<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13E-3
Rule 13e-3 Transaction Statement
(Pursuant to Section 13(e) of the Securities Exchange Act of 1934)
(Amendment No. 4)
THCR HOLDING CORP. (formerly known as Taj Mahal Holding Corp.)
--------------------------------------------------------------
(Name of the Issuer)
TRUMP HOTELS & CASINO RESORTS, INC.
-----------------------------------
TRUMP HOTELS & CASINO RESORTS HOLDINGS, L.P.
--------------------------------------------
DONALD J. TRUMP
---------------
THCR/LP CORPORATION (formerly known as TM/GP Corporation)
--------------------------------------------------------
TRUMP ATLANTIC CITY ASSOCIATES
------------------------------
THCR HOLDING CORP.
------------------
(Name of Persons Filing Statement)
Class A Common Stock,
---------------------
$0.01 par value
---------------
(Title of Class of Securities)
874049208
---------
(CUSIP Number of Class of Securities)
NICHOLAS L. RIBIS
c/o Trump Hotels & Casino Resorts, Inc.
Mississippi Avenue and The Boardwalk
Atlantic City, NJ 08401
(609) 441-6060
------------------------------------
(Name, Address and Telephone Number of Person(s) Authorized to Receive Notices
and Communications on Behalf of Person(s) Filing Statement)
COPY TO:
DANIEL D. RUBINO, ESQ.
WILLKIE FARR & GALLAGHER
ONE CITICORP CENTER
153 EAST 53RD STREET
NEW YORK, NY 10022
(212) 821-8000
This statement is filed in connection with
(check the appropriate box):
a. [_] The filing of solicitation materials or an information statement
subject to Regulation 14A [17 CFR 240.14a-1 to 240.14b-1], Regulation
14C [17 CFR 240.14c-1 to 240.14c-101] or Rule 13e-3(c) [(S)
240.13e(c)] under the Securities Exchange Act of 1934.
b. [X] The filing of a registration statement under the Securities Act of
1933.
c. [_] A tender offer.
d. [_] None of the above.
Check the following box if the soliciting materials or
information statement referred to in checking box (a) are
preliminary copies: [_].
<PAGE>
Calculation of Filing Fee
-------------------------
Transaction Valuation: *$40,500,000
Amount of Filing Fee: $ 8,100
* For purposes of calculating filing fee only. This amount assumes the purchase
of 1,350,000 shares of Taj Mahal Holding Corp. (now known as THCR Holding
Corp.) Class A Common Stock, par value $ .01 per share, at $30 per share. The
amount of the filing fee calculated in accordance with Rule 0-11 promulgated
under the Securities Exchange Act of 1934, as amended, equals 1/50 of one
percent of the value of shares to be purchased.
[X] Check box if any part of the fee is offset as provided by Rule 0-
11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $15,188
Form or Registration No.: 333-00153
Filing Party: Trump Hotels & Casino Resorts, Inc.
Date Filed: January 11, 1996
<PAGE>
INTRODUCTION
------------
This Amendment No. 4 to the Rule 13e-3 Transaction Statement (the
"Statement") is being filed by Trump Hotels & Casino Resorts, Inc., a Delaware
corporation ("THCR"), Trump Hotels & Casino Resorts Holdings, L.P., a Delaware
limited partnership ("THCR Holdings"), Donald J. Trump, individually ("Trump"),
THCR/LP Corporation, a New Jersey corporation formerly known as TM/GP
Corporation ("TM/GP"), Trump Atlantic City Associates, a New Jersey general
partnership formerly known as Trump Plaza Holding Associates ("Trump AC") and
THCR Holding Corp., a Delaware corporation formerly known as Taj Mahal Holding
Corp. ("Taj Holding"), and supplements and amends Amendment No. 3 to the Rule
13E-3 Transaction Statement, filed by such parties with the Securities and
Exchange Commission (the "Commission") on March 8, 1996, in connection with the
merger (the "Merger") of THCR Merger Corp., a Delaware corporation ("Merger
Sub") with and into Taj Holding, pursuant to the Agreement and Plan of Merger,
dated as of January 8, 1996, as amended on January 31, 1996 (the "Merger
Agreement"), among THCR, Taj Holding and Merger Sub. THCR, THCR Holdings, Trump,
TM/GP and Trump AC are each affiliates of Taj Holding and its affiliated
entities.
In accordance with Rule 13e-3(d)(3) of the Securities Exchange Act of
1934, this Statement reports the consummation of the Merger, which occurred on
April 17, 1996. On April 17, 1996, pursuant to the Merger Agreement, Merger Sub
was merged with and into Taj Holding. Immediately prior to the Merger, all of
the shares of the Class B Common Stock, par value $.01 per share, of Taj Holding
("Taj Holding Class B Common Stock") were redeemed. Upon the effectiveness of
the Merger, all of the shares of the Class C Common Stock, par value $.01 per
share, of Taj Holding ("Taj Holding Class C Common Stock") were canceled,
holders of 1,039,208 shares of the Class A Common Stock, par value $.01 per
share, of Taj Holding ("Taj Holding Class A Common Stock") became entitled to
receive $30.00 in cash per share of Taj Holding Class A Common Stock and holders
of 310,792 shares of Taj Holding Class A Common Stock became entitled to receive
approximately 1.04 shares of THCR Common Stock, par value $.01 per share ("THCR
Common Stock"), per share of Taj Holding Class A Common Stock.
<PAGE>
ITEM 16. Additional Information.
- --------------------------------------
Item 16 is hereby supplemented and amended by adding the following
information thereto:
On April 11, 1996, at a Special Meeting of the Stockholders of Taj
Holding, the holders of a majority of the outstanding shares of each of the Taj
Holding Class A Common Stock, Taj Holding Class B Common Stock and Taj Holding
Class C Common Stock, each voting as a separate class, voted in favor of
approving and adopting the Merger Agreement. On April 11, 1996, at a Special
Meeting of the Stockholders of THCR, (i) the holders of a majority of the
outstanding shares of THCR Common Stock (excluding directors and executive
officers of THCR and their affiliates) voting as a separate class (representing
the approval of a majority of THCR's unafilliated stockholders) and (ii) the
holders of shares representing a majority of the outstanding voting power of
THCR Common Stock and THCR Class B Common Stock, par value $.01 per share,
voting together as a single class, voted in favor of approving the Merger and
certain other related transactions.
The Merger was consummated on April 17, 1996. Immediately prior to the
consummation of the Merger, all of the shares of the Taj Holding Class B Common
Stock were redeemed. Upon the effectiveness of the Merger, all of the shares of
the Taj Holding Class C Common Stock were canceled, holders of 1,039,208 shares
of Taj Holding Class A Common Stock became entitled to receive $30.00 in cash
per share of Taj Holding Class A Common Stock and holders of 310,792 shares of
Taj Holding Class A Common Stock became entitled to receive approximately 1.04
shares of THCR Common Stock per share of Taj Holding Class A Common Stock.
In addition, upon effectiveness of the Merger, among other things, (a)
Merger Sub was merged with and into Taj Holding, with Taj Holding as the
surviving corporation, (b) Taj Holding and TM/GP became wholly owned
subsidiaries of THCR, (c) TM/GP became a limited partner of THCR Holdings and
(d) Trump Taj Mahal Associates, the partnership which owns and operates the
Trump Taj Mahal Casino Resort in Atlantic City, New Jersey, became a wholly
owned subsidiary of THCR Holdings.
ITEM 17. Material to be Filed as Exhibits.
- ------------------------------------------------
(a) Indenture, dated as of April 17, 1996, by and among Trump
Atlantic City Associates and Trump Atlantic City Funding, Inc.,
as issuers, Trump Plaza Associates, Trump Taj Mahal Associates
and Trump Atlantic City Corporation, as guarantors, and First
Bank National Association, as Trustee, in connection with the
issuance of $1,200,000,000 aggregate principal amount of 11 1/4%
First Mortgage Notes due 2006.
(b)(1)(i) **Opinion of Rothschild, Inc., dated January 8, 1996.
(b)(1)(ii) **Opinion of Rothschild, Inc., dated January 31, 1996.
- ---------------
**Previously filed.
<PAGE>
(b)(2)(i) **Report by Rothschild, Inc. to the Board of Directors of
Taj Mahal Holding Corp., dated January 8, 1996.
(b)(2)(ii) **Report by Rothschild, Inc. to the Board of Directors of
Taj Mahal Holding Corp., dated January 26, 1996.
(b)(3)(i) **Opinion of Donaldson, Lufkin & Jenrette Securities Corporation,
dated January 8, 1996.
(b)(3)(ii) **Opinion of Donaldson, Lufkin & Jenrette Securities Corporation,
dated January 31, 1996.
(b)(4)(i) **Report by Donaldson, Lufkin & Jenrette Securities Corporation
to the Special Committee of the Board of Directors of Trump
Hotels & Casino Resorts, Inc., dated January 4, 1996.
(b)(4)(ii) **Report by Donaldson, Lufkin & Jenrette Securities Corporation
to the Special Committee of the Board of Directors of Trump
Hotels & Casino Resorts, Inc., dated January 31, 1996.
(b)(5) **Appraisal of the Trump Taj Mahal Casino Resort, dated March 18,
1994, by Appraisal Group International.
(b)(6) **Appraisal of the Specified Parcels, dated December 21, 1995, by
Appraisal Group International.
(c)(1) **Agreement and Plan of Merger, dated as of January 8, 1996,
among Trump Hotels & Casino Resorts, Inc., Taj Mahal Holding
Corp. and THCR Merger Corp., as amended on January 31, 1996.
(c)(2) **Agreement, dated October 6, 1995, by and among Hamilton
Partners, L.P., Prudential Securities, Inc., Putnam Investment
Management, Inc., Grace Brothers Ltd., SC Fundamental Value Fund,
L.P. and SC Fundamental Value BVI Ltd. and Trump Taj Mahal
Associates, Trump Taj Mahal Funding, Inc. and Trump Taj Mahal
Holding Corp.
(c)(3) **Letter of Donald J. Trump to Taj Mahal Holding Corp., dated
January 8, 1996.
(d)(i) **Joint Proxy Statement - Prospectus of Trump Hotels & Casino
Resorts, Inc. and Taj Mahal Holding Corp., Subject to Completion,
dated January 11, 1996 (included in the Registration Statement on
Form S-4, filed by Trump Hotels & Casino Resorts, Inc. with the
Securities and Exchange Commission on January 11, 1996).
- -----------------
**Previously filed.
<PAGE>
(d)(ii) **Joint Proxy Statement - Prospectus of Trump Hotels & Casino
Resorts, Inc. and Taj Mahal Holding Corp., Subject to Completion,
dated February 1, 1996 (included in the Registration Statement on
Form S-4, filed by Trump Hotels & Casino Resorts, Inc. with the
Securities and Exchange Commission on February 1, 1996).
(d)(iii) **Joint Proxy Statement - Prospectus of Trump Hotels & Casino
Resorts, Inc. and Taj Mahal Holding Corp., Subject to Completion,
dated February 27, 1996 (included in the Registration Statement
on Form S-4, filed by Trump Hotels & Casino Resorts, Inc. with
the Securities and Exchange Commission on February 27, 1996).
(d) (iv) **Joint Proxy Statement-Prospectus of Trump Hotels & Casino
Resorts, Inc. and Taj Mahal Holding Corp., Subject to Completion,
dated March 8, 1996 (included in the Registration Statement on
Form S-4, filed by Trump Hotels & Casino Resorts, Inc. with the
Securities and Exchange Commission on March 8, 1996).
(e) **Section 262 of the Delaware General Corporation Law.
(f) Not Applicable.
- ------------
** Previously filed.
<PAGE>
SIGNATURES
After due inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
Dated: April 25, 1996
TRUMP HOTELS & CASINO RESORTS, INC.
By: /s/ Nicholas L. Ribis
------------------------------------------------
Name: Nicholas L. Ribis
Title: President, Chief Executive Officer and
Chief Financial Officer
TRUMP HOTELS & CASINO RESORTS HOLDINGS, L.P.
By: Trump Hotels & Casino Resorts, Inc.,
its general partner
By: /s/ Nicholas L. Ribis
------------------------------------------------
Name: Nicholas L. Ribis
Title: President, Chief Executive Officer and
Chief Financial Officer
/s/ Donald J. Trump
------------------------------------------------
Donald J. Trump, Individually
THCR/LP CORPORATION
(formerly known as TM/GP Corporation)
By: /s/ Nicholas F. Moles
------------------------------------------------
Name: Nicholas F. Moles
Title: Secretary
TRUMP ATLANTIC CITY ASSOCIATES
By: Trump Plaza Holding, Inc.
its managing general partner
By: /s/ Nicholas L. Ribis
------------------------------------------------
Name: Nicholas L. Ribis
Title: Vice President
THCR HOLDING CORP.
(formerly known as Taj Mahal Holding Corp)
By: /s/ Nicholas F. Moles
------------------------------------------------
Name: Nicholas F. Moles
Title: Secretary
<PAGE>
EXHIBIT INDEX
-------------
17(a) Indenture, dated as of April 17, 1996, by and among Trump Atlantic City
Associates and Trump Atlantic City Funding, Inc., as issuers, Trump
Plaza Associates, Trump Taj Mahal Associates and Trump Atlantic City
Corporation, as guarantors, and First Bank National Association, as
Trustee, in connection with the issuance of $1,200,000,000 aggregate
principal amount of 11 1/4% First Mortgage Notes due 2006.
<PAGE>
EXHIBIT 17.(a)
================================================================================
TRUMP ATLANTIC CITY ASSOCIATES
TRUMP ATLANTIC CITY FUNDING, INC.
ISSUERS
TRUMP PLAZA ASSOCIATES
TRUMP TAJ MAHAL ASSOCIATES
TRUMP ATLANTIC CITY CORPORATION
GUARANTORS
AND
FIRST BANK NATIONAL ASSOCIATION
TRUSTEE
________________
INDENTURE
Dated as of April 17, 1996
________________
$1,200,000,000 11 1/4% First Mortgage Notes due 2006
================================================================================
<PAGE>
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA INDENTURE
SECTION SECTION
- ------- ---------
<S> <C>
310(a)(1)............... 8.10
(a)(2)............... 8.10
(a)(3)............... N.A.
(a)(4)............... N.A.
(a)(5)............... 8.10
(b).................. 8.8;
8.10;
12.2
(c).................. N.A.
311(a).................. 8.11
(b).................. 8.11
(c).................. N.A.
312(a).................. 2.5
(b).................. 12.3
(c).................. 12.3
313(a).................. 8.6
(b).................. 8.6.
(c).................. 8.6;
12.2
(d).................. 8.6
314(a).................. 5.7;
5.8;
12.2
(b).................. 4.2
(c)(1)............... 2.2;
8.2;
12.4;
12.5
(c)(2)............... 8.2;
12.4;
12.5
(c)(3)............... 4.1(c)
4.2
(d).................. 4.1(c)
4.4
(e).................. 12.5
(f).................. N.A.
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
315(a).................. 8.1(b)
(b).................. 8.5
(c).................. 8.1(a)
(d).................. 2.9;
7.11;
8.1(c)
(e).................. 7.13
316(a)(last sentence)... 2.9
(a)(1)(A)............ 7.11
(a)(1)(B)............ 7.12
(a)(2)............... N.A.
(b).................. 7.7;
7.12;
10.2
317(a)(1)............... 7.3
(a)(2)............... 7.4
(b).................. 2.4
318(a).................. 12.1
</TABLE>
__________
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions..................................... 1
SECTION 1.2 Incorporation by Reference of TIA............... 27
SECTION 1.3 Rules of Construction........................... 28
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating................................. 29
SECTION 2.2 Execution and Authentication.................... 29
SECTION 2.3 Registrar and Paying Agent...................... 30
SECTION 2.4 Paying Agent to Hold Assets in Trust............ 30
SECTION 2.5 Securityholder Lists............................ 31
SECTION 2.6 Transfer and Exchange........................... 31
SECTION 2.7 Replacement Securities.......................... 32
SECTION 2.8 Outstanding Securities.......................... 32
SECTION 2.9 Treasury Securities............................. 32
SECTION 2.10 Temporary Securities............................ 33
SECTION 2.11 Cancellation.................................... 33
SECTION 2.12 Defaulted Interest.............................. 33
ARTICLE III
REDEMPTION
SECTION 3.1 Right of Redemption............................. 34
SECTION 3.2 Redemption Pursuant to Applicable Laws.......... 34
SECTION 3.3 Notices to Trustee.............................. 34
SECTION 3.4 Selection of Securities to Be Redeemed.......... 35
SECTION 3.5 Notice of Redemption............................ 35
SECTION 3.6 Effect of Notice of Redemption.................. 36
SECTION 3.7 Deposit of Redemption Price..................... 36
SECTION 3.8 Securities Redeemed in Part..................... 37
</TABLE>
iii
<PAGE>
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE IV
SECURITY
SECTION 4.1 Security Interest............................... 38
SECTION 4.2 Recording; Opinions of Counsel.................. 38
SECTION 4.3 Disposition of Certain Collateral............... 39
SECTION 4.4 Certain Releases of Collateral.................. 41
SECTION 4.5 Payment of Expenses............................. 41
SECTION 4.6 Suits to Protect the Collateral................. 42
SECTION 4.7 Trustee's Duties................................ 42
SECTION 4.8 Restricted Funds Account........................ 42
ARTICLE V
COVENANTS
SECTION 5.1 Payment of Securities........................... 43
SECTION 5.2 Maintenance of Office or Agency................. 43
SECTION 5.3 Limitation on Restricted Payments............... 44
SECTION 5.4 Corporate and Partnership Existence............. 45
SECTION 5.5 Payment of Taxes and Other Claims............... 45
SECTION 5.6 Maintenance of Insurance........................ 46
SECTION 5.7 Compliance Certificate; Notice of Default....... 46
SECTION 5.8 Provision of Financial Statements............... 47
SECTION 5.9 Waiver of Stay, Extension or Usury Laws......... 48
SECTION 5.10 Limitation on Transactions with Affiliates...... 48
SECTION 5.11 Limitation on Incurrence of Additional
Indebtedness.................................... 49
SECTION 5.12 Restriction on Sale and Issuance of Subsidiary
Stock........................................... 50
SECTION 5.13 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries............. 50
SECTION 5.14 Limitation on Liens............................. 51
SECTION 5.15 Limitation on Sales of Assets and Subsidiary
Stock; Event of Loss............................ 51
SECTION 5.16 Future Subsidiary Guarantors.................... 55
SECTION 5.17 Limitation on Activities of Funding............. 55
SECTION 5.18 Limitation on Lines of Business................. 56
SECTION 5.19 Restriction on Certain Agreements............... 56
SECTION 5.20 Limitation on Leases............................ 56
SECTION 5.21 Limitation on Status as Investment Company...... 57
SECTION 5.22 Future Collateral Agreements.................... 57
</TABLE>
iv
<PAGE>
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE VI
SUCCESSORS
SECTION 6.1 Limitation on Merger, Sale or Consolidation...... 57
SECTION 6.2 Successor Substituted............................ 58
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1 Events of Default................................ 59
SECTION 7.2 Acceleration of Maturity Date; Rescission and
Annulment........................................ 62
SECTION 7.3 Collection of Indebtedness and Suits for
Enforcement by Trustee........................... 63
SECTION 7.4 Trustee May File Proofs of Claim................. 64
SECTION 7.5 Trustee May Enforce Claims Without Possession of
Securities....................................... 65
SECTION 7.6 Priorities....................................... 65
SECTION 7.7 Limitation on Suits.............................. 65
SECTION 7.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest.................. 66
SECTION 7.9 Rights and Remedies Cumulative................... 66
SECTION 7.10 Delay or Omission Not Waiver..................... 67
SECTION 7.11 Control by Holders............................... 67
SECTION 7.12 Waiver of Past Default........................... 67
SECTION 7.13 Undertaking for Costs............................ 68
SECTION 7.14 Restoration of Rights and Remedies............... 68
ARTICLE VIII
TRUSTEE
SECTION 8.1 Duties of Trustee................................ 69
SECTION 8.2 Rights of Trustee................................ 70
SECTION 8.3 Individual Rights of Trustee..................... 71
SECTION 8.4 Trustee's Disclaimer............................. 71
SECTION 8.5 Notice of Default................................ 71
SECTION 8.6 Reports by Trustee to Holders.................... 71
SECTION 8.7 Compensation and Indemnity....................... 73
SECTION 8.8 Replacement of Trustee........................... 74
SECTION 8.9 Successor Trustee by Merger, Etc................. 75
</TABLE>
v
<PAGE>
<TABLE>
PAGE
<S> <C> <C>
SECTION 8.10 Eligibility; Disqualification.................... 75
SECTION 8.11 Preferential Collection of Claims against Issuers 75
ARTICLE IX
LEGAL DEFEASANCE AND COVENANT DEFEASANCE;
SATISFACTION AND DISCHARGE
SECTION 9.1 Option to Effect Legal Defeasance or Covenant
Defeasance....................................... 75
SECTION 9.2 Legal Defeasance and Discharge................... 75
SECTION 9.3 Covenant Defeasance.............................. 76
SECTION 9.4 Conditions to Legal or Covenant Defeasance....... 76
SECTION 9.5 Deposited U.S. Legal Tender and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions......................... 77
SECTION 9.6 Repayment to Issuers............................. 78
SECTION 9.7 Reinstatement.................................... 78
SECTION 9.8 Satisfaction and Discharge of Indenture.......... 79
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1 Supplemental Indentures Without Consent of
Holders......................................... 79
SECTION 10.2 Amendments, Supplemental Indentures and
Waivers with Consent of Holders................. 80
SECTION 10.3 Compliance with TIA............................. 81
SECTION 10.4 Revocation and Effect of Consents............... 82
SECTION 10.5 Notation on or Exchange of Securities........... 82
SECTION 10.6 Trustee to Sign Amendments, Etc................. 83
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1 Repurchase of Securities at Option of the
Holder Upon Change of Control................... 83
</TABLE>
vi
<PAGE>
ARTICLE XII
MISCELLANEOUS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
SECTION 12.1 TIA Controls.................................... 86
SECTION 12.2 Notices......................................... 86
SECTION 12.3 Communications by Holders with Other Holders.... 88
SECTION 12.4 Certificate and Opinion as to Conditions
Precedent....................................... 88
SECTION 12.5 Statements Required in Certificate or Opinion... 88
SECTION 12.6 Rules by Trustee, Paying Agent, Registrar....... 89
SECTION 12.7 Legal Holidays.................................. 89
SECTION 12.8 Governing Law................................... 89
SECTION 12.9 No Interpretation of Other Agreements........... 89
SECTION 12.10 No Recourse against Others...................... 90
SECTION 12.11 Successors...................................... 90
SECTION 12.12 Duplicate Originals............................. 90
SECTION 12.13 Severability.................................... 90
SECTION 12.14 Table of Contents, Headings, Etc................ 90
SECTION 12.15 Gaming Laws..................................... 91
ARTICLE XIII
GUARANTY
SECTION 13.1 Guaranty........................................ 91
SECTION 13.2 Execution and Delivery of Guaranty.............. 92
SECTION 13.3 Certain Bankruptcy Events....................... 93
SECTION 13.4 Rights Under the Guaranty....................... 93
SECTION 13.5 Severability.................................... 94
SECTION 13.6 Merger or Consolidation of Guarantors........... 94
</TABLE>
vii
<PAGE>
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
EXHIBITS
Exhibit A Form of First Mortgage Note due 2006.... A-1
Exhibit B Form of Guaranty........................ B-1
</TABLE>
viii
<PAGE>
INDENTURE, dated as of April 17, 1996, between Trump Atlantic City
Associates, a New Jersey partnership (the "Company"), Trump Atlantic City
Funding, Inc., a Delaware corporation and a wholly owned subsidiary of the
Company ("Funding" and, together with the Company, the "Issuers"), as joint and
several obligors; Trump Plaza Associates, a New Jersey partnership ("Plaza
Associates"), and Trump Taj Mahal Associates, a New Jersey partnership ("Taj
Associates"), Trump Atlantic City Corporation (formerly "The Trump Taj Mahal
Corporation"), a Delaware corporation ("TACC" and, together with Taj Associates
and Plaza Associates and such other persons as may be required from time to time
to execute a Guaranty hereunder, the "Guarantors"); and First Bank National
Association, a national banking association, as Trustee.
Each party hereto agrees as follows for the benefit of each other party
and for the equal and ratable benefit of the Holders of the 11 1/4% First
Mortgage Notes due 2006 being issued by the Issuers and guaranteed by the
Guarantors.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions.
-----------
"Acceleration Notice" shall have the meaning specified in Section 7.2.
"Acceptance Amount" shall have the meaning specified in Section 5.15.
"Acquired Indebtedness" means Indebtedness or Disqualified Capital
Stock of any Person (a) existing at the time such Person becomes a Subsidiary of
the Company, including by designation, or is merged or consolidated into or with
the Company or one of its Subsidiaries or (b) assumed in connection with the
Acquisition of assets from such Person, in each case, other than Indebtedness
incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition, consolidation or merger. Indebtedness shall be
deemed to be incurred on the date of the related acquisition of assets from any
Person or the date the acquired Person becomes a Subsidiary, including by
designation, or the date of such merger or consolidation, as applicable.
"Acquisition" means the purchase or other acquisition of any Person or
substantially all the assets of any Person by any other Person, whether by
purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"Affiliate" means, with respect to any specified Person, (a) any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person or (b) any other Person that
owns, directly or indirectly, 5% or more of such Person's Equity Interests or
any officer or director of any such Person or other person or with respect to
any natural Person, any person having a relationship with such Person by blood,
marriage or adoption not more remote than first cousin. For the purposes
<PAGE>
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person directly or
indirectly, whether through ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Affiliated Ground Leases" means the TSA Lease and SFA Lease.
"After Acquired Property" shall have the meaning specified in Section
5.22.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Approvals" means all approvals, licenses (including Gaming Licenses),
permits, authorizations, findings and other filings necessary under applicable
gaming laws.
"Asset Sale" shall have the meaning specified in Section 5.15.
"Asset Sale Offer" shall have the meaning specified in Section 5.15.
"Asset Sale Offer Amount" shall have the meaning specified in Section
5.15.
"Asset Sale Offer Period" shall have the meaning specified in Section
5.15.
"Asset Sale Offer Price" shall have the meaning specified in Section
5.15.
"Asset Sale Purchase Date" shall have the meaning specified in Section
5.15.
"Asset Sale Put Date" shall have the meaning specified in Section 5.15.
"Assignments of Leases and Rents" means collectively, those assignments
of Leases and Rents dated the date hereof between each of Plaza Associates and
Taj Associates, respectively, and the Collateral Agent, as the same may be
amended from time to time in accordance with their terms and, to the extent
applicable, the terms of this Indenture.
"Authorized Representative" of any person shall mean (i) in the case of
the Company, (x) any person or persons that has or have been designated by the
Board of Directors of Trump Atlantic City Holding, Inc. ("Trump AC Holding"), as
general partner of the Company, to be an "Authorized Representative" under this
Indenture or (y) any member of the Board of Directors of Trump AC Holding; (ii)
in the case of Funding, any Authorized Representative of the Company (with
Funding, by its execution and delivery of this Indenture, irrevocably appointing
the Authorized Representatives from time to time of the Company as its
Authorized Representatives hereunder); and (iii) in the case of any Guarantor or
other obligor, any Officer of such party or, if such person has no Officers, any
person or persons that have been designated by the Board of Directors of Trump
AC Holding to be an "Authorized Representative" of such person under this
Indenture.
2
<PAGE>
"Average Life" means, as of the date of determination, with respect to
any security or instrument, the quotient obtained by dividing (i) the sum of (a)
the product of the number of years from the date of determination to the date or
dates of each successive scheduled principal (or redemption) payment of such
security or instrument and (b) the amount of each such respective principal (or
redemption) payment by (ii) the sum of all such principal (or redemption)
payments.
"Bankruptcy Law" means Title 11, United States Code, as amended, or any
similar United States federal or state law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganization or relief of debtors or
any amendment to, succession to or change in any such law.
"Beneficial Owner" or "beneficial owner" for purposes of the definition
of Change of Control has the meaning attributed to it in Rules 13d-3 and 13d-5
under the Exchange Act (as in effect on the Issue Date), whether or not
applicable, except that a "person" shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such person or any committee of the Board of Directors of such
Person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such Person.
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York
are authorized or obligated by law or executive order to close.
"Capital Contribution" shall mean, with respect to any Person, that
amount of money or the Fair Market Value of any Property (net of liabilities to
which such Property is subject) irrevocably and unconditionally contributed to
such Person in exchange for Qualified Equity Interests of such Person; provided,
--------
however, that such term shall not include any such contribution of funds
- -------
obtained from the proceeds of the equity offering by THCR prior to or
substantially concurrent with the issuance of the Securities (including proceeds
from any exercise of the underwriters' overallotment option) except for such
contributions of proceeds therefrom in excess of the sum of $270 million, less
amounts received therefrom by Trump AC from the sale of its Qualified Equity
Interests to THCR Holdings.
"Capitalized Lease Obligation" of any Person means any obligation of
such Person or its Subsidiaries on a Consolidated basis under a lease that is
required to be capitalized for financial reporting purposes in accordance with
GAAP, and the amount of Indebted-
3
<PAGE>
ness represented by such obligation shall be the capitalized amount of such
obligations, as determined in accordance with GAAP.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that corporation.
"Cash Collateral" means Collateral in the form of U.S. Legal Tender to
be deposited in the Restricted Funds Account.
"Cash Equivalent" means (a) any evidence of Indebtedness, maturing not
more than one year after the date of acquisition, issued by the United States of
America, or an instrumentality or agency thereof and guaranteed fully as to
principal, premium, if any, and interest by the United States of America, (b)
any certificate of deposit, maturing not more than one year after the date of
acquisition, issued by, or time deposit of, a commercial banking institution
that is a member of the Federal Reserve System and that has combined capital and
surplus and undivided profits of not less than $300.0 million and whose debt has
a rating, at the time as of which any investment therein is made, of "P-1" (or
higher) according to Moody's Investors Service, Inc. or any successor rating
agency, or "A-1" (or higher) according to Standard & Poor's Ratings Service, a
division of McGraw-Hill, Inc., or any successor rating agency, (c) commercial
paper, maturing not more than one year after the date of acquisition, issued by
a corporation (other than an Affiliate or Subsidiary of the Company) organized
and existing under the laws of the United States of America with a rating, at
the time as of which any investment therein is made, of "P-1" (or higher)
according to Moody's Investors Service, Inc. or any successor rating agency, or
"A-1" (or higher) according to Standard & Poor's Ratings Service, a division of
McGraw-Hill, Inc., or any successor rating agency and (d) any money market
deposit accounts issued or offered by a domestic commercial bank having capital
and surplus in excess of $300.0 million.
"Casino Control Act" shall mean the New Jersey Casino Control Act.
"Casino Hotels" means collectively (i) the casino and hotel complex
currently known as the "Trump Plaza Hotel and Casino" in Atlantic City, New
Jersey and ancillary structures and facilities located on the premises and all
furniture, fixtures and equipment at any time contained therein in each case
owned by or leased to Plaza Associates which are covered by the Lien of the
Mortgage Documents and (ii) the casino and hotel complex currently known as the
"Trump Taj Mahal Casino Resort" in Atlantic City, New Jersey and ancillary
structures and facilities located on the premises and all furniture, fixtures
and equipment at any time contained therein in each case owned by or leased to
Taj Associates which are covered by the Lien of the Mortgage Documents.
"Casino Sale" shall have the meaning specified in Section 5.15 hereof.
4
<PAGE>
"Change of Control" means any of the following events:
(i) THCR Holdings ceases to be the "beneficial owner," directly or
indirectly, of 100% of the Equity Interests of the Company;
(ii) any sale, transfer or other conveyance, whether direct or indirect,
of all or substantially all of the assets of THCR Holdings or THCR, on a
Consolidated basis, in one transaction or a series of related transactions, if,
immediately after giving effect to such transaction, any "person" or "group" (as
such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange
Act, whether or not applicable), other than the Permitted Holder, or if
applicable in the case of THCR Holdings, THCR, becomes the "beneficial owner"
(as defined), directly or indirectly, of more than 35% of the total voting power
of the Voting Stock of the transferee unless the Permitted Holder "beneficially
owns" (as so defined), directly or indirectly, in the aggregate a greater
percentage of the total voting power of the Voting Stock of the transferee than
such other person or group and has the right or ability by voting power,
contract or otherwise to elect or designate a majority of the Board of Directors
of THCR;
(iii) any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable), other
than the Permitted Holder, is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more
than 35% of the total voting power of the Voting Stock of THCR, or any successor
thereto by merger, consolidation or otherwise, unless the Permitted Holder
"beneficially owns" (as so defined), directly or indirectly, in the aggregate a
greater percentage of the total voting power of the Voting Stock of THCR than
such other person or group and has the right or ability by voting power,
contract or otherwise to elect or designate for election a majority of the Board
of Directors of THCR (for purposes of this definition, such other person shall
be deemed to beneficially own any Voting Stock of a specified corporation held
by a parent corporation, if such other person "beneficially owns" (as so
defined), directly or indirectly, more than 35% of the voting power of the
Voting Stock of such parent corporation and the Permitted Holder "beneficially
owns" (as so defined), directly or indirectly, in the aggregate, a lesser
percentage of the voting power of the Voting Stock of such parent corporation
and does not have the right or ability by voting power, contract or otherwise to
elect or designate for election a majority of the Board of Directors of such
parent corporation); or
(iv) during any period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of THCR or Funding
(together with any new directors whose election by such Board of Directors or
whose nomination for election by the stockholders of THCR or Funding, as
applicable, is approved by the Permitted Holder or by a vote of the 66 2/3% of
the directors of THCR or Funding, as applicable, then still in office who are
either directors at the beginning of such period or whose election or nomination
for election was previously so
5
<PAGE>
approved) have ceased for any reason to constitute a majority of the Board of
Directors of THCR or Funding, as applicable, then in office.
"Change of Control Date" shall have the meaning specified in Section
11.1.
"Change of Control Offer" shall have the meaning specified in Section
11.1.
"Change of Control Offer Period" shall have the meaning specified in
Section 11.1.
"Change of Control Purchase Date" shall have the meaning specified in
Section 11.1.
"Change of Control Purchase Price" shall have the meaning specified in
Section 11.1.
"Change of Control Put Date" shall have the meaning specified in
Section 11.1.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means the Property and assets of the Issuers or the
Guarantors which, at the time in question, is subject to the Liens created by
the Mortgage Documents or this Indenture.
"Collateral Agent" shall mean First Bank National Association, as
collateral agent under the Collateral Agency Agreement.
"Collateral Agency Agreement" means that agreement dated the date
hereof by and among the Collateral Agent, the Issuers, the Guarantors and the
Trustee, as well as such other persons as may be permitted to become parties
thereunder as a result of their status as lenders of Refinancing Indebtedness in
respect of the Securities permitted to be incurred pursuant to Section 5.11(f)
hereof or of Indebtedness permitted to be incurred pursuant to Sections 5.11(c)
(including Refinancing Indebtedness in respect thereof) or (e) hereof, in
substantially the form set forth as Exhibit G hereto for the benefit of the
Holders and the other lenders secured thereby pursuant to the Collateral Agency
Agreement, as it may be amended from time to time in accordance with its terms
and, to the extent applicable, the terms of this Indenture.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture and thereafter means such
successor.
"Company Request" means a written request of the Issuers in the form
of an Officers' Certificate.
6
<PAGE>
"Consolidated Coverage Ratio" of any person on any date of
determination (the "Transaction Date") means the ratio, on a pro forma basis, of
(a) the aggregate amount of Consolidated EBITDA of such person attributable to
continuing operations and businesses (exclusive of amounts attributable to
operations and businesses permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such person's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period; provided, that for purposes of
such calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date shall
be assumed to have occurred on the first day of the Reference Period, (ii)
transactions giving rise to the need to calculate the Consolidated Coverage
Ratio shall be assumed to have occurred on the first day of the Reference
Period, (iii) the incurrence of any Indebtedness or issuance of any Disqualified
Capital Stock during the Reference Period or subsequent to the Reference Period
and on or prior to the Transaction Date (and the application of the proceeds
therefrom to the extent used to refinance or retire other Indebtedness) shall be
assumed to have occurred on the first day of such Reference Period, and (iv) the
Consolidated Fixed Charges of such person attributable to interest on any
Indebtedness or dividends on any Disqualified Capital Stock bearing a floating
interest (or dividend) rate shall be computed on a pro forma basis as if the
average rate in effect from the beginning of the Reference Period to the
Transaction Date had been the applicable rate for the entire period, unless such
Person or any of its Subsidiaries is a party to an Interest Swap and Hedging
Obligation (which shall remain in effect for the 12-month period immediately
following the Transaction Date) that has the effect of fixing the interest rate
on the date of computation, in which case such rate (whether higher or lower)
shall be used.
"Consolidated EBITDA" means, with respect to any person, for any
period, the Consolidated Net Income of such person for such period (determined,
for purposes of this definition only, without taking into effect clause (x) of
the last sentence of the definition thereof) adjusted to add thereto (to the
extent deducted from net revenues in determining Consolidated Net Income),
without duplication, the sum of (i) Consolidated income tax expense, (ii)
Consolidated depreciation and amortization expense, provided, that consolidated
depreciation and amortization of a Subsidiary that is a less than Wholly-owned
Subsidiary shall only be added to the extent of the equity interest of such
person in such Subsidiary and (iii) Consolidated Fixed Charges, less the amount
of all cash payments made by such person or any of its Subsidiaries during such
period to the extent such payments relate to non-cash charges that were added
back in determining Consolidated EBITDA for such period or any prior period.
"Consolidated Fixed Charges" of any person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of (a) interest expensed or capitalized, paid, accrued, or scheduled
to be paid or accrued (including, in accordance with the following sentence,
interest attributable to Capitalized Lease Obligations) of such person and its
Consolidated Subsidiaries during such
7
<PAGE>
period, including (i) original issue discount and non-cash interest payments or
accruals on any Indebtedness, (ii) the interest portion of all deferred payment
obligations and (iii) all commissions, discounts and other fees and charges owed
with respect to bankers' acceptances and letters of credit financings and
currency and Interest Swap and Hedging Obligations, in each case to the extent
attributable to such period, (b) one-third of Consolidated Rental Payments for
such period attributable to operating leases of such person and its Consolidated
Subsidiaries, and (c) the amount of dividends accrued or payable by such person
or any of its Consolidated Subsidiaries in respect of Preferred Stock (other
than by Subsidiaries of such person to such person or such person's Wholly-owned
Subsidiaries). For purposes of this definition, (x) interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined by the Issuers to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guarantee by such person or
a Subsidiary of such person of an obligation of another person shall be deemed
to be the interest expense attributable to the Indebtedness guaranteed.
"Consolidated Net Income" means, with respect to any person for any
period, the net income (or loss) of such person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication): (a) all gains (but not losses)
which are either extraordinary (as determined in accordance with GAAP) or are
either unusual or nonrecurring (including any gain from the sale or other
disposition of assets outside the ordinary course of business or from the
issuance or sale of any capital stock), less all fees and expenses relating
thereto, (b) the net income, if positive, of any person, other than a
Consolidated Wholly-owned Subsidiary, in which such person or any of its
Consolidated Subsidiaries has an interest, except to the extent of the amount of
any dividends or distributions actually paid in cash to such person or a
Consolidated Wholly-owned Subsidiary of such person during such period, but in
any case not in excess of such person's pro rata share of such person's net
income for such period, (c) the net income or loss of any person acquired in a
pooling of interests transaction for any period prior to the date of such
acquisition, (d) the net income, if positive, of any of such person's
Consolidated Subsidiaries to the extent that the declaration or payment of
dividends or similar distributions is not at the time permitted by operation of
the terms of its charter or bylaws or any other agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation applicable to such
Consolidated Subsidiary and (e) net gains or losses in respect of the redemption
or repurchase of (i) the 11.35% Mortgage Bonds Series A, due 1999 of Trump Taj
Mahal Funding, Inc., (ii) the 10 7/8% First Mortgage Notes due 2001 of Trump
Plaza Funding, Inc. pursuant to the retirement thereof as described in the
Prospectus (and, in respect of the defeased portion thereof, net losses relating
to unamortized loan costs) or (iii) the 12 1/2% Pay-in-Kind Notes due 2003 of
the Company. To the extent not already reduced thereby, Consolidated Net Income
of the Company for any period shall be reduced by the aggregate amount of (x)
all Permitted Tax Distributions made during, or distributable in respect of,
such period and (y) all payments made during such period pursuant to the TPM
Services Agreement.
8
<PAGE>
"Consolidated Net Worth" of any person at any date means, in the case
of a partnership, such person's partners' capital and, in the case of a
corporation, the aggregate Consolidated stockholders' equity of such person
(plus amounts attributable to preferred stock) and its Consolidated
Subsidiaries, as would be shown on the consolidated balance sheet of such person
prepared in accordance with GAAP, adjusted to exclude (to the extent included in
calculating such equity), (a) the amount of any such stockholders' equity
attributable to Disqualified Capital Stock or treasury stock of such person and
its Consolidated Subsidiaries, (b) all upward revaluations and other write-ups
in the book value of any asset of such person or a Consolidated Subsidiary of
such person subsequent to the Issue Date, and (c) all investments in
Subsidiaries that are not Consolidated Subsidiaries and in persons that are not
Subsidiaries.
"Consolidated Rental Payments" of any Person means the aggregate
rental obligations of such Person and its Consolidated Subsidiaries (not
including taxes, insurance, maintenance and similar expenses that the lessee is
obligated to pay under the terms of the relevant leases), determined on a
Consolidated basis in conformity with GAAP, payable in respect of such period
under leases of real or personal property (net of income from subleases thereof,
not including taxes, insurance, maintenance and similar expenses that the
sublessee is obligated to pay under the terms of such sublease), whether or not
such obligations are reflected as liabilities or commitments on a Consolidated
balance sheet of such Person and its Subsidiaries or in the notes thereto,
excluding, however, in any event, that portion of Consolidated Fixed Charges of
such Person representing payments by such Person or any of its Consolidated
Subsidiaries in respect of Capitalized Lease Obligations.
"Consolidated Subsidiary" means, for any person, each Subsidiary of
such person (whether now existing or hereafter created or acquired), the
financial statements of which are consolidated for financial statement reporting
purposes with the financial statements of such person in accordance with GAAP.
"Consolidation" means, with respect to any Person, the consolidation
of the accounts of such Person and each of its Subsidiaries if and to the extent
the accounts of such Person and each of its Subsidiaries would normally be
consolidated with those of such Person, all in accordance with GAAP consistently
applied. The term "Consolidated" shall have a similar meaning.
"CRDA" means the New Jersey Casino Reinvestment Development Authority
or any successor entity thereto.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" shall have the meaning specified in Section 2.12.
9
<PAGE>
"Disqualified Capital Stock" means, with respect to any person, an
Equity Interest of such person that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of an event (other than the disqualification of the holder thereof
by a Gaming Authority) or the passage of time would be, required to be redeemed
or repurchased (including at the option of the holder thereof) in whole or in
part, on or prior to the final Stated Maturity of the Securities.
"Egg Harbor Mortgage" shall have the meaning given to it in the Plaza
Mortgages.
"Egg Harbor Parcel" means that warehouse and office facility owned by
Plaza Associates and located on the premises known as Block 404 Lots 13 and 14
of the official tax map of Egg Harbor Township, New Jersey, containing
approximately 64,000 square feet of space.
"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) in such Person's
equity, and shall in any event include any Capital Stock issued by, or
partnership interests in, such Person.
"Event of Default" shall have the meaning specified in Section 7.1.
"Event of Loss" means, with respect to any property or asset, any (i)
loss, destruction or damage of such property or asset, or (ii) any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such property or asset, or confiscation or requisition of the use of such
property or asset.
"Excepted Property" shall have the meaning given to it in each of the
Mortgages.
"Excess Proceeds" shall have the meaning specified in Section 5.15.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"F, F&E Financing Agreement" means an agreement which creates a Lien
upon any after-acquired tangible personal property and/or other items
constituting operating assets, which are financed, purchased or leased for the
purpose of engaging in or developing a Related Business.
"Facility Lease" shall have the meaning given to it in each of the
Mortgages.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy and, with respect to any redemption of
Securities pursuant to the Gaming Laws means (a) the last sales price regular
way on the last trading day prior to the date of determination
10
<PAGE>
of such value on the largest national securities exchange (or, if said security
is not listed on a national securities exchange, on the National Market System
of the National Association of Securities Dealers, Inc. Automated Quotation
System ("NASDAQ")) on which such Securities shall have traded on such trading
day, or (b) if no such sales of such Securities occurred on such trading day,
the mean between the "bid" and "asked" prices on such national securities
exchange or as quoted on the National Market System of NASDAQ, as the case may
be, on such last trading day, or (c) if the Securities are not listed or quoted
on any national securities exchange or the Nasdaq National Market, the average
of the closing bid and asked prices on such day in the over-the-counter market
as reported by NASDAQ or, if bid and asked prices for the Securities have not
been reported through NASDAQ, the average of the bid and asked prices on such
day as furnished by any New York Stock Exchange member firm regularly making a
market in the Securities, selected for such purpose by Funding, or (d) if none
of clauses (a) through (c) are applicable, the fair market value of such
Securities as of the date of determination as determined in such manner as shall
be satisfactory to Funding, which shall be entitled to rely for such purpose on
the advice of any firm of investment bankers or securities dealers having
familiarity with the Securities.
"First Mortgage Notes" means the 11 1/4% First Mortgage Notes due 2006
issued by the Issuers, which, together with the Guaranty, form the Securities.
"First Mortgage Note Register" means the list of names and addresses
of Holders held by the Registrar of the Securities.
"Funding" means Trump Atlantic City Funding, Inc. until a successor
replaces it as an Issuer pursuant to this Indenture, and thereafter means such
successor.
"Future Collateral Agreements" means collectively those collateral
agreements in favor of the Collateral Agent for the benefit of the Holders and
the other lenders secured thereby pursuant to the Collateral Agency Agreement,
by the Company or any of its Subsidiaries, as the case may be, including,
without limitation, those which are required to be executed and delivered under
Section 5.22.
"Gaming Authority" means the New Jersey Casino Control Commission, the
New Jersey Division of Gaming Enforcement or any other governmental agency which
regulates gaming in a jurisdiction in which the Company or any of the
Subsidiaries conducts gaming activities.
"Gaming Law" means any law, rule, regulation or ordinance governing
gaming activities and any administrative rules or regulations promulgated
thereunder, and any other corresponding statutes, rules and regulations.
"Gaming Licenses" means every material license, material franchise, or
other material authorization required to own, lease, operate or otherwise
conduct or manage gaming in any state or jurisdiction where the Company or its
Subsidiaries conduct business, and any applicable liquor licenses.
11
<PAGE>
"Generally Accepted Accounting Principles" or "GAAP" means United
States generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession as in effect on
the Issue Date.
"Governmental Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States or foreign government, any state, province or any city or
other political subdivision and whether now or hereafter in existence, or any
officer or official thereof, and any maritime authority.
"Ground Leases" means the ground leases, as amended or supplemented in
accordance with the Mortgage Documents, each of which expires on December 31,
2078, pursuant to which Plaza Associates is the current lessee, and each of
Trump Seashore Associates (the "TSA Lease"), Seashore Four Associates (the "SFA
Lease") and Plaza Hotel Management Company (the "PHMC Lease") are the current
respective lessors.
"Guaranteed Debt" of any Person means, without duplication, all
indebtedness of any other Person referred to in the definition of Indebtedness
contained in this section guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such Person
through an agreement (a) to pay or purchase such Indebtedness or to advance or
supply funds for the payment or purchase of such Indebtedness, (b) to purchase,
sell or lease (as lessee or lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to make payment of such
Indebtedness or to assure the holder of such Indebtedness against loss, (c) to
supply funds to, or in any other manner invest in, the debtor (including any
agreement to pay for property or services without requiring that such property
be received or such services be rendered), (d) to maintain working capital or
equity capital of the debtor, or otherwise to maintain the net worth, solvency
or other financial condition of the debtor or (e) otherwise to assure a creditor
against loss; provided, that the term "guarantee" shall not include endorsements
for collection or deposit, in either case in the ordinary course of business;
and provided, further, that the obligations of Plaza Associates pursuant to the
TPM Services Agreement or the Ground Leases, in each case in effect on the Issue
Date or as amended pursuant to terms substantially similar to the terms in
effect on the Issue Date, shall not be deemed to be Guaranteed Debt of Plaza
Associates.
"Guarantors" means Plaza Associates, Taj Associates, TACC and each
existing or future Subsidiary of the Company (other than Funding).
"Guaranty" shall have the meaning provided in Section 13.1.
"Holder" or "Securityholder" means the person in whose name a Security
is registered on the Registrar's books.
12
<PAGE>
"Improvements" shall mean, with respect to either or both of the
Casino Hotels, all improvements thereto, including any alteration thereof and
the acquisition, construction of any additions related thereto (including
adjacent property) or renovations thereof, including without limitation the
construction or renovation of additional gaming space or facilities, hotel and
restaurant facilities and parking facilities, with all landscaping and other
off- and on-site work related thereto.
"incurrence" shall have the meaning specified in Section 5.11.
"Incurrence Date" shall have the meaning specified in Section 5.11.
"Indebtedness" means, with respect to any Person, without duplication,
(a) all liabilities and obligations, contingent and otherwise, of such Person
for borrowed money or representing the balance deferred and unpaid of the
purchase price of property or services, excluding any trade payables and other
accrued current liabilities arising in the ordinary course of business, but
including, without limitation, all obligations, contingent or otherwise, of such
Person in connection with any letters of credit issued under letter of credit
facilities, acceptance facilities or other similar facilities or in connection
with any agreement to purchase, redeem, exchange, convert or otherwise acquire
for value any Equity Interest of such Person, or any warrants, rights or options
to acquire such Equity Interest, now or hereafter outstanding, (b) all
obligations of such Person evidenced by bonds, notes, debentures or other
similar instruments, (c) every obligation of such Person issued as payment in
consideration of the purchase by such Person or an Affiliate of such Person of
the Equity Interest or all or substantially all of the assets of another Person
or in consideration for the merger or consolidation with respect to which such
Person or an Affiliate of such Person was a party, (d) all indebtedness created
or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even if the rights and remedies of
the seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), but excluding trade payables and other
accrued current liabilities arising in the ordinary course of business, (e) all
obligations under Interest Swap and Hedging Obligations of such Person, (f) all
Capitalized Lease Obligations of such Person, (g) all Indebtedness referred to
in clauses (a) through (f) above of other Persons and all dividends of other
Persons, the payment of which are secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien, upon or in property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not assumed
or become liable for the payment of such Indebtedness, (h) all Guaranteed Debt
of such Person and (i) all Disqualified Capital Stock of such Person (valued at
the greater of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends). For purposes hereof, the "maximum fixed
repurchase price" of any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were purchased
on any date on which Indebtedness shall be required to be determined pursuant to
this Indenture, and if such price is based upon, or measured by, the Fair Market
Value of such Disqualified Capital Stock, such Fair
13
<PAGE>
Market Value to be determined in good faith by the Board of Directors of the
issuer (or managing general partner of the issuer) of such Disqualified Capital
Stock.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"Indenture Obligations" means the obligations of the Issuers and the
Guarantors pursuant to this Indenture and the Securities (and any other obligor
hereunder or under the Securities) now or hereafter existing, to pay principal
of and interest on the Securities when due and payable, whether on Maturity or
an Interest Payment Date, by acceleration, call for redemption, acceptance of
any Asset Sale Offer, Change of Control Offer, or otherwise, and interest on the
overdue principal of, and (to the extent lawful) interest, if any, on, the
Securities and all other amounts due or to become due in connection with this
Indenture, the Securities and the Mortgage Documents, including any and all
extensions, renewals or other modifications thereof, in whole or in part, and
the performance of all other obligations of the Issuers and the Guarantors (and
any other obligor hereunder or under the Securities), including all costs and
expenses incurred by the Trustee or the Holders in the collection or enforcement
of any such obligations or realization upon the Mortgage or the security of any
Mortgage Documents.
"Independent Directors" shall mean directors who are not officers or
employees of THCR or any of its Subsidiaries and who are not Affiliates of Trump
or any of his Affiliates.
"Interest Payment Date" means the stated due date of an installment of
interest on the Securities.
"Interest Swap and Hedging Obligation" means any obligation of any
person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Investment" means, with respect to any Person, directly or
indirectly, (a) any advance, loan or other extension of credit or capital
contribution to any other Person (by means of any transfer of cash or other
property to others or any payment for property or services for the account or
use of others), (b) any purchase or other acquisition by such Person of any
Equity Interest, bonds, notes, debentures or other securities issued or owned
by, any other Person or (c) other than guarantees of Indebtedness of the Issuers
or any Subsidiary to the extent permitted by Section 5.11, the entering into by
such Person of any
14
<PAGE>
guarantee of, or other credit support or contingent obligation with respect to,
Indebtedness or other liability of such other Person.
"Issue Date" means the date of first issuance of the Securities under
this Indenture.
"Issuers" shall mean, collectively, the Company and Funding.
"Legal Requirements" means all applicable laws, statutes, codes, acts,
ordinances, orders, judgments, decrees, injunctions, rules, regulations,
permits, licenses, authorizations, directions and requirements of all
governments, departments, commissions, boards, courts, authorities, agencies,
officials and officers, of governments, federal, state and municipal.
"Legal Holiday" shall have the meaning provided in Section 12.7.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired by an Issuer or Guarantor.
"Maturity" when used with respect to any Security means the date on
which the principal of such Security becomes due and payable as therein provided
or as provided in this Indenture, whether at final Stated Maturity, Change of
Control Purchase Date, Asset Sale Offer Purchase Date or the redemption date and
whether by declaration of acceleration, call for redemption or otherwise.
"Mortgages" means collectively, the Taj Mortgage and the Plaza
Mortgage.
"Mortgage Documents" means the Mortgages, the Assignments of Leases
and Rents, the Security Agreement, the Trademark Security Agreements, any Future
Collateral Agreements and any UCC-1 financing statements which may be filed in
connection therewith.
"Net Cash Proceeds" (x) of an issuance of Indebtedness or Equity
Interests means the cash proceeds of such issuance, net of attorneys' fees,
accountants' fees, brokerage, consultant, underwriting and other fees and
expenses actually incurred in connection with such issuance, sale, conversion or
exchange and net of any taxes paid or payable as a result thereof by the entity
making such sale and (y) of an Asset Sale (including for this purpose an Event
of Loss) means the aggregate amount of cash and Cash Equivalents received by the
Company and its Subsidiaries in respect of such Asset Sale less the sum of all
fees, commissions and other expenses incurred in connection with such Asset Sale
less, in the case of an Asset Sale only, the amount (estimated reasonably and in
good faith by the Company) of income, franchise, sales and other applicable
taxes required to be paid by the Company or any of its Subsidiaries or
distributable by the Company as a Permitted Tax
15
<PAGE>
Distribution, in each case, within 12 months of consummating the Asset Sale, in
connection with such Asset Sale.
"Net Proceeds" means the aggregate Net Cash Proceeds and fair market
value of property and assets (valued at the fair market value thereof at the
time of receipt in good faith by the Company).
"Obligation" means any principal, premium or interest payment, or
monetary penalty, or damages, due by the Issuers or the Guarantors under the
terms of the Securities or this Indenture.
"Offer to Purchase" means any Change of Control Offer or Asset Sale
Offer.
"Offer to Purchase Price" means any Change of Control Offer Price or
Asset Sale Offer Price.
"Officer" means, with respect to any Person, the Chairman of the
Board, the President, any Vice President, the Chief Financial Officer, the
Treasurer or Assistant Treasurer, the Controller, or the Secretary or Assistant
Secretary of such Person.
"Officers' Certificate" means, with respect to the Issuers or any
Guarantor, a certificate signed by two Authorized Representatives of the Issuers
or such Guarantor and otherwise complying with the requirements of Sections
12.4(1) and 12.5.
"Operating Assets" shall have the meaning given to it in each of the
Mortgages.
"Opinion of Counsel" means a written opinion from legal counsel to the
Issuers or the Guarantors reasonably acceptable to the Trustee and which
complies with the requirements of Sections 12.4 and 12.5. Unless otherwise
required by this Indenture, the counsel may be in-house counsel to the Issuers
or the Guarantors.
"Original Policy" shall have the meaning given to it in each of the
Mortgages.
"Parking Parcel Mortgage" shall have the meaning given to it in the
Plaza Mortgage.
"Partners" means each of THCR Holdings and Trump AC Holding or any
additional or substitute partners admitted under the Partnership Agreement so
long as (i) each is a partner under the Partnership Agreement, unless removed as
a partner in accordance with the Partnership Agreement and (ii) no Default or
Event of Default occurs as a result thereof.
16
<PAGE>
"Partnership Agreement" means the Amended and Restated Partnership
Agreement of the Company, dated as of the Issue Date, as amended from time to
time in accordance with its terms.
"Paying Agent" shall have the meaning specified in Section 2.3.
"Permit" means any license (including, without limitation, all Gaming
Licenses), franchise, authorization, statement of compliance, certificate of
operation, certificate of occupancy and permit required for the lawful
ownership, occupancy, operation and use of all or a material portion of either
of the Casino Hotels, whether held by Plaza Associates, Taj Associates or any
other Person (which may be temporary or permanent) (including, without
limitation, those required for the use of either of the Casino Hotels as a
licensed casino facility), in accordance with all applicable Legal Requirements.
"Permitted Holder" means Trump and the spouse and descendants of Trump
(including any related grantor trusts controlled by, and established and
maintained for the sole benefit of, Trump or such spouse or descendants), and
the estate of any of the foregoing, but no other Person.
"Permitted Indebtedness" means the following:
(a) the Company may incur Indebtedness to any Wholly-owned Subsidiary
Guarantor, and any Wholly-owned Subsidiary Guarantor may incur Indebtedness to
any other Wholly-owned Subsidiary Guarantor or to the Company, provided, that,
in the case of Indebtedness of the Company such obligations shall be unsecured
and expressly subordinated in right of payment to the Company's Obligations
pursuant to the Securities, and that the date of any event that causes such
Subsidiary Guarantor to no longer be a Wholly-owned Subsidiary Guarantor shall
be an Incurrence Date;
(b) the Super Puma Helicopter Lease, but only to the extent no Services
Fees are thereafter paid under the TPM Services Agreement; and
(c) Indebtedness existing on the Issue Date, after giving effect to the
"Merger Transaction" as such term is defined in the Prospectus.
"Permitted Investment" means (a) Investments in any of the Securities; (b)
Cash Equivalents; (c) intercompany notes to the extent permitted under clause
(a) of the definition of "Permitted Indebtedness"; (d) loans, advances or
investments existing on the Issue Date; (e) any Investment in any Wholly-owned
Subsidiary of the Company; and (f) any Investment consisting of the extension of
gaming credit to customers consistent with industry practice in the ordinary
course of business.
17
<PAGE>
"Permitted Leases" means the following:
(a) any Capitalized Lease Obligation of the Company or any of its
Subsidiaries incurred in accordance with Section 5.11;
(b) any lease of Plaza Associates or Taj Associates, as tenant or
subtenant, existing on the date of this Indenture and listed on a schedule
hereto or referred to in the Mortgages (including schedules thereto), including
any modifications, amendments, renewals or supplements thereof, provided, that
the aggregate annual rent and other costs thereunder are not increased thereby,
except as such rent or costs may be increased during any renewed lease term
pursuant to the terms of such leases as they exist on the date of this
Indenture; and
(c) any operating leases of the Company or any of its Subsidiaries other
than the leases set forth above, provided that the aggregate average annual rent
and other payments required thereunder over the terms of such leases shall not
exceed $10.0 million.
"Permitted Liens" means:
(a) Liens existing on the Issue Date after giving effect to the "Merger
Transaction" as such term is defined in the Prospectus, and Liens securing
Refinancing Indebtedness in respect of secured Indebtedness (including the
Securities, provided, that the Securities are secured by the assets securing
such Refinancing Indebtedness in respect of the Securities on a senior or an
equal and ratable basis pursuant to the terms of the Collateral Agency
Agreement) existing on the Issue Date;
(b) the Lien of the Trustee or the Collateral Agent as provided for in
this Indenture and in the Mortgage Documents;
(c) Indebtedness incurred in accordance with clause (d) of Section 5.11
may be secured by the assets acquired pursuant to the respective capital lease
(in the case of Capitalized Lease Obligations) or with the proceeds of the
respective F, F&E Financing Agreements, so long as such Liens do not extend to
any other assets;
(d) Indebtedness of the Company and the Guarantors incurred pursuant to
clause (e) of Section 5.11 (and refinancings thereof pursuant to clause (e) of
Section 5.11) may be secured by the assets of the Company and the Guarantors, as
applicable, provided, that the Securities are secured by the assets securing
such Indebtedness on a senior or an equal and ratable basis pursuant to the
terms of the Collateral Agency Agreement;
(e) Indebtedness of the Company, Plaza Associates and Taj Associates
incurred pursuant to clause (c) of Section 5.11 (and refinancings thereof
pursuant to clause (f) of Section 5.11) may be secured by the assets of the
Company, Plaza Associates or Taj Associates, as applicable, provided, that the
Securities are secured by the assets securing such Indebtedness on a senior or
an equal and ratable basis pursuant to the terms of the Collateral Agency
Agreement;
18
<PAGE>
(f) any Lien arising by reason of (i) any judgment, decree or order of any
court, so long as such Lien is adequately bonded and any appropriate legal
proceedings which may have been duly initiated for the review of such judgment,
decree or order shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired; (ii) security
for payment of workmen's compensation or other insurance; (iii) good faith
deposits in connection with tenders, leases and contracts (other than contracts
for the payment of money); and (iv) deposits to secure public or statutory
obligations, or in lieu of surety or appeal bonds;
(g) Liens for taxes, assessments or other governmental charges not yet due
or which are being contested in good faith and by appropriate proceedings by the
Company or any of its Subsidiaries if adequate reserves with respect thereto are
maintained on the books of the Company or any of its Subsidiaries, as the case
may be, in accordance with GAAP;
(h) statutory Liens of carriers, warehousemen, mechanics, landlords,
laborers, materialmen, repairmen or other like Liens arising by operation of law
in the ordinary course of business and consistent with industry practices and
Liens on deposits made to obtain the release of such Liens if (i) the underlying
obligations are not overdue for a period of more than 60 days or (ii) such Liens
are being contested in good faith and by appropriate proceedings by the Company
or any of its Subsidiaries and adequate reserves with respect thereto are
maintained on the books of the Company or any of its Subsidiaries, as the case
may be, in accordance with GAAP;
(i) easements, rights-of-way, zoning and similar restrictions and other
similar encumbrances or title defects, which, if they are incurred by the
Company or any of its Subsidiaries after it acquires the property subject
thereto, are incurred in the ordinary course of business and consistent with
industry practices which, individually or in the in the aggregate, do not
materially detract from the value of the property subject thereto (as such
property is used or proposed to be used by the Company or any of its
Subsidiaries) or interfere with the ordinary conduct of the business of the
Company or any of its Subsidiaries, provided, that any such Liens are not
incurred in connection with any borrowing of money or any commitment to loan any
money or to extend any credit;
(j) Liens that secure Acquired Indebtedness (and refinancings thereof
pursuant to clause (f) of Section 5.11), provided, in each case, that such Liens
do not secure any property or assets other than the property or asset so
acquired and were not put in place in connection with or in anticipation of such
acquisition, merger or consolidation;
(k) leases or subleases granted to other persons in the ordinary course of
business not materially interfering with the conduct of the business of the
Company or any of its Subsidiaries or materially detracting from the value of
the relative assets of the Company or such Subsidiary;
19
<PAGE>
(l) Liens arising from precautionary Uniform Commercial Code financing
statement filings regarding operating leases entered into by the Company or any
of its Subsidiaries in the ordinary course of business;
(m) Liens on the Equity Interests of the Company or any of its
Subsidiaries in favor of or to the extent required to be pledged for the benefit
of holders of the Senior Notes or of any Refinancing Indebtedness in respect
thereof; and
(n) a notice of intention filed by a mechanic, materialman or laborer
under the New Jersey mechanic's lien law, or a building contract filed by a
contractor or subcontractor thereunder.
"Permitted Tax Distributions" means for each tax year that the Company
qualifies as a partnership or substantially similar pass-through entity under
the Code or any similar provision of state or local law, distributions of Tax
Amounts in respect of the jurisdictions in which the Company so qualifies as a
partnership or substantially similar pass-through entity; provided, that (A)
prior to any Permitted Tax Distribution a knowledgeable and duly authorized
officer of Funding shall certify, and counsel reasonably acceptable to the
Trustee shall opine, that the Company qualifies as a partnership or
substantially similar pass-through entity for federal income tax purposes and
under similar laws of the states in respect of which such distributions are
being made and (B) at the time of such distributions, the most recent audited
financial statements of the Company provide that the Company was treated as a
partnership for federal income tax purposes for the period of such financial
statements. Distributions of Tax Amounts may be made between the tenth and
twentieth day of each January (provided that payments in respect of estimated
state or local taxes due in January may instead, at the option of the Company,
be paid during the last five days of the immediately preceding December), April,
June and September, based upon the minimum estimated tax payments in respect of
Tax Amounts which would then be due and payable, and during the tenth through
twentieth day of April or within ten days of the reconciliation described in the
immediately succeeding sentence, with respect to any additional tax payments
owing in respect of the prior fiscal year. Within sixty days of the Company's
filing of the Internal Revenue Service Form 1065 for the applicable tax year, a
reconciliation shall be made of the Permitted Tax Distributions actually paid
versus the amount permitted to be paid as Permitted Tax Distributions based upon
the final results of the applicable tax year. In addition, prior to any
Permitted Tax Distributions, each Partner shall have entered into a binding
agreement promptly to reimburse the Company for any positive difference between
the distributed amount and the Tax Amount as finally determined; provided,
however, that, if the Partners of the Company do not promptly reimburse the
Company for any positive difference between the distributed amount and the Tax
Amount, then the Permitted Tax Distributions during the year in which such
reimbursement should have been made shall be reduced by the unreimbursed amount
until the Permitted Tax Distributions for such year are zero and, thereafter,
Permitted Tax Distributions shall be reduced in the succeeding years until the
unreimbursed amount not used to reduce Permitted Tax Distributions is zero.
20
<PAGE>
"Person" or "person" means any individual, corporation, limited or general
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Plaza Associates" means Trump Plaza Associates, a Wholly-owned Subsidiary
of the Company.
"Plaza Mortgage" means that certain Indenture of Mortgage and Security
Agreement by Plaza Associates and the Collateral Agent dated the date hereof in
favor of the Holders and the other lenders secured thereby pursuant to the
Collateral Agency Agreement as the same may be amended from time to time in
accordance with its terms and, to the extent applicable, the terms of this
Indenture.
"Pleasantville Warehouse" means that warehouse and office facility owned by
Taj Associates and located on the premises known as Lot 15 Block 190 on the
official tax maps of Pleasantville, New Jersey and Lot 9 Block 801 of the
official tax maps of the Township of Egg Harbor, New Jersey, containing
approximately 23,000 square feet of space.
"Principal" or "principal" of any Indebtedness (including the Securities)
means the principal of such Indebtedness plus any applicable premium, if any, on
such Indebtedness.
"Property" or "property" means any right or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible, intangible, contingent, indirect or direct.
"Prospectus" shall refer to the prospectus, dated April 11, 1996, in
connection with the offering of the Securities, as the same may be amended or
supplemented prior to the Issue Date.
"Purchase Price" means any Change of Control Purchase Price or Asset Sale
Offer Price.
"Qualified Capital Stock" means any Equity Interest of the Company that is
not Disqualified Capital Stock.
"Qualified Exchange" means (a) any repurchase, redemption or other
acquisition or retirement of any shares of any class of Equity Interests of the
Company on or after the Issue Date in exchange for (including any such exchange
pursuant to the exercise of a conversion right or privilege in connection with
which cash is paid in lieu of the issuance of fractional shares, interests or
scrip), or out of the Net Cash Proceeds of a substantially concurrent issuance
and sale (other than to a Subsidiary of the Company) of, Qualified Capital Stock
of the Company; or (b) the redemption, repayment, defeasance, repurchase or
other acquisition or retirement for value of any Indebtedness of, or guaranteed
by, the Company on or after the Issue Date in exchange for, or out of the Net
Cash Proceeds of a substantially concurrent issuance and sale of, Qualified
Equity Interests of the Company.
21
<PAGE>
"Realty Warehouse" means that warehouse facility owned by Taj Associates
located on the premises known as Lots 6, 22, 39, 58, 68, 85 in Block 119 and
Lots 23, 33, 44, 58, 65 and 66 in Block 120, on the official tax maps of
Atlantic City, New Jersey, containing approximately 34,500 square feet of space.
"Record Date" means a Record Date specified in the Securities whether or
not such Record Date is a Business Day.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to Article III of this
Indenture and Paragraph 5 in the applicable form of Security.
"Redemption Price," when used with respect to any Security to be redeemed,
means the redemption price for such redemption set forth in Paragraph 5 in the
applicable form of Security.
"Reference Period" with regard to any person means the four full fiscal
quarters (or such lesser period during which such person has been in existence)
ended immediately preceding any date upon which any determination is to be made
pursuant to the terms of the Securities or this Indenture.
"Refinancing Indebtedness" means the Indebtedness or Disqualified Capital
Stock issued in exchange for, or the proceeds from the issuance and sale of
which are used substantially concurrently to repay, redeem, defease, refund,
refinance, discharge or otherwise retire for value, in whole or in part, or
constituting an amendment, modification or supplement to, or a deferral or
renewal of (collectively, a "Refinancing"), any Indebtedness or Disqualified
Capital Stock in a principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, not to exceed (after deduction of reasonable and
customary fees and expenses incurred in connection with the Refinancing) the
lesser of (i) the principal amount or, in the case of Disqualified Capital
Stock, liquidation preference, of the Indebtedness or Disqualified Capital Stock
so Refinanced and (ii) if such Indebtedness being Refinanced was issued with an
original issue discount, the accreted value thereof (as determined in accordance
with GAAP) at the time of such Refinancing; provided, that (A) such Refinancing
Indebtedness of any Subsidiary shall only be used to Refinance outstanding
Indebtedness or Disqualified Capital Stock of such Subsidiary, (B) Refinancing
Indebtedness shall (x) not have an Average Life shorter than the Indebtedness or
Disqualified Capital Stock to be so refinanced at the time of such Refinancing
and (y) in all respects, be no less subordinated or junior, if applicable, to
the rights of Holders than was the Indebtedness or Disqualified Capital Stock to
be so refinanced, (C) such Refinancing Indebtedness shall be secured only by the
assets (if any) securing the Indebtedness to be so refinanced and (D) such
Refinancing Indebtedness shall have no installment of principal (or redemption
payment) scheduled to come due earlier than the scheduled maturity of the
corresponding installment of principal of the Indebtedness or Disqualified
Capital Stock to be so refinanced which was scheduled to come due prior to the
Stated Maturity.
22
<PAGE>
"Registrar" shall have the meaning specified in Section 2.3.
"Related Business" means the business conducted (or proposed to be
conducted) by Plaza Associates or Taj Associates as of the Issue Date and any
and all businesses that in good faith judgment of the Board of Directors of
Funding are related businesses in Atlantic County, New Jersey or are related to
the Casino Hotels.
"Required Regulatory Redemption" means a redemption by the Issuers of any
Holder's Securities pursuant to, and in accordance with, any order of any
Governmental Authority with appropriate jurisdiction and authority relating to a
Gaming License, or to the extent necessary in the reasonable, good faith
judgment of the Issuers to prevent the loss, failure to obtain or material
impairment or to secure the reinstatement of, any material Gaming License, where
such redemption or acquisition is required because the Holder or beneficial
owner of such Security is required to be found suitable or to otherwise qualify
under any gaming laws and is not found suitable or so qualified within a
reasonable period of time.
"Restricted Funds Account" means a segregated bank account of the Company
or any of its Subsidiaries subject to the Lien of the Collateral Agent pursuant
to the Security Agreement, the proceeds of which are invested in cash or Cash
Equivalents pending any use permitted by Section 5.15.
"Restricted Investment" means, in one or a series of related transactions,
any Investment, other than investments in Cash Equivalents.
"Restricted Payment" means, with respect to any person, (a) the declaration
or payment of any dividend or other distribution in respect of Equity Interests
of such person or any Subsidiary or parent of such person, (b) any payment on
account of the purchase, redemption or other acquisition or retirement for value
of Equity Interests of such person or any Subsidiary or parent of such person,
(c) any purchase, redemption, or other acquisition or retirement for value of,
any payment in respect of any amendment of the terms of or any defeasance of,
any Indebtedness of, or guaranteed by, such Person, any parent of such Person or
any Subsidiary prior to the scheduled maturity, any scheduled repayment of
principal, or scheduled sinking fund payment, as the case may be, of such
Indebtedness (including any payment in respect of any amendment of the terms of
any such Indebtedness, which amendment is sought in connection with any such
acquisition of such Indebtedness or seeks to shorten any such due date), (d) in
connection with the designation of a Person as an Unrestricted Subsidiary, a
Restricted Payment shall be deemed to exist in the amount provided in the
definition of Unrestricted Subsidiary contained herein and (e) any Restricted
Investment by such person; provided, that the term "Restricted Payment" does not
include (i) any dividend, distribution or other payment on or with respect to
Equity Interests of an issuer to the extent payable solely in shares of
Qualified Capital Stock of such issuer, or (ii) any dividend, distribution or
other payment to the Company or to any of its Wholly-owned Subsidiaries or any
Subsidiary Guarantor.
"SEC" means the Securities and Exchange Commission, as from time to time
constituted, created under the Exchange Act, or if at any time after the
execution of this
23
<PAGE>
Indenture such SEC is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties at such
time.
"Securities" means the First Mortgage Notes due 2006, together with the
Guaranties thereof, as amended or modified from time to time in accordance with
the terms hereof, issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Agreement" means the security agreement dated the date hereof
between the Collateral Agent, the Issuers and the Guarantors, for the benefit of
the Holders and the other lenders secured thereby pursuant to the terms of the
Collateral Agency Agreement, substantially in the form of Exhibit E hereto, as
it may be amended or supplemented from time to time in accordance with its terms
and, to the extent applicable, the terms of this Indenture.
"Securityholder." See "Holder."
"Senior Notes" means the 15 1/2% Senior Secured Notes due 2005 of THCR
Holdings and Trump Hotels & Casino Resorts Funding, Inc.
"Services Fee" means, for any period, the amount of the fee payable by
Plaza Associates under the TPM Services Agreement for such period.
"Significant Subsidiary" shall have the meaning provided under Regulation
S-X of the Securities Act, as in effect on the Issue Date.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 2.12.
"Stated Maturity" when used with respect to any Security means May 1, 2006
and when used with respect to any other Indebtedness means the dates specified
in such other Indebtedness as the fixed date on which the principal of such
Indebtedness is due and payable.
"Subsidiary" of any Person means (i) a corporation a majority of whose
Voting Stock is at the time, directly or indirectly, owned by such Person, by
such Person and one or more Subsidiaries of such Person or by one or more
Subsidiaries of such Person, (ii) any other Person (other than a corporation) in
which such Person, one or more Subsidiaries of such Person, or such Person and
one or more Subsidiaries of such Person, directly or indirectly, at the date of
determination thereof has a majority ownership interest, or (iii) a partnership
in which such Person or a Subsidiary of such Person is, at the time, a general
partner and has a majority ownership interest. Notwithstanding the foregoing,
no Unrestricted Subsidiary shall be considered a Subsidiary of the Company or
any of its other Subsidiaries for purposes of the Securities and this Indenture.
Unless the context otherwise requires, all references herein to "Subsidiaries"
shall be to the direct and indirect to Subsidiaries of the Company for purposes
of the Securities and this Indenture.
24
<PAGE>
"Super Puma Helicopter Lease" means that certain Aircraft Lease Agreement,
dated as of March 9, 1992, between The CIT/Group Equipment Financing, Inc., as
Lessor, and Trump Plaza Management Corp., as Lessee, as it may be amended to
modify the expiration date to the end of the last renewal period currently
contained therein, together with all the obligations of the parties thereunder
and related thereto.
"Superior Mortgages" shall have the meaning given to it in the Plaza
Mortgage.
"TACC" means Trump Atlantic City Corporation (formerly "The Trump Taj Mahal
Corporation"), a Wholly-owned Subsidiary of the Company.
"Taj Associates" means Trump Taj Mahal Associates, a Wholly-owned
Subsidiary of the Company.
"Taj Mortgage" means that certain Indenture of Mortgage and Security
Agreement dated the date hereof between Taj Associates and the Collateral Agent,
for the benefit of the Holders and the other lenders secured thereby pursuant to
the terms of the Collateral Agency Agreement as it may be amended from time to
time in accordance with its terms and, to the extent applicable, the terms of
this Indenture.
"Tangible Personal Property" shall have the meaning given to it in the
Mortgages.
"Tax Amounts" with respect to any year means an amount no greater than (a)
the higher of (i) the product of (A) the taxable income of the Company (treating
the Company as if it were an individual) for such year as determined in good
faith by the Board of Directors of Funding and (B) the Tax Percentage and (ii)
the product of (A) the alternative minimum taxable income attributable to the
Company (treating the Company as if it were an individual) for such year as
determined in good faith by the Board of Directors of Funding and (B) the Tax
Percentage, reduced by (b) to the extent not previously taken into account, any
income tax benefit attributable to the Company which could be realized (without
regard to the actual realization) by its Partners in the current or any prior
taxable year, or portion thereof, commencing on or after the Issue Date
(including any tax losses or tax credits), computed at the applicable Tax
Percentage for the year that such benefit is taken into account for purposes of
this computation. Any part of the Tax Amount not distributed in respect of a
tax period for which it is calculated shall be available for distribution in
subsequent tax periods.
"Tax Percentage" means the highest, aggregate effective marginal rate of
federal, state and local income tax or, when applicable, alternative minimum
tax, to which any Partner of the Company would be subject in the relevant year
of determination (as certified to the Trustee by a nationally recognized tax
accounting firm); provided, that in no event shall the Tax Percentage be greater
than the sum of (x) the highest, aggregate effective marginal rate of federal,
state, and local income tax or, when applicable, alternative minimum tax, to
which the Company would have been subject if it were a C corporation, for
federal income tax purposes, and (y) 5 percentage points. If any Partner or
Upper Tier Owner of the Company is an S
25
<PAGE>
corporation, partnership or similar pass-through entity for federal income tax
purposes, the Tax Percentage shall be computed based upon the tax rates
applicable to the shareholder or partner of such Partner or Upper Tier Owner, as
the case may be.
"THCR" means Trump Hotels & Casino Resorts, Inc., a Delaware corporation.
"THCR Holdings" means Trump Hotels & Casino Resorts Holdings, L.P., a
Delaware limited partnership.
"TPM Services Agreement" means the Amended and Restated Services Agreement,
dated June 24, 1993, between Plaza Associates and Trump Plaza Management Corp.
"Trademark Security Agreements" means the trademark security agreements
dated the date hereof between Plaza Associates and Taj Associates, respectively,
and the Collateral Agent for the benefit of the Holders and the other lenders
secured thereby pursuant to the terms of the Collateral Agency Agreement,
substantially in the Form of Exhibit F hereto, as they may be amended or
supplemented from time to time in accordance with the terms thereof and, to the
extent applicable, the terms of the Indenture.
"Trump" means Donald J. Trump.
"Trump AC Holding" shall mean Trump Atlantic City Holding, Inc., a Delaware
corporation.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended.
"Trustee" means the party named as such in this Indenture until a successor
replaces it in accordance with the provisions of this Indenture and thereafter
means such successor.
"Trust Officer" means any officer within the corporate trust department (or
any successor group) of the Trustee including any vice president, assistant vice
president, secretary, assistant secretary or any other officer or assistant
officer of the Trustee customarily performing functions similar to those
performed by the persons who at that time shall be such officers, and also
means, with respect to a particular corporate trust matter, any other officer of
the corporate trust department (or any successor group) of the Trustee to whom
such trust matter is referred because of his knowledge of and familiarity with
the particular subject.
"Unrestricted Subsidiary" means any Subsidiary of the Company that, at the
time of determination, shall be an Unrestricted Subsidiary (as designated by the
Company, as provided below) provided that such Subsidiary does not and shall not
engage, to any substantial extent, in any line or lines of business activity
other than a Related Business. The Company may designate any Person (other than
Plaza Associates, Taj Associates, TACC, Funding and any direct or indirect
holder of Equity Interest therein) to be an Unrestricted Subsidiary if (a) no
Default or
26
<PAGE>
Event of Default is existing or will occur as a consequence thereof, (b) either
(x) such Subsidiary, at the time of designation thereof, has no assets, (y) such
Subsidiary is designated an "Unrestricted Subsidiary" at the time of Acquisition
by the Company, in the case of Subsidiaries acquired after the Issue Date or (z)
immediately after giving effect to such designation, on a pro forma basis, the
Company could incur at least $1.00 of additional Indebtedness pursuant to the
Debt Incurrence Ratio in paragraph (a) of Section 5.11, and (c) such Subsidiary
does not own any Equity Interests in, or own or hold any Lien on any property
of, the Company or any other Subsidiary (excluding other Unrestricted
Subsidiaries). Any such designation also constitutes a Restricted Payment (to
the extent such amount is in excess of $0.00) in an amount equal to the sum of
(x) net assets of such Subsidiary at the time of the designation, unless in the
case of this clause (x) the designation is made pursuant to clause (b)(y) of the
first sentence of this definition, in which case the amount of consideration
paid by the Company and its Subsidiaries to effect such Acquisition (excluding
Qualified Equity Interests of THCR issued in connection therewith) shall be the
amount for purpose of this clause (x), and (y) the maximum amount of Guaranteed
Debt of the Company and its Subsidiaries in respect of the designated Subsidiary
which is to be outstanding immediately after such designation, in each case for
purposes of Section 5.3. Subject to the foregoing, the Company may designate
any Unrestricted Subsidiary to be a Subsidiary, provided, that (i) no Default or
Event of Default is existing or will occur as a consequence thereof and (ii)
immediately after giving effect to such designation, on a pro forma basis, the
Company could incur at least $1.00 of Indebtedness pursuant to the Debt
Incurrence Ratio test in paragraph (a) of Section 5.11. Each such designation
shall be evidenced by filing with the Trustee a certified copy of the resolution
giving effect to such designation and an officers' certificate certifying that
such designation complied with the foregoing conditions.
"Upper Tier Owner" means (i) if a Partner is an S corporation, partnership
or similar pass-through entity for federal income tax purposes, any shareholder
or partner of such Partner and (ii) if any such shareholder or partner referred
to in (i) above is an S corporation, partnership or similar pass-though entity
for federal income tax purposes, any shareholder or partner of such person.
"U.S. Government Obligations" means direct non-callable obligations of, or
noncallable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States of America is pledged.
"U.S. Legal Tender" means such coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Voting Stock" with respect to any Person means all classes of Equity
Interests of such Person then outstanding and normally entitled to vote in
elections of directors of such Person.
"Wholly-owned Subsidiary" means a Subsidiary all the Equity Interests of
which are owned by the Company or another Wholly-owned Subsidiary of the
Company.
27
<PAGE>
"Working Capital Facility" means any credit facility available to the
Company or any of its Subsidiaries the proceeds of which are used for working
capital or other general corporate purposes.
SECTION 1.2 Incorporation by Reference of TIA.
---------------------------------
Whenever this Indenture refers to a provision of the TIA, such provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuers, each Guarantor and
any other obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein, have the meanings assigned to them thereby.
SECTION 1.3 Rules of Construction.
---------------------
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in the
plural include the singular;
(v) provisions apply to successive events and transactions;
28
<PAGE>
(vi) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or
other subdivision; and
(vii) references to Sections or Articles means reference to such
Section or Article in this Indenture, unless stated otherwise.
ARTICLE II
THE SECURITIES
SECTION 2.1 Form and Dating.
---------------
The Securities and the Trustee's certificate of authentication, in respect
thereof, shall be substantially in the form of Exhibit A hereto, and each
---------
First Mortgage Note shall be endorsed with the Guaranty substantially in
the form of Exhibit B hereto, each of which Exhibits is incorporated into
---------
and made a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage. The
Issuers shall approve the form of the Securities and any notation, legend
or endorsement on them. Any such notations, legends or endorsements not
contained in the form of First Mortgage Note attached as Exhibit A hereto
---------
or the form of Guaranty attached as Exhibit B hereto shall be delivered in
---------
writing to the Trustee. Each Security shall be dated the date of its
authentication.
The terms and provisions contained in the form of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to
the extent applicable, the Issuers, the Guarantors and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such
terms and provisions and to be bound thereby.
SECTION 2.2 Execution and Authentication.
----------------------------
Two Authorized Representatives shall sign, or one Authorized Representative
shall sign and one Authorized Representative shall attest to, the
Securities for the Issuers by manual or facsimile signature. The Issuers'
seals shall be impressed, affixed, imprinted, or reproduced on the
Securities and may be in facsimile form.
If an Authorized Representative whose signature is on a Security was an
Authorized Representative at the time of such execution but no longer holds
that office at the time the Trustee authenticates the Security, the
Security shall be valid nevertheless and the Issuers shall nevertheless be
bound by the terms of the Securities and this Indenture.
A Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security, but such
signature shall be conclusive evidence that the Security has been
authenticated pursuant to the terms of this Indenture.
29
<PAGE>
The Trustee shall authenticate Securities for original issue in the
aggregate principal amount of up to $1,200,000,000 upon a written order of
the Issuers in the form of an Officers' Certificate. The Officers'
Certificate shall specify the amount of Securities to be authenticated and
the date on which the Securities are to be authenticated. The aggregate
principal amount of Securities outstanding at any time may not exceed
$1,200,000,000, except as provided in Section 2.7. Upon the written order
of the Issuers in the form of an Officers' Certificate, the Trustee shall
authenticate Securities in substitution of Securities originally issued to
reflect any name change of the Issuers.
The Trustee may appoint an authenticating agent acceptable to the Issuers
to authenticate Securities. Unless otherwise provided in the appointment,
an authenticating agent may authenticate Securities whenever the Trustee
may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Issuers, any Affiliate of the
Issuers or any of their respective Subsidiaries.
Securities shall be issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof.
SECTION 2.3 Registrar and Paying Agent.
--------------------------
The Issuers shall maintain an office or agency in the Borough of Manhattan,
The City of New York, where Securities may be presented for registration of
transfer or for exchange ("Registrar") and an office or agency in the
Borough of Manhattan, The City of New York where Securities may be
presented for payment ("Paying Agent") and an office or agency where
notices and demands to or upon the Issuers in respect of the Securities may
be served. Unless a Default or Event of Default has occurred and is
continuing, the Issuers or any of their Subsidiaries may act as Registrar
or Paying Agent, except that, for the purposes of Articles III, IX, XI and
Section 5.15 and as otherwise specified in this Indenture, neither the
Issuers, any Guarantor nor any other obligor on the Securities nor any
Affiliate of the Issuers, any Guarantor or such other obligor shall act as
Paying Agent. The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Issuers may have one or more co-
Registrars and one or more additional Paying Agents. The term "Paying
Agent" includes any additional Paying Agent. The Issuers hereby initially
appoint the Trustee as Registrar and Paying Agent, and the Trustee hereby
initially agrees so to act until such time as the Trustee has resigned or a
successor has been appointed. The Company may change any Registrar, Paying
Agent or co-Registrar without notice to any Holder.
The Issuers shall enter into an appropriate written agency agreement with
any Agent not a party to this Indenture, which agreement shall implement
the provisions of this Indenture that relate to such Agent. The Issuers
shall promptly notify the Trustee in writing of the name and address of any
such Agent. If the Issuers fail to maintain a Registrar or Paying Agent,
the Trustee shall act as such.
30
<PAGE>
SECTION 2.4 Paying Agent to Hold Assets in Trust.
------------------------------------
The Issuers shall require each Paying Agent other than the Trustee to agree
in writing that each Paying Agent shall hold in trust for the benefit of Holders
or the Trustee all assets held by the Paying Agent for the payment of principal
of, premium, if any, or interest on, the Securities (whether such assets have
been distributed to it by the Issuers, a Guarantor or any other obligor on the
Securities), and shall notify the Trustee in writing of any Default by the
Issuers, a Guarantor or any other obligor on the Securities in making any such
payment. If the Issuers, a Guarantor, any other obligor on the Securities or a
Subsidiary of the Issuers acts as Paying Agent, it shall segregate such assets
and hold them as a separate trust fund for the benefit of the Holders or the
Trustee. The Issuers at any time may require a Paying Agent to distribute all
assets held by it to the Trustee and account for any assets disbursed and the
Trustee may at any time during the continuance of any payment Default, upon
written request to a Paying Agent, require such Paying Agent to distribute all
assets held by it to the Trustee and to account for any assets distributed.
Upon distribution to the Trustee of all assets that shall have been delivered by
the Issuers or any Guarantor to the Paying Agent, the Paying Agent (if other
than the Issuers, a Guarantor or any other obligor on the Securities) shall have
no further liability for such assets.
SECTION 2.5 Securityholder Lists.
--------------------
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Holders. If the Trustee is not the Registrar, the Issuers shall furnish to the
Trustee on or before the third Business Day preceding each Interest Payment Date
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee reasonably may require of the names and
addresses of Holders. The Trustee, the Registrar and the Issuers shall provide
a current securityholder list to any Gaming Authority upon demand.
SECTION 2.6 Transfer and Exchange.
---------------------
When Securities are presented to the Registrar or a co-Registrar with a
request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of other authorized
denominations, the Registrar or co-Registrar shall register the transfer or make
the exchange as requested if its reasonable requirements for such transaction
are met; provided, however, that the Securities surrendered for transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Issuers and the Registrar or co-
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing. To permit registrations of transfers and exchanges, the Issuers and
the Guarantors shall execute and the Trustee shall authenticate Securities at
the Registrar's or co-Registrar's request. No service charge shall be made for
any registration of transfer or exchange, but the Issuers may require payment of
a sum sufficient to cover any transfer tax, assessments, or similar governmental
charge payable in connection therewith (other than any such transfer taxes,
assessments, or similar governmental charge payable upon exchanges or transfers
pursuant to Section 2.2, 2.10, 3.5, 5.15, 10.5, or 11.1). Except for a Required
31
<PAGE>
Regulatory Redemption pursuant to Section 3.2 or an order of any Gaming
Authority, the Registrar or co-Registrar shall not be required to register the
transfer of or exchange of (a) any Security selected for redemption in whole or
in part pursuant to Article Three, except the unredeemed portion of any Security
being redeemed in part, or (b) any Security for a period beginning 15 Business
Days before the mailing of a notice of an offer to repurchase pursuant to
Sections 5.15 or of a notice to redeem Securities pursuant to Article III and
ending at the close of business on the day of such mailing.
SECTION 2.7 Replacement Securities.
----------------------
If a mutilated Security is surrendered to the Trustee or if the Holder of a
Security claims and submits an affidavit or other evidence, satisfactory to the
Trustee, to the Trustee to the effect that the Security has been lost, destroyed
or wrongfully taken, the Issuers shall issue, the Guarantors shall endorse, and
the Trustee shall authenticate a replacement Security if the Trustee's
requirements are met. If required by the Trustee or the Issuers, such Holder
must provide an indemnity bond or other indemnity, sufficient in the judgment of
both the Issuers and the Trustee, to protect the Issuers, the Guarantors, the
Trustee or any Agent from any loss which any of them may suffer if a Security is
replaced. The Issuers may charge such Holder for its reasonable, out-of-pocket
expenses in replacing a Security.
Every replacement Security is an additional obligation of the Issuers, and,
to the extent of the Guaranty, the Guarantors.
SECTION 2.8 Outstanding Securities.
----------------------
Securities outstanding at any time are all the Securities that have been
authenticated by the Trustee except those cancelled by it, those delivered to it
for cancellation and those described in this Section 2.8 as not outstanding. A
Security does not cease to be outstanding because an obligor or an Affiliate of
the Issuers holds the Security, except as provided in Section 2.9.
If a Security is replaced pursuant to Section 2.7 (other than a mutilated
Security surrendered for replacement), it ceases to be outstanding unless the
Trustee receives proof satisfactory to it that the replaced Security is held by
a bona fide purchaser. A mutilated Security ceases to be outstanding upon
surrender of such Security and replacement thereof pursuant to Section 2.7.
If on a Redemption Date or the Maturity Date the Paying Agent (other than
the Issuers, the Guarantors (or any other obligor on the Securities) or an
Affiliate of the Issuers or any Guarantor (or such other obligor)) holds U.S.
Legal Tender or U.S. Government Obligations sufficient to pay all of the
principal and interest due on the Securities payable on that date and payment of
the Securities called for redemption is not otherwise prohibited, then on and
after that date such Securities cease to be outstanding and interest on them
ceases to accrue unless any such obligor defaults in its obligations with
respect thereto.
32
<PAGE>
SECTION 2.9 Treasury Securities.
-------------------
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, amendment, supplement, waiver or
consent, Securities owned by the Issuers, any Guarantor or any other obligor on
the Securities and Affiliates of the Issuers, shall be disregarded, except that,
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, amendment, supplement, waiver or consent, only
Securities that the Trustee knows or has reason to know are so owned shall be
disregarded.
SECTION 2.10 Temporary Securities.
--------------------
Until definitive Securities are ready for delivery, the Issuers may
prepare, the Guarantors shall endorse and the Trustee shall authenticate
temporary Securities. Temporary Securities shall be substantially in the form
of definitive Securities but may have variations that the Issuers reasonably and
in good faith consider appropriate for temporary Securities. Without
unreasonable delay, the Issuers shall prepare, the Guarantors shall endorse and
the Trustee shall authenticate definitive Securities in exchange for temporary
Securities. Until so exchanged, the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as permanent Securities
authenticated and delivered hereunder.
SECTION 2.11 Cancellation.
------------
The Issuers at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the Trustee
any Securities surrendered to them for transfer, exchange or payment. The
Trustee, or at the direction of the Trustee, the Registrar or the Paying Agent
(other than the Issuers or any Guarantor (or any other obligor on the
Securities) or an Affiliate of the Issuers or any Guarantor (or such other
obligor)), and no one else, shall cancel and, at the written direction of the
Issuers, shall dispose of all Securities surrendered for transfer, exchange,
payment or cancellation. Subject to Section 2.7, the Issuers may not issue new
Securities to replace Securities they have paid or delivered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section 2.11, except as
expressly permitted in the form of Securities and as permitted by this
Indenture.
SECTION 2.12 Defaulted Interest.
------------------
If the Issuers default in a payment of interest on the Securities,
they shall pay the defaulted interest, plus (to the extent lawful) interest on
the defaulted interest, to the persons who are Holders on a Record Date (or at
the Issuers' option a subsequent special record date) which date shall be the
fifteenth day next preceding the date fixed by the Issuers for the payment of
defaulted interest, whether or not such day is a Business Day, unless the
Trustee fixes another record date. At least 15 days before the subsequent
special record date, the Issuers shall mail to each Holder with a copy to the
Trustee a notice that states the subsequent special record date, the payment
date and the amount of defaulted interest, and interest payable on such
defaulted interest, if any, to be paid.
33
<PAGE>
ARTICLE III
REDEMPTION
SECTION 3.1 Right of Redemption.
-------------------
Redemption of Securities shall be made only in accordance with this
Article III. At their election, the Issuers may redeem the Securities in whole
or in part, at any time on or after May 1, 2001, at the Redemption Prices
specified under the caption "Redemption" in the Form of Security attached as
Exhibit A hereto, plus accrued and unpaid interest to the applicable Redemption
- ---------
Date. Except as provided in this paragraph, Section 3.2 and paragraph 5 of the
Securities, the Securities may not otherwise be redeemed at the option of the
Issuers.
SECTION 3.2 Redemption Pursuant to Applicable Laws.
--------------------------------------
Notwithstanding the provisions of this Indenture, if the CCC does not
waive the qualification requirements as to any Securityholder (whether the
record owner or beneficial owner) and requires that such Securityholder be
qualified under the Casino Control Act, then, in such event, such Securityholder
must qualify under the Casino Control Act. If a Securityholder does not so
qualify, the Securityholder must dispose of its interest in the Securities,
within 30 days after the Issuers' receipt of notice of such finding (or within
such earlier date as the CCC may require), or the Issuers may redeem the
Securities of such Holder, in whole or in part, pursuant to, and in accordance
with, a Required Regulatory Redemption. Notwithstanding any other provision of
this Indenture, the Securities of such Holder shall also be redeemable at any
time pursuant to, and in accordance with, a Required Regulatory Redemption. If
the Issuers require the redemption of any Security pursuant to this Section 3.2,
then the Redemption Price shall be the principal amount thereof, plus accrued
and unpaid interest to the Redemption Date (or such lesser amount as may be
required by applicable law or by order of any Gaming Authority). The Issuers
shall tender the Redemption Price, plus accrued and unpaid interest to the
Redemption Date, to the Trustee no less than 30 and no more than 60 days after
the Issuers give the Securityholder or owner of a beneficial or voting interest
written notice of redemption or such earlier date as may be required by
applicable law. The Issuers shall notify the Trustee of any disposition or
redemption required under this Section 3.2, and upon receipt of such notice, the
Trustee shall not accord any rights or privileges under this Indenture or any
Security to any Securityholder or owner of a beneficial or voting interest who
is required to dispose of any Security or tender it for redemption, except to
pay the Redemption Price, plus accrued and unpaid interest to the Redemption
Date, upon tender of such Security.
SECTION 3.3 Notices to Trustee.
------------------
If the Issuers elect to redeem Securities pursuant to Article III
(including, without limitation, Section 3.2), they shall notify the Trustee in
writing of the date on which the applicable Securities are to be redeemed
("Redemption Date") and the principal amount thereof to be redeemed and whether
they want the Trustee to give notice of redemption to the Holders.
34
<PAGE>
The Company shall give each notice to the Trustee provided for in this
Section 3.3 at least 30 days before the Redemption Date (unless a shorter notice
shall be required by applicable law or by order of any Gaming Authority). Any
such notice may be cancelled at any time prior to notice of such redemption
being mailed to any Securityholder and shall thereby be void and of no effect.
SECTION 3.4 Selection of Securities to Be Redeemed.
--------------------------------------
If less than all of the Securities are to be redeemed pursuant to the
first paragraph of Paragraph 5 thereof, the Trustee shall, if applicable, select
from among such Securities to be redeemed pro rata or by lot or by such other
method as the Trustee shall determine to be fair and appropriate and in such
manner as complies with any applicable legal and stock exchange requirements.
The Trustee shall make the selection from the Securities outstanding
and not previously called for redemption and shall promptly notify the Issuers
in writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 may be redeemed only in whole.
The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
SECTION 3.5 Notice of Redemption.
--------------------
At least 30 days but not more than 60 days before each Redemption Date
(unless another notice period shall be required by applicable law or by order of
any Gaming Authority), the Issuers shall mail a notice of redemption by first
class mail, postage prepaid, to each Holder whose Securities are to be redeemed
(unless a shorter notice period shall be required by applicable law) to such
Holder's last address as then shown upon the First Mortgage Note Register. At
the Issuers' request, the Trustee shall give the notice of redemption in the
Issuers' name and at the Issuers' expense. Each notice for redemption shall
identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price, plus the amount of accrued
and unpaid interest to be paid upon such redemption;
(3) the name, address and telephone number of the
Paying Agent;
(4) that Securities called for redemption must be surrendered to the
Paying Agent at the address specified in such notice to collect the Redemption
Price;
35
<PAGE>
(5) that, unless (a) the Issuers default in their obligation to
deposit U.S. Legal Tender with the Paying Agent in accordance with Section 3.7
or (b) such redemption payment is prevented for any reason, interest on
Securities called for redemption ceases to accrue on and after the Redemption
Date and the only remaining right of the Holders of such Securities is to
receive payment of the Redemption Price, plus accrued and unpaid interest to the
Redemption Date, upon surrender to the Paying Agent of the Securities called for
redemption and to be redeemed;
(6) if any Security is being redeemed in part, the portion of the
principal amount, equal to $1,000 or any integral multiple thereof, of such
Security to be redeemed and that, after the Redemption Date, and upon surrender
of such Security, a new Security or Securities in aggregate principal amount
equal to the unredeemed portion thereof will be issued;
(7) if less than all the Securities are to be redeemed, the
identification of the particular Securities (or portion thereof) to be redeemed,
as well as the aggregate principal amount of such Securities to be redeemed;
(8) the CUSIP number of the Securities to be redeemed;
(9) in the case of a Required Regulatory Redemption, the
circumstances pursuant to which such Required Regulatory Redemption is being
effected; and
(10) that the notice is being sent pursuant to this Section 3.5 and
pursuant to the redemption provisions of Paragraph 5 of the Securities.
SECTION 3.6 Effect of Notice of Redemption.
------------------------------
Once notice of redemption is mailed in accordance with Section 3.5,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price, plus accrued and unpaid interest to the Redemption
Date. Upon surrender to the Trustee or Paying Agent, such Securities called for
redemption shall be paid at the Redemption Price, plus accrued and unpaid
interest to the Redemption Date; provided that if the Redemption Date is after a
regular Record Date and on or prior to the corresponding Interest Payment Date,
the accrued interest constituting part of the Redemption Price shall be payable
to the Holder of the redeemed Securities registered on the relevant Record Date;
and provided, further, that if a Redemption Date is a Legal Holiday, payment
shall be made on the next succeeding Business Day and no interest shall accrue
for the period from such Redemption Date to such succeeding Business Day.
SECTION 3.7 Deposit of Redemption Price.
---------------------------
On or before the Redemption Date, the Issuers shall deposit with the Paying
Agent (other than the Issuers, any of the Guarantors (or any other obligor on
the Securities) or an Affiliate of the Issuers or any of the Guarantors or any
other obligor on the Securities), U.S. Legal Tender sufficient to pay the
Redemption Price, plus accrued and unpaid interest to the
36
<PAGE>
Redemption Date, of all Securities to be redeemed on such Redemption Date (other
than Securities or portions thereof called for redemption on that date that have
been delivered by the Company to the Trustee for cancellation). The Paying
Agent shall promptly return to the Issuers any U.S. Legal Tender so deposited
which is not required for that purpose upon the written request of the Issuers.
If the Issuers comply with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not prevented for any reason, interest on the Securities to be
redeemed will cease to accrue on the applicable Redemption Date, whether or not
such Securities are presented for payment. Notwithstanding anything herein to
the contrary, if any Security surrendered for redemption in the manner provided
in the Securities shall not be so paid upon surrender for redemption because of
the failure of the Issuers to comply with the preceding paragraph and the other
provisions of this Article III, interest shall continue to accrue and be paid
from and including the Redemption Date until such payment is made on the unpaid
principal, and, to the extent lawful, on any interest not paid on such unpaid
principal, in each case at the rate and in the manner provided in Section 5.1
hereof and the Securities.
SECTION 3.8 Securities Redeemed in Part.
---------------------------
Upon surrender of a Security that is to be redeemed in part, the
Issuers shall execute and the Trustee shall authenticate and deliver to the
Holder, without service charge, a new Security or Securities equal in principal
amount to the unredeemed portion of the Security surrendered.
37
<PAGE>
ARTICLE IV
SECURITY
SECTION 4.1 Security Interest.
-----------------
(a) In order to secure the prompt and complete payment and performance in
full of the Indenture Obligations, the Issuers, the Guarantors, the Trustee and
the Collateral Agent have entered into this Indenture and the Mortgage
Documents, as applicable, required to be entered into on the Issue Date. Each
Holder, by accepting a Security, agrees to all of the terms and provisions of
this Indenture, the Mortgage Documents and the Collateral Agency Agreement, and
the Trustee and the Collateral Agent agree to all of the terms and provisions of
this Indenture, the Mortgage Documents and the Collateral Agency Agreement, as
applicable, as this Indenture, the Mortgage Documents and the Collateral Agency
Agreement may be amended from time to time pursuant to the provisions thereof
and hereof.
(b) Subject to the terms of the Collateral Agency Agreement, the Collateral
as now or hereafter constituted shall be held for the equal and ratable benefit
of the Holders without preference, priority or distinction of any thereof over
any other by reason of difference in time of issuance, sale or otherwise, as the
only security for the Indenture Obligations and other lenders secured thereby
pursuant to the Collateral Agency Agreement. The Collateral is to be held by
the Collateral Agent for the benefit of the Trustee acting for the equal and
ratable benefit of the Holders and for the benefit of any other Designated
Representative, subject to the terms of the Collateral Agency Agreement.
(c) The provisions of TIA (S) 314(d), and the provisions of TIA (S)
314(c)(3) to the extent applicable by specific reference in this Article IV, are
hereby incorporated by reference herein as if set forth in their entirety,
except that, as set forth in Section 4.4, TIA (S) 314(d) need not be complied
with in certain respects.
SECTION 4.2 Recording; Opinions of Counsel.
------------------------------
(a) Each of the Issuers and the Guarantors warrants and represents that it
has caused to be executed and delivered and covenants that it will promptly
cause to be executed and delivered, filed and recorded, all instruments and
documents, and has done and will do or will cause to be done all such acts and
other things, at the Issuers' expense, as are necessary to effect and maintain
valid and perfected security interests in the Collateral as required under the
Mortgage Documents. Each of the Issuers and the Guarantors shall, as promptly
as practicable, cause to be executed and delivered, filed and recorded all
instruments and do all acts and other things as may be required by law to
perfect, maintain and protect the Liens under the Mortgage Documents, the
Collateral Agency Agreement and herein. Each of the Guarantors warrants and
represents that it has caused to be executed and delivered, and covenants that
it will promptly cause to be executed and delivered, filed and recorded all
instruments and documents, and has done and will do or will cause to be done all
such acts and other things, at such Guarantor's expense, as are necessary to
effect and maintain valid and perfected Liens in the
38
<PAGE>
Collateral as required under the Mortgage Documents. Each of the Guarantors
shall, as promptly as practicable, cause to be executed and delivered, filed and
recorded, all instruments and do all acts and other things as may be required by
law to perfect, maintain and protect the security interests under the Mortgage
Documents and herein.
(b) The Issuers shall furnish to the Trustee and the Collateral Agent,
concurrently with or promptly after the execution and delivery of this Indenture
and the Mortgage Documents and promptly after the execution and delivery of any
amendment thereto or any other instrument of further assurance, an Opinion(s) of
Counsel stating that, in the opinion of such counsel, subject to customary
exclusions and exceptions reasonably acceptable to the Trustee and the
Collateral Agent, either (i) this Indenture, the Mortgage Documents, any such
amendment and all other instruments of further assurance have been properly
recorded, registered and filed and all such other action has been taken to the
extent necessary to make effective such valid Liens and to perfect such Liens
intended to be created by this Indenture, the Mortgage Documents and the
Collateral Agency Agreement, and reciting the details of such action, or (ii) no
such action is necessary to effect and maintain in full force and effect the
validity and perfection of the Liens under the Mortgage Documents, the
Collateral Agency Agreement and hereunder.
(c) The Issuers shall furnish to the Trustee, on or prior to May 1, of each
year commencing in 1997, an Opinion(s) of Counsel, dated as of such date,
stating that, in the opinion of such counsel, subject to customary exclusions
and exceptions reasonably acceptable to the Trustee, either (A) all such action
has been taken with respect to the recording, registering, filing, rerecording
and refiling of the Mortgage Documents, financing statements, continuation
statements and all other instruments of further assurance as is necessary to
maintain the validity and perfection of Liens under the Mortgage Documents, the
Collateral Agency Agreement and hereunder in full force and effect and reciting
the details of such action, and stating that all financing statements and
continuation statements have been executed and filed and such other actions
taken that are necessary fully to preserve and protect the rights of the Holders
and the Trustee hereunder and under the Mortgage Documents and the Collateral
Agency Agreement, or (B) no such action is necessary to maintain in full force
and effect the validity and perfection of the Liens under the Mortgage Documents
and hereunder.
SECTION 4.3 Disposition of Certain Collateral.
---------------------------------
(a) The Company and its Subsidiaries may, without requesting the release
or consent of the Trustee and the Collateral Agent, but otherwise subject to the
requirements of this Indenture and the Mortgage Documents:
(i) in the ordinary course of business for the casino industry, convey,
sell, lease, transfer, assign, or otherwise dispose of, free from the Liens
under the Mortgage Documents and hereunder, assets acquired and held for resale
in the ordinary course of business;
39
<PAGE>
(ii) other than a Casino Sale, convey, sell, lease, transfer or otherwise
dispose of, free from the Liens under the Mortgage Documents and hereunder,
assets pursuant to and in accordance with Section 6.1 of this Indenture;
(iii) convey, sell, lease, transfer, assign or otherwise dispose of, free
from the Liens under the Mortgage Documents and hereunder, three warehouses and
related facilities (the Egg Harbor Parcel, the Pleasantville Warehouse and the
Realty Warehouse) in exchange for any type of consideration so long as the
Company determines in good faith that the Company or such Subsidiary, as
applicable, receives fair market value;
(iv) convey, sell, transfer, assign or otherwise dispose of assets to the
Company or any Wholly-owned Subsidiaries of the Company so long as they continue
to be subject to a Lien under the Mortgage Documents; and
(v) subject to the provisions of the Mortgage Documents pertaining to
disposal of real property, sell, assign, transfer, license or otherwise dispose
of, free from the Liens under the Mortgage Documents and hereunder, any assets
or property in accordance with Section 5.15 (including, without limitation,
pursuant to Section 5.15(a)); provided that the proceeds of such sale,
--------
assignment, transfer, license or other disposition are applied in the manner set
forth in Section 5.15.
(vi) sell or dispose of, free from the Liens under the Mortgage Documents,
any Tangible Personal Property which, in the Company's reasonable opinion, may
have become obsolete or unfit for use or which is no longer necessary in the
conduct of its businesses, and no purchaser of any such property shall be bound
to inquire into any question affecting the Company's or any of its Subsidiaries'
rights to sell or otherwise dispose of the same free from the Liens under the
Mortgage Documents;
(vii) alter, repair, replace, change shall the location or position of and
add to any Property; provided, however, that no change shall be made in the
-------- -------
location of any such property subject to the Liens under the Mortgage Documents
which would in any respect impair the security of the Liens under the Mortgage
Documents upon such property; or
(viii) renew, extend, surrender, terminate, modify or amend any leases of
Tangible Personal Property, when, in the Company's or any of its Subsidiaries'
reasonable opinion, it is prudent to do so.
Notwithstanding the provisions of subsection (a) above, the Net Cash
Proceeds from any disposition described in clauses (ii) through (viii) above
shall be held in a Restricted Funds Account, pending application (which shall be
restricted only as provided in Section 5.15).
(b) Notwithstanding the provisions of subsection (a) above, the
Issuers shall not dispose of or transfer (by lease, assignment, license, sale or
otherwise) or pledge, mortgage or otherwise encumber Collateral pursuant to the
provisions of Section 4.3(a) with a
40
<PAGE>
fair value of 10% or more of the aggregate fair value of all Collateral then
existing in any calendar year.
(c) In the event that the Issuers or any Guarantor have sold, exchanged, or
otherwise disposed of or propose to sell, exchange or otherwise dispose of any
portion of the Collateral which under the provisions of this Section 4.3 may be
sold, exchanged or otherwise disposed of by the Issuers or any Guarantor without
consent of the Trustee, and the Issuers request the Trustee to furnish a written
disclaimer, release or quitclaim of any interest in such property under the
Mortgage Documents, the Trustee shall execute (or if appropriate, request the
Collateral Agent to execute) such an instrument prepared by the Issuers or a
Guarantor, upon delivery to the Trustee of an Officers' Certificate by the
Issuers reciting the sale, exchange or other disposition made or proposed to be
made and describing in reasonable detail the property affected thereby, and
certifying that such property is property which by the provisions of this
Section 4.3 may be sold, exchanged or otherwise disposed of or dealt with by the
Issuers or the Guarantors without any release or consent of the Trustee or the
Holders; provided, that the Trustee shall have no liability thereunder (except
for its gross negligence or willful misconduct) and all costs and expenses
(including, without limitation, reasonable attorneys' fees and disbursements)
shall be paid by the Company. The Trustee and the Collateral Agent shall be
authorized to conclusively rely on such certification.
(d) Any disposition of Collateral made in compliance with the provisions of
this Section 4.3 shall be deemed not to impair the Liens under the Mortgage
Documents and hereunder in contravention of the provisions of this Indenture.
SECTION 4.4 Certain Releases of Collateral.
------------------------------
Subject to applicable law, the release of any Collateral from Liens created
by the Mortgage Documents or the release of, in whole or in part, the Liens
created by the Mortgage Documents, will not be deemed to impair the Mortgage
Documents in contravention of the provisions of this Indenture if and to the
extent the Collateral or Liens are released pursuant to, and in accordance with,
the applicable Mortgage Documents and pursuant to, and in accordance with, the
terms hereof. To the extent applicable, without limitation, the Issuers, each
Guarantor and each other obligor, if any, on the Securities shall cause TIA (S)
314(d), relating to the release of property or securities from the Liens of the
Mortgage Documents, to be complied with. Any certificate or opinion required by
TIA (S) 314(d) may be made by two Authorized Representatives, except in cases in
which TIA (S) 314(d) requires that such certificate or opinion be made by an
independent person. The Issuers shall not be required under this Indenture to
deliver to the Trustee any certificates or opinions required to be delivered
pursuant to (S) 314(d) of the TIA in connection with releases of Collateral in
accordance with Section 4.3(a) (ii) hereunder, unless TIA (S) 314(d) would
require such certificate or opinion to be made by an independent person.
SECTION 4.5 Payment of Expenses.
-------------------
On demand of the Trustee, the Issuers forthwith shall pay or satisfactorily
provide for all reasonable expenditures incurred by the Trustee under this
Article IV, including the reasonable fees and expenses of counsel and all such
sums shall be a Lien upon the Collateral and shall be secured thereby.
41
<PAGE>
SECTION 4.6 Suits to Protect the Collateral.
-------------------------------
Subject to Section 4.1 of this Indenture and to the provisions of the
Mortgage Documents, the Trustee (to the extent not granted to the Collateral
Agent pursuant to the Collateral Agency Agreement) shall have power to institute
and to maintain such suits and proceedings as it may deem expedient to prevent
any impairment of the Collateral by any acts which may be unlawful or in
violation of the Mortgage Documents or this Indenture, including the power to
institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid or if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interests in contravention of this Indenture or be prejudicial to the interests
of the Holders or the Trustee. The Trustee shall give notice to the Issuers
promptly following the institution of any such suit or proceeding.
SECTION 4.7 Trustee's Duties.
----------------
The powers and duties conferred upon the Trustee by this Article IV are
solely to protect the Liens and shall not impose any duty upon the Trustee to
exercise any such powers and duties, except as expressly provided in this
Indenture, the Mortgage Documents or the TIA. The Trustee shall not be under
any duty to the Issuers or any Guarantor whatsoever to make or give any
presentment, demand for performance, notice of nonperformance, protest, notice
of protest, notice of dishonor, or other notice or demand in connection with any
Collateral, or to take any steps necessary to preserve any rights against prior
parties except as expressly provided in this Indenture or the Mortgage
Documents. The Trustee shall not be liable to the Issuers or any Guarantor for
failure to collect or realize upon any or all of the Collateral, or for any
delay in so doing, nor shall the Trustee be under any duty to the Issuers or any
Guarantor to take any action whatsoever with regard thereto. The Trustee shall
have no duty to the Issuers or any Guarantor to comply with any recording,
filing, or other legal requirements necessary to establish or maintain the
validity, priority or enforceability of the security interests in, or the
Trustee's rights in or to, any of the Collateral.
SECTION 4.8 Restricted Funds Account.
------------------------
The Company or any of its Subsidiaries shall maintain and establish a
Restricted Funds Account as provided in the Security Agreement, which, subject
to the terms of the Collateral Agency Agreement, shall hold Cash Collateral for
the equal and ratable benefit of the Holders (without preference, priority or
distinction of any thereof over any other by reason of difference in time of
issuance, sale or otherwise, as security for the Indenture Obligations) and the
other lenders secured thereby pursuant to the Collateral Agency Agreement. Upon
delivery of an Officers' Certificate from the Company or any of its Subsidiaries
notifying the Trustee and the Collateral Agent of the release of funds from the
Restricted Funds Account and certifying that such funds will be used in
compliance with Section 5.15 within the time provided by Section 5.15, but not
later than 30 days after the transfer of such funds, the Company or its
Subsidiary, as the case may be, may transfer such funds from the Restricted
Funds Account.
42
<PAGE>
The Issuers or any Guarantor may invest Cash Collateral in the Restricted
Funds Account only in Cash Equivalents. Interest and other amounts earned on
such Cash Collateral shall be held by the Collateral Agent in the Restricted
Funds Account as additional Collateral.
ARTICLE V
COVENANTS
SECTION 5.1 Payment of Securities.
---------------------
The Issuers shall pay the principal of and interest on the Securities on
the dates and in the manner provided in the Securities and this Indenture. An
installment of principal of or interest on the Securities shall be considered
paid on the date it is due if the Trustee or Paying Agent (other than the
Issuers, any of the Guarantors (or any other obligor on the Securities) or an
Affiliate of either of the Issuers or any of the Guarantors (or such other
obligor)) holds for the benefit of the Holders, on or before 10:00 a.m. New York
City time on that date, U.S. Legal Tender deposited and designated for and
sufficient to pay the installment.
The Issuers shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities compounded
semi-annually, to the extent lawful.
SECTION 5.2 Maintenance of Office or Agency.
-------------------------------
The Issuers shall maintain in the Borough of Manhattan, The City of New
York, an office or agency where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Issuers in respect of the
Securities and this Indenture may be served. No service charge will be made for
any registration of transfer, exchange or redemption of Securities, but the
Issuers may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith. The Issuers shall give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Issuers shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the address of the Trustee set forth in Section 12.2.
The Issuers may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or recession shall in any manner relieve the
Issuers of their obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York, for such purposes. The Issuers shall give
prompt written notice to the Trustee of any such designation or rescission and
of any change in the location of any such other office or agency. The Issuers
hereby initially designate the Corporate Trust Office of the Trustee as such
office.
43
<PAGE>
SECTION 5.3 Limitation on Restricted Payments.
---------------------------------
The Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, make any Restricted Payment if, after giving effect to
such Restricted Payment on a pro forma basis, (1) a Default or an Event of
Default shall have occurred and be continuing, (2) the Company is not permitted
to incur at least $1.00 of additional Indebtedness pursuant to the Debt
Incurrence Ratio in paragraph (a) of Section 5.11, or (3) the aggregate amount
of all Restricted Payments made by the Company and its Subsidiaries, including
after giving effect to such proposed Restricted Payment, from and after the
Issue Date, would exceed the sum of (a) 50% of the aggregate Consolidated Net
Income of the Company and its Consolidated Subsidiaries for the period (taken as
one accounting period) commencing on the first day of the first fiscal quarter
commencing prior to the Issue Date, to and including the last day of the fiscal
quarter ended immediately prior to the date of each such calculation (or, in the
event Consolidated Net Income for such period is a deficit, then minus 100% of
such deficit), plus (b) the aggregate Net Cash Proceeds received by the Company
after the Issue Date and on or prior to the date of such proposed Restricted
Payment from (i) the sale of its Qualified Equity Interests (other than (x) to a
Subsidiary of the Company, (y) to the extent applied in connection with a
Qualified Exchange and (z) in connection with the equity offering by THCR prior
to or substantially concurrent with the issuance of the Securities, including
any exercise of the underwriters' overallotment option, except for amounts Trump
AC receives therefrom (including by Capital Contribution) in excess of $270
million or (ii) other Capital Contributions not covered by clause (i) of this
sentence .
The foregoing clauses (2) and (3) of the immediately preceding paragraph,
however, will not prohibit (v) (I) distributions by the Company pursuant to the
terms of the Partnership Agreement as in effect on the Issue Date to THCR
Holdings to the extent promptly distributed to and/or applied by THCR Holdings
or THCR (A) to pay reasonable general and administrative expenses of such
persons, including directors' fees and premiums for directors' and officers'
liability insurance, which distributions shall not exceed $10.0 million in any
consecutive four-quarter period, (B) to make indemnification payments as
required by the Certificate of Incorporation of THCR as in effect on the Issue
Date or (C) to effect redemption of any Equity Interest of THCR if (x) counsel
to THCR delivers an opinion that failure to so redeem would subject THCR to an
adverse action by a Gaming Authority (or, if applicable, a failure to act by a
Gaming Authority that is adverse to THCR) and (y) THCR determines (as evidenced
by a resolution of its Board of Directors delivered to the Trustee) that such
adverse action (or, if applicable, such failure to act) would be likely to have
a material adverse effect on THCR, and (II) distributions by the Company to THCR
Holdings to the extent promptly distributed to and applied by THCR to pay any
tax liability resulting from the distributions provided for in (I) above, as
required by the Partnership Agreement, (w) distributions by the Company to THCR
Holdings in an amount not to exceed $50.0 million in the aggregate to the extent
applied by THCR Holdings, within 20 Business Days of receiving such
distribution, to the next scheduled interest payment on the Senior Notes or any
Refinancing Indebtedness with respect thereto (provided, that solely in the case
of this clause (w), clause (1) of the immediately preceding paragraph will not
prohibit a distribution hereunder except in the case of an Event of Default
under clause (a) or (b) of Section 7.1 hereof), (x) a Qualified Exchange, (y)
for so long as the Company is a partnership or substantially similar pass-
through entity for Federal income
44
<PAGE>
tax purposes, cash distributions made by the Company to its Partners from time
to time in amounts not to exceed the Permitted Tax Distributions, so long as the
payments are made at the time permitted by the second sentence of the definition
of Permitted Tax Distributions contained herein, or (z) the payment of any
dividend within 60 days after the date of its declaration if such dividend could
have been made on the date of such declaration in compliance with the foregoing
provisions. In addition, the immediately preceding paragraph will not prohibit
the purchase by the Company of Indebtedness incurred pursuant to clause (c) of
Section 5.11 substantially concurrently with a purchase by the Company of
Securities pursuant to a Change of Control Offer or an Asset Sale Offer,
provided, that (i) in the case of a purchase pursuant to an Asset Sale Offer,
such purchase of Securities represents a pro rata application of the Asset Sale
Offer Amount to the Securities and such other Indebtedness, based upon the
aggregate principal amount then outstanding, and (ii) the terms of such other
Indebtedness do not restrict such purchase of the Securities pursuant to a
Change of Control Offer or an Asset Sale Offer. The full amount of any
Restricted Payment made pursuant to the foregoing clauses (v), (w), (y) and (z)
of the second preceding sentence (but not pursuant to the immediately preceding
sentence or to clause (x) of the second preceding sentence), however, will be
deducted in the calculation of the aggregate amount of Restricted Payments
available to be made referred to in clause (3) of the immediately preceding
paragraph.
SECTION 5.4 Corporate and Partnership Existence.
-----------------------------------
Subject to Article VI, each of the Issuers shall do or cause to be done all
things necessary to preserve and keep in full force and effect their corporate
or partnership existence, as the case may be, and the corporate or other
existence of each of their Subsidiaries in accordance with the respective
organizational documents of each of them and the rights (charter and statutory)
and corporate or partnership franchises of the Issuers and each of their
Subsidiaries; provided, however, that neither of the Issuers shall be required
to preserve, with respect to itself or any of its Subsidiaries, any right or
franchise if (a) the Board of Directors of Funding shall determine reasonably
and in good faith that the preservation thereof is no longer desirable in the
conduct of the business of the Issuers and (b) the loss thereof is not
disadvantageous in any material respect to the Holders; and provided further,
that the Company may change from a partnership to a corporation, in which case
it must thereafter maintain its corporate existence in accordance with this
Section 5.4.
SECTION 5.5 Payment of Taxes and Other Claims.
---------------------------------
Each of the Issuers shall, and shall cause each of their Subsidiaries to,
pay or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges (including
withholding taxes and any penalties, interest and additions to taxes) levied or
imposed upon either of the Issuers or any of their Subsidiaries or properties
and assets of the Issuers or any of their Subsidiaries and (ii) all lawful
claims, whether for labor, materials, supplies, services or anything else, which
have become due and payable and which by law have or may become a Lien upon the
property and assets of either of the Issuers or any of their Subsidiaries;
provided, however, that neither the Issuers nor their Subsidiaries shall be
required to pay or discharge or cause to be paid or discharged any such tax,
45
<PAGE>
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which disputed
amounts adequate reserves have been established in accordance with GAAP.
SECTION 5.6 Maintenance of Insurance.
------------------------
The Company will, and will cause its Subsidiaries to, (a) obtain, prior to
the Issue Date, mortgagee title insurance policies insuring a first mortgage
lien on the land, leaseholds and the other portions of the Collateral deemed
real estate under applicable law, as constituted on the Issue Date, subject to
certain exceptions, in an amount not less than the principal amount of the
Securities (for the benefit of all holders of Indebtedness secured pursuant to
the Collateral Agency Agreement) and (b) from and at all times after the Issue
Date until the Securities have been paid in full, have and maintain in effect
insurance with responsible carriers against such risks and in such amounts as is
customarily carried by similar businesses with such deductibles, retentions,
self insured amounts and coinsurance provisions as are customarily carried by
similar businesses of similar size, including, without limitation, property and
casualty, and, with respect to insurance on the Collateral, shall have provided
insurance certificates evidencing such insurance to the Collateral Agent prior
to the Issue Date and shall thereafter provide such certificates prior to the
anniversary or renewal date of each such policy referred to in this clause (b),
which certificate shall expressly state the expiration date for each policy
listed. All insurance with respect to the Collateral required under the
Indenture (except worker's compensation) shall name the Issuers, Taj Associates,
Plaza Associates, and the Collateral Agent and such other parties to the extent
required by the Material Instrument Requirement (as defined in the Plaza
Mortgage) as additional insureds or loss payees, as the case may be, with losses
in excess of $10.0 million payable jointly to the Issuers, Taj Associates, Plaza
Associates and the Collateral Agent (unless a Default or Event of Default has
occurred and is then continuing, in which case all losses are payable solely to
the Collateral Agent subject to the Material Instrument Requirement), with no
recourse against the Collateral Agent for the payment of premiums, deductibles,
commissions or club calls, and for at least 30 days notice of cancellation. All
such insurance policies will be issued by carriers having an A.M. Best &
Company, Inc. rating of A- or higher and a financial size category of not less
than X, or if such carrier is not rated by A.M. Best & Company, Inc., having the
financial stability and size deemed appropriate by an opinion from a reputable
insurance broker. The Company may effect the insurance required under this
Section 5.6 under blanket and/or umbrella policies covering properties owned or
leased by Affiliates of the Company; provided, that such policies otherwise
comply with this Indenture and the Mortgages.
SECTION 5.7 Compliance Certificate; Notice of Default.
-----------------------------------------
(a) The Issuers shall deliver to the Trustee, within 120 days after the end
of each of their fiscal years, an Officers' Certificate complying (whether or
not required) with Section 314(a)(4) of the TIA and stating that a review of
their activities and the activities of their Subsidiaries during the preceding
fiscal year has been made under the supervision of the signing Authorized
Representatives with a view to determining whether each of the Issuers has or
has caused to be, kept, observed, performed and fulfilled its obligations under
this Indenture and
46
<PAGE>
the and further stating, as to each such Authorized Representative signing such
certificate, whether or not the signer knows of any failure by either of the
Issuers or any Subsidiary of either of the Issuers to comply with any conditions
or covenants in this Indenture and, if such signer does know of such a failure
to comply, the certificate shall describe such failure with particularity. The
Officers' Certificate shall also notify the Trustee should the relevant fiscal
year end on any date other than the current fiscal year end date.
(b) So long as not contrary to the then current recommendation of the
American Institute of Certified Public Accountants, the Issuers shall deliver to
the Trustee within 120 days after the end of each of their fiscal years a
written report of a firm of independent certified public accountants with an
established national reputation stating that in conducting their audit for such
fiscal year, nothing has come to their attention that caused them to believe
that either of the Issuers or any Subsidiary of either of the Issuers was not in
compliance with the provisions set forth in Section 5.3, 5.11, 5.15, 5.19, or
5.20 of this Indenture or any of the provisions of the Mortgage Documents.
(c) Each of the Issuers shall, so long as any of the Securities are
outstanding, deliver to the Trustee, immediately upon becoming aware of any
Default or Event of Default under this Indenture, an Officers' Certificate
specifying such Default or Event of Default and what action the Issuers are
taking or propose to take with respect thereto. The Trustee shall not be deemed
to have knowledge of a Default or an Event of Default unless one of its trust
officers receives notice of the Default or Event of Default giving rise thereto
from either of the Issuers or any of the Holders.
SECTION 5.8 Provision of Financial Statements.
---------------------------------
Whether or not either of the Issuers is subject to Section 13(a) or 15(d)
of the Exchange Act, each such Person will file with the SEC the annual reports,
quarterly reports and other documents which each such Person would have been
required to file with the SEC (to the extent permitted by applicable law)
pursuant to such Section 13(a) or 15(d) if such Person were so subject, such
documents to be filed with the SEC on or prior to the respective dates (the
"Required Filing Dates") by which such Person would have been required so to
file such documents if such Person were so subject. Each such Person will also
in any event within 15 days of each Required Filing Date (i) transmit by mail to
all Holders, as their names and addresses appear in the First Mortgage Note
Register, without cost to such Holders and (ii) file with the Trustee copies of
the annual reports, quarterly reports and other documents which each such Person
would have been required to file with the SEC pursuant to Section 13(a) or 15(d)
of the Exchange Act if such Person were subject to such Sections, together with
supplemental information in respect of summary financial data for each of the
Casino Hotels at the Issuers' cost. Notwithstanding anything contrary herein
the Trustee shall have no duty to review such documents for purposes of
determining compliance with any provisions of this Indenture.
47
<PAGE>
SECTION 5.9 Waiver of Stay, Extension or Usury Laws.
---------------------------------------
Each of the Issuers and each of the Guarantors covenant (to the extent that
it may lawfully do so) that it will not at any time insist upon, plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law wherever enacted which would
prohibit or forgive either of the Issuers or any Guarantor from paying all or
any portion of the principal of or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that they may lawfully do so) each of the Issuers or any Guarantor hereby
expressly waives all benefit or advantage of any such law insofar as such law
applies to the Securities, and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 5.10 Limitation on Transactions with Affiliates.
------------------------------------------
The Company will not, nor will any of the Subsidiaries be permitted to,
directly or indirectly, enter into or suffer to exist any contract, arrangement,
understanding or transaction or series of related transactions (including,
without limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate of the Company (other than a Wholly-owned
Subsidiary) unless (a) such transaction or series of related transactions is on
terms that are no less favorable to the Company or such Subsidiary, as the case
may be, than would be available at the time of such transaction or transactions
in a comparable transaction in arm's-length dealings with an unaffiliated third
party and, with respect to a transaction or series of related transactions
involving aggregate payments equal to or greater than (x) $2.0 million, such
transaction or series of related transactions is approved by a majority of the
Independent Directors of the Board of Directors of Funding, or (y) $10.0
million, prior to the consummation of such transaction or series of related
transactions, the Company also obtains a written favorable opinion as to the
fairness thereof to the Company from a financial point of view from an
independent investment banking firm of national reputation, and (b) the Company
delivers an Officers' Certificate to the Trustee certifying that such
transaction or transactions comply with clause (a) above. The foregoing
restriction will not apply to (1) pro rata dividends or distributions paid in
cash of any class of Equity Interests and not prohibited under Section 5.3, (2)
the Partnership Agreement as in effect on the Issue Date, (3) the Affiliated
Ground Leases as in effect on the Issue Date, or (4) the arrangements, as in
effect on the Issue Date, which are described in the Prospectus under the
caption "Certain Transactions" (including any subsections of the Prospectus
specifically referred to under such caption).
Funding will maintain at least two Independent Directors on its Board of
Directors.
48
<PAGE>
SECTION 5.11 Limitation on Incurrence of Additional Indebtedness.
---------------------------------------------------
Except as set forth below in this Section 5.11, the Company will not, nor
will any of its Subsidiaries be permitted to, directly or indirectly, create,
issue, assume, guaranty, incur, become directly or indirectly liable with
respect to (including as a result of an Acquisition), or otherwise become
responsible for, contingently or otherwise (individually and collectively, to
"incur" or, as appropriate, an "incurrence"), any Indebtedness or any
Disqualified Capital Stock (including Acquired Indebtedness). Notwithstanding
the foregoing:
(a) if (i) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect on a pro forma
basis to, such incurrence of Indebtedness or Disqualified Capital Stock and (ii)
on the date of such incurrence (the "Incurrence Date"), the Consolidated
Coverage Ratio of the Company for the Reference Period immediately preceding the
Incurrence Date, after giving effect on a pro forma basis to such incurrence of
such Indebtedness or Disqualified Capital Stock and, to the extent set forth in
the definition of Consolidated Coverage Ratio, the use of proceeds thereof,
would be at least 2.0 to 1 for incurrences on or prior to November 1, 1998 and
at least 2.25 to 1 for incurrences thereafter (the "Debt Incurrence Ratio"),
then the Company may incur such Indebtedness or Disqualified Capital Stock,
provided, that except in the case of Acquired Indebtedness, such Indebtedness
incurred pursuant to this clause (a) has an Average Life to Stated Maturity that
exceeds the remaining Average Life to Stated Maturity of the Securities and has
a Stated Maturity for its final scheduled principal or (in the case of
Disqualified Capital Stock) redemption payment, as applicable, later than the
Stated Maturity for the final scheduled principal payment of the Securities;
(b) the Company and the Guarantors may incur Indebtedness evidenced by the
Securities and represented by this Indenture;
(c) the Company may incur Indebtedness not to exceed $75.0 million in
aggregate principal amount outstanding at any time pursuant to this clause (c)
the proceeds of which are used for further acquisitions, renovations or
constructions of Improvements with respect to, or related to (including related
demolitions), the Casino Hotels or the financing of equipment to be used
therein, provided, that no Indebtedness shall be incurred pursuant to this
clause (c) in an aggregate principal amount which exceeds 75% of the cost of the
assets or Improvements, as the case may be, financed thereby, and provided
further, that except in the case of Acquired Indebtedness, such Indebtedness
incurred pursuant to this clause (c) has an Average Life to Stated Maturity that
equals or exceeds the remaining Average Life to Stated Maturity of the
Securities and has a Stated Maturity for its final scheduled principal or (in
the case of Disqualified Capital Stock) redemption payment, as applicable, on or
later than the Stated Maturity for the final scheduled principal payment of the
Securities;
(d) Plaza Associates and Taj Associates may incur Indebtedness represented
by F, F&E Financing Agreements and/or Capitalized Lease Obligations relating to
after-acquired gaming or related equipment (or other after-acquired equipment
necessary to conduct a Related Business and consistent in amount and nature with
industry practices) of (or, in
49
<PAGE>
the case of Capitalized Lease Obligations, leased by) Plaza Associates or Taj
Associates, as applicable, not to exceed (for Plaza Associates and Taj
Associates, collectively) $50.0 million in aggregate principal amount
outstanding at any time pursuant to this clause (d) (including any Indebtedness
issued to refinance, refund or replace such Indebtedness);
(e) the Company may incur Indebtedness pursuant to the Working Capital
Facility up to an aggregate amount outstanding (including any Indebtedness
issued to refinance, refund or replace such Indebtedness) at any time of $25.0
million;
(f) the Company, Plaza Associates and Taj Associates, as applicable, may
incur Refinancing Indebtedness with respect to any Indebtedness or Disqualified
Capital Stock, as applicable, described in clauses (a), (b) and (c) of this
Section or which is outstanding on the Issue Date so long a such Refinancing
Indebtedness is secured only by the assets (if any) that secured the
Indebtedness so refinanced;
(g) the Company, Plaza Associates, Taj Associates and their Subsidiaries
may incur Permitted Indebtedness; and
(h) the Company may incur Indebtedness in an aggregate amount outstanding
at any time pursuant to this clause (h) (including any Indebtedness issued to
refinance, replace, or refund such Indebtedness) of up to $30.0 million.
Indebtedness of any Person which is outstanding at the time such Person
becomes a Subsidiary of the Company, including by designation, or is merged with
or into or consolidated with the Company or a Subsidiary of the Company shall be
deemed to have been incurred at the time such Person becomes such a Subsidiary
of the Company or is merged with or into or consolidated with the Company or a
Subsidiary of the Company, as applicable. Except to the extent provided
otherwise in the definition of Permitted Indebtedness, any Guarantor may
guarantee Indebtedness of the Company or another Guarantor to the extent and at
the time the Company or such other Guarantor incurs such Indebtedness in
compliance with this Section 5.11.
SECTION 5.12 Restriction on Sale and Issuance of Subsidiary Stock.
----------------------------------------------------
The Company will not sell, and will not permit any of its Subsidiaries to
issue or sell, any shares of Equity Interests of any Subsidiary of the Company
to any Person other than the Company or a Wholly-owned Subsidiary of the
Company, except that all of the Equity Interests of a Subsidiary may be sold if
such Asset Sale complies with the other provisions of this Indenture, including
Sections 5.15 and 6.1.
SECTION 5.13 Limitation on Dividends and Other Payment Restrictions
------------------------------------------------------
Affecting Subsidiaries.
- ----------------------
The Company will not, nor will any of its Subsidiaries be permitted to,
directly or indirectly, create, assume or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any Subsidiary of the Company to pay
50
<PAGE>
dividends or make any other distributions to or on behalf of, or to pay any
obligation to or on behalf of, or otherwise to transfer assets or property to or
on behalf of, or make or pay loans or advances to or on behalf of, the Company
or any Subsidiary of the Company, except (a) any restrictions, with respect to a
Subsidiary that is not a Subsidiary on the date of this Indenture, in existence
at the time such Person becomes a Subsidiary of the Company (but not created in
connection with or contemplation of such Person becoming a Subsidiary and not
applicable to any Person, or property, asset or business, than the Person, or
property, asset or business so acquired), (b) any restrictions with respect to a
Subsidiary imposed pursuant to an agreement which has been entered into for the
sale or disposition of all or substantially all of the Equity Interests or
assets of such Subsidiary (which restrictions shall be for the benefit of the
purchaser thereof and no other Person and apply only to the assets of the
Subsidiary to be sold), (c) restrictions imposed by a Permitted Lien on the
transfer of the respective assets subject thereto, (d) restrictions contained in
this Indenture and the Mortgage Documents, as the same may be amended from time
to time in accordance with the terms thereof, (e) restrictions imposed by Gaming
Authorities on the payment of dividends by entities holding Gaming Licenses, and
(f) any restrictions existing under any agreement which refinances or replaces
the agreements containing the restrictions in clause (a), provided that the
terms and conditions of any such agreement are not more restrictive than those
under or pursuant to the agreement evidencing the Indebtedness refinanced.
SECTION 5.14 Limitation on Liens.
-------------------
The Company will not, nor will any of its Subsidiaries be permitted to,
directly or indirectly, create, incur, assume or suffer to exist any Lien of any
kind, other than Permitted Liens, upon any of their respective assets now owned
or acquired after the date of this Indenture or upon any income or profits
therefrom.
SECTION 5.15 Limitation on Sales of Assets and Subsidiary Stock; Event of
------------------------------------------------------------
Loss.
- ----
Neither the Company nor any of its Subsidiaries will, in one or a series of
related transactions, convey, sell, transfer, assign or otherwise dispose of,
directly or indirectly, any of its property, business or assets, including,
without limitation, upon any sale or other transfer or issuance of any Equity
Interests of any Subsidiary or any sale and leaseback transaction, whether by
the Company or a Subsidiary of the Company or through the issuance, sale or
transfer of Equity Interests by a Subsidiary of the Company (an "Asset Sale"),
unless:
(1) (a) within 210 days after the date of such Asset Sale, the Net Cash
Proceeds therefrom (the "Asset Sale Offer Amount") are applied to the optional
redemption of the Securities in accordance with the terms of this Indenture or
to the repurchase of the Securities pursuant to an irrevocable, unconditional
cash offer by the Company (the "Asset Sale Offer") to repurchase the Securities
at a purchase price (the "Asset Sale Offer Price") of 100% of principal amount,
plus accrued interest to the date of payment, made within 180 days of such Asset
Sale and/or (b) within 180 days following such Asset Sale, the Asset Sale Offer
Amount (less that portion of the Asset Sale Offer Amount applied as provided in
clause (a) above) is reinvested by
51
<PAGE>
the Company or its Subsidiaries to make replacements, improvements or additions
to existing properties or new properties directly related to a Related Business
and such reinvestment is made or committed to be made (such commitment to be
established by (A) the purchase of a new property, the ground-breaking or the
commencement of construction, in each case within 180 days of such Asset Sale or
(B) promptly placing the Net Cash Proceeds in a Restricted Funds Account,
provided, that such Net Cash Proceeds are invested as aforesaid in existing
properties or new properties within 365 days of being placed in such Restricted
Funds Account) and provided further, that in the case of any Asset Sale
involving all or substantially all of (x) the Capital Stock of a Subsidiary, the
assets of which constitute all or substantially all of either Casino Hotel (or
both) or (y) the assets of either Casino Hotel (or both) (a "Casino Sale"), such
Net Cash Proceeds must be used to make an Asset Sale Offer in accordance with
clause 1(a), and not reinvested under clause 1(b),
(2) with respect to any Asset Sale or related series of Asset Sales
involving securities, property or assets with an aggregate fair market value in
excess of $5.0 million, at least 75% (or 90%, in the case of a Casino Sale) of
the consideration for such Asset Sale or series of related Asset Sales consists
of cash or Cash Equivalents (treating for this purpose as cash or Cash
Equivalents (A) property that promptly after such Asset Sale is converted into
cash or Cash Equivalents and (B) except in the case of a Casino Sale, any senior
Indebtedness that secured the subject assets that are assumed by the transferee
in such Asset Sale,
(3) no Default or Event of Default shall have occurred and be continuing
at the time of, or would occur after giving effect, on a pro forma basis, to,
such Asset Sale, and
(4) the Company determines in good faith that the Company or such
Subsidiary, as applicable, receives fair market value for such Asset Sale.
For purposes of this Section 5.15 with respect to the application of the
Net Cash Proceeds thereof, the receipt by the Company or any of its Subsidiaries
of proceeds due to an Event of Loss shall constitute an Asset Sale, which Asset
Sale shall be deemed to occur upon receipt of such proceeds. All Net Cash
Proceeds from an Event of Loss shall be reinvested or used to repurchase the
Securities, all within the applicable periods and as otherwise provided above in
clause (1) of the first paragraph of this Section 5.15.
An Asset Sale Offer need not be made until the accumulated Net Cash
Proceeds from Asset Sales not applied in accordance with (1) above (the "Excess
Proceeds") exceeds $15.0 million. Each Asset Sale Offer shall remain open for
20 Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Asset Sale Offer
Period"). Upon expiration of the Asset Sale Offer Period, the Company shall
apply the Excess Proceeds, plus an amount equal to accrued interest, to the
purchase of all Securities tendered (on a pro rata basis if the Excess Proceeds
is insufficient to purchase all such Securities so tendered) at the Asset Sale
Offer Price (together with accrued interest).
52
<PAGE>
Notwithstanding the foregoing, if an Asset Sale Offer is commenced and
securities of the Company ranking pari passu in right of payment with the
Securities and incurred pursuant to clause (c) of Section 5.11 are outstanding
at the date of commencement thereof, the terms of which provide that a
substantially similar offer must be made with respect thereto, then the Asset
Sale Offer shall be made concurrently with such other offer, and securities of
each issue which the Holders of securities of such issue elect to have purchased
will be accepted pro rata in proportion to the aggregate principal amount
thereof; provided, that in so repurchasing such other securities the Company is
in compliance with the provisions of Section 5.3.
Subject to Article IV hereof, notwithstanding the foregoing provisions of
the prior paragraphs:
(i) the Company and its Subsidiaries may, without complying with
the foregoing, in the ordinary course of business for the casino industry,
convey, sell, lease, transfer, assign, or otherwise dispose of assets
acquired and held for resale in the ordinary course of business;
(ii) other than a Casino Sale, the Company and its Subsidiaries
may, without complying with the foregoing, convey, sell, lease, transfer or
otherwise dispose of assets pursuant to and in accordance with Section 6.1
of this Indenture;
(iii) the Company and its Subsidiaries may, without complying
with the foregoing, convey, sell, lease, transfer, assign or otherwise
dispose of three warehouses and related facilities (the Egg Harbor Parcel,
the Pleasantville Warehouse and the Realty Warehouse) in exchange for any
type of consideration so long as the Company determines in good faith that
the Company or such Subsidiary, as applicable, receives fair market value;
(iv) the Company and its Subsidiaries may, without complying with
the foregoing, convey, sell, transfer, assign or otherwise dispose of assets
to the Company or any Wholly-owned Subsidiaries of the Company; and
(v) sell or dispose of, free from the Liens under the Mortgage
Documents, any Tangible Personal Property which, in the Company's reasonable
opinion, may have become obsolete or unfit for use or which is no longer
necessary in the conduct of its businesses.
Notwithstanding the foregoing, the Company will not, and will not permit any of
its Subsidiaries to, directly or indirectly make any Asset Sale of any of the
Equity Interests of such Subsidiary except pursuant to an Asset Sale of all the
Equity Interests of such Subsidiary.
53
<PAGE>
In addition, if the amount required to acquire all Securities tendered by
Holders pursuant to the Asset Sale Offer (the "Acceptance Amount") is less than
the Asset Sale Offer Amount, the excess of the Asset Sale Offer Amount over the
Acceptance Amount may be used by the Company and its Subsidiaries for general
corporate or partnership purposes without restriction, other than dividends,
repurchases or other distributions in respect of Equity Interests, and unless
otherwise restricted by the other provisions of the Indenture. Upon
consummation of any Asset Sale Offer, the Asset Sale Offer Amount will be
reduced to zero.
Notice of an Asset Sale Offer shall be sent, not later than 20 Business
Days prior to the close of business on the Asset Sale Put Date (as defined
below), by first-class mail, by the Issuers to each Holder at its registered
address, with a copy to the Trustee. The notice to the Holders shall contain
all information, instructions and materials required by applicable law or
otherwise material to such Holders' decision to tender Securities pursuant to
the Asset Sale Offer. The notice, which (to the extent consistent with this
Indenture) shall govern the terms of the Asset Sale Offer, shall state:
(l) that the Asset Sale Offer is being made pursuant to such notice and
this Section 5.15;
(2) the Asset Sale Offer Amount, the Accumulated Amount, the Asset Sale
Offer Price (including the amount of accrued and unpaid interest), the Asset
Sale Put Date, and the "Asset Sale Purchase Date," which Asset Sale Purchase
Date shall be on or prior to 30 Business Days (or later, if required by law)
following the date the Accumulated Amount was greater than $5.0 million;
(3) that any Security or portion thereof not tendered or accepted for
payment will continue to accrue interest if interest is then accruing;
(4) that, unless the Issuers default in depositing U.S. Legal Tender with
the Paying Agent (which may not for purposes of this Section 5.15,
notwithstanding anything in this Indenture to the contrary, be the Issuers or
any Affiliate of the Issuers) in accordance with the last paragraph of this
clause (b), any Security, or portion thereof, accepted for payment pursuant to
the Asset Sale Offer shall cease to accrue interest after the Asset Sale
Purchase Date;
(5) that Holders electing to have a Security, or portion thereof, purchased
pursuant to an Asset Sale Offer will be required to surrender their Security,
with the form entitled "Option of Holder to Elect Purchase" on the reverse of
the Security completed, to the Paying Agent (which may not for purposes of this
Section 5.15, notwithstanding any other provision of this Indenture, be the
Issuers or any Affiliate of the Issuers) at the address specified in the notice
prior to the close of business on the third Business Day prior to the Asset Sale
Purchase Date (the "Asset Sale Put Date");
(6) that Holders will be entitled to withdraw their elections, in whole or
in part, if the Paying Agent (which may not for purposes of this Section 5.15,
54
<PAGE>
notwithstanding any other provision of this Indenture, be the Issuers or any
Affiliate of the Issuers) receives, up to the close of business on the Asset
Sale Put Date, a telegram, telex, facsimile transmission or letter setting forth
the name of the Holder, the principal amount of the Securities the Holder is
withdrawing and a statement that such Holder is withdrawing his election to have
such principal amount of Securities purchased;
(7) that if Securities in a principal amount in excess of the principal
amount of Securities to be acquired pursuant to the Asset Sale Offer are
tendered and not withdrawn, the Issuers shall purchase Securities on a pro rata
basis (with such adjustments as may be deemed appropriate by the Issuers so that
only Securities in denominations of $1,000 or integral multiples of $1,000 shall
be acquired);
(8) that Holders whose Securities were purchased only in part will be
issued new Securities equal in principal amount to the unpurchased portion of
the Securities surrendered; and
(9) the circumstances and relevant facts regarding such Asset Sales.
No later than 12:00 noon New York City time on an Asset Sale Purchase Date,
the Issuers shall (i) accept for payment Securities or portions thereof properly
tendered pursuant to the Asset Sale Offer (on a pro rata basis if required
pursuant to paragraph (7) above), (ii) deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the Asset Sale Offer Price (plus accrued interest) for
all Securities or portions thereof so accepted and (iii) deliver to the Trustee
Securities so accepted together with an Officers' Certificate setting forth the
Securities or portions thereof being purchased by the Issuers. The Paying Agent
shall promptly mail or deliver to Holders of Securities so accepted payment in
an amount equal to the Asset Sale Offer Price for such Securities, and the
Trustee shall promptly authenticate and mail or deliver to such Holders a new
Security equal in principal amount to any unpurchased portion of the Security
surrendered. Any Securities not so accepted shall be promptly mailed or
delivered by the Issuers to the Holder thereof.
SECTION 5.16 Future Subsidiary Guarantors.
----------------------------
The Company and the Guarantors covenant and agree that they shall cause
each person that is or becomes a Subsidiary of the Company (other than Funding)
to execute a Guaranty in the form of Exhibit B hereto and will cause such
---------
Subsidiary to enter into a supplemental indenture for the purpose of jointly and
severally guaranteeing, on a senior secured basis, the Indenture Obligations.
SECTION 5.17 Limitation on Activities of Funding.
-----------------------------------
Funding will not conduct any business (including having any Subsidiary)
whatsoever, other than to comply with its obligations under this Indenture and
the Securities. Funding will not incur or otherwise become liable for any
Indebtedness (other than the Securities
55
<PAGE>
and any renewal, extension, substitution, refunding, refinancing or replacement
thereof in accordance with this Indenture) or make any Restricted Payments.
SECTION 5.18 Limitation on Lines of Business.
-------------------------------
Neither the Company nor any of the Subsidiaries will directly or indirectly
engage to any substantial extent in any line or lines of business activity other
than which, in the reasonable good faith judgment of the Independent Directors
of Funding is a Related Business.
SECTION 5.19 Restriction on Certain Agreements.
---------------------------------
Other than employment agreements in the ordinary course of business
consistent with industry practice and approved by the compensation committee of
Funding, the Company will not, and will not permit any of its Subsidiaries to,
enter into any management, services or consulting agreement with Trump or any
Affiliate of Trump, other than the TPM Services Agreement; provided, that no
Services Fee thereunder shall be paid (i) to any person other than the Company
or a Subsidiary of the Company if the TPM Services Agreement is assigned or
transferred by Trump Plaza Management Corp. and (ii) to Trump Plaza Management
Corp. after expiration of the Super Puma Helicopter Lease. The Company will
not, and will not permit the Subsidiaries to, pay any Services Fee under the TPM
Services Agreement to Trump Plaza Management Corp. or pay or reimburse any
expenses relating thereto if a Default or Event of Default has occurred and is
continuing. The terms of the TPM Services Agreement shall not be amended to
increase the amounts to be paid thereunder in the aggregate or on any particular
date, or in any other manner which would be adverse to the Company or its
Subsidiaries.
SECTION 5.20 Limitation on Leases.
--------------------
The Company will not, nor will any of its Subsidiaries, be permitted to,
lease as tenant or subtenant real or personal property (except Permitted
Leases), unless the Company's Consolidated Coverage Ratio for the four full
fiscal quarters immediately preceding such event, taken as one period (and after
also giving pro forma effect to any such lease as if such lease was entered into
at the beginning of such four-quarter period), would have been at least equal to
the ratios set forth below for the applicable period during which such
determination is being made:
PERIOD RATIO
------ ------------
First 24 months from and including the Issue Date 2.00 to 1
Thereafter 2.25 to 1
In giving effect to the lease as of such four full fiscal quarters, it will be
assumed that the rent for such prior four fiscal quarters was the greater of the
(i) average annualized rent over the term of such lease and (ii) rent payable
for the first four fiscal quarters of such lease.
56
<PAGE>
SECTION 5.21 Limitation on Status as Investment Company.
------------------------------------------
None of the Company, Funding, any Unrestricted Subsidiary or any of
their respective Subsidiaries shall become required to register as an
"investment company" (as that term is defined in the Investment Company Act of
1940, as amended), or otherwise become subject to regulation under the
Investment Company Act.
SECTION 5.22 Future Collateral Agreements.
----------------------------
The Company and the Guarantors hereby agree and consent that all
property, real, personal or mixed or any interest therein (other than Excepted
Property), of every kind and description and wheresoever situate, which may be
hereafter acquired by the Company, any of its Subsidiaries or any Guarantor
(including, without limitation, fee title to any Leased Land) shall immediately
upon the acquisition thereof by the Company, any of its Subsidiaries or any
Guarantor, and without any further mortgage, conveyance or assignment, become
subject to the Liens under the Mortgage Documents as fully as though now owned
by the Company, any of its Subsidiaries or any Guarantor. Nevertheless, the
Company, any of its Subsidiaries or any Guarantor shall do, execute, acknowledge
and deliver all and every such further acts, conveyances, mortgages, financing
statements and assurances necessary, including as the Collateral Agent shall
reasonably require, for accomplishing the express purposes of the Indenture and
the Mortgage Documents (including the preceding sentence).
ARTICLE VI
SUCCESSORS
SECTION 6.1 Limitation on Merger, Sale or Consolidation.
-------------------------------------------
Neither of the Issuers may consolidate with, merge with or into any
other Person or sell, assign, convey, transfer, lease or otherwise dispose of
all or substantially all of its properties and assets (as an entirety or
substantially as an entirety in one transaction or series of related
transactions) to any Person or group of affiliated Persons or permit any of the
Company's Subsidiaries to enter into any such transaction or transactions if
such transaction or transactions, in the aggregate, would result in a transfer
of all or substantially all of the assets of the Company and the Subsidiaries on
a Consolidated basis or Funding, as applicable, to any other Person, unless:
(a) such Issuer shall be the continuing Person, or the Person (if
other than such Issuer) formed by such consolidation or into which such Issuer
is merged or to which the properties and assets of such Issuer are transferred
(the "Surviving Entity") shall be a partnership or corporation, in the case of
the Company, and a corporation, in the case of Funding, duly organized and
validly existing under the laws of the United States or any state thereof or the
District of Columbia and shall expressly assume,
57
<PAGE>
by a supplemental indenture, all of the obligations of such Issuer under the
Securities and this Indenture, and this Indenture shall remain in full force and
effect;
(b) immediately before and immediately after giving effect to such
transaction on a pro forma basis, no Event of Default or Default shall have
occurred and be continuing;
(c) immediately after giving effect to such transaction on a pro
forma basis, the Consolidated Net Worth of the Company or the Surviving Entity,
as applicable, is at least equal to the Consolidated Net Worth of the Company
immediately prior to such transaction or series of transactions;
(d) immediately before and after giving effect to such transaction on
a pro forma basis, the Company or the Surviving Entity, as applicable, could
incur at least $1.00 of additional Indebtedness pursuant to the Debt Incurrence
Ratio set forth in paragraph (a) of Section 5.11; and
(e) immediately after such transaction, such Issuer or the Surviving
Entity, as applicable, holds all Permits required for operation of the business
of, and such entity is controlled by a Person or entity (or has retained a
Person or entity which is) experienced in, operating casino hotels or otherwise
holds all Permits (including those required from Gaming Authorities) to operate
its business.
The Company shall also deliver to the Trustee an officers' certificate
and an opinion of counsel, each stating that (a) such consolidation, merger,
sale, assignment, conveyance, transfer, lease or disposition and such
supplemental indenture comply with this Indenture and (b) this transaction shall
not impair the rights and powers of the Trustee and Holders of the Securities
thereunder.
For purposes of the first sentence of this Section 6.1, the sale,
lease, conveyance or transfer of all or substantially all of the properties and
assets of one or more Subsidiaries of the Issuers, which properties and assets,
if held by the Issuers instead of such Subsidiaries, would constitute all or
substantially all of the properties and assets of the Issuers on a consolidated
basis, shall be deemed to be the transfer of all or substantially all of the
properties and assets of the Issuers.
SECTION 6.2 Successor Substituted.
---------------------
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in Section 6.1 in which the Company or
Funding, as applicable, is not the continuing Person, the successor Person
formed or remaining shall succeed to, and be substituted for, and may exercise
every right and power of, provisions of the Company or Funding, as applicable,
and the Company or Funding shall in such case be discharged from all obligations
and covenants under this Indenture, the Securities and the Mortgage Documents.
58
<PAGE>
ARTICLE VII
EVENTS OF DEFAULT AND REMEDIES
SECTION 7.1 Events of Default.
-----------------
"Event of Default," wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) the failure by the Issuers to pay any installment of interest
(including any defaulted interest) on the Securities as and when the same
becomes due and payable and the continuance of any such failure for 30 days;
(b) the failure by the Issuers to pay all or any part of the
principal, or premium, if any, on the Securities when and as the same becomes
due and payable at maturity, at redemption, by acceleration or otherwise,
including, without limitation, payment of the Change of Control Purchase Price
or the Asset Sale Offer Price, or otherwise;
(c)(i) the failure by the Company or any of its Subsidiaries to
observe or perform any other covenant or agreement contained in the Securities
or this Indenture and (other than a default in the performance, or breach of a
covenant that is specifically dealt with elsewhere in this section) the
continuance of such failure for a period of 30 days after written notice is
given to the Issuers by the Trustee or to the Issuers and the Trustee by the
Holders of at least 25% in aggregate principal amount of the Securities
outstanding, specifying such default and requiring that it be remedied; (ii)
default in the performance or breach of the provisions of Article VI; (iii)
Funding or the Company shall have failed to make or consummate a Change of
Control Offer in accordance with provisions of Section 11.1; and (iv) Funding or
the Company shall have failed to make or consummate an Asset Sale Offer in
accordance with the provisions of Section 5.15;
(d) a default in Indebtedness of either of the Issuers or any of the
Subsidiaries with an aggregate outstanding principal amount in excess of $20.0
million;
(e) one or more judgments, orders or decrees for the payment of money
in excess of $20.0 million, either individually or in the aggregate, shall be
rendered against either of the Issuers or any of the Subsidiaries or any of
their respective properties and shall not be discharged and either (i) an
enforcement proceeding shall have been commenced by any creditor upon such
judgment, order or decree or (ii) there shall be any period of 60 days during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect;
59
<PAGE>
(f) there shall have been the entry by a court having jurisdiction in
the premises of (i) a decree or order for relief in respect of either of the
Issuers or any of the Significant Subsidiaries in an involuntary case or
proceeding under any applicable Bankruptcy Law or (ii) a decree or order
adjudging either of the Issuers or any of the Significant Subsidiaries bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment or composition
of or in respect of either of the Issuers or any of the Significant Subsidiaries
under any applicable federal or state law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator (or other similar official) of
either of the Issuers or any of the Significant Subsidiaries or of any
substantial part of their property, or ordering the winding-up or liquidation of
their affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60 consecutive
days;
(g)(i) either of the Issuers or any of the Significant Subsidiaries
commences a voluntary case or proceeding under any applicable Bankruptcy Law or
any other case or proceeding to be adjudicated bankrupt or insolvent, or (ii)
either of the Issuers or any of the Significant Subsidiaries consents to the
entry of a decree or order for relief in respect of either of the Issuers or
such Significant Subsidiary in an involuntary case or proceeding under any
applicable Bankruptcy Law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or (iii) either of the Issuers or any of the
Significant Subsidiaries files a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or either of
the Issuers or any of the Significant Subsidiaries consents to (1) the filing of
such petition or the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of
either of the Issuers or such Significant Subsidiary or of any substantial part
of its property, (2) the making by it of an assignment for the benefit of
creditors or (3) the admission by it in writing of its inability to pay its
debts generally as they become due, or (iv) the taking of corporate or
partnership action by either of the Issuers or any of the Significant
Subsidiaries in furtherance of any such action in this paragraph (g);
(h) the revocation, suspension or involuntary loss of any Permit
which results in the cessation of all or a substantial portion of the operations
of either Casino Hotel for a period of more than 90 consecutive days;
(i) except as permitted by this Indenture and the Securities, the
cessation of effectiveness of any Guaranty of the Obligations in any material
respect or the finding by any judicial proceeding that any such Guaranty is
unenforceable or invalid in any material respect or the denial or disaffirmation
by any Guarantor in writing of its obligations under its Guaranty; or
(j) default in the payment of any sum due under the Taj Mortgage or
the Plaza Mortgage, and the continuance of such default for a period of 30 days
after there has been given to the Issuers and respective Mortgagor a notice
specifying such default and requiring it to be remedied and stating that such
notice is a "Notice of Default" under the respective Mortgage; or
(k) default in the performance, or breach, of any covenant of Taj
Associates or Plaza Associates in the Taj Mortgage or the Plaza Mortgage, as
applicable (other
60
<PAGE>
than a covenant, a default in the performance or breach of which is elsewhere in
the applicable Mortgage specifically dealt with) in any material respect, and
continuance of such default or breach for a period of 30 days after there has
been given to Taj Associates or Plaza Associates, as applicable, a notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" under the Taj Mortgage or the Plaza
Mortgage, as applicable, unless (i) the default or breach is of such a nature
that is curable but not susceptible of being cured with due diligence within
such 30-day period (for reasons other than the lack of funds), (ii) Taj
Associates or Plaza Associates, as applicable, delivers an Officers' Certificate
to the Collateral Agent within such 30-day period stating (A) the applicability
of the provisions of clause (i) to such default or breach, (B) Taj Associates'
or Plaza Associates', as applicable, intention to remedy such default or breach
with reasonable diligence and (C) the steps which Taj Associates or Plaza
Associates, as applicable, has undertaken or intends to undertake to remedy such
default or breach and (iii) Taj Associates or Plaza Associates, as applicable,
delivers to the Collateral Agent additional Officers' Certificates every 30 days
thereafter updating the information contained in the certificate described in
clause (ii), in which case such 30-day period shall be extended for such further
period of time (but in no event more than 60 days after the last day of such 30-
day period) as may reasonably be required to cure the same, provided that Taj
Associates or Plaza Associates, as applicable, is then proceeding and thereafter
continues to proceed to cure the same with reasonable diligence; or
(l) default by Taj Associates or Plaza Associates under any of the
terms of any Facility Lease forming a portion of the Collateral other than the
Rothenberg Lease (as defined therein) which shall not be fully cured or waived
prior to the expiration of any grace period (as such grace period may be
extended) contained in such Facility Lease; or
(m) default by Taj Associates or Plaza Associates under any of the
terms of the Egg Harbor Mortgage or the Parking Parcel Mortgage (i) at the
Stated Maturity of the Indebtedness secured by such mortgage or (ii) which
default results in the acceleration of the Stated Maturity of the Indebtedness
secured by such mortgage and, in the case of (i) or (ii), which default shall
not be fully cured, waived or rescinded, as the case may be, prior to the
expiration of any grace period (as such grace period may be extended) contained
in such mortgage; or
(n) if any representation or warranty of Taj Associates or Plaza
Associates, as applicable, set forth in the respective Mortgage or in any
notice, certificate, demand or request delivered to the Collateral Agent
pursuant to the respective Mortgage shall prove to be incorrect as of the time
when made and which has or could reasonably be expected to have a material
adverse effect on the business, financial condition or operations of the Company
or its Subsidiaries, taken as a whole; or
(o) the declaration or payment of any dividend or other distribution
in respect of Equity Interests of any Guarantor in the event that there shall
exist a "default" or "event of default" (as defined therein) under the Indenture
governing the Senior Notes or any Refinancing Indebtedness in respect thereof;
or
61
<PAGE>
(p) an event of default under any of the Mortgage Documents (without
duplication of those items otherwise recited in this Section 7).
An Event of Default shall not be deemed to exist by reason of any
event under paragraph (j) or (l) through (n) above which Taj Associates or Plaza
Associates, as applicable, is contesting in compliance with the provisions of
Section 5.09 of the respective Mortgage.
Notwithstanding the 30-day period and notice requirement contained in
Section 7.1(c) above, (i) with respect to a default under Article XI, the 30-day
period referred to in Section 7.1(c) shall be deemed to have begun as of the
date the Change of Control notice is required to be sent in the event that the
Company has not complied with the provisions of Section 11.1, and the Trustee or
Holders of at least 25% in principal amount of the outstanding Securities
thereafter give the notice of default referred to in Section 7.1(c) to the
Company and, if applicable, the Trustee; provided, however, that if the breach
or default is a result of a default in the payment when due of the Change of
Control Purchase Price, such default shall be deemed, for purposes of this
Section 7.1, to arise no later than on such due date; and (ii) with respect to a
default under Section 5.15, the 30-day period referred to in Section 7.1(c)
shall be deemed to have begun as of the date the notice of an Offer to Purchase
is required to be sent in the event that the Company has not complied with the
provisions of Section 5.15 requiring the giving of such notice, and the Trustee
or Holders of at least 25% in principal amount of the outstanding Securities
thereafter give the notice of default referred to in Section 7.1(c) to the
Company and, if applicable, the Trustee; provided, however, that if the breach
or default is a result of a default in the payment when due of the Offer to
Purchase Price, such default shall be deemed, for purposes of this Section 7.1,
to arise no later than on such due date.
SECTION 7.2 Acceleration of Maturity Date; Rescission and Annulment.
-------------------------------------------------------
If an Event of Default (other than as specified in clauses (f) and (g)
of Section 7.1) occurs and is continuing, then in every such case, unless the
principal of all the Securities shall have already become due and payable,
either the Trustee or the Holders of at least 25% of the principal amount of the
Securities then outstanding, by written notice to the Issuers (and to the
Trustee if such notice is given by such Holders) (an "Acceleration Notice"),
may, and the Trustee at the request of such Holders shall, declare all unpaid
principal of, premium, if any, and accrued interest on all Securities to be due
and payable and thereupon the Trustee may, at its discretion, proceed to protect
and enforce the rights of the Holders of the Securities by appropriate judicial
proceeding. If an Event of Default specified in clause (f) or (g) occurs and is
continuing, then the principal of all Securities shall ipso facto become and be
immediately due and payable without any declaration or other act of the Trustee
or any Holder.
After a declaration of acceleration, but before a judgment or decree
for payment of the money due has been obtained by the Trustee, the Holders of a
majority in aggregate principal amount of Securities outstanding, by written
notice to the Issuers and the Trustee, may annul such declaration if:
62
<PAGE>
(a) the Issuers have paid or deposited with the Trustee a sum
sufficient to pay:
(i) all sums paid or advanced by the Trustee under this
Indenture and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel,
(ii) all overdue interest on all Securities,
(iii) the principal of and premium, if any, on any Securities
which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate borne by the Securities, and
(iv) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities; and
(b) all Events of Default, other than the non-payment of principal of
the Securities which have become due solely by such declaration of acceleration,
have been cured or waived.
Notwithstanding the previous sentence of this Section 7.2, no
annulment of a declaration of acceleration shall be effective for any Event of
Default with respect to any covenant or provision which cannot be modified or
amended without the consent of the Holder of greater than a simple majority of
the outstanding principal amount of the Securities, unless such specified
percentage of affected Holders agree, in writing, to annul such declaration of
acceleration. No such annulment shall cure or waive any subsequent default or
impair any right consequent thereon.
SECTION 7.3 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Issuers covenant that if an Event of Default in payment of
principal, premium, or interest specified in Section 7.1(a) and (b) occurs and
is continuing, the Issuers shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, premium (if any) and interest, and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (premium, if any) and on any overdue interest, at the rate
borne by the Securities, and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including
compensation to, and expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Issuers fail to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust in favor of the
Holders, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Issuers or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided
63
<PAGE>
by law out of the property of the Issuers or any other obligor upon the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 7.4 Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Issuers or any other obligor upon the
Securities or the property of the Issuers or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Issuers for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise to take any and
all actions under the TIA, including
(i) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any
claim for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agent and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 8.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment, or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
64
<PAGE>
SECTION 7.5 Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities.
- ----------
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust in favor of the Holders, and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 7.6 Priorities.
----------
Any money collected by the Trustee pursuant to this Article VII shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal, premium
(if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to
Section 8.7;
SECOND: To the Holders in payment of the amounts then due and unpaid
for principal of, premium (if any) and interest on, the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal, premium (if any) and interest,
respectively; and
THIRD: To whomsoever may be lawfully entitled thereto, the remainder,
if any.
The Trustee may, but shall not be obligated to, fix a record date and
payment date for any payment to the Holders under this Section 7.6.
SECTION 7.7 Limitation on Suits.
-------------------
No Holder of any Security shall have any right to order or direct the
Trustee to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(A) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% in principal amount of then
outstanding Securities shall have made written request to the Trustee to
65
<PAGE>
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(C) such Holder or Holders have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities to be
incurred or reasonably probable to be incurred in compliance with such
request;
(D) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(E) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 7.8 Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision of this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, and interest on, such Security on the
Maturity dates of such payments as expressed in such Security (in the case of
redemption, the Redemption Price on the applicable Redemption Date, in the case
of a Change of Control, the Change of Control Purchase Price on the applicable
Change of Control Purchase Date, and, in the case of an Asset Sale, the Asset
Sale Offer Price on the Asset Sale Purchase Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 7.9 Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
66
<PAGE>
SECTION 7.10 Delay or Omission Not Waiver.
----------------------------
No delay or omission by the Trustee or by any Holder of any Security
to exercise any right or remedy arising upon any Event of Default shall impair
the exercise of any such right or remedy or constitute a waiver of any such
Event of Default. Every right and remedy given by this Article VII or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 7.11 Control by Holders.
------------------
The Holder or Holders of a majority in aggregate principal amount of
then outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon the Trustee, provided, that
--------
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee shall not determine that the action so directed would
be unjustly prejudicial to the Holders not taking part in such direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 7.12 Waiver of Past Default.
----------------------
Subject to Section 7.8, the Holder or Holders of not less than a
majority in aggregate principal amount of the outstanding Securities may, by
written notice to the Trustee on behalf of all Holders, prior to the declaration
of acceleration of the maturity of the Securities, waive any past default
hereunder and its consequences, except a default
(A) in the payment of the principal of, premium, if any, or
interest on, any Security as specified in clauses (a) and (b) of Section
7.1, or
(B) in respect of a covenant or provision hereof which, under
Article X, cannot be modified or amended without the consent of the Holder
of each outstanding Security affected or Holders of more than a simple
majority in principal amount of the Securities, as applicable; provided,
however, that such a default may be waived upon the affirmative vote of the
requisite principal amount of the Securities.
67
<PAGE>
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair the exercise of any right arising therefrom.
SECTION 7.13 Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security
by its acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted to be taken by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having due regard to
the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section 7.13 shall not apply to any suit instituted
by the Issuers, to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in
aggregate principal amount of the outstanding Securities, or to any suit
instituted by any Holder for enforcement of the payment of principal of, or
premium (if any) or interest on, any Security on or after the Maturity of such
Security.
SECTION 7.14 Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every case, subject to any
determination in such proceeding, the Issuers, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
ARTICLE VIII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed.
68
<PAGE>
SECTION 8.1 Duties of Trustee.
-----------------
(a) If a Default or an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in the conduct
of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default:
(1) The Trustee need perform only those duties as are specifically set
forth in this Indenture and no others, and no covenants or obligations shall be
implied in or read into this Indenture which are adverse to the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine the certificates and opinions to determine whether or not
they conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b) of
this Section 8.1.
(2) The Trustee shall comply with any order or directive of a Gaming
Authority that the Trustee submit an application for any license, finding of
suitability or other approval pursuant to any Gaming Law and will cooperate
fully and completely in any proceeding related to such application.
(3) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts.
(4) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received by
it pursuant to Section 7.11.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or at the request, order or direction of the Holders or in
the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
69
<PAGE>
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c), (d) and (f) of this Section 8.1.
(f) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Issuers.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
SECTION 8.2 Rights of Trustee.
-----------------
Subject to Section 8.1:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel and may require an Officers' Certificate or an Opinion of Counsel,
which shall conform to Sections 12.4 and 12.5. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers conferred upon it by this Indenture or the TIA.
(e) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, notice, request, direction, consent, order, bond, debenture, or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Except with respect to Section 5.1, the Trustee shall have no
duty to inquire as to the performance of the Issuers' covenants in Article V.
In addition, the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Event of Default occurring pursuant to Sections
7.1(a), 7.1(b) and 5.1, or (ii) any Default or Event of Default of which the
Trustee shall have received written notification or obtained actual knowledge.
70
<PAGE>
SECTION 8.3 Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become the
owner or pledgee of any of the Securities, may make loans to, accept deposits
from, and perform services for the Issuers or their Affiliates, and may
otherwise deal with the Issuers, any of their respective Subsidiaries, or their
respective Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee must comply
with Sections 8.10 and 8.11.
SECTION 8.4 Trustee's Disclaimer.
--------------------
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities and it shall not be responsible for any
statement in the Securities, other than the Trustee's certificate of
authentication, or the use or application of any funds received by a Paying
Agent other than the Trustee.
SECTION 8.5 Notice of Default.
-----------------
If a Default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Securityholder notice of
the uncured Default or Event of Default within 90 days after such Default or
Event of Default occurs. Except in the case of a Default or an Event of Default
in payment of principal (or premium, if any) of, or interest on, any Security
(including the payment of the Change of Control Purchase Price on the Change of
Control Purchase Date, the Redemption Price on the Redemption Date and the Asset
Sale Offer Amount on the Asset Sale Purchase Date, as the case may be), the
Trustee may withhold the notice if and so long as a Trust Officer in good faith
determines that withholding the notice is in the interest of the
Securityholders.
SECTION 8.6 Reports by Trustee to Holders.
-----------------------------
(a) Securities Law Requirements. If required by law, within 60 days
---------------------------
after each May 15, beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report dated as
of such May 15 that complies with TIA (S) 313(a). If required by law, the
Trustee also shall comply with TIA (S)(S) 313(b) and 313(c).
The Issuers shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Issuers and filed with the SEC and each stock exchange,
if any, on which the Securities are listed.
(b) Gaming License Requirements. The Trustee will provide any
---------------------------
applicable Gaming Authority with:
71
<PAGE>
(1) copies of all notices, reports and other written communications
which the Trustee gives to Holders;
(2) a list of Holders promptly after the original issuance of the
Securities and a list of Holders eight months and two months prior to the
expiration date of each then-current Gaming License held by the Company or its
Subsidiaries;
(3) notice of any Event of Default under this Indenture or of any
Default, any acceleration of the Indebtedness evidenced or secured hereby, the
institution of any legal actions or proceedings before any court or governmental
authority in respect of this Indenture or the Collateral Documents, the entering
into or taking possession of any property constituting the Collateral and any
rescission, annulment or waiver in respect of an Event of Default;
(4) notice of the removal or resignation of the Trustee within five
Business Days thereof;
(5) notice of any transfer or assignment of rights under this
Indenture (but no transfers or assignments of the Securities) or the Collateral
Documents within five Business Days thereof; and
(6) a copy of any amendment to the Securities, this Indenture or the
Collateral Documents within five Business Days of the effectiveness thereof.
The notice specified in clause (3) above shall be in writing and, except as set
forth below, shall be given within five Business Days after the Trustee has
transmitted the notice required by Section 8.5. In the case of any notice in
respect of any Event of Default, such notice shall be accompanied by a copy of
any notice from the Holders, or a representative thereof or the Trustee, to the
defaulting Person and, if accompanied by any such notice to the defaulting
Person, shall be given simultaneously with the giving of any such notice to the
defaulting Person. In the case of any legal actions or proceedings, such notice
shall be accompanied by a copy of the complaint or other initial pleading or
document.
The Trustee shall in accordance with the limitations set forth herein
cooperate with any applicable Gaming Authority in order to provide such Gaming
Authority with information and documentation relevant to compliance with clause
(3) above and as otherwise required by any applicable gaming law.
The Issuers will advise the Trustee of the expiration date of any then-
current Gaming License held by the Partnership at least nine months prior to the
expiration thereof and the Trustee until so advised may assume that such Gaming
License has not expired.
72
<PAGE>
SECTION 8.7 Compensation and Indemnity.
--------------------------
Each of the Issuers shall pay to the Trustee from time to time
reasonable compensation for its services. The Trustee's compensation shall not
be limited by any law on compensation of a trustee of an express trust. Each of
the Issuers shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents, accountants, experts and counsel.
Each of the Issuers shall indemnify the Trustee (in its capacity as
Trustee) and each of its officers, directors, attorneys-in-fact and agents for,
and hold it harmless against, any claim, demand, expense (including but not
limited to reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel), loss or liability incurred by them without negligence, bad
faith or willful misconduct on its part, arising out of or in connection with
the administration of this trust and their rights or duties hereunder including
the reasonable costs and expenses of defending themselves against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder. The Trustee shall notify the Issuers promptly of any claim
asserted against the Trustee for which it may seek indemnity. The Issuers shall
defend the claim and the Trustee shall provide reasonable cooperation at the
Issuers's expense in the defense. The Trustee may have separate counsel and the
Issuers shall pay the reasonable fees and expenses of such counsel; provided,
--------
that the Issuers will not be required to pay such fees and expenses if it
assumes the Trustee's defense and there is no conflict of interest between the
Issuers and the Trustee in connection with such defense. The Issuers need not
pay for any settlement made without its written consent. The Issuers need not
reimburse any expense or indemnify against any loss or liability to the extent
incurred by the Trustee through its negligence, bad faith or willful misconduct.
To secure the Issuers' payment obligations in this Section 8.7, the
Trustee shall have a lien prior to the Securities on all assets held or
collected by the Trustee, in its capacity as Trustee, except assets held in
trust to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 7.1 (f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Issuers' obligations under this Section 8.7 and any lien arising
hereunder shall survive the resignation or removal of the Trustee, the discharge
of the Issuers' obligations pursuant to Article IX and any rejection or
termination of this Indenture under any Bankruptcy Law.
73
<PAGE>
SECTION 8.8 Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Issuers in writing. The
Holder or Holders of a majority in principal amount of the outstanding
Securities may remove the Trustee by so notifying the Issuers and the Trustee in
writing and may appoint a successor trustee with the Issuers' consent. The
Issuers may remove the Trustee if:
(1) the Trustee fails to comply with Section 8.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver, Custodian, or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Issuers shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holder
or Holders of a majority in principal amount of the Securities may appoint a
successor Trustee to replace the successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuers. Immediately after that
and provided that all sums owing to the Trustee provided for in Section 8.7 have
been paid, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided in Section 8.7,
the resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. A successor Trustee shall mail notice of its
succession to each Holder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Issuers or the
Holder or Holders of at least 10% in principal amount of the outstanding
Securities may petition any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 8.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section
8.8, the Issuers' obligations under Section 8.7 shall continue for the benefit
of the retiring Trustee.
74
<PAGE>
SECTION 8.9 Successor Trustee by Merger, Etc.
---------------------------------
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee.
SECTION 8.10 Eligibility; Disqualification.
-----------------------------
The Trustee shall at all times satisfy the requirements of TIA (S)
310(a)(1) and TIA (S) 310(a)(5). The Trustee shall have a combined capital and
surplus of at least $25,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA (S) 310(b).
SECTION 8.11 Preferential Collection of Claims against Issuers.
-------------------------------------------------
The Trustee shall comply with TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated.
ARTICLE IX
LEGAL DEFEASANCE AND COVENANT DEFEASANCE;
SATISFACTION AND DISCHARGE
SECTION 9.1 Option to Effect Legal Defeasance or Covenant Defeasance.
--------------------------------------------------------
The Issuers may elect to have either Section 9.2 or 9.3 be applied to
all outstanding Securities upon compliance with the conditions set forth below
in this Article IX.
SECTION 9.2 Legal Defeasance and Discharge.
------------------------------
The Issuers may at their option, within one year of the final Stated
Maturity of the Securities and upon the Issuers' exercise under Section 9.1 of
the option applicable to this Section 9.2, elect to have their obligations and
the obligations of the Guarantors discharged with respect to all outstanding
Securities on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance
means that the Issuers shall be deemed to have paid and discharged the entire
Indebtedness represented by the outstanding Securities, which shall thereafter
be deemed to be "outstanding" only for the purposes of Section 9.5 and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all their, and the Guarantors', other obligations under such
Securities and this Indenture and the Mortgage Documents (insofar as they relate
to the Securities or the Guaranties) and the Liens of the Collateral Agent
thereunder shall be deemed to have been paid and discharged, except for the
following which shall survive until otherwise terminated or
75
<PAGE>
discharged hereunder: (a) the rights of Holders of outstanding Securities to
receive solely from the trust fund described in Section 9.4, and as more fully
set forth in such section, payments in respect of the principal of, premium, if
any, and interest on such Securities when such payments are due, (b) the
Issuers' obligations with respect to such Securities under Sections 2.4, 2.6,
2.7, 2.10 and 5.2, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Issuers' obligations in connection therewith and (d)
this Article IX. Subject to compliance with this Article IX, the Issuers may
exercise their option under this Section 9.2 notwithstanding the prior exercise
of its option under Section 9.3 with respect to the Securities.
SECTION 9.3 Covenant Defeasance.
-------------------
Upon the Issuers' exercise under Section 9.1 of the option applicable
to this Section 9.3, the Issuers and the Guarantors shall be released from their
respective obligations under the covenants contained in Sections 5.3, 5.6, 5.7,
5.8, 5.10, 5.11, 5.12, 5.13, 5.14, 5.15, 5.18, 5.19, 5.20, 5.22 and Article VI
with respect to the outstanding Securities on and after the date the conditions
set forth below are satisfied (hereinafter, "Covenant Defeasance"), and the
Securities shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the outstanding
Securities, the Issuers and the Guarantors need not comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and the Liens of
the Collateral Agent under the Mortgage Documents (insofar as they relate to the
Securities or the Guaranties) shall be deemed to have been paid and discharged,
but, except as specified above, the remainder of this Indenture and such
Securities shall be unaffected thereby. In addition, upon the Issuers' exercise
under Section 9.1 of the option applicable to this Section 9.3, Sections 7.1(c),
7.1(d), 7.1(e), 7.1(h), 7.1(i) and 7.1(j) shall not constitute Events of
Default.
SECTION 9.4 Conditions to Legal or Covenant Defeasance.
------------------------------------------
The following shall be the conditions to the application of either
Section 9.2 or Section 9.3 to the outstanding Securities, unless otherwise
specified herein:
(a) the Issuers must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders of the Securities, U.S. Legal Tender, U.S.
Government Obligations or a combination thereof, in such amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, and interest on such
Securities on the stated date for payment thereof or on the redemption date of
such principal or installment of principal of, premium, if any, or interest on
such Securities, and the Holders of Securities must have a valid, perfected,
exclusive security interest in such trust;
76
<PAGE>
(b) in the case of the Legal Defeasance, the Issuers shall have
delivered to the Trustee an opinion of counsel in the United States reasonably
acceptable to Trustee confirming that (A) the Issuers have received from, or
there has been published by the Internal Revenue Service, a ruling or (B) since
the date of this Indenture, there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon, such
opinion of counsel shall confirm that, the Holders of such Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
such Legal Defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred;
(c) in the case of the Covenant Defeasance, the Issuers shall have
delivered to the Trustee an opinion of counsel in the United States reasonably
acceptable to such Trustee confirming that the Holders of such Securities will
not recognize income, gain or loss for Federal income tax purposes as a result
of such Covenant Defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit or insofar as Events of Default from
bankruptcy or insolvency events are concerned, at any time in the period ending
on the 91st day after the date of deposit;
(e) such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) the Issuers shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Issuers with the intent
of preferring the Holders of such Securities over any other creditors of the
Company or any of its Subsidiaries or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company, its Subsidiaries or
others; and
(g) the Issuers shall have delivered to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that the conditions
precedent provided for in, in the case of the Officers' Certificate, (a) through
(f) and, in the case of the opinion of counsel, clauses (a) (with respect to the
validity and perfection of the security interest), (b), (c) and (e) of this
Section have been complied with.
SECTION 9.5 Deposited U.S. Legal Tender and U.S. Government
-----------------------------------------------
Obligations to Be Held in Trust; Other Miscellaneous Provisions.
- ---------------------------------------------------------------
Subject to Section 9.6, all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 9.5, the "Trustee") pursuant
to Section 9.4 in respect of the outstanding Securities shall be held in trust
and applied by the Trustee, in accordance with the provisions of such
77
<PAGE>
Securities and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Holders of such Securities of
all sums due and to become due thereon in respect of principal, premium, if any,
and interest, but such money need not be segregated from other funds except to
the extent required by law.
The Issuers jointly and severally agree to pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the
U.S. Legal Tender or U.S. Government Obligations deposited pursuant to Section
9.4 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders of
the outstanding Securities.
Anything in this Article IX to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuers from time to time upon the request
of the Issuers any U.S. Legal Tender or U.S. Government Obligations held by it
as provided in Section 9.4 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee (which may be the opinion delivered under Section
9.4(a)), are in excess of the amount thereof which would then be required to be
deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 9.6 Repayment to Issuers.
--------------------
Any money deposited with the Trustee or any Paying Agent, or then held
by the Issuers, in trust for the payment of the principal of or interest on any
Security and remaining unclaimed for two years after such principal or interest
has become due and payable shall be paid to the Issuers on their request; and
the Holder of such Security shall thereafter look only to the Issuers for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
may at the expense of the Issuers cause to be published once, in the New York
Times and The Wall Street Journal (national edition), notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such notification or publication, any
unclaimed balance of such money then remaining will be repaid to the Issuers.
SECTION 9.7 Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any U.S. Legal
Tender or U.S. Government Obligations in accordance with Section 9.2 or 9.3, as
the case may be, by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Issuers' obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 9.2
or 9.3 until such time as the Trustee or Paying Agent is permitted to apply such
money in accordance with Section 9.2 and 9.3, as the case may be; provided,
however, that, if the Issuers make any payment of principal of or interest on
any Security following the reinstatement of its obligations, the Issuers shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
78
<PAGE>
SECTION 9.8 Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall, upon Company Request, cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
Securities herein expressly provided for) and the Trustee, on demand of and at
the expense of the Company and the Guarantors, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture when all Securities
theretofore authenticated and delivered (other than (i) Securities which have
been destroyed, lost or stolen and which have been replaced or paid as provided
in Section 2.7 and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in Section 9.6)
have been delivered to the Trustee for cancellation; the Issuers and the
Guarantors have paid or caused to be paid all other sums payable hereunder by
the Issuers and the Guarantors; and the Issuers and the Guarantors have
delivered to the Trustee an Officers' Certificate and an Opinion of Counsel each
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuers and the Guarantors to the Trustee under Section 7.6
shall survive.
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.1 Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holder, the Issuers, when authorized by
Board Resolutions, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, or may amend, modify or
supplement the Securities, this Indenture, or any of the Mortgage Documents, in
form satisfactory to the Trustee and the Issuers, for any of the following
purposes:
(1) to cure any ambiguity, defect, or inconsistency, or to make any
other provisions with respect to matters or questions arising under this
Indenture which shall not be inconsistent with the provisions of this Indenture,
provided such action pursuant to this clause (1) shall not adversely affect the
interests of any Holder in any respect;
(2) to add to the covenants of the Issuers for the benefit of the
Holders, or to surrender any right or power herein conferred upon the Issuers or
to make any other change that does not adversely affect the rights of any
Holder; provided, that the Issuers have delivered to the Trustee an Opinion of
--------
Counsel stating that such change does not adversely affect the rights of any
Holder;
79
<PAGE>
(3) to provide for additional collateral for or for guarantors
of the Securities;
(4) to provide for uncertificated Securities in addition to or
in place of certificated Securities;
(5) to evidence the succession of another person to the Issuers,
and the assumption by any such successor of the obligations of the Issuers,
herein and in the Securities in accordance with Article VI; or
(6) to comply with the TIA.
The terms of any document entered into pursuant to this Section shall
be subject to prior approval, if required, of any applicable Gaming Authority.
SECTION 10.2 Amendments, Supplemental Indentures and Waivers with
----------------------------------------------------
Consent of Holders.
- ------------------
Subject to Section 7.8 and the last sentence of this paragraph, with
the consent of the Holders of not less than a majority in aggregate principal
amount of then outstanding Securities, by written act of said Holders delivered
to the Issuers and the Trustee, the Issuers, when authorized by Board
Resolutions, and the Trustee may amend or supplement any of the Mortgage
Documents, this Indenture or the Securities or enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Mortgage
Documents, this Indenture or the Securities or of modifying in any manner the
rights of the Holders under any of the Mortgage Documents, this Indenture or the
Securities. Subject to Section 7.8 and the last sentence of this paragraph, the
Holder or Holders of a majority in aggregate principal amount of then
outstanding Securities may waive compliance by the Issuers with any provision of
the Mortgage Documents, this Indenture or the Securities. Notwithstanding the
foregoing provisions of this Section 10.2, no such amendment, supplemental
indenture or waiver shall,
(a) without the consent of the Holder of each outstanding
Security affected thereby:
(i) change the Stated Maturity on any Security, or reduce the
principal amount thereof or the rate (or extend the time for payment) of
interest thereon, or change the place of payment where, or the coin or
currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or reduce the Change of
Control Purchase Price or the Asset Sale Offer Price or
80
<PAGE>
alter the provisions of Article III in a manner adverse to the Holders;
(ii) reduce the percentage in principal amount of outstanding
Securities, the consent of whose Holders is required for any such
amendment, supplemental indenture or waiver provided for in this Indenture;
or
(iii) release any Collateral from the Liens created by the
Mortgage Documents, except in accordance with this Indenture and such
documents, or modify any of the waiver provisions (except to increase any
required percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived).
(b) without the consent of the Holders of not less than two-thirds in
aggregate principal amount of the then outstanding Securities affected thereby
(except as set forth in clause (a) of this sentence), modify the obligations of
the Issuers to make and consummate a Change of Control Offer or modify any of
the provisions or definitions with respect thereto.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Issuers shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Issuers to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture or waiver.
After an amendment, supplement or waiver under this Section 10.2 or
10.4 becomes effective, it shall bind each Holder, subject to the limitations
set forth above.
In connection with any amendment, supplement or waiver under this
Article X, the Issuers may, but shall not be obligated to, offer to any Holder
who consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
The terms of any document entered into pursuant to this Section shall
be subject to prior approval, if required, of any applicable Gaming Authority.
SECTION 10.3 Compliance with TIA.
-------------------
Every amendment, waiver or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
81
<PAGE>
SECTION 10.4 Revocation and Effect of Consents.
---------------------------------
Until an amendment, waiver or supplement becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of his Security by written notice to the
Issuers or the person designated by the Issuers as the person to whom consents
should be sent if such revocation is received by the Issuers or such person
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities have
consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Issuers may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Issuers notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those persons who were Holders at such record date, and only those persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder; provided, that any such waiver shall not impair or
--------
affect the right of any Holder to receive payment of principal and premium of
and interest on a Security, on or after the respective dates set for such
amounts to become due and payable expressed in such Security, or to bring suit
for the enforcement of any such payment on or after such respective dates.
SECTION 10.5 Notation on or Exchange of Securities.
-------------------------------------
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee
or require the Holder to put an appropriate notation on the Security. The
Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Issuers or the Trustee
so determine, the Issuers in exchange for the Security shall issue, the
Guarantors shall endorse and the Trustee shall authenticate a new Security that
reflects the changed terms. Any failure to make the appropriate notation or to
issue a new Security shall not affect the validity of such amendment, supplement
or waiver.
82
<PAGE>
SECTION 10.6 Trustee to Sign Amendments, Etc.
--------------------------------
The Trustee shall execute any amendment, supplement or waiver
authorized pursuant to this Article X, provided, that the Trustee may, but shall
--------
not be obligated to, execute any such amendment, supplement or waiver which
affects the Trustee's own rights, duties or immunities under this Indenture.
The Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article X is authorized or
permitted by this Indenture.
ARTICLE XI
RIGHT TO REQUIRE REPURCHASE
SECTION 11.1 Repurchase of Securities at Option of the Holder Upon
-----------------------------------------------------
Change of Control.
- -----------------
(a) In the event that a Change of Control (the date on which such
event occurs being referred to as the "Change of Control Date") occurs, each
Holder of Securities shall have the right, at such Holder's option, subject to
the terms and conditions hereof, to require the Issuers to repurchase all or any
part of such Holder's Securities (provided, that the principal amount of such
Securities at maturity must be $1,000 or an integral multiple thereof) on a date
(the "Change of Control Purchase Date") that is no later than 75 days after the
occurrence of such Change of Control, at a cash price (the "Change of Control
Purchase Price") equal to 101% of the principal amount thereof, plus accrued and
unpaid interest, if any, to the Change of Control Purchase Date.
(b) In the event that, pursuant to this Section 11.1, the Company
shall be required to commence an offer to purchase Securities (a "Change of
Control Offer"), the Company shall follow the procedures set forth in this
Section 11.1 as follows:
(1) within 30 days following any Change of Control, the Company or
the Trustee (upon the request and at the expense of the Company) shall send, by
first-class mail, a notice to each of the Securityholders, at his address
appearing in the First Mortgage Note Register, which (to the extent consistent
with this Indenture) shall govern the terms of the Change of Control Offer and
shall state:
(i) that the Change of Control Offer is being made pursuant to
this Section 11.1;
(ii) the Change of Control Purchase Price together with accrued
and unpaid interest;
83
<PAGE>
(iii) the purchase date for such validly tendered Securities,
which date shall be a business day no earlier than 45 days nor later than
60 days from the date such notice is mailed;
(iv) the Change of Control Put Date (as defined below);
(v) that any Security or portion thereof not tendered or
accepted for payment will continue to accrue interest;
(vi) that, unless (a) the Company default in depositing U.S.
Legal Tender with the Paying Agent (which may not for purposes of this
Section 11.1, notwithstanding anything in this Indenture to the contrary,
be the Issuers or any of the Guarantors or any Affiliate of any of the
Guarantors (or any other obligor on the Securities) or any Affiliate of the
Issuers (or such other obligor)) in accordance with the last paragraph of
this clause (b) or (b) such Change of Control payment is prevented for any
reason, any Security or portion thereof accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest after the Change
of Control Purchase Date;
(vii) that Holders electing to have a Security, or portion
thereof, purchased pursuant to a Change of Control Offer will be required
to surrender the Security, with the form entitled "Option of Holder to
Elect Purchase" on the reverse of the Security completed, to the Paying
Agent (which may not for purposes of this Section 11.1, notwithstanding
anything in this Indenture to the contrary, be the Issuers or any of the
Guarantors or any Affiliate of any of the Guarantors (or any other obligor
on the Securities) or any Affiliate of the Issuers (or such other obligor))
at the address specified in the notice prior to the close of business on
the fifth Business Day prior to the Change of Control Purchase Date (the
"Change of Control Put Date");
(viii) that Holders will be entitled to withdraw their elections,
in whole or in part, if the Paying Agent (which, for purposes of this
Section 11.1, notwithstanding any other provision of this Indenture, may
not be the Issuers or an Affiliate of the Issuers or any of the Guarantors
or any Affiliate of any of the Guarantors) receives, up to the close of
business on the Change of Control Put Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
84
<PAGE>
amount of the Securities the Holder is withdrawing and a statement that
such Holder is withdrawing his election to have such principal amount of
Securities purchased; and
(ix) a brief description of the events resulting in such Change
of Control.
(2) the Change of Control Offer shall commence within 30 days
following the Change of Control Date;
(3) the Change of Control Offer shall remain open for 20 Business
Days and no longer, except to the extent that a longer period is required by
applicable law (the "Change of Control Offer Period");
(4) within 5 Business Days following the expiration of a Change of
Control Offer (and in any event not earlier than 45 days nor later than 60 days
following the mailing of the notice described above), the Company shall purchase
all of the tendered Securities at the Change of Control Purchase Price together
with accrued interest to the Change of Control Purchase Date;
(5) if the Change of Control Purchase Date is on or after an interest
payment record date and on or before the related interest payment date, any
accrued interest will be paid to the Person in whose name a Security is
registered at the close of business on such record date, and no additional
interest will be payable to Securityholders who tender Securities pursuant to
the Change of Control Offer and who are paid on the Change of Control Purchase
Date; and
(6) the Company shall provide the Trustee with notice of the Change
of Control Offer at least 5 Business Days before the commencement of any Change
of Control Offer.
On or before the Change of Control Purchase Date, the Company shall
(i) accept for payment Securities or portions thereof properly tendered pursuant
to the Change of Control Offer, (ii) deposit with the Paying Agent U.S. Legal
Tender sufficient to pay the Change of Control Purchase Price (including accrued
and unpaid interest) of all Securities so tendered and (iii) deliver to the
Trustee Securities so accepted together with an Officers' Certificate listing
the Securities or portions thereof being purchased. The Paying Agent will
promptly mail to the Holders of Securities so accepted payment in an amount
equal to the Change of Control Purchase Price (together with accrued and unpaid
interest), and the Trustee shall promptly authenticate and mail or deliver to
such Holders a new Security equal in principal amount to any unpurchased portion
of the Security surrendered. Any Securities not so accepted shall be promptly
mailed or delivered to the Holder thereof. The Company will publicly announce
the results of the Change of Control Offer on or as soon as practicable after
the Change of Control Purchase Date.
85
<PAGE>
ARTICLE XII
MISCELLANEOUS
SECTION 12.1 TIA Controls.
------------
If any provision of this Indenture limits, qualifies, or conflicts
with the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
SECTION 12.2 Notices.
-------
Any notices or other communications to the Issuers or the Trustee
required or permitted hereunder shall be in writing, and shall be sufficiently
given if made by hand delivery, by telex, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
if to Trump Atlantic City Associates:
Trump Atlantic City Associates
Mississippi Avenue and The Boardwalk
Atlantic City, New Jersey 08401
Attention: Corporate Secretary
Telephone: (609) 441-6000
if to Trump Atlantic City Funding, Inc.:
Trump Atlantic City Funding, Inc.
Mississippi Avenue and The Boardwalk
Atlantic City, New Jersey 08401
Attention: Corporate Secretary
Telephone: (609) 441-6000
if to Trump Plaza Associates:
Trump Plaza Associates
Mississippi Avenue and The Boardwalk
Atlantic City, New Jersey 08401
Attention: Corporate Secretary
Telephone: (609) 441-6000
86
<PAGE>
if to Trump Taj Mahal Associates:
Trump Taj Mahal Associates
1000 Boardwalk
Atlantic City, New Jersey 08401
Attention: Corporate Secretary
Telephone: (609) 449-1000
if to Trump Atlantic City Corporation:
Trump Atlantic City Corporation
1000 Boardwalk
Atlantic City, New Jersey 08401
Attention: Corporate Secretary
Telephone: (609) 449-1000
if to the Trustee:
First Bank National Association
180 E. 5th Street
St. Paul, Minnesota 55101
Attention: Richard Prokosch
Telephone: (612) 244-0721
The Issuers, the Guarantors or the Trustee by notice to each other
party may designate additional or different addresses as shall be furnished in
writing by such party. Any notice or communication to the Issuers, the
Guarantors or the Trustee shall be deemed to have been given or made as of the
date so delivered, if personally delivered; when answered back, if telexed; when
receipt is acknowledged, if telecopied; and 5 Business Days after mailing if
sent by registered or certified mail, postage prepaid (except that a notice of
change of address shall not be deemed to have been given until actually received
by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed
to him by first class mail or other equivalent means at his address as it
appears on the registration books of the Registrar and shall be deemed to have
been given upon the date so mailed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
87
<PAGE>
SECTION 12.3 Communications by Holders with Other Holders.
--------------------------------------------
Securityholders may communicate pursuant to TIA (S) 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuers, the Trustee, the Registrar and any other person shall
have the protection of TIA (S) 312(c).
SECTION 12.4 Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Issuers to the Trustee to take
any action under this Indenture, the Issuers shall furnish to the Trustee:
(1) an Officers' Certificate (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel (in form and substance reasonably
satisfactory to the Trustee) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.5 Statements Required in Certificate or Opinion.
---------------------------------------------
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an
-------- -------
Opinion of Counsel may rely on an Officers' Certificate or
certificates of public officials.
88
<PAGE>
SECTION 12.6 Rules by Trustee, Paying Agent, Registrar.
-----------------------------------------
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for
its functions.
SECTION 12.7 Legal Holidays.
--------------
A "Legal Holiday" used with respect to a particular place of payment
is a Saturday, a Sunday or a day on which banking institutions in New York, New
York are not required to be open. If a payment date is a Legal Holiday in New
York, New York, payment may be made at such place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
SECTION 12.8 Governing Law.
-------------
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE ISSUERS AND THE GUARANTORS HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE SECURITIES, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE ISSUERS AND THE
GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH THEY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST ANY OF THE ISSUERS OR THE GUARANTORS IN ANY OTHER
JURISDICTION.
SECTION 12.9 No Interpretation of Other Agreements.
-------------------------------------
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any of the Issuers or any of their Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
89
<PAGE>
SECTION 12.10 No Recourse against Others.
--------------------------
A direct or indirect partner, director, officer, employee or
stockholder, as such, past, present or future of either of the Issuers, the
Guarantors or any successor entity shall not have any personal liability in
respect of the obligations of the Issuers or the Guarantors under the Securities
or this Indenture by reason of his or its status as such partner, director,
officer, employee or stockholder, except to the extent such is an Issuer or a
Guarantor. Each Securityholder by accepting a Security waives and releases all
such liability. Such waiver and release are part of the consideration for the
issuance of the Securities.
SECTION 12.11 Successors.
----------
All agreements of the Issuers or the Guarantors in this Indenture and
the Securities shall bind their successors. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 12.12 Duplicate Originals.
-------------------
All parties may sign any number of copies or counterparts of this
Indenture. Each signed copy or counterpart shall be an original, but all of
them together shall represent the same agreement.
SECTION 12.13 Severability.
------------
In case any one or more of the provisions in this Indenture or in the
Securities shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
SECTION 12.14 Table of Contents, Headings, Etc.
---------------------------------
The Table of Contents, Cross-Reference Table and headings of the
Articles and the Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
90
<PAGE>
SECTION 12.15 Gaming Laws.
-----------
This Indenture, the Mortgage Documents, the Securities and the
security interests thereunder are subject to the Casino Control Act of the State
of New Jersey and the rules and regulations thereunder (the "Gaming
Regulations") (and each Issuer represents and warrants that all requisite
approvals thereunder have been obtained), and the exercise of remedies under the
Mortgage Documents and the Collateral Agency Agreement with respect to the
Collateral will be subject to the Gaming Regulations.
ARTICLE XIII
GUARANTY
SECTION 13.1 Guaranty.
--------
(a) In consideration of good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, each of the Guarantors, jointly
and severally, hereby irrevocably and unconditionally guarantees on a senior
basis, which guarantee shall be secured by a perfected security interest in all
of the Collateral owned by such Guarantors pursuant to the Mortgage Documents
(collectively, the "Guaranty"), to each Holder of a Security authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Indenture, the
Securities or the obligations of the Issuers under this Indenture or the
Securities, that: (w) the principal and premium (if any) of and interest on the
Securities will be paid in full when due, whether at the maturity or interest
payment date, by acceleration, call for redemption, upon an Offer to Purchase,
or otherwise, and interest on the overdue principal and interest, if any, of the
Securities, if lawful, and all other obligations of the Company to the Holders
or the Trustee under this Indenture or the Securities will be promptly paid in
full or performed, all in accordance with the terms of this Indenture and the
Securities; (x) all other obligations of the Company to the Holders or the
Trustee under this Indenture or the Securities will be promptly paid in full or
performed, all in accordance with the terms of this Indenture and the
Securities; and (y) in case of any extension of time of payment or renewal of
any Securities or any of such other obligations, they will be paid in full when
due or performed in accordance with the terms of the extension or renewal,
whether at maturity, by acceleration, call for redemption, upon an Offer to
Purchase or otherwise. Failing payment when due of any amount so guaranteed for
whatever reason, each Guarantor shall be obligated to pay the same before
failure so to pay becomes an Event of Default. This Guaranty is a guarantee of
payment and not of collection. Failing payment when due of any amount so
guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same before failure to so pay becomes an Event of Default.
(b) Each Guarantor hereby agrees that its obligations with regard to
this Guaranty shall be unconditional, irrespective of the validity, regularity
or enforceability of the Securities or this Indenture, the absence of any action
to enforce the same, any delays in obtaining or realizing upon or failures to
obtain or realize upon collateral, the recovery of any
91
<PAGE>
judgment against the Issuers, any action to enforce the same or any other
circumstances that might otherwise constitute a legal or equitable discharge or
defense of a Guarantor. Each Guarantor hereby waives diligence, presentment,
demand of payment, filing of claims with a court in the event of insolvency or
bankruptcy of either of the Issuers, any right to require a proceeding first
against either of the Issuers or right to require the prior disposition of the
assets of either of the Issuers to meet its obligations, protest, notice and all
demands whatsoever and covenants that this Guaranty will not be discharged
except by complete performance of the obligations contained in the Securities
and this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to either of the Issuers or any Guarantor, or any Custodian,
Trustee, or similar official acting in relation to either of the Issuers or such
Guarantor, any amount paid by either of the Issuers or such Guarantor to the
Trustee or such Holder, this Guaranty, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each Guarantor agrees that it
will not be entitled to any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Guarantor further agrees that, as between
such Guarantor, on the one hand, and the Holders and the Trustee, on the other
hand, (i) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Section 7.2 for the purposes of this Guaranty, notwithstanding
any stay, injunction or other prohibition preventing such acceleration as to the
Issuers of the obligations guaranteed hereby, and (ii) in the event of any
declaration of acceleration of those obligations as provided in Section 7.2,
those obligations (whether or not due and payable) will forthwith become due and
payable by each of the Guarantors for the purpose of this Guaranty.
(d) It is the intention of each Guarantor and the Issuers that the
obligations of each Guarantor hereunder shall be in, but not in excess of, the
maximum amount permitted by applicable law. Accordingly, if the obligations in
respect of the Guaranty would be annulled, avoided or subordinated to the
creditors of any Guarantor by a court of competent jurisdiction in a proceeding
actually pending before such court as a result of a determination both that such
Guaranty was made without fair consideration and, immediately after giving
effect thereto, such Guarantor was insolvent or unable to pay its debts as they
mature or left with an unreasonably small capital, then the obligations of such
Guarantor under such Guaranty shall be reduced by such court if and to the
extent such reduction would result in the avoidance of such annulment, avoidance
or subordination; provided, however, that any reduction pursuant to this
-------- -------
paragraph shall be made in the smallest amount as is strictly necessary to reach
such result. For purposes of this paragraph, "fair consideration",
"insolvency", "unable to pay its debts as they mature", "unreasonably small
capital" and the effective times of reductions, if any, required by this
paragraph shall be determined in accordance with applicable law. The provisions
of this Section 13.1(d) shall survive until the Securities are no longer
outstanding.
SECTION 13.2 Execution and Delivery of Guaranty.
----------------------------------
To evidence its Guaranty set forth in Section 13.1, each Guarantor
agrees to execute a Guaranty substantially in the form annexed hereto as Exhibit
B and that this Indenture
92
<PAGE>
shall be executed on behalf of such Guarantor by two Officers or an Officer and
an Assistant Secretary by manual or facsimile signature.
Each Guarantor agrees that its Guaranty set forth in Section 13.1
shall remain in full force and effect and apply to all the Securities
notwithstanding any failure to endorse on each Security a notation of such
Guaranty.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security to which a Guaranty
relates, the Guaranty shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guaranty set forth in
this Indenture on behalf of each Guarantor.
SECTION 13.3 Certain Bankruptcy Events.
-------------------------
Each Guarantor hereby covenants and agrees that in the event of the
insolvency, bankruptcy, dissolution, liquidation or reorganization of either of
the Issuers, such Guarantor shall not file (or join in any filing of), or
otherwise seek to participate in the filing of, any motion or request seeking to
stay or to prohibit (even temporarily) execution on the Guaranty and hereby
waives and agrees not to take the benefit of any such stay of execution, whether
under Section 362 or 105 of the United States Bankruptcy Code or otherwise.
SECTION 13.4 Rights Under the Guaranty.
-------------------------
No payment by any Guarantor pursuant to the provisions hereof to the
Trustee shall entitle such Guarantor to any payment out of any Collateral held
by the Trustee under this Indenture or any Mortgage Documents.
(a) Each of the Guarantors waives notice of the issuance, sale and
purchase of the Securities and notice from the Trustee or the holders from time
to time of any of the Securities of their acceptance and reliance on this
Guaranty.
(b) Notwithstanding any payment or payments made by the Guarantors by
reason of this Guaranty, the Guarantors shall not be subrogated to any rights of
the Trustee or any Holder of the Securities against the Issuers until all the
Securities shall have been paid or deemed to have been paid within the meaning
of this Indenture. Any payment made by the Guarantors by reason of this
Guaranty shall be in all respects subordinated to the full and complete payment
or discharge under this Indenture of all obligations guaranteed hereby, and no
payment by the Guarantors by reason of this Guaranty shall give rise to any
claim of the Guarantors against the Trustee or any Holder of the Securities.
Unless and until the Securities shall have been paid or deemed to have been paid
within the meaning of this Indenture, none of the Guarantors will assign or
otherwise transfer any such claim against the Issuers to any other person.
93
<PAGE>
(c) No set-off, counterclaim, reduction or diminution of any
obligation or any defense of any kind or nature (other than performance by the
Guarantor of its obligation hereunder) which the Guarantor may have or assert
against the Trustee or any holder of any Securities shall be available hereunder
to the Guarantor against the Trustee.
(d) Each Guarantor agrees to pay all costs, expense and fees,
including all reasonable attorneys' fees, which may be incurred by the Trustee
in enforcing or attempting to enforce the Guaranty or protecting the rights of
the Trustee or the Holders of Securities, if any, in accordance with this
Indenture.
SECTION 13.5 Severability.
------------
In case any provision of this Guaranty shall be invalid, illegal or
unenforceable, that portion of such provision that is not invalid, illegal or
unenforceable shall remain in effect, and the validity, legality, and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 13.6 Merger or Consolidation of Guarantors.
-------------------------------------
No Guarantor shall consolidate or merge with or into (whether or not
such Guarantor is the surviving Person) another Person unless (i) subject to the
provisions of the following paragraph, the Person formed by or surviving any
such consolidation or merger (if other than such Guarantor) assumes all the
obligations of such Guarantor pursuant to a supplemental indenture and
supplemental Mortgage Documents in form reasonably satisfactory to the Trustee,
pursuant to which such Person shall unconditionally guarantee, on a senior
secured basis, all of such Guarantor's obligations under such Guarantor's
guarantee, this Indenture and the Mortgage Documents on the terms set forth in
this Indenture; (ii) immediately before and immediately after giving effect to
such transaction on a pro forma basis, no Default or Event of Default shall have
occurred or be continuing; and (iii) immediately after such transaction, the
surviving Person holds all Permits required for operation of the business of,
and such entity is controlled by a Person or entity (or has retained a Person or
entity which is) experienced in, operating casino hotels or otherwise holds all
Permits (including those required from Gaming Authorities) to operate its
business.
In the event of a sale or other disposition of all of the Equity
Interests of any Guarantor (including pursuant to a merger or consolidation) to
any person other than a Subsidiary Guarantor, then such Guarantor may be
released and relieved of any obligation under its Guaranty; provided, that (x)
immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing and (y) such Asset Sale and the
application of the Net Cash Proceeds therefrom are in accordance with the
applicable provisions of this Indenture, including without limitation Section
5.15 and Article VI.
94
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
TRUMP ATLANTIC CITY ASSOCIATES
By: TRUMP ATLANTIC CITY HOLDING, INC.,
its general partner
By: /s/ Donald J. Trump
-------------------------------------
Name: Donald J. Trump
Title: President and Treasurer
Attest: /s/ Nicholas L. Ribis
----------------------------
TRUMP ATLANTIC CITY FUNDING, INC.
By: /s/ Nicholas L. Ribis
-------------------------------------
Name: Nicholas L. Ribis
Title: President and Chief Executive
Officer
Attest: /s/ Robert M. Pickus
-----------------------------
95
<PAGE>
FIRST BANK NATIONAL
ASSOCIATION, as Trustee
By: /s/ Richard Prokosch
-------------------------------------
Name: Richard Prokosch
Title: Trust Officer
Attest: /s/ Sheryl Christopherson
--------------------------
<PAGE>
GUARANTORS
TRUMP PLAZA ASSOCIATES
By: TRUMP ATLANTIC CITY CORPORATION,
its general partner
By: /s/ Nicholas L. Ribis
-------------------------------------
Name: Nicholas L. Ribis
Title: Vice President
Attest: /s/ Nicholas F. Moles
--------------------------
TRUMP TAJ MAHAL ASSOCIATES
By: TRUMP ATLANTIC CITY CORPORATION,
its general partner
By: /s/ Nicholas L. Ribis
-------------------------------------
Name: Nicholas L. Ribis
Title: Vice President
Attest: /s/ Nicholas F. Moles
--------------------------
TRUMP ATLANTIC CITY CORPORATION
By: /s/ Nicholas L. Ribis
-------------------------------------
Name: Nicholas L. Ribis
Title: Vice President
Attest: /s/ Nicholas F. Moles
--------------------------
<PAGE>
EXHIBIT A
[FORM OF SECURITY]
TRUMP ATLANTIC CITY ASSOCIATES
TRUMP ATLANTIC CITY FUNDING, INC.
11 1/4% FIRST MORTGAGE NOTES
DUE 2006
No. $
CUSIP 897907 AA 9
Trump Atlantic City Associates, a New Jersey partnership, and Trump
Atlantic City Funding, Inc., a Delaware corporation (hereinafter collectively
called the "Issuers," which term includes any successor entity under the
Indenture hereinafter referred to), for value received, hereby promise to pay to
______________, or registered assigns, the principal sum of
___________________________________________ Dollars, on May 1, 2006.
Interest Payment Dates: May 1 and November 1.
Record Dates: April 15 and October 15.
Reference is made to the further provisions of this Security on the
reverse side, which will, for all purposes, have the same effect as if set forth
at this place.
A-1
<PAGE>
IN WITNESS WHEREOF, the Issuers have caused this Instrument to be duly
executed under their respective corporate seals.
Dated:
Attest: TRUMP ATLANTIC CITY ASSOCIATES
By: TRUMP HOTELS & CASINO RESORTS
HOLDINGS, L.P., its general partner
By: TRUMP HOTELS & CASINO RESORTS,
INC., its managing general partner
By: -----------------------------
- ------------------------
Secretary
Attest: TRUMP ATLANTIC CITY FUNDING, INC.
By: -----------------------------
- ------------------------
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned
Indenture.
FIRST BANK NATIONAL ASSOCIATION,
as trustee
By: ------------------------------
Authorized Signatory
Dated:
A-2
<PAGE>
TRUMP ATLANTIC CITY ASSOCIATES
TRUMP ATLANTIC CITY FUNDING, INC.
11 1/4% FIRST MORTGAGE NOTES DUE 2006
1. Interest.
--------
Trump Atlantic City Associates, a New Jersey partnership, and Trump
Atlantic City Funding, Inc., a Delaware corporation (collectively, the
"Issuers"), jointly and severally promise to pay interest on the principal
amount of this Security at the rate of 11 1/4% per annum from the date of
issuance or from the most recent Interest Payment Date to which interest has
been paid or provided for. Interest on this Security will be payable
semiannually on May 1 and November 1, commencing November 1, 1996, to the
person in whose name this Security is registered at the close of business on
April 15 or October 15, preceding such Interest Payment Date (each, a "Record
Date"). Interest on this Security will be computed on the basis of a 360-day
year, consisting of twelve 30-day months.
2. Method of Payment.
-----------------
The Issuers shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of business
on the Record Date immediately preceding the Interest Payment Date. Holders
must surrender Securities to a Paying Agent to collect principal payments.
Except as provided below, the Issuers shall pay principal and interest in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for payment of public and private debts ("U.S. Legal Tender").
The Issuers may deliver any such interest payment to the Paying Agent or the
Issuers may mail any such interest payment to a Holder at the Holder's
registered address. Notwithstanding the preceding two sentences, in the case of
Securities of which The Depository Trust Company or its nominee is the Holder,
such payments must be made by wire transfer of Federal funds.
3. Paying Agent and Registrar.
--------------------------
Initially, First Bank National Association, a national banking
association (the "Trustee"), will act as Paying Agent and Registrar. The
Issuers may change any Paying Agent, Registrar or Co-registrar without notice to
the Holders. The Issuers or any of their Subsidiaries may, subject to certain
exceptions, act as Paying Agent, Registrar or Co-registrar.
4. Indenture.
---------
The Issuers issued the Securities under an Indenture, dated as of
April 17, 1996 (the "Indenture"), between the Issuers, the Guarantors named
therein and the Trustee. Capital-
A-3
<PAGE>
ized terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act, as in
effect on the date of the Indenture. The Securities are subject to all such
terms, and Holders of Securities are referred to the Indenture and said Act for
a statement of them. The Securities are senior, secured obligations of each of
the Issuers limited in aggregate principal amount to $1,200,000,000.
5. Redemption.
----------
The Securities are redeemable in whole or from time to time in part at
any time on and after May 1, 2001, at the option of the Issuers, at the
Redemption Price (expressed as a percentage of principal amount) set forth
below, if redeemed during the 12-month period commencing May 1 of each of the
years indicated below, in each case, together with any accrued but unpaid
interest to the Redemption Date. Except as provided in the next paragraph, the
Securities may not otherwise be redeemed at the option of the Issuers.
12-Month
Period Beginning Redemption Price
---------------- ----------------
May 1, 2001.......................... 105.625%
May 1, 2002.......................... 103.750%
May 1, 2003.......................... 101.875%
May 1, 2004 and thereafter........... 100.000%
Any Governmental Authority with appropriate jurisdiction and authority
relating to a Gaming License held by an Issuer or an Affiliate or wholly owned
Subsidiary of an Issuer may require a Holder to be qualified under any
applicable law administered by such Governmental Authority. If a Holder does
not qualify under the Casino Control Act, the Holder must dispose of its
interest in the Securities, within 30 days after an Issuer's notice of such
finding (or within such earlier date as the CCC may require), or the Issuers may
redeem such Securities to the extent necessary in the reasonable, good faith
judgment of a general partner of the Company, to prevent the loss, failure to
obtain or material impairment or to secure the reinstatement of any material
Gaming License. If a Holder does not qualify under any applicable law
administered by a Governmental Authority other than the Casino Control Act, the
Issuers may redeem such Securities to the extent necessary in the reasonable,
good faith judgment of a general partner of the Company, to prevent the loss,
failure to obtain or material impairment or to secure the reinstatement of any
material Gaming License. In such event, the Redemption Price shall be the
principal amount thereof, plus accrued and unpaid interest to the date of
redemption (or such lesser amount as may be required by applicable law or by
order of any Gaming Authority).
Any redemption of the Securities shall comply with Article III of
the Indenture.
A-4
<PAGE>
6. Notice of Redemption.
--------------------
Notice of redemption will be mailed by first class mail at least 30
days but not more than 60 days before the Redemption Date (unless another notice
period shall be required by applicable law or by order of any Gaming Authority)
to each Holder of Securities to be redeemed at his registered address.
Securities in denominations larger than $1,000 may be redeemed in part, but only
in $1,000 integrals.
Except as set forth in the Indenture, from and after any Redemption
Date, if monies for the redemption of the Securities called for redemption shall
have been deposited with the Paying Agent (other than either of the Issuers or
an Affiliate of either of the Issuers) on such Redemption Date, the Securities
called for redemption will cease to bear interest and the only right of the
Holders of such Securities will be to receive payment of the Redemption Price,
including any accrued and unpaid interest to the Redemption Date, unless the
Issuers default on such payment.
7. Denominations; Transfer; Exchange.
---------------------------------
The Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange Securities in accordance with, the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not register the transfer
of or exchange any Securities selected for redemption.
8. Persons Deemed Owners.
---------------------
The registered Holder of a Security may be treated as the owner of
it for all purposes.
9. Unclaimed Money.
---------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Issuers at their written request. After that, all liability of the Trustee
and such Paying Agent(s) with respect to such money shall cease.
10. Legal Defeasance or Covenant Defeasance Prior to Redemption or Maturity.
-----------------------------------------------------------------------
If the Issuers, within one year of the final Stated Maturity of the
Securities in the case of Legal Defeasance, or at any time in the case of
Covenant Defeasance, deposit with the Trustee, in trust, for the benefit of the
Holders, U.S. Legal Tender, non-callable government securities or a combination
thereof, in such amounts as will be sufficient, in the opinion of a nationally
recognized firm of independent public accountants selected by the Trustee, to
pay the principal of, premium, if any and interest on the Securities to
redemption or maturity and comply
A-5
<PAGE>
with the other provisions of the Indenture relating thereto, the Issuers may
elect to have their obligations discharged, in the case of a Legal Defeasance
(in which case the Indenture would cease to be of further effect, except as to
certain limited obligations and to the rights of Holders to receive payments
when due from the trust funds therefor), or, in the case of a Covenant
Defeasance, to be discharged from certain provisions of the Indenture and the
Securities (including the financial covenants, but excluding their obligation to
pay the principal of and interest on the Securities).
11. Amendment; Supplement; Waiver.
-----------------------------
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the written consent of the Holders of a simple
majority, 66 2/3% or 100% in aggregate principal amount of the Securities then
outstanding, as applicable, and any existing Default or Event of Default or
compliance with any provision may be waived with the consent of the Holders of
the same specified percentage of aggregate principal amount of the Securities
then outstanding. Without notice to or consent of any Holder, the parties
thereto may amend or supplement the Indenture, the Mortgage Documents or the
Securities to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Securities in addition to or in place of certificated
Securities, or make any other change that does not adversely affect the rights
of any Holder of a Security.
12. Restrictive Covenants.
---------------------
The Indenture imposes certain limitations on the ability of the
Issuers and their Subsidiaries to, among other things, incur additional
Indebtedness and Disqualified Capital Stock, make payments in respect of its
Equity Interests, enter into transactions with Affiliates, incur Liens, sell
assets, merge or consolidate with any other person and sell, lease, transfer or
otherwise dispose of substantially all of its properties or assets. The
limitations are subject to a number of important qualifications and exceptions.
The Issuers must annually report to the Trustee on compliance with such
limitations.
13. Change of Control.
-----------------
In the event there shall occur any Change of Control, each Holder of
Securities shall have the right, at such Holder's option but subject to the
limitations and conditions set forth in the Indenture, to require the Issuers to
purchase on the Change of Control Purchase Date in the manner specified in the
Indenture, all or any part (in integral multiples of $1,000) of such Holder's
Securities at a Change of Control Purchase Price equal to 101% of the principal
amount thereof, together with accrued and unpaid interest, if any, to the Change
of Control Purchase Date.
A-6
<PAGE>
14. Security.
--------
In order to secure the obligations under the Indenture, the Issuers,
the Guarantors and the Trustee have entered into the Mortgage Documents and the
Collateral Agency Agreement in order to create and govern security interests in
certain assets of the Issuers, the Guarantors and their Subsidiaries.
15. Sale of Assets.
--------------
The Indenture imposes certain limitations on the ability of the
Issuers or any of their Subsidiaries to sell assets. In the event the proceeds
from a permitted Asset Sale exceed certain amounts, as specified in the
Indenture, the Issuers and the Guarantors will be required either to reinvest
the proceeds of such Asset Sale in their business or to repay certain
indebtedness and to make an offer to purchase each Holder's Securities at 100%
of the principal amount thereof, together with accrued and unpaid interest, if
any, to the Asset Sale Purchase Date.
16. Gaming Laws.
-----------
The rights of the Holder of this Security and any owner of any
beneficial interest in this Security are subject to the gaming laws, regulations
and the jurisdiction and requirements of the Gaming Authorities and the further
limitations and requirements set forth in the Indenture.
17. Successors.
----------
When a successor assumes all the obligations of its predecessor under
the Securities and the Indenture, the predecessor will be released from those
obligations.
18. Defaults and Remedies.
---------------------
If an Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in aggregate principal amount of Securities then
outstanding may declare all the Securities to be due and payable immediately in
the manner and with the effect provided in the Indenture. Holders of Securities
may not enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require reasonable security or indemnity
satisfactory to it before it enforces the Indenture or the Securities. Subject
to certain limitations, Holders of a majority in aggregate principal amount of
the Securities then outstanding may direct the Trustee in its exercise of any
trust or power.
19. Trustee Dealings with Issuers.
-----------------------------
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of any of the Securities, make loans
to, accept deposits from, and perform services for the Issuers or their
Affiliates, and may otherwise deal with the Issuers or their respective
Affiliates with the same rights it would have if it were not the Trustee.
A-7
<PAGE>
20. No Recourse Against Others.
--------------------------
No direct or indirect partner, director, officer, employee or
stockholder, as such, past, present or future of either of the Company or
Funding, any Guarantor or any successor entity shall have any personal liability
in respect of the obligations of the Issuers or any Guarantor under the
Indenture or the Securities or the guarantees thereof by reason of his or its
status as such partner, director, officer, employee or stockholder, except to
the extent such is an Issuer or a Guarantor. Each Holder of a Security by
accepting a Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of the Securities.
21. Authentication.
--------------
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
22. Abbreviations and Defined Terms.
-------------------------------
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
23. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Issuers will cause CUSIP numbers to be
printed on the Securities as a convenience to the Holders of the Securities. No
representation is made as to the accuracy of such numbers as printed on the
Securities and reliance may be placed only on the other identification numbers
printed hereon.
A-8
<PAGE>
[FORM OF ASSIGNMENT]
I or we assign this Security to
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
_________________ and irrevocably appoint ___________ agent to transfer this
Security on the books of the Issuers. The agent may substitute another to act
for him.
Dated: __________ Signed: _______________________________________________
(Sign exactly as your name appears on the other
side of this Security)
Signature guarantee should be made by a guarantor institution participating in
the Securities Transfer Agents Medallion Program or in such other guarantee
program acceptable to the Trustee.
A-9
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Issuers
pursuant to any of the following provisions of the Indenture, check the
appropriate box:
[ ] Section 5.15; [ ] Article XI.
If you want to elect to have only part of this Security purchased by
the Issuers pursuant to the Indenture, state the principal amount you want to be
purchased: $________
Date: ________________ Signature: __________________________________________
(Sign exactly as your name appears on the
other side of this Security)
A-10
<PAGE>
EXHIBIT B
FORM OF GUARANTY
----------------
For value received, __________________, a __________________
[corporation/partnership], hereby irrevocably, unconditionally guarantees, on a
senior secured basis, to the Holder of any 11 1/4% First Mortgage Note due 2006
(the "Security") of Trump Atlantic City Associates and Trump Atlantic City
Funding, Inc. (collectively, the "Issuers") upon which this Guaranty is
endorsed, the due and punctual payment, as set forth in the Indenture (the
"Indenture") among the Issuers, the guarantors named therein and First Bank
National Association, as trustee (the "Trustee") pursuant to which such Security
and this Guaranty were issued, of the principal of, premium (if any) and
interest on such Security when and as the same shall become due and payable for
any reason according to the terms of such Security and Article XIII of the
Indenture. The guaranty of the Security upon which this Guaranty is endorsed
will not become effective until the Trustee signs the certificate of
authentication on such Security.
_____________________________________
By: _________________________________
Attest: _____________________________
B-1
