, and U.S. Bank
National Association, as trustee thereunder, in substantially the form of
Exhibit B hereto, as the same may be amended from time to time in accordance
with the terms thereof.
"TCHI Notes" means the $5,000,000 aggregate original principal amount of
10 1/4% Series A Senior Secured Notes due 2003 of TCHI, and any other debt
securities issued in exchange or substitution for such notes.
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"Trustee" shall mean U.S. Bank National Association in its capacity as
trustee under the Funding Note Indenture and in its capacity as the Trustee
under the TCHI Note Indenture.
SECTION 2. PURCHASE AND SALE OF SENIOR NOTES.
2.1. Issuance of Senior Notes and Senior Guarantee.
2.1.1. Issuance of the Funding Notes and Related Senior Guarantee.
(a) Funding has taken all necessary corporate action to authorize the
issuance and sale of up to $62,000,000 aggregate original principal amount of
its 10 1/4% Series A Senior Secured Notes due 2003 and to make the Funding Notes
the enforceable obligations they purport to be. The Funding Notes will be issued
in denominations of $1,000 and any integral multiple thereof, and will otherwise
be substantially in the form set forth in Article II of the Funding Note
Indenture.
(b) The Partnership has taken all necessary partnership action to
authorize the issuance of its unconditional guarantee of payment of the Funding
Notes as set forth in the Funding Note Indenture, the issuance of the Senior
Partnership Note and the execution and delivery of the Security Documentation to
which it is a party and to make each of its guarantee of the Funding Notes, the
Senior Partnership Note and the Security Documentation to which it is a party
the enforceable obligation it purports to be.
2.1.2. Issuance of the TCHI Notes and Related Senior Guarantee.
(a) TCHI has taken all necessary corporate action to authorize the
issuance and sale of up to $5,000,000 aggregate original principal amount of its
10 1/4% Series A Senior Secured Notes due 2003 and to make the TCHI Notes the
enforceable obligations they purport to be. The TCHI Notes will be issued in
denominations of $1,000 and any integral multiple thereof, and will otherwise be
substantially in the form set forth in Article II of the TCHI Note Indenture.
(b) The Partnership has taken all necessary partnership action to
authorize the issuance of its unconditional guarantee of payment of the TCHI
Notes as set forth in the TCHI Note Indenture, the issuance of the Senior
Partnership Upstream Note and the execution and delivery of the Security
Documentation to which it is a party and to make each of its guarantee of the
TCHI Notes, the Senior Partnership Upstream Note and the Security Documentation
to which it is a party the enforceable obligation it purports to be.
2.2. Sale and Purchase of the Senior Notes; the Closing.
2.2.1. Sale and Purchase of the Funding Notes.
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Subject to the terms and conditions set forth herein, Funding hereby
agrees to sell to each Fund the aggregate original principal amount of Funding
Notes set forth opposite the name of such Fund on Annex E hereof. All of the
Funding Notes shall be sold at a price equal to 100% of the original principal
amount thereof.
In reliance upon the representations and warranties of Funding, TCHI and
the Partnership contained herein, in the other Documents and in the Most Recent
10-K, and subject to the terms and conditions set forth herein and therein, each
Fund hereby agrees, severally and not jointly, to purchase the Funding Notes to
be purchased by such Fund at the purchase price set forth in this Section. Each
Fund shall, severally and not jointly, be liable for only the purchase of that
portion of such Funding Notes set forth opposite the name of such Fund on Annex
E hereof.
2.2.2. Sale and Purchase of the TCHI Notes.
Subject to the terms and conditions set forth herein, TCHI hereby agrees
to sell to each Fund the aggregate original principal amount of TCHI Notes set
forth opposite the name of such Fund on Annex E hereof. All of the TCHI Notes
shall be sold at a price equal to 100% of the original principal amount thereof.
In reliance upon the representations and warranties of Funding, TCHI and
the Partnership contained herein, in the other Documents and in the Most Recent
10-K, and subject to the terms and conditions set forth herein and therein, each
Fund hereby agrees, severally and not jointly, to purchase the TCHI Notes to be
purchased by such Fund at the purchase price set forth in this Section. Each
Fund shall, severally and not jointly, be liable for only the purchase of that
portion of such TCHI Notes set forth opposite the name of such Fund on Annex E
hereof.
2.2.3. Closing.
The sale and purchase of the Senior Notes shall take place at a closing
(the "Closing") at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, commencing at 9:30 A.M., New York time, on
April 17, 1998, or such other place, Business Day (not in any event later than
May 15, 1998) and time as may be agreed upon by the Funds and Funding (such time
and date being referred to as the "Closing Date"). At the Closing, Funding and
TCHI will deliver to each of the Funds one or more Senior Notes in the aggregate
principal amount or amounts to be purchased by such Fund, registered in its name
or in the name(s) of such nominee(s) or designee(s) as such Fund may request,
against payment of the purchase price therefor by Federal funds bank wire
transfer of same day funds to such bank account as Funding, TCHI and the
Partnership shall designate at least two Business Days prior to the Closing
Date.
2.2.4. Use of Proceeds.
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(a) Funding Notes.
The proceeds from the sale of the Funding Notes shall be applied by
Funding or the Partnership (i) to fund the redemption at 100% of the principal
amount thereof, plus accrued but unpaid interest, of the Old Senior Notes, such
redemption to occur immediately upon the issuance of the Funding Notes; (ii) to
repay the principal amount of and all accrued but unpaid interest in, with all
expenses and costs related to, the Loan outstanding under the Amended and
Restated Credit Agreement, dated as of December 28, 1993, between Funding, the
Partnership and Midlantic National Bank (or any successor thereto), as in effect
in the Closing Date; and (iii) to pay expenses of the Partnership in connection
with the refinancing of the indebtedness described in clauses (i) and (ii) of
this sentence pursuant to this Agreement and the Documents. In connection with
the payment referred to in clause (i) of the first sentence of this Section
2.2.4(a), the Partnership shall pay in full, together with accrued but unpaid
interest, the Note dated as of December 28, 1993 made by the Partnership to
Funding in the original principal amount of $27,000,000. In connection with
payment referred to in clause (ii) of the first sentence of this Section
2.2.4(a), the Partnership and Funding shall obtain the release of all mortgages,
liens security interest and other encumbrances granted in connection with such
indebtedness and any other security interests of Midlantic National Bank or any
successor thereto in the assets or property of, or otherwise in connection with,
the Partnership and Funding.
(b) TCHI Notes.
The indebtedness of TCHI and the Partnership evidenced by the TCHI Notes
is a part of the Working Capital Facility of the Partnership described in the
Funding Note Indenture, the Mortgage Note Indenture and the PIK Note Indenture.
The proceeds from the sale of TCHI Notes shall be applied to meet the
Partnership's general working capital requirements.
2.3. Each Fund's Representations.
2.3.1. Authorization and Authority.
Each Fund represents to TCHI, Funding and the Partnership that such Fund
has taken all necessary action to authorize the execution and delivery of this
Agreement and the Registration Rights Agreement and to make each of this
Agreement and the Registration Rights Agreement the enforceable obligation it
purports to be.
2.3.2. Investment Intent; Transfer of Senior Notes.
Each Fund represents to TCHI, Funding and the Partnership that such Fund
is purchasing the Senior Notes being purchased by such Fund hereunder for its
own account, and with no intention of distributing or reselling such Senior
Notes or any part thereof in any
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transaction that would violate the securities laws of the United States of
America or any state thereof.
If any Fund desires to offer, sell or otherwise transfer, pledge or
hypothecate all or any part of the Senior Notes (other than pursuant to an
effective registration statement under the Securities Act or pursuant to Rule
144 or Rule 144A) such Fund shall deliver to Funding, in the case of the Funding
Notes, or TCHI in the case of the TCHI Notes, a written opinion of Ropes & ▇▇▇▇
or other counsel, reasonably satisfactory in form and substance to Funding or
TCHI, as the case may be, that there is available therefor an exemption from the
registration requirements of the Securities Act. Upon original issuance thereof,
and until such time as no longer required by law, each of the Senior Notes
originally issued (and all Senior Notes issued in exchange therefor or
substitution thereof) shall bear a legend in substantially the form set forth in
Section 2.2 of the Funding Note Indenture or the TCHI Note Indenture, as the
case may be.
At such time that any such legend is no longer required by law to be borne
by a Senior Note, Funding or TCHI, as the case may be, shall, at the request of
the holder thereof, cause such legend to be removed or replace such certificate
with an unlegended security.
2.3.3. ERISA.
Each Fund represents to TCHI, Funding and the Partnership that either (i)
no part of the funds to be used to purchase the Senior Notes to be purchased by
such Fund constitutes assets allocated to any qualified trust that contains the
assets of any employee benefit plan with respect to which TCHI, Funding or the
Partnership is a party in interest or disqualified person or (ii) the use of
such assets would not constitute a non-exempt prohibited transaction. The
representations made by each Fund in the preceding clauses are made solely in
reliance upon its review of the list (a copy of which is set forth as Schedule
2.3.3 hereto), previously furnished to the Funds by TCHI, Funding and the
Partnership, which identifies the qualified trusts that contain assets of any
employee benefit plans with respect to which TCHI, Funding or the Partnership is
a party in interest or a disqualified person. The terms "employee benefit plan"
and "party in interest" shall have the meanings assigned to such terms in
Section 3 of ERISA, the term "disqualified person" shall have the meaning
assigned to such term in section 4975 of the Code, and the term "qualified
trust" shall mean any trust qualified under section 401(a) of the Code in which
is held the assets of any employee benefit plan.
2.3.4. Registered Investment Company.
Each Fund represents to TCHI, Funding and the Partnership that it is
registered as an investment company under the Investment Company Act of 1940, as
amended.
2.4. Failure to Deliver.
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2.4.1. No Closing.
Notwithstanding anything to the contrary contained in this Agreement, this
Agreement may be terminated and the transactions contemplated hereby may be
abandoned at any time prior to the Closing:
(i) By the mutual consent of all of the parties;
(ii) By the Funds at any time in the event of a breach or default by
either TCHI, Funding or the Partnership in the observance or in the timely
performance of any of its obligations hereunder which is not waived by the
Funds and which remains uncured for fifteen (15) days after receipt of
notice in writing of such breach or default;
(iii) By Funding, TCHI and the Partnership at any time in the event
of a breach or default by any Fund in the observance or in the timely
performance of any of its obligations hereunder which is not waived by
Funding, TCHI and the Partnership and remains uncured for fifteen (15)
days after receipt of notice in writing of such breach or default; or
(iv) If the Closing shall not have occurred on or before May 15,
1998, at anytime thereafter by (i) the Funds or (ii) TCHI, Funding and the
Partnership.
No termination under this section shall be effective unless and until the
terminating party gives written notice of such termination to the other party.
2.4.2. Failure to Notify.
If the Closing shall not actually occur on any date on which the Closing
is scheduled to occur (the "Scheduled Closing Date") (other than by reason of
the failure of one or more of the Funds to purchase Senior Notes duly tendered),
and Funding and TCHI shall have failed to notify Ropes & ▇▇▇▇ prior to 12:00
p.m., New York time, on such Scheduled Closing Date that such Closing has been
postponed, Funding or TCHI, as the case may be, shall pay to each Fund by wire
transfer of immediately available funds to the bank account designated by such
Fund (as compensation for its loss of funds and administrative costs) an amount
equal to interest on the aggregate purchase price for the Senior Notes to have
been purchased by such Fund on such Scheduled Closing Date, at the effective
rate of interest equal to 11 1/4% per annum, less the overnight Federal funds
rate, for each day from and including such Scheduled Closing Date to and
including the earlier of the date on which such Closing actually occurs or the
date on which the amount to be paid by such Fund as the purchase price of such
Senior Notes is available to such Fund for reinvestment, provided, that Funding
or TCHI, as the case may be, shall pay to such Fund in any case not less than
one day's interest at such specified rate.
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2.5. Expenses.
Whether or not the Senior Notes are sold, Funding, TCHI and the
Partnership shall pay all reasonable expenses relating to this Agreement and the
other Documents, including, but not limited to:
(a) the cost of printing, reproducing and filing this Agreement, the other
Documents and any other documents contemplated hereby or thereby;
(b) the reasonable fees and charges and disbursements of Ropes & ▇▇▇▇, the
Funds' special counsel, and ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PC, the Funds' special New Jersey
real property counsel, or such other counsel as the Funds may employ on their
behalf with the consent of Funding and TCHI;
(c) the cost of delivering to your home office or the office of your
designee the Senior Notes purchased by the Funds at the Closing upon the
issuance thereof;
(d) all expenses, including reasonable attorneys' fees, relating to any
amendment to, or modification of, or any waiver, or consent or preservation of
rights under, this Agreement or any of the Documents;
(e) all other expenses, including reasonable attorneys' fees, incurred by
Funding, TCHI, or the Partnership, as the case may be, in connection with the
transactions contemplated by this Agreement and the other Documents; and
(f) all fees and expenses (including reasonable fees and expenses of
counsel) in connection with any registration or qualification of the Senior
Notes for offer and sale hereunder under the securities or "blue sky" laws of
any jurisdiction requiring such registration or qualification or in connection
with obtaining any exemptions from such requirements.
2.6. Indemnification.
2.6.1. Scope of Indemnification.
In addition to all other sums due hereunder or provided for in this
Agreement or any of the other Documents and any and all obligations of TCHI,
Funding and the Partnership to indemnify the Funds hereunder or under any of the
other Documents, TCHI, Funding and the Partnership, jointly and severally,
shall, without limitation as to time, indemnify and hold harmless each Fund, its
Affiliates, and the employees, officers, directors, trustees, and agents of each
Fund and its Affiliates, including attorneys and consultants (individually, an
"Indemnified Party" and collectively, the "Indemnified Parties"), to the fullest
extent lawful, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, reasonable costs of
preparation and reasonable attorneys' fees) and expenses,
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including expenses of investigation (collectively, "Losses"), incurred by any
Indemnified Party, as a consequence of any claim by or obligation to a third
party which arises out of or in connection with this Agreement or the other
Documents or the transactions contemplated hereby or thereby (or any other
document or instrument executed herewith or pursuant hereto or thereto), whether
or not the transactions contemplated by this Agreement or such other Documents
are consummated and whether or not any Indemnified Party is a formal party to
any Proceeding; provided, however, that neither TCHI, Funding nor the
Partnership shall be liable to any Indemnified Party for any Losses (i)
resulting from a violation by such Indemnified Party of a legal restriction on
its investment powers, or (ii) to the extent that it shall be finally determined
by a court of competent jurisdiction (which determination is not subject to
appeal or review) that such Losses arose primarily out of the gross negligence
or willful misconduct of such Indemnified Party. Subject to the reimbursement
obligation set forth in the last sentence of Section 2.6.2 hereof, each of TCHI,
Funding and the Partnership agrees promptly to reimburse any Indemnified Party
for all such Losses as they are incurred and disclosed to TCHI, Funding and the
Partnership in writing by such Indemnified Party. The obligations of each of
TCHI, Funding and the Partnership to each Indemnified Party hereunder shall be
separate obligations, and the liability of each of TCHI, Funding and the
Partnership to any Indemnified Party hereunder shall not be extinguished solely
because any other Indemnified Party is not entitled to indemnity hereunder.
2.6.2. Indemnification Procedures.
If any proceeding shall be brought or asserted against any Indemnified
Party in respect of which indemnity may be sought from TCHI, Funding or the
Partnership hereunder, such Indemnified Party promptly shall notify TCHI or
Funding, as the case may be, and the Partnership in writing, and either TCHI or
Funding, as the case may be, or the Partnership, or both, shall assume the
defense thereof, including the employment of counsel reasonably satisfactory to
the Indemnified Party and the payment of all reasonable fees and expenses
incurred in connection with the defense thereof; provided, that the failure of
any Indemnified Party to give such notice shall not relieve either TCHI, Funding
or the Partnership of its obligations pursuant to this Agreement, except to the
extent that it shall be finally determined by a court of competent jurisdiction
(which determination is not subject to appeal or review) that such failure shall
have materially prejudiced TCHI, Funding or the Partnership, as indemnitor.
Any such Indemnified Party shall have the right to employ separate counsel
in any such action, claim or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless: (1) TCHI, Funding or the Partnership has agreed
to pay such fees and expenses; or (2) TCHI, Funding or the Partnership has
failed promptly to assume the defense of such action, claim or proceeding and to
employ counsel reasonably satisfactory to such Indemnified Party in any such
action, claim or proceeding; or (3) the named parties to any such action, claim
or proceeding (including any impleaded parties) include both such Indemnified
Party and TCHI, Funding or the Partnership,
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and such Indemnified Party shall have been advised by counsel that a conflict of
interest may exist if the same counsel represents such Indemnified Party and
TCHI, Funding or the Partnership (and in the case of any of (1), (2) or (3), if
such Indemnified Party notifies TCHI, Funding and the Partnership in writing
that it elects to employ separate counsel at the expense of TCHI or Funding, as
applicable, and the Partnership, TCHI, Funding and the Partnership shall not
have the right to assume the defense thereof and the reasonable fees and
expenses of such counsel shall be at the expense of TCHI or Funding, as
applicable, and the Partnership); provided, however, that, so long as no
conflict of interest exists between any Indemnified Party and any other
Indemnified Party, TCHI or Funding, as applicable, and the Partnership shall not
be obligated to pay the fees and expenses of more than one separate lead counsel
(and one local counsel) for all Indemnified Parties. TCHI or Funding, as
applicable, and the Partnership shall have the right to employ separate counsel
in, and to participate in the defense of, any action or proceeding with respect
to which it has no right to assume the defense, but the fees and expenses of
such counsel shall be at the expense of TCHI or Funding, as applicable, and the
Partnership. No Indemnified Party will be subject to any liability for any
settlement made without its consent (but such consent will not be unreasonably
withheld). Neither TCHI, Funding nor the Partnership shall consent to the entry
of any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to the
Indemnified Party of a release, in form and substance satisfactory to the
Indemnified Party, from all liability in respect of such action, claim or
proceeding for which such Indemnified Party would be entitled to indemnification
hereunder (whether or not any Indemnified Party is a party thereto). All fees
and expenses of the Indemnified Party (including reasonable fees and expenses to
the extent incurred in connection with investigating or preparing to defend such
action or proceeding in a manner not inconsistent with this Section 2.6) shall
be paid to the Indemnified Party, as incurred, upon written notice thereof to
TCHI or Funding, as applicable, or the Partnership; provided, that TCHI, Funding
or the Partnership may require such Indemnified Party to undertake to reimburse
all such fees and expenses to the extent it is finally judicially determined by
a court of competent jurisdiction (which determination is not subject to appeal
or review) that such Indemnified Party is not entitled to indemnification
hereunder.
2.7. Contribution.
2.7.1. Indemnification Provisions Unenforceable.
If a claim by an Indemnified Party for indemnification under Section 2.6
hereof is found unenforceable in a final judgment by a court of competent
jurisdiction (not subject to further appeal or review) even though the express
provisions hereof provide for indemnification in such case, then TCHI, Funding
and the Partnership, jointly and severally, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Losses in such proportion as is
appropriate to reflect the relative fault of TCHI, Funding or the Partnership,
on the one hand, and such Indemnified Party, on the other hand, in connection
with the actions, statements or omissions that resulted
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in such Losses as well as any other relevant equitable considerations. The
relative fault of TCHI, Funding or the Partnership, on the one hand, and any
Indemnified Party, on the other hand, shall be determined by reference to, among
other things, whether any action in question, including any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact, has been taken by, or relates to information supplied by, TCHI,
Funding or the Partnership, on the one hand, or such Indemnified Party, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent any such action, statement or omission.
The amount paid or payable by a party as a result of any Losses shall be deemed
to include any legal or other fees or expenses incurred by such party in
connection with any proceeding.
2.7.2. No Pro Rata Allocation.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.7 were determined by pro rata allocation
or by any other method of allocation that does not account for the equitable
considerations referred to in Section 2.7.1 hereof. Notwithstanding the
provisions of this Section 2.7, no Indemnified Party shall be required to
contribute any amount in excess of the amount by which the price at which the
Senior Notes sold by such Indemnified Party and distributed to the public
exceeds the amount of any damages that such Indemnified Party has otherwise been
required to pay by reason of such statement or omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who is not
guilty of such fraudulent misrepresentation.
2.7.3. Survival of Obligations.
The obligations of TCHI, Funding and the Partnership under Section 2.6 and
this Section 2.7 shall survive the payment or prepayment of the Senior Notes, at
maturity, upon redemption or otherwise, any transfer of the Senior Notes by the
Funds, and any termination of this Agreement or the other Documents.
2.8. Further Actions.
During the period from the date hereof to the Closing Date, TCHI, Funding
and the Partnership shall take all actions reasonably necessary or appropriate
to cause its representations and warranties contained in Section 5 hereof to be
true and correct in all material respects as of the Closing Date, after giving
effect to the transactions contemplated by this Agreement, as if made on and as
of such date.
SECTION 3. CLOSING CONDITIONS
3.1. Conditions to the Funds' Obligations.
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Each Fund's obligation to purchase and pay for the Senior Notes to be
purchased by it at the Closing shall be subject to the satisfaction of the
following conditions on or prior to the Closing Date:
3.1.1. Opinion of Counsel.
The Funds shall have received opinions, dated the Closing Date and
addressed to the Funds, from each of (i) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, counsel to
TCHI, Funding and the Partnership, (ii) ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, a
Professional Association, New Jersey real property counsel to TCHI, Funding and
the Partnership and (iii) ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, gaming counsel to TCHI, Funding and
the Partnership, substantially in the form set forth in Exhibits I, J and K
hereto, respectively.
3.1.2. Officers' Certificates.
(a) The Funds shall have received a certificate or certificates, dated the
Closing Date and signed by each of (x) the Chief Executive Officer or the Chief
Financial Officer of Funding and (y) the Chief Executive Officer or Chief
Financial Officer of TCHI certifying (i) that the conditions set forth in
Sections 3.1.3 through 3.1.5, 3.1.8, 3.1.10 and 3.1.11 hereof have been
satisfied on and as of such date and (ii) as to such other matters as any Fund
may reasonably request.
(b) The Funds shall have received a certificate, dated the Closing Date
and signed by the Secretary of Funding and TCHI, certifying such matters as the
Funds may reasonably request.
3.1.3. Issue of Senior Notes.
(a) Simultaneously with the sale to each Fund of the Funding Notes to be
purchased by it at the Closing, Funding shall have issued and delivered and
received payment for the Funding Notes to be purchased by the other Funds
hereunder, and TCHI shall have issued and delivered and received payment for the
TCHI Notes to be purchased by each Fund hereunder.
(b) Simultaneously with the sale to each Fund of the TCHI Notes to be
purchased by it at the Closing, TCHI shall have issued and delivered and
received payment for the TCHI Notes to be purchased by the other Funds
hereunder, and Funding shall have issued and delivered and received payment for
the Funding Notes to be purchased by each Fund hereunder.
3.1.4. Representations and Warranties True; No Event of Default.
The representations and warranties of TCHI, Funding and the Partnership
contained herein and in each of the other Documents shall be true and correct in
all material respects at
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and as of the Closing Date, after giving effect to the transactions contemplated
by this Agreement and the other Documents, as if made on and as of such date.
There shall exist at and as of the Closing Date (after giving effect to the
transactions contemplated by this Agreement and the other Documents) no Default
or Event of Default.
3.1.5. Compliance with Agreements.
TCHI, Funding and the Partnership shall have performed and complied in all
material respects with all agreements, covenants and conditions contained in
this Agreement and in the other Documents that are required to be performed or
complied with by TCHI, Funding and the Partnership on or before the Closing
Date.
3.1.6. Purchase Permitted by Applicable Laws; Legal Investment.
Each Fund's purchase of and payment for the Senior Notes to be purchased
by it (a) shall not be prohibited by any applicable law or governmental
regulation, release, interpretation or opinion (including, without limitation,
Regulations G, T, U and X of the Board of Governors of the Federal Reserve
System), (b) shall not subject any Fund to any penalty or other materially
onerous condition under or pursuant to any applicable law or governmental
regulation (other than the New Jersey Casino Control Act), and (c) shall be
permitted by the laws and regulations of the jurisdictions to which you are
subject. TCHI, Funding and the Partnership shall have delivered to each Fund
factual certificates or other evidence as each Fund shall reasonably request, in
form and substance reasonably satisfactory to such Fund, to enable such Fund to
establish compliance with this condition.
3.1.7. The Indentures, the Registration Rights Agreement and the
Security Documentation.
(a) Funding, the Partnership and U.S. Bank National Association, as
trustee, shall have duly entered into the Funding Note Indenture, and the Funds'
counsel shall have received counterparts, conformed as executed, of the Funding
Note Indenture.
(b) TCHI, the Partnership and U.S. Bank National Association, as trustee,
shall have duly entered into the TCHI Note Indenture, and the Funds' counsel
shall have received counterparts, conformed as executed, of the TCHI Note
Indenture.
(c) TCHI, Funding and the Partnership shall have duly executed and
delivered to the Funds the Registration Rights Agreement.
(d) Each of TCHI, Funding and the Partnership shall have duly executed and
delivered to the Trustee the Security Documentation and each of the other
Documents to which it is a party and shall have taken such action to perfect the
security interests granted in the Security Documents as the Funds shall have
requested.
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(e) The Intercreditor Agreement shall have been duly executed and
delivered by each Person party thereto.
3.1.8. Consents and Permits.
TCHI, Funding and the Partnership shall have received all consents,
permits and other authorizations, and made all such filings and declarations, as
may be required pursuant to any Applicable Law, for consummation of the
transactions contemplated by this Agreement and the other Documents, including
the issuance and sale of the Senior Notes to the Funds, and pursuant to all
other agreements, orders and decrees to which any of them is a party or to which
any of them is subject, in connection with the transactions to be consummated on
or prior to the Closing Date contemplated by this Agreement and the other
Documents.
3.1.9. Proceedings Satisfactory.
All corporate proceedings taken in connection with the sale of the Senior
Notes and all documents relating thereto, shall be reasonably satisfactory in
form and substance to the Funds. The Funds and Ropes & ▇▇▇▇ shall have received
copies of such documents as they may reasonably request in connection with the
Closing, or as a basis for the Closing opinions, all in form and substance
reasonably satisfactory to the Funds and their special counsel. Each Document
shall be reasonably satisfactory in form and substance to the Funds.
3.1.10. No Material Adverse Change.
Since December 31, 1997 there shall not have occurred any material adverse
change in the operations, business, properties, prospects, condition (financial
or otherwise) or results of operations of TCHI, Funding and the Partnership,
taken as a whole. There shall have been no material adverse change in the
Partnership's ability to operate the ▇▇▇▇▇ ▇▇▇▇▇▇ Hotel Casino as described in
the Most Recent 10-K.
3.1.11. No Material Judgment or Order.
There shall not be on the Closing Date any judgment or order of a court of
competent jurisdiction or any ruling of any agency of the Federal, state or
local government that, in the reasonable judgment of the Funds or the Funds'
special counsel, would prohibit the sale or issuance of the Senior Notes
hereunder or subject TCHI, Funding, the Partnership or any Fund to any material
penalty if the Senior Notes were to be issued and sold hereunder.
3.2. Conditions to the Obligations of Funding and TCHI.
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The obligations of Funding to sell the Funding Notes to be delivered to
the Funds at the Closing and the obligations of TCHI to sell the TCHI Notes to
be delivered to the Funds at the Closing shall be subject to the satisfaction of
the following conditions:
3.2.1. Sale of Senior Notes.
The Funds shall have delivered payment to (i) Funding, in respect of the
several purchases of the Funding Notes, in an aggregate amount of $62,000,000
and (ii) to TCHI, in respect of the several purchases of the TCHI Notes, in an
original aggregate amount of $5,000,000.
3.2.2. Funds' Representations and Warranties.
Each Fund's payment of the purchase price for the Senior Notes purchased
by it at the Closing shall constitute a certification by such Fund that all of
its representations and warranties made herein and in the other Documents shall
be true and correct in all material respects at and as of the Closing Date,
after giving effect to the transactions contemplated by this Agreement and the
other Documents, as if made at and as of such date.
3.2.3. No Material Judgment or Order.
There shall not be on the Closing Date any judgment or order of a court of
competent jurisdiction or any ruling of any agency of the Federal, state or
local government that, in the reasonable judgment of TCHI, Funding and the
Partnership, would prohibit the sale or issuance of the Senior Notes hereunder
or subject TCHI, Funding or the Partnership to any material penalty if the
Senior Notes were to be issued and sold hereunder.
3.2.4. The Sale by Funding and TCHI Permitted by Applicable Laws.
The sale by Funding of the Funding Notes and by TCHI of the TCHI Notes and
the Funds' payment for the Senior Notes to be purchased by the Funds (a) shall
not be prohibited by any applicable law or governmental regulation, release,
interpretation or opinion (including, without limitation, Regulation G, T, U or
X of the Board of Governors of the Federal Reserve System), (b) shall not
subject TCHI, Funding or the Partnership to any penalty under or pursuant to any
applicable law or governmental regulation, and (c) shall be permitted by the
laws and regulations of the jurisdictions to which TCHI, Funding or the
Partnership are subject.
3.2.5. Consents and Permits.
Each Fund shall have received all consents, permits and other
authorizations, and made all such filings and declarations, as may be required
pursuant to any law, statute, regulation or rule (Federal, state, local and
foreign), contemplated by this Agreement and the other
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Documents, including the purchase of the Senior Notes by such Fund, and pursuant
to all other agreements, orders and decrees to which such Fund is a party or to
which such Fund is subject, in connection with the transactions to be
consummated on or prior to the Closing Date contemplated by this Agreement and
the other Documents.
SECTION 4. THE FUNDS' SPECIAL RIGHTS.
The provisions of this Section 4 shall apply with respect to each
Privately Outstanding Note and shall remain in effect so long as any of the
Senior Notes are Privately Outstanding Notes.
4.1. Delivery Expenses.
If a holder of a Privately Outstanding Note surrenders such Senior Note to
TCHI or Funding, as applicable, or the Trustee for substitution, replacement or
exchange, Funding, in the case of the Funding Notes, or TCHI, in the case of the
TCHI Notes, will pay the cost of delivering to and from such holder's home
office (or to and from the office of such holder's designee(s)) and the office
of Funding, TCHI or the Trustee, as the case may be, insured to such holder's
satisfaction, the surrendered Senior Note and each Senior Note issued in
substitution, replacement or exchange therefor.
4.2. Issue Taxes.
Funding and TCHI shall pay all stamp, transfer and other similar taxes and
governmental fees in connection with (a) the issuance, sale, delivery or
transfer by Funding and TCHI of the Privately Outstanding Notes, (b) the
execution and delivery of the Documents, (c) any modification of the Documents
and (d) the consummation of an Exchange Offer as defined in the Funding Note
Indenture and the TCHI Indenture. Funding, TCHI and the Partnership will hold
each holder of Privately Outstanding Notes harmless, without limitation as to
time, against any and all liabilities with respect to all such taxes and fees.
The obligations of Funding, TCHI and the Partnership under this Section 4.2
shall survive the payment or prepayment of the Senior Notes, at maturity, upon
redemption or otherwise, any transfer of the Senior Notes by the holder thereof,
and the termination of this Agreement.
4.3. Direct Payment.
TCHI, Funding and the Partnership shall instruct the Trustee to pay or
cause to be paid all interest payments with respect to any Privately Outstanding
Note (without any presentment of such Note and without any notation of such
payment being made thereon) by crediting such amount, before 12:00 Noon, New
York time, on the date such amount is payable, by Federal funds bank wire
transfer in same day available funds, to the registered holder's account in any
bank in the United States of America as may be designated by such holder or such
nominee(s),
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as the case may be, not less than two Business Days prior to such payment. The
initial bank account for this purpose is set forth on Annex E hereof. Each Fund
shall be responsible for advising Funding, in the case of the Funding Notes, or
TCHI, in the case of the TCHI Notes, of any changes in its designated bank
account, and Funding, TCHI and the Partnership shall not have any responsibility
for delays in transfers because of any registered holder's failure to advise
Funding or TCHI, as the case may be, of any such change. Each Fund agrees,
before any sale, transfer or other disposition of any Note that is a Privately
Outstanding Note, to make a notation thereon, or submit the same to the Trustee
under the Funding Note Indenture, in the case of a Funding Note, or under the
TCHI Note Indenture, in the case of an TCHI Note, for notation thereon, of the
date to which interest has been paid thereon and the amount of all redemption
payments previously made in respect thereof.
4.4. Inspection.
Funding, TCHI and the Partnership will permit any person designated by any
of the holders of record of the Privately Outstanding Notes in writing and
reasonably acceptable to Funding, TCHI or the Partnership, at such designating
holder's expense, upon reasonable notice during normal business hours, to visit
and inspect any of the properties (subject to reasonable security procedures
customarily required by Funding, TCHI or the Partnership), the corporate books
or financial records of TCHI, Funding, the Partnership and its Subsidiaries, and
to discuss their affairs, finances and accounts with the principal officers of
Funding, TCHI or the Partnership and its Subsidiaries and (with notice to the
Partnership) their independent public accountants, all at such reasonable times
and as often as such holder may reasonably request. Each such holder agrees that
any information obtained by it as a result of such visits, inspections and
discussions or pursuant to this Agreement shall be confidential and shall be
kept confidential by such holder, unless (i) disclosure of such information is
required by law or by court or administrative order, provided that prior to
disclosing any confidential information pursuant to this clause, such holder
agrees to provide notice to Funding or TCHI, as applicable, or the Partnership
and to reasonably cooperate with Funding or TCHI, as applicable, or the
Partnership in any contest of such disclosure, (ii) such information becomes
available to the public other than as a result of a disclosure or failure to
safeguard by such holder, or (iii) such information becomes available to such
holder from a source, other than TCHI, Funding or the Partnership, which source
such holder reasonably believes is not subject to a confidentiality agreement
which prohibited such disclosure.
4.5. Financial Statements.
4.5.1. Delivery.
Funding, TCHI and the Partnership will deliver or cause the Trustee to
deliver to each holder of Privately Outstanding Notes the financial statements
and other information described by Section 10.18 of the Funding Note Indenture
and Section 10.18 of the TCHI Note Indenture in the time periods and manner
prescribed therein.
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4.5.2. Disclosure; Officer's Certificate.
Each financial statement of Funding, TCHI or the Partnership delivered
pursuant to this Section 4.5 shall disclose the amount available for Restricted
Payments (as defined in the Funding Note Indenture and the TCHI Note Indenture)
pursuant to Section 10.9 of the Funding Note Indenture and the TCHI Note
Indenture, and shall be accompanied by a certificate of an officer of Funding
and TCHI stating that (x) such officers do not have knowledge of the existence
during or at the end of such accounting period of any condition or event that
constitutes an Event of Default or Default, or (y) if such condition or event
existed or then currently exists, specifying the nature and period of existence
thereof and what action Funding, TCHI or the Partnership has taken, is taking,
or proposes to take in connection therewith.
4.5.3. Additional Information.
Funding or TCHI, as applicable, or the Partnership shall, from time to
time, deliver such additional information regarding the financial position or
business of Funding, TCHI or the Partnership as the holders of a majority of the
outstanding principal amount of the Privately Outstanding Notes may reasonably
request, subject in each case to the confidentiality provisions set forth in
Section 4.4 hereof.
4.6. ERISA Compliance.
Promptly upon becoming aware of any (i) "reportable event" (as defined in
section 4043(b) of ERISA) for which the giving of notice to the Pension Benefit
Guaranty Corporation has not been waived, (ii) "complete withdrawal" or "partial
withdrawal" (within the meaning of sections 4203 and 4205 of ERISA) from a
"Multiemployer Plan" (as defined in section 3(37) of ERISA), (iii) "prohibited
transaction" (as defined in section 406 of ERISA or section 4975 of the Code),
(iv) "accumulated funding deficiency" (as defined in section 412 of the Code),
(v) lien (within the meaning of section 412(n) of the Code or section 302(f) of
ERISA), or (vi) requirement to provide security under section 401(a)(29) of the
Code or section 307 of ERISA in connection with any "employee benefit plan"
maintained or contributed to by the Partnership or, with respect to clauses (i),
(ii), (iv) or (v), any of its "controlled group" (as defined in section
4001(a)(14) of ERISA for purposes of clause (i) and (ii) and section
414(b),(c),(m) or (o) of the Code for purposes of clauses (iv) and (v), and
hereinafter referred to as "ERISA Affiliates") or any trust created thereunder,
that may reasonably be expected to, singly or in the aggregate, result in a
liability that could have a Material Adverse Effect, the Partnership shall
furnish to each holder of Privately Outstanding Notes a written notice
specifying the nature thereof and what action the Partnership, the Internal
Revenue Service, the Pension Benefit Guaranty Corporation or any other relevant
party is taking or proposes to take with respect thereto.
4.7. No Bond Necessary.
-22-
No holder of Privately Outstanding Notes shall be required to post any
bond (but such holder may be required to enter into an indemnity agreement, at
the request of Funding or TCHI, as applicable, reasonably satisfactory to
Funding or TCHI, as applicable, and the Trustee) if such holder certifies that a
Privately Outstanding Note has been lost, destroyed or wrongfully taken and
demands that Funding or TCHI issue and the Trustee authenticates a replacement
Note.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
Each of TCHI, Funding and the Partnership jointly and severally represents
and warrants to each of the Funds as follows:
5.1. Organization, Standing and Qualification.
5.1.1. Organization; Standing.
Funding is a corporation duly organized and validly existing under the
laws of the State of New Jersey. Funding has all requisite power and authority
to carry on its business as now conducted and as proposed to be conducted.
TCHI is a corporation duly organized and validly existing under the laws
of the State of New Jersey. TCHI has all requisite power and authority to carry
on its business as now conducted and as proposed to be conducted. TCHI is
engaged in no other business other than serving as the general partner of the
Partnership, and its only asset (other than the Senior Partnership Upstream Note
and the Security Documentation executed in connection therewith) is its
partnership interest in the Partnership. Except as directly related to serving
as the general partner of the Partnership and as contemplated by this Agreement,
the Security Documentation and the Documents, TCHI has no liabilities.
The Partnership is a limited partnership existing under the laws of the
State of New Jersey. The Partnership has all requisite power and authority to
own or lease, and operate its properties and assets, and to carry on its
business as now conducted and as proposed to be conducted; and is duly qualified
or licensed to do business and is in good standing in all jurisdictions in which
it owns or leases property or in which the conduct of its business requires it
so to qualify or be licensed, except where the failure so to qualify would not,
singly or in the aggregate, have a Material Adverse Effect.
5.1.2. Authority.
Each of TCHI, Funding and the Partnership has all requisite power and
authority to enter into and perform all of its respective obligations under this
Agreement and the other Documents to which it is a party, to issue, sell, and
deliver the Senior Notes, and to carry out the transactions contemplated by this
Agreement or any other Document to which it is a party.
-23-
5.2. Authorization of Agreement and Other Documents.
Each of TCHI, Funding and the Partnership has taken all action necessary
to authorize it to enter into and perform its obligations under each of this
Agreement and the other Documents to which it is a party and to consummate the
transactions contemplated hereby and thereby (including, without limitation, the
issuance and sale of the Senior Notes). This Agreement is, and, as of the
Closing Date and each of the Documents to which TCHI, Funding or the Partnership
is a party will be, a legal, valid and binding obligation of TCHI, Funding or
the Partnership, as the case may be, enforceable against TCHI, Funding or the
Partnership, as the case may be, in accordance with its terms, except as such
enforcement may be subject to (i) applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws now or hereafter
affecting creditors' rights and remedies generally and (ii) general principles
of equity (regardless of whether such enforcement is sought in a proceeding in
equity or at law) and (iii) the New Jersey Casino Control Act and the
regulations promulgated thereunder.
5.3. No Violation.
5.3.1. Existing Violations.
Neither TCHI, Funding nor the Partnership is (i) in violation of its
respective Charter Documents or (ii) in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any indenture, mortgage, deed of trust or
any other agreement or instrument to which any of them is a party other than
such defaults that could not, singly or in the aggregate, reasonably be expected
to result in a Material Adverse Effect. There exists no condition that, with the
passage of time or otherwise, would constitute a violation of such Charter
Documents or a default under any such document or instrument or result in the
imposition of any penalty or the acceleration of any indebtedness or other
obligation other than such defaults that would not, singly or in the aggregate,
result in a Material Adverse Effect.
5.3.2. Execution of Agreement.
Neither the execution or delivery by TCHI, Funding or the Partnership of
this Agreement or the other Documents to which it is a party, the issuance, sale
or delivery of the Senior Notes, the performance by TCHI, Funding or the
Partnership of its obligations pursuant to this Agreement and the other
Documents, nor the consummation of the transactions contemplated hereby or
thereby will conflict with, violate, constitute a breach of or a default (with
the passage of time or otherwise) under, require the consent of any Person
(other than consents already obtained) under, result in the imposition of any
penalty, or result in the imposition of a Lien (other than pursuant to the
Security Documentation and Liens permitted under the Funding Note Indenture and
the TCHI Note Indenture) on any properties of TCHI, Funding or the Partnership
or an acceleration of indebtedness or other obligation pursuant to,
-24-
(i) the Charter Documents of TCHI, Funding or the Partnership, (ii) any bond,
debenture, note or any other evidence of indebtedness or any indenture,
mortgage, deed of trust or any other agreement or instrument to which TCHI,
Funding or the Partnership is a party or by which it is bound or to which any of
its property or assets is subject, or (iii) any Applicable Law, except in any
case where such violation, default, breach or conflict, or the absence of such
consent or the creation of such Lien, would not, singly or in the aggregate,
result in a Material Adverse Effect.
5.4. No Default.
Were the Funding Note Indenture, the TCHI Note Indenture, the Registration
Rights Agreement and the Security Documentation in effect as of the date hereof,
after giving effect to the transactions contemplated hereby, including
application of proceeds from the sale of the Senior Notes, there would be no
Default or Event of Default thereunder or breach thereof.
5.5. Full Disclosure.
The Most Recent 10-K, including the financial statements included therein,
complies with all applicable provisions of the Exchange Act in all material
respects and contains all statements required to be stated therein in accordance
with the Exchange Act. None of the Most Recent 10-K, this Agreement or any of
the other Documents contained, as of its respective date, or would now contain
were the information contained therein made available to you as of the date of
this Agreement, any untrue statement of a material fact or as of such date
omitted, or now omits, to state a material fact necessary to make the statements
contained herein or therein, when taken as a whole in light of the circumstances
under which they were made, not misleading.
5.6. ERISA.
The execution and delivery of this Agreement, the other Documents and the
sale of the Senior Notes to be purchased by the Funds do not involve any
"prohibited transaction" by TCHI, Funding or the Partnership. Neither TCHI,
Funding nor the Partnership is a "party in interest" or a "disqualified person"
with respect to a qualified trust except as to those employee benefit plans set
forth on Schedule 2.3.3. No condition exists or event or transaction has
occurred in connection with any "employee benefit plan" maintained or
contributed to by TCHI, Funding or the Partnership or any of their ERISA
Affiliates (any plan being herein referred to as the "Pension Plan") that could
result in TCHI, Funding the Partnership or any such ERISA Affiliate incurring
any liability, fine or penalty which would, singly or in the aggregate, have a
Material Adverse Effect. With respect to any Pension Plan, other than a
Multiemployer Plan, that is subject to Title IV of ERISA, (a) the fair market
value of the assets of such Pension Plan equals or exceeds (and will equal or
exceed immediately subsequent to the consummation of the transactions
contemplated hereby) the present value of the liabilities of such Pension Plan
(as determined in accordance with the actuarial methods and assumptions
-25-
set forth in the latest actuarial report for such Pension Plan), except where
the failure so to equal or exceed would not, singly or in the aggregate, have a
Material Adverse Effect and (b) there exists (and will exist immediately
subsequent to the consummation of the transactions contemplated hereby) no
accumulated funding deficiency.
The representation of TCHI, Funding and the Partnership in the first
sentence of the preceding paragraph is made in reliance upon, and is subject to,
the accuracy of each Fund's representations in section 2.3.3 hereof.
5.7. Compliance with Laws.
Neither TCHI, Funding nor the Partnership is in violation of any
Applicable Law, except such violations as may not, singly or in the aggregate,
have a Material Adverse Effect. Each of TCHI, Funding and the Partnership has
obtained and holds all licenses, permits, franchises and other governmental
authorizations necessary to the ownership or operation of its properties or the
conduct of its business as currently conducted, except such failures as would
not, singly or in the aggregate, have a Material Adverse Effect.
5.8. Consents.
No consent, approval or authorization of, or filing, registration or
qualification (including, without limitation, pursuant to the New Jersey Casino
Control Act) with, any Person or any governmental or regulatory authority or
body (including, without limitation, the New Jersey Casino Control Commission,
or any successor entity) is required in connection with or as a condition to the
execution and delivery of this Agreement or any of the other Documents or the
consummation of transactions contemplated hereby or thereby (including, without
limitation, the offer, issuance, sale or delivery of the Senior Notes at the
Closing), except for such (i) consents, approvals, authorizations, filings,
registrations or qualifications as have been made or obtained on or before the
Closing Date (and copies of which will be delivered to the Funds upon their
request), or are not required to be made or obtained prior to the Closing Date
and (ii) the filing of mortgages, financing statements and any other security
documents pursuant to the Security Documentation, and except to the extent that
the failure to obtain any such consents, approvals, authorizations or
qualifications or to make any such filings or registrations could not, singly or
in the aggregate, have a Material Adverse Effect.
5.9. No Violation of Regulations of Board of Governors of Federal Reserve
System.
None of the transactions contemplated by this Agreement (including,
without limitation, the use of the proceeds from the sale of the Senior Notes)
shall violate or result in a violation by TCHI, Funding or the Partnership of
Section 7 of the Exchange Act including, without limitation, Regulations G, T, U
and X of the Board of Governors of the Federal Reserve System. No part of the
proceeds of the sale of the Senior Notes will be used directly or
-26-
indirectly for the purpose of purchasing or carrying any margin securities
within the meaning of Regulation G.
5.10. Private Offering.
5.10.1. Sale Exempt.
Assuming the correctness of the representations made by the Funds in
Section 2.3 hereof, the sale of the Senior Notes hereunder is exempt from the
registration and prospectus delivery requirements of the Securities Act and it
is not necessary in connection with the sale of the Senior Notes to the Funds in
accordance herewith to qualify the Funding Note Indenture or the TCHI Note
Indenture under the Trust Indenture Act of 1939, as amended.
5.10.2. No General Solicitation.
In the case of each offer or sale of the Senior Notes, no form of general
solicitation or general advertising was used by TCHI, Funding or the Partnership
or any of their officers, directors or employees including, but not limited to,
advertisements, articles, notices or other communications published in any
newspaper, magazine or similar medium or broadcast over television or radio, or
any seminar or meeting whose attendees had been invited by any general
solicitation or general advertising. No offers were made by TCHI, Funding or the
Partnership or any of their officers, directors or employees other than to
persons whom the offeror reasonably believed to be accredited investors or
sophisticated purchasers as those terms have been construed under Section 4(2)
of the Securities Act. The Funds are the sole purchasers of the Senior Notes. No
securities of the same class as any of the Senior Notes have been issued and
sold by the Company within the six-month period immediately prior to the date
hereof. Each of TCHI, Funding and the Partnership agrees that neither it nor
anyone acting on its behalf, will offer any Senior Notes so as to bring the
issuance and sale of any of the Senior Notes within the provisions of Section 5
of the Securities Act nor offer any similar securities for issuance or sale to,
or solicit any offer to acquire any of the same from, or otherwise approach or
negotiate with respect thereto with anyone if the sale of any of the Senior
Notes and any such securities could be integrated as a single offering for
purposes of the Securities Act.
5.11. Governmental Regulations.
Except for the required approval of the issuance and sale of the Senior
Notes by the New Jersey Casino Control Commission, which approval has been
obtained, neither TCHI, Funding nor the Partnership is subject to regulation, or
will become subject to regulation upon the consummation of the transactions
contemplated by this Agreement or any of the other Documents, under the
Investment Company Act of 1940, as amended, or any Federal or state statute or
regulation limiting its ability to incur or assume indebtedness for borrowed
money or consummate the transactions contemplated hereby.
-27-
5.12. Survival of Indemnification and Contribution and Representations and
Warranties.
All of the representations and warranties of TCHI, Funding and the
Partnership in this Agreement, the Most Recent 10-K and the other Documents and
in any other document, financial statement or other instrument or certificate
delivered to the Funds by or on behalf of TCHI, Funding or the Partnership in
connection with this Agreement and the Documents and the transactions
contemplated hereby and thereby shall be deemed to constitute representations
and warranties hereunder and shall be true in all material respects at and as of
the Closing Date, after giving effect to the transactions contemplated hereby.
All of the obligations to indemnify the Funds and contribute to the Funds'
losses contained in this Agreement and the other Documents and in any other
document, financial statement or other instrument or certificate delivered to
the Fund by or on behalf of TCHI, Funding or the Partnership in connection with
this Agreement and the Documents and the transactions contemplated hereby and
thereby and all of the representations and warranties of TCHI, Funding or the
Partnership shall survive the execution and delivery of this Agreement and the
other Documents, any investigation by the Funds and the issuance of the Senior
Notes.
SECTION 6. MISCELLANEOUS.
6.1. Notices.
All notices and other communications provided for or permitted under this
Agreement shall be made in writing by hand-delivery, next-day air courier,
certified first-class mail, return receipt requested, telex, or facsimile:
(a) if to any Fund, at its address set forth on the first page of this
Agreement, with a copy to Ropes & ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq (provided that payment
notices shall be sent to the address indicated for each Fund on Annex E); and
(b) if to TCHI, Funding or the Partnership, at its address set forth on
the first page of this Agreement, with a copy to (i) if prior to May 26, 1998,
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, One Citicorp Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq. or (ii) if on or after May 26,
1998, ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being timely delivered to a next-day air courier; five business days after being
deposited in the mail, postage prepaid, if mailed; when answered back if
telexed; and when receipt is acknowledged by the recipient's telecopier machine,
if telecopied.
-28-
6.2. Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties, and to the extent set forth in
Sections 2.6 and 2.7 hereof, the Indemnified Parties and their respective heirs,
personal representatives, successors and assigns, and no other persons shall
acquire or have any right under or by virtue of this Agreement.
6.3. Amendment and Waiver.
Prior to the Closing Date, this Agreement and the other Documents may be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may be given, provided that the same are in writing and
signed by the Funds and the Partnership. Thereafter, this Agreement may only be
amended, and such waivers be given, with the consent of the holders of a
majority of the then outstanding aggregate principal amount of the Funding Notes
(other than Funding Notes owned or acquired by Funding, the Partnership or any
of their Affiliates) and the consent of the holders of a majority of the
outstanding aggregate principal amount of the TCHI Notes (other than the TCHI
Notes owned or acquired by TCHI, Funding, the Partnership or any of their
Affiliates).
6.4. Counterparts.
This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
6.5. Headings.
The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
6.6. Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF
TCHI, FUNDING AND THE PARTNERSHIP HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION
OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, CITY OF NEW
YORK, OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, CITY OF NEW YORK
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID
-29-
COURTS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY FUND TO SERVE PROCESS IN
ANY MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST TCHI, FUNDING OR THE PARTNERSHIP IN ANY OTHER JURISDICTION.
6.7. Entire Agreement.
This Agreement, together with the other Documents and the Senior Notes,
are intended by the parties as a final expression of their agreement and
intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained
herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein and therein. This
Agreement, together with the other Documents and the Senior Notes, supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
6.8. Severability.
If any term, provision, covenant or restriction of this Agreement is held
by a court of competent jurisdiction to be invalid, illegal, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
If this Agreement is satisfactory to each of the Funds, please so indicate
by signing the acceptance on a counterpart of this Agreement and return such
counterpart to Funding whereupon this Agreement will become binding between us
in accordance with its terms.
Very truly yours,
TRUMP'S CASTLE FUNDING, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer
TRUMP'S CASTLE HOTEL & CASINO, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer
TRUMP'S CASTLE ASSOCIATES, L.P.
By: TRUMP'S CASTLE HOTEL & CASINO,
INC., its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President and Chief Executive Officer
Accepted and agreed to:
THE FUNDS LISTED ON ANNEX A HERETO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ INVESTMENT MANAGEMENT,
INC. ON BEHALF OF THE FUNDS AND
ACCOUNTS LISTED ON ANNEX B HERETO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
▇▇▇▇▇▇ FIDUCIARY TRUST COMPANY ON
BEHALF OF THE FUNDS AND ACCOUNTS
LISTED ON ANNEX C HERETO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
THE ▇▇▇▇▇▇ ADVISORY COMPANY, INC. ON
BEHALF OF THE FUNDS AND ACCOUNTS
LISTED ON ANNEX D HERETO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
ANNEX A
▇▇▇▇▇▇ Variable Trust - PVT High Yield Fund
▇▇▇▇▇▇ Funds Trust - ▇▇▇▇▇▇ High Yield Trust II
Putnam Managed High Yield Trust
▇▇▇▇▇▇ High Yield Trust
▇▇▇▇▇▇ High Yield Advantage Fund
Putnam Strategic Income Fund
▇▇▇▇▇▇ Diversified Income Trust
Putnam Variable Trust - PVT Diversified Income Fund
▇▇▇▇▇▇ Master Income Trust
▇▇▇▇▇▇ Premier Income Trust
▇▇▇▇▇▇ Master Intermediate Income Trust
▇▇▇▇▇▇ Asset Allocation Funds - Balanced Portfolio
▇▇▇▇▇▇ Variable Trust - PVT Global Asset Allocation Fund
▇▇▇▇▇▇ Asset Allocation Funds - Conservative Portfolio
▇▇▇▇▇▇ Asset Allocation Funds - Growth Portfolio
▇▇▇▇▇▇ The ▇▇▇▇▇▇ ▇▇▇▇▇▇ Fund of Boston
▇▇▇▇▇▇ Income Fund
▇▇▇▇▇▇ Equity Income Fund
▇▇▇▇▇▇ Balanced Retirement Fund
▇▇▇▇▇▇ Funds Trust - ▇▇▇▇▇▇ High Yield Total Return Fund
Putnam High Income Convertible and Bond Fund
▇▇▇▇▇▇ Convertible Opportunities and Income Trust
ANNEX B
Travelers Series Fund Inc. - ▇▇▇▇▇▇ Diversified Income Portfolio
ANNEX C
▇▇▇▇▇▇ High Yield Managed Trust
▇▇▇▇▇▇ High Yield Fixed Income Fund, LLC
ANNEX D
Ameritech Corporation Pension Plan
▇▇▇▇ ▇▇▇▇▇▇ Cancer Institute
▇▇▇▇▇▇ Laboratories Annuity Retirement Plan
Mobil Oil Corporation Retirement Plans
Strategic Global Fund - High Yield Fixed Income (▇▇▇▇▇▇) Fund
Ameritech Corporation Pension Plan
-33-
ANNEX E
FUNDS AND ACCOUNTS PURCHASING FUNDING NOTES AND TCHI NOTES
---------------------------------------------------------------------------------------------------------------
Fund Fund/Account Name Nominee Funding Note Funding TCHI Note TCHI Bank
Account Name Principal Note # Principal Note Account #
# Amount Amount #
---------------------------------------------------------------------------------------------------------------
017 ▇▇▇▇▇▇ Variable Trust - Muico & Co. $4,230,000 1 096186
PVT High Yield Fund
---------------------------------------------------------------------------------------------------------------
2HS ▇▇▇▇▇▇ Funds Trust - Muico & Co. $1,520,000 2 096181
▇▇▇▇▇▇ High Yield Trust
II
---------------------------------------------------------------------------------------------------------------
590 ▇▇▇▇▇▇ Managed High Muico & Co. $430,000 3 096268
Yield Trust
---------------------------------------------------------------------------------------------------------------
205 ▇▇▇▇▇▇ High Yield Trust Muico & Co. $15,985,000 4 $2,500,000 1 096120
---------------------------------------------------------------------------------------------------------------
303 ▇▇▇▇▇▇ High Yield Muico & Co. $17,975,000 5 $2,500,000 2 096172
Advantage Fund
---------------------------------------------------------------------------------------------------------------
2BU ▇▇▇▇▇▇ Strategic Income Muico & Co. $310,000 6 096302
Fund
---------------------------------------------------------------------------------------------------------------
837 ▇▇▇▇▇▇ Diversified Muico & Co. $9,130,000 7 096200
Income Trust
---------------------------------------------------------------------------------------------------------------
963 ▇▇▇▇▇▇ Variable Trust - Muico & Co. $1,060,000 8 096274
PVT Diversified Income
Fund
---------------------------------------------------------------------------------------------------------------
807 ▇▇▇▇▇▇ Master Income Muico & Co. $830,000 9 096194
Trust
---------------------------------------------------------------------------------------------------------------
811 ▇▇▇▇▇▇ Premier Income Muico & Co. $2,090,000 10 096196
Trust
---------------------------------------------------------------------------------------------------------------
815 ▇▇▇▇▇▇ Master Muico & Co. $1,320,000 11 096198
Intermediate Income
Trust
---------------------------------------------------------------------------------------------------------------
099 ▇▇▇▇▇▇ Asset Allocation Muico & Co. $660,000 12 096280
Funds - Balanced
Portfolio
---------------------------------------------------------------------------------------------------------------
1GF ▇▇▇▇▇▇ Variable Trust - Muico & Co. $190,000 13 096192
PVT Global Asset
Allocation Fund
---------------------------------------------------------------------------------------------------------------
283 ▇▇▇▇▇▇ Asset Allocation Muico & Co. $220,000 14 096282
Funds - Conservative
Portfolio
---------------------------------------------------------------------------------------------------------------
502 ▇▇▇▇▇▇ Asset Allocation Muico & Co. $260,000 15 096278
Funds - Growth Portfolio
---------------------------------------------------------------------------------------------------------------
612 ▇▇▇▇▇▇ The ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. $600,000 16 096100
▇▇▇▇▇▇ Fund of Boston
---------------------------------------------------------------------------------------------------------------
774 ▇▇▇▇▇▇ Income Fund Muico & Co. $970,000 17 096106
---------------------------------------------------------------------------------------------------------------
897 ▇▇▇▇▇▇ Equity Income Muico & Co. $30,000 18 096118
Fund
---------------------------------------------------------------------------------------------------------------
-34-
---------------------------------------------------------------------------------------------------------------
978 ▇▇▇▇▇▇ Balanced Muico & Co. $90,000 19 096144
Retirement Fund
---------------------------------------------------------------------------------------------------------------
2DK ▇▇▇▇▇▇ Funds Trust - Muico & Co. $190,000 20 096109
▇▇▇▇▇▇ High Yield
Total Return Fund
---------------------------------------------------------------------------------------------------------------
416 ▇▇▇▇▇▇ High Income Muico & Co. $210,000 21 096174
Convertible and Bond
Fund
---------------------------------------------------------------------------------------------------------------
763 ▇▇▇▇▇▇ Convertible Muico & Co. $200,000 22 096316
Opportunities and Income
Trust
---------------------------------------------------------------------------------------------------------------
979 Travelers Series Fund ▇▇▇▇▇▇▇ & $230,000 23 340120380513
Inc. - ▇▇▇▇▇▇ Diversified Co.
Income Portfolio
---------------------------------------------------------------------------------------------------------------
171 ▇▇▇▇▇▇ High Yield ▇▇▇▇ & Co. $1,520,000 25 PUTF6520002
Managed Trust
---------------------------------------------------------------------------------------------------------------
1BS ▇▇▇▇▇▇ High Yield Fixed ▇▇▇▇ & Co. $340,000 26 PUTF6921002
Income Fund, LLC
---------------------------------------------------------------------------------------------------------------
299 Ameritech Corporation Blazerhold $570,000 27 ER40
Pension Plan & Co.
---------------------------------------------------------------------------------------------------------------
1CW ▇▇▇▇ ▇▇▇▇▇▇ Cancer ▇▇▇▇ & Co. $50,000 29 DANF020002
Institute
---------------------------------------------------------------------------------------------------------------
1FY ▇▇▇▇▇▇ Laboratories Booth & Co. $250,000 30 22-30838
Annuity Retirement Plan
---------------------------------------------------------------------------------------------------------------
1PU Mobil Oil Corporation Boston Safe $250,000 24 MOBF7731002
Retirement Plans Deposit Trust
Company for
Mobil Oil
Retirement
Trust
---------------------------------------------------------------------------------------------------------------
1SJ Strategic Global Fund - Booth & Co. $270,000 28 1745445
High Yield Fixed Income
(▇▇▇▇▇▇) Fund
---------------------------------------------------------------------------------------------------------------
1ME Ameritech Corporation Aircourse $20,000 31 ERAE
Pension Plan & Co.
---------------------------------------------------------------------------------------------------------------
TOTAL $62,000,000 5,000,000
---------------------------------------------------------------------------------------------------------------
-35-
Tax ID numbers: Muico & Co. ▇▇-▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. ▇▇-▇▇▇▇▇▇▇
▇▇▇▇ & Co. ▇▇-▇▇▇▇▇▇▇
Blazerhold & Co. ▇▇-▇▇▇▇▇▇▇
Aircourse & Co. ▇▇-▇▇▇▇▇▇▇
Booth & Co. ▇▇-▇▇▇▇▇▇▇
Boston Safe Deposit Trust Company ▇▇-▇▇▇▇▇▇▇
for Mobil Oil Retirement Trust
Wire transfer instructions for future payments of interest and principal
Funds for which Muico & Co. is the Nominee:
Bankers Trust Company
ABA #021 001 033
Account #▇▇▇▇▇▇▇▇
Reference: Muico & Co., Fund Account #, 10 1/4 ▇▇▇▇▇ Funding/TCHI
Notes due 2003
Contact: ▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇-▇▇▇-▇▇▇▇)
Travelers Series Fund Inc. - ▇▇▇▇▇▇ Diversified Income Portfolio:
PNC Bank
ABA# ▇▇▇-▇▇▇-▇▇▇
DDA# 8511003437
REF: Travelers Series Fund, Inc.
Account #▇▇▇▇▇▇▇▇▇▇▇▇
Contact: ▇▇▇ ▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ High Yield Managed Trust
Boston Safe Deposit & Trust
ABA# ▇▇▇-▇▇▇-▇▇▇
DDA# 115762
Cost Center #8630
REF: ▇▇▇▇▇▇ High Yield Managed Trust
Acct. #PUTF6520002
Contact: ▇▇▇▇▇ ▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ High Yield Fixed Income Fund, LLC
Boston Safe Deposit & Trust Company
ABA# ▇▇▇-▇▇▇-▇▇▇
DDA# 115762
Cost Center #8630
REF: ▇▇▇▇▇▇ High Yield Fixed Income
Acct. #PUTF8921002
Contact: ▇▇▇▇▇ ▇▇▇▇, Mellon Trust
(▇▇▇) ▇▇▇-▇▇▇▇
-36-
Ameritech Corporation Pension Plan (Account 299)
State Street Bank and Trust Co.
ABA# ▇▇▇-▇▇▇-▇▇▇
DDA# 01402999
REF: Ameritech Corp., Acct. #ER40
Contact: ▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ Cancer Institute
Boston Safe Deposit & Trust
ABA# ▇▇▇-▇▇▇-▇▇▇
DDA# 125281
Cost Center #1253
REF: ▇▇▇▇ ▇▇▇▇▇▇, Acct. #DNAF0200002
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Mellon Trust
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ Laboratories Annuity Retirement Plan
Northern Chicago/Trust
ABA# ▇▇▇-▇▇▇-▇▇▇
A/C# 5166061000
REF: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇. #▇▇-▇▇▇▇▇
▇▇▇▇▇▇▇: ▇▇▇▇▇▇▇ ▇▇▇▇▇, The Northern Trust Co. (▇▇▇) ▇▇▇-▇▇▇▇
Mobil Oil Corporation Retirement Plans
Boston Safe Deposit & Trust
ABA# ▇▇▇-▇▇▇-▇▇▇
DDA# 125261
Cost Center #1253
REF: Mobil Oil, Acct. #MOBF7731002
Contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Mellon Trust (▇▇▇) ▇▇▇-▇▇▇▇
Strategic Global Fund - High Yield
Northern Chicago/Trust
ABA# ▇▇▇-▇▇▇-▇▇▇
A/C# 5188061000
REF: Strategic Global, Acct. #▇▇▇▇▇▇▇
Contact: ▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
Ameritech Corporation Pension Plan (Account 1ME)
State Street Bank and Trust Co.
ABA# ▇▇▇-▇▇▇-▇▇▇
DDA# 01403583
REF: Ameritech Corp., Acct. #ERAE
Contact: ▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
-37-
SCHEDULE 2.3.3
TO
NOTE PURCHASE AGREEMENT
1. ▇▇▇▇▇ ▇▇▇▇▇▇ Hotel & Casino Retirement and Savings Plan
2. ▇▇▇▇▇ Plaza Hotel & Casino Retirement Savings Plan
3. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ Casino Resort Retirement Savings Plan
4. ▇▇▇▇▇ Casino Services Retirement and Savings Plan
5. ▇▇▇▇▇ Indiana Retirement and Savings Plan.
