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Sample Business ContractsHome: Sample Business Contracts:
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CREDIT AGREEMENT
among
TRUMP'S CASTLE ASSOCIATES, L.P.,
and
THE LENDING INSTITUTIONS LISTED HEREIN
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as ADMINISTRATIVE AGENT
----------------------------------
DEUTSCHE BANK SECURITIES INC.,
as LEAD ARRANGER and BOOK MANAGER
----------------------------------
Dated as of June 12, 2002
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<PAGE>
TABLE OF CONTENTS
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Page
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SECTION 1. Amount and Terms of Credit......................................1
1.01 The Commitments.................................................1
1.02 Notice of Borrowing.............................................1
1.03 Disbursement of Funds...........................................1
1.04 Notes...........................................................2
1.05 Conversions; Continuations......................................2
1.06 Pro Rata Borrowings.............................................3
1.07 Interest........................................................3
1.08 Interest Periods................................................3
1.09 Increased Costs, Illegality, etc................................4
1.10 Compensation....................................................6
1.11 Change of Lending Office........................................7
1.12 CCC Restrictions................................................7
SECTION 2. Prepayments; Payments; Taxes....................................7
2.01 Voluntary Prepayments...........................................7
2.02 Mandatory Repayments............................................8
2.03 Method and Place of Payment.....................................9
2.04 Net Payments....................................................9
SECTION 3. Conditions Precedent to Effective Date.........................11
3.01 Execution of Agreement; Notes..................................11
3.02 Opinions of Counsel............................................12
3.03 Corporate Documents; Proceedings; etc..........................12
3.04 Transactions, etc..............................................12
3.05 Solvency Certificate; Insurance................................12
3.06 Officer's Certificate..........................................12
3.07 Approvals......................................................13
3.08 Credit Facility Mortgage Documents.............................13
3.09 Adverse Change, etc............................................13
3.10 Litigation.....................................................13
3.11 Financial Statements; Projections..............................14
SECTION 4. Conditions Precedent to Loans..................................14
4.01 Payment of Fees................................................14
4.02 Transactions, etc..............................................14
4.03 Minimum EBITDA.................................................14
4.04 Approvals......................................................14
4.05 Officer's Certificate..........................................14
(i)
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<TABLE>
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<S> <C> <C>
SECTION 5. Representations, Warranties and Agreements........................................14
5.01 Corporate Status..................................................................15
5.02 Corporate Power and Authority.....................................................15
5.03 No Violation......................................................................15
5.04 Governmental Approvals............................................................15
5.05 Financial Statements; Financial Condition; Undisclosed Liabilities; etc...........16
5.06 Litigation........................................................................16
5.07 True and Complete Disclosure......................................................17
5.08 Use of Proceeds; Margin Regulations...............................................17
5.09 Tax Returns and Payments..........................................................17
5.10 Compliance with ERISA.............................................................17
5.11 The Credit Facility Mortgage Documents and Properties.............................17
5.12 Representations and Warranties in Documents.......................................19
5.13 Subsidiaries and Corporate Structure..............................................19
5.14 Compliance with Statutes, etc.....................................................19
5.15 Investment Company Act............................................................19
5.16 Public Utility Holding Company Act................................................19
5.17 Environmental Matters.............................................................20
5.18 Labor Relations...................................................................20
5.19 Patents, Licenses, Franchises and Formulas........................................20
5.20 Indebtedness......................................................................20
5.21 Transactions......................................................................20
SECTION 6. Affirmative Covenants.............................................................21
6.01 Information Covenants.............................................................21
6.02 Credit Facility Mortgage Documents; Performance of Obligations....................23
6.03 Existence and Franchises..........................................................23
6.04 Payment of Taxes and Other Claims.................................................23
6.05 Maintenance of Properties.........................................................23
SECTION 7. Negative Covenants................................................................24
7.01 Consolidation, Merger, Conveyance, Transfer or Lease..............................24
7.02 Limitation on Indebtedness........................................................24
7.03 Limitation on Liens...............................................................25
7.04 Limitation on Restricted Payments.................................................25
7.05 Limitation on Leases..............................................................26
7.06 Limitation on Preferred Stock of Subsidiaries and Subsidiary Distributions........26
7.07 Limitation on Payment Restrictions Affecting Subsidiaries.........................27
7.08 Limitations on Transactions with Affiliates.......................................27
7.09 Restrictions on Transfer of Assets................................................28
7.10 Limitation on Activities and Investments..........................................28
7.11 Restriction on Payment of Services Fee............................................28
7.12 Second Priority Notes and PIK Notes...............................................28
7.13 Minimum EBITDA....................................................................28
7.14 Capital Expenditures..............................................................29
</TABLE>
(ii)
<PAGE>
<TABLE>
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<S> <C>
SECTION 8. Events of Default.................................................................29
8.01 Payments..........................................................................29
8.02 Representations, etc..............................................................29
8.03 Covenants.........................................................................29
8.04 Default Under Other Agreements....................................................29
8.05 Bankruptcy, etc...................................................................30
8.06 ERISA.............................................................................31
8.07 Credit Facility Mortgage Documents................................................31
8.08 Judgments.........................................................................31
8.09 Change of Control.................................................................31
SECTION 9. Definitions and Accounting Terms..................................................31
9.01 Defined Terms.....................................................................32
SECTION 10. Administrative Agent..............................................................49
10.01 Appointment.......................................................................49
10.02 Nature of Duties..................................................................49
10.03 Lack of Reliance on Administrative Agent..........................................49
10.05 Reliance..........................................................................50
10.06 Indemnification...................................................................50
10.07 Administrative Agent in Its Individual Capacity...................................51
10.08 Holders...........................................................................51
10.09 Resignation by Administrative Agent...............................................51
SECTION 11. Miscellaneous.....................................................................51
11.01 Payment of Expenses, etc..........................................................52
11.02 Right of Setoff...................................................................52
11.03 Notices...........................................................................53
11.04 Benefit of Agreement..............................................................53
11.05 No Waiver; Remedies Cumulative....................................................55
11.06 Payments Pro Rata.................................................................55
11.07 Calculations; Computations........................................................55
11.08 Governing Law; Submission to Jurisdiction; Venue; Waiver of Jury Trial............56
11.09 Counterparts......................................................................57
11.10 Effective Date....................................................................57
11.11 Headings Descriptive..............................................................57
11.12 Amendment or Waiver, etc..........................................................58
11.13 Survival..........................................................................58
11.14 Domicile of Loans.................................................................58
11.15 Register..........................................................................58
11.16 Confidentiality...................................................................58
</TABLE>
(iii)
<PAGE>
<TABLE>
<S> <C>
ANNEX I Commitments
SCHEDULE 3.08 Collateral Closing Conditions
SCHEDULE 5.13 Corporate Structure
SCHEDULE 5.20 Existing Indebtedness
SCHEDULE 9.01(a) Existing Investments
EXHIBIT A Form of Notice of Borrowing
EXHIBIT B Form of Note
EXHIBIT C Form of Notice of Conversion
EXHIBIT D Form of Secretary's Certificate
EXHIBIT E Form of Solvency Certificate
EXHIBIT F Form of Assignment and Assumption Agreement
EXHIBIT G Form of Assignment of Leases and Rents and Assignment of Operating Assets
EXHIBIT H Form of Credit Facility Mortgage
</TABLE>
(iv)
<PAGE>
CREDIT AGREEMENT ("Agreement"), dated as of June 12, 2002, among TRUMP'S
CASTLE ASSOCIATES, L.P., a New Jersey limited partnership ("Borrower"), the
lending institutions from time to time party hereto (each, a "Lender" and,
collectively, the "Lenders"), DEUTSCHE BANK TRUST COMPANY AMERICAS, as
Administrative Agent, and DEUTSCHE BANK SECURITIES INC., as Lead Arranger and
Book Manager ("Lead Arranger"). Unless otherwise defined herein, all capitalized
terms used herein and defined in Section 9 are used herein as therein defined.
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set forth herein, the
Lenders are willing to make available to Borrower the respective credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. Subject to and upon the terms and conditions set
forth herein, each Lender with a Commitment severally agrees to make on the
Funding Date a term loan (each such term loan, a "Loan" and, collectively, the
"Loans") to Borrower, which Loans (i) shall be made and initially maintained as
a single Borrowing of Base Rate Loans (subject to the option to convert such
Loans pursuant to Section 1.05) and (ii) shall equal for each Lender, in initial
aggregate principal amount, an amount which equals the Commitment of such Lender
on the Funding Date. Once repaid, Loans incurred hereunder may not be
reborrowed.
1.02 Notice of Borrowing. Borrower shall give Administrative Agent at its
Notice Office written notice one Business Day prior to the Funding Date (or
telephonic notice promptly confirmed in writing) of the Borrowing hereunder;
provided that such notice shall be deemed to have been given on such day only if
given before 12:00 Noon (New York time) on such day (such written notice or
written confirmation of telephonic notice, the "Notice of Borrowing"). Such
notice shall be irrevocable and shall (x) specify the date of such Borrowing
(which shall be a Business Day) and (y) be given by Borrower in the form of
Exhibit A, appropriately completed to specify the aggregate principal amount of
Loans to be made pursuant to such Borrowing and the date of such Borrowing
(which shall be a Business Day). Administrative Agent shall promptly give each
Lender which is required to make Loans specified in the Notice of Borrowing
notice of such Borrowing, of such Lender's proportionate share thereof and of
the other matters required by the immediately preceding sentence to be specified
in the Notice of Borrowing.
1.03 Disbursement of Funds. No later than 12:00 Noon (New York time) on the
Funding Date, each Lender with a Commitment will make available its pro rata
portion of such Borrowing requested to be made on such date. All such amounts
shall be made available in Dollars and in immediately available funds at the
Payment Office of Administrative Agent, and Administrative Agent will make
available to Borrower at the Payment Office the aggregate of the amounts so made
available by the Lenders. Unless Administrative Agent shall have been notified
by any Lender prior to the Funding Date that such Lender does not intend to make
available to Administrative Agent such Lender's portion of any Borrowing to be
made on such date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on the Funding Date and Ad-
<PAGE>
ministrative Agent, in reliance upon such assumption, may (in its sole
discretion and without obligation to do so) make available to Borrower a
corresponding amount. If such corresponding amount is not in fact made available
to Administrative Agent by such Lender, Administrative Agent shall be entitled
to recover such corresponding amount on demand from such Lender. If such Lender
does not pay such corresponding amount forthwith upon Administrative Agent's
demand therefor, Administrative Agent shall promptly notify Borrower and if
Administrative Agent shall have advanced such amount to Borrower, Borrower shall
immediately pay such corresponding amount to Administrative Agent.
Administrative Agent shall also be entitled to recover on demand from such
Lender or Borrower, as the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount was made available
by Administrative Agent to Borrower until the date such corresponding amount is
recovered by Administrative Agent, at a rate per annum equal to (i) if recovered
from such Lender, the overnight Federal Funds Rate and (ii) if recovered from
Borrower, the rate of interest applicable to the respective Borrowing, as
determined pursuant to Section 1.07. Nothing in this Section 1.03 shall be
deemed to relieve any Lender from its obligation to make its respective Loans
hereunder or to prejudice any rights which Borrower may have against any Lender
as a result of any failure by such Lender to make its respective Loans
hereunder.
1.04 Notes. (a) To the extent requested by any Lender, Borrower's
obligation to pay the principal of, and interest on, the Loans made by such
Lender shall be evidenced by a promissory note duly executed and delivered by
Borrower substantially in the form of Exhibit B with blanks appropriately
completed in conformity herewith (the "Note").
(b) To the extent applicable, Lender will note on its internal records the
amount of the Loan made by it and each payment in respect thereof and will prior
to any transfer of any of its Notes endorse on the reverse side thereof the
outstanding principal amount of Loans evidenced thereby. Failure to make any
such notation shall not affect Borrower's obligations in respect of such Loans.
1.05 Conversions; Continuations. (a) Borrower shall have the option to
convert all or a portion equal to at least $5,000,000 (and, if greater, in an
integral multiple of $500,000) of the outstanding principal amount of Loans made
hereunder of one or more Types of Loans into a Borrowing of another Type of
Loan; provided that (i) except as otherwise provided in Section 1.09(b),
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
an Interest Period applicable to the Loans being converted and no such partial
conversion of Eurodollar Loans shall reduce the outstanding principal amount of
such Eurodollar Loans to less than $5,000,000, (ii) Base Rate Loans may only be
converted into Eurodollar Loans if no Default or Event of Default is in
existence on the date of the conversion and (iii) no conversion pursuant to this
Section 1.05 shall result in a greater number of Eurodollar Borrowings than is
permitted under the last sentence of this Section 1.05. Borrower shall also have
the option at the end of any Interest Period to continue all or a portion of any
Eurodollar Loan for an additional Interest Period. Each such conversion or
continuation shall be effected by Borrower giving Administrative Agent at its
Notice Office prior to 12:00 Noon (New York time) at least three Business Days'
prior notice (each, a "Notice of Conversion") in the form of Exhibit C,
appropriately completed to specify the Loans to be so converted or continued
and, if to be converted into or continued as Eurodollar Loans, the Interest
Period to be initially applicable thereto. Administrative Agent shall give each
Lender prompt notice of any such proposed conversion or continuation affecting
any of its Loans; provided that the failure of Administrative Agent to give any
such
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<PAGE>
notice shall not affect the rights or obligations of Borrower hereunder.
(b) More than one conversion may occur on the same date, but at no time
shall there be outstanding more than six Borrowings of Eurodollar Loans.
1.06 Pro Rata Borrowings. The Borrowings hereunder shall be incurred from
the Lenders pro rata on the basis of their respective Commitments. It is
understood that no Lender shall be responsible for any default by any other
Lender of its obligation to make Loans hereunder and that each Lender shall be
obligated to make the Loans provided to be made by it hereunder, regardless of
the failure of any other Lender to make its Loans hereunder.
1.07 Interest. (a) Borrower agrees to pay interest in respect of the unpaid
principal amount of each Base Rate Loan from the date the proceeds thereof are
made available to Borrower until the earlier of (i) the maturity (whether by
acceleration or otherwise) of such Base Rate Loan or (ii) the conversion of such
Base Rate Loan to a Eurodollar Loan pursuant to Section 1.05, at a rate per
annum which shall be equal to the sum of 6.5% plus the Base Rate in effect from
time to time.
(b) Borrower agrees to pay interest in respect of the unpaid principal
amount of each Eurodollar Loan for each day of each Interest Period applicable
thereto, at a rate per annum equal to the sum of 5.5% plus the Eurodollar Rate
for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue interest
in respect of each Loan and any other overdue amount payable hereunder shall, in
each case, bear interest until paid in full at a rate per annum equal to 2% per
annum in excess of the rate otherwise applicable to Base Rate Loans from time to
time, with such interest to be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable (i) in
respect of each Base Rate Loan, quarterly in arrears on each Quarterly Payment
Date, (ii) in respect of each Eurodollar Loan, on the last day of each Interest
Period applicable thereto and, in the case of an Interest Period in excess of
three months, on each date occurring at three month intervals after the first
day of such Interest Period and (iii) in respect of each Loan, on any repayment
or prepayment (on the amount repaid or prepaid), upon conversion, at maturity
(whether by acceleration or otherwise) and, after such maturity, on demand.
(e) Upon each Interest Determination Date, Administrative Agent shall
determine the Eurodollar Rate for each Interest Period applicable to Eurodollar
Loans and shall promptly notify Borrower and the applicable Lenders thereof.
Each such determination shall, absent manifest error, be final and conclusive
and binding on all parties hereto.
(f) All computations of interest hereunder shall be made in accordance with
Section 11.07(b).
1.08 Interest Periods. At the time it gives any Notice of Conversion in
respect of the conversion into any Eurodollar Loan (in the case of the initial
Interest Period applicable thereto) or on the third Business Day prior to the
expiration of an Interest Period applicable to such Eurodollar Loan (in the case
of any subsequent Interest Period), Borrower shall have the right to elect, by
giving
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<PAGE>
Administrative Agent notice thereof, the interest period (each, an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of Borrower, be a one, two, three or six month period; provided that:
(i) the initial Interest Period for any Eurodollar Loan shall commence
on the date of Borrowing for such Eurodollar Loan (including the date of
any conversion thereto from a Loan of a different Type) and each Interest
Period occurring thereafter in respect of such Eurodollar Loan shall
commence on the day on which the next preceding Interest Period applicable
thereto expires;
(ii) if any Interest Period relating to a Eurodollar Loan begins on a
day for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall end on
the last Business Day of such calendar month;
(iii) if any Interest Period would otherwise expire on a day which is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if any Interest Period for
a Eurodollar Loan would otherwise expire on a day which is not a Business
Day but is a day of the month after which no further Business Day occurs in
such month, such Interest Period shall expire on the next preceding
Business Day;
(iv) no Interest Period may be selected at any time when a Default or
Event of Default is then in existence or which extends beyond the Maturity
Date; and
(v) until the earlier to occur of (x) the 30th day following the
Funding Date or (y) the Syndication Date, no Interest Period shall be
greater than one month, with any subsequent Interest Periods to begin on
the last day of the prior one month Interest Period theretofore in effect.
If upon the expiration of any Interest Period applicable to a
Borrowing of Eurodollar Loans, Borrower has failed to elect, or is not permitted
to elect, a new Interest Period to be applicable to such Eurodollar Loans as
provided above, Borrower shall be deemed to have elected to convert such
Eurodollar Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.
1.09 Increased Costs, Illegality, etc. (a) In the event that any
Lender shall have determined in good faith (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto but,
with respect to clause (i) below, may be made only by Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes
arising after the date of this Agreement affecting the interbank Eurodollar
market, adequate and fair means do not exist for ascertaining the
applicable interest rate on the basis provided for in the definition of
Eurodollar Rate; or
(ii) at any time, that such Lender shall incur increased costs or
reductions in the amounts received or receivable hereunder with respect to
any Eurodollar Loan because of
-4-
<PAGE>
(x) any Change in Law since the date of this Agreement, such as, for
example, but not limited to: (A) a change in Covered Taxes resulting
from the payment to any Lender of the principal of or interest on such
Eurodollar Loan or any other amounts payable hereunder, but without
duplication of any amounts payable in respect of Taxes pursuant to
Section 2.04(a), or (B) a change in official reserve requirements, but,
in all events, excluding reserves required under Regulation D to the
extent included in the computation of the Eurodollar Rate, and/or (y)
other circumstances since the date of this Agreement affecting such
Lender or the interbank Eurodollar market or the position of such
Lender in such market; or
(iii) at any time, that the making or continuance of any
Eurodollar Loan has been made (x) unlawful by any law or governmental
rule, regulation or order, (y) impossible by compliance by any Lender
in good faith with any governmental request (whether or not having
force of law) or (z) impracticable as a result of a contingency
occurring after the date of this Agreement which materially and
adversely affects the interbank Eurodollar market;
then, and in any such event, such Lender (or Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to Borrower and, except in the case of clause (i) above, to
Administrative Agent of such determination (which notice Administrative Agent
shall promptly transmit to each of the other Lenders). Thereafter (x) in the
case of clause (i) above, Eurodollar Loans shall no longer be available until
such time as Administrative Agent notifies Borrower and the Lenders that the
circumstances giving rise to such notice by Administrative Agent no longer
exist, and any Notice of Borrowing or Notice of Conversion given by Borrower
with respect to Eurodollar Loans which have not yet been incurred (including by
way of conversion) shall at the option of Borrower (i) be deemed rescinded by
Borrower or (ii) be deemed to constitute a Notice of Borrowing or Notice of
Conversion to, as applicable, Base Rate Loans, (y) in the case of clause (ii)
above, Borrower shall pay to such Lender, upon written demand therefor, such
additional amounts (in the form of an increased rate of, or a different method
of calculating, interest or otherwise as such Lender reasonably in its sole
discretion shall determine) as shall be required to compensate such Lender for
such increased costs or reductions in amounts received or receivable hereunder
(a written notice as to the additional amounts owed to such Lender, showing the
basis for the calculation thereof, submitted to Borrower by such Lender in good
faith shall, absent manifest error, be final and conclusive and binding on all
the parties hereto) and (z) in the case of clause (iii) above, each Eurodollar
Loan of the affected Lender(s) shall be converted to a Base Rate Loan either on
the last day of the then current Interest Period or, if such Lender shall
determine that it may not lawfully maintain and fund such Eurodollar Loan to
such day, immediately. Each of Administrative Agent and each Lender agrees that
if it gives notice to Borrower of any of the events described in clause (i) or
(iii) above, it shall promptly notify Borrower and, in the case of any such
Lender, Administrative Agent, if such event ceases to exist. If any such event
described in clause (iii) above ceases to exist as to a Lender, the obligations
of such Lender to make Eurodollar Loans and to convert Base Rate Loans into
Eurodollar Loans on the terms and conditions contained herein shall be
reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 1.09(a)(ii) or (iii), Borrower may (and in
the case of a Eurodollar Loan affected by the circumstances described in Section
1.09(a)(iii) shall) either (x) if the affected Eurodollar Loan is then being
made initially or pursuant to a conversion, cancel the respective Borrowing by
giving Administrative Agent telephonic notice (confirmed in writing) on
the same date that Borrower was noti-
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<PAGE>
fied by the affected Lender pursuant to Section 1.09(a)(ii) or (iii) or (y) if
the affected Eurodollar Loan is then outstanding, upon at least three Business
Days' written notice to Administrative Agent, require the affected Lender to
convert such Eurodollar Loan into a Base Rate Loan; provided that, if more than
one Lender is affected at any time, then all affected Lenders must be treated
the same pursuant to this Section 1.09(b).
(c) If at any time after the Funding Date, any Lender determines that the
introduction of or any change in any applicable law or governmental rule,
regulation, order, guideline, directive or request (whether or not having the
force of law) concerning capital adequacy, or any change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency, will have the effect of increasing the amount of capital required or
expected to be maintained by such Lender or any corporation controlling such
Lender based on the existence of such Lender's Commitments hereunder or its
obligations hereunder, then Borrower shall pay to such Lender, upon its written
demand therefor, such additional amounts as shall be required to compensate such
Lender or such other corporation for the increased cost to such Lender or such
other corporation or the reduction in the rate of return to such Lender or such
other corporation as a result of such increase of capital. Such Lender's
reasonable good faith determination of compensation owing under this Section
1.09(c) shall, absent manifest error, be final and conclusive and binding on all
the parties hereto. Each Lender, upon determining that any additional amounts
will be payable pursuant to this Section 1.09(c), will give prompt written
notice thereof to Borrower, which notice shall set forth the basis of the
calculation of such additional amounts, although the failure to give any such
notice shall not release or diminish Borrower's obligations to pay additional
amounts pursuant to this Section 1.09(c) upon the subsequent receipt of such
notice.
1.10 Compensation. Borrower shall compensate each Lender, upon its written
request (which request shall set forth the reason for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Lender
to fund its Eurodollar Loans but excluding any loss of anticipated margin or
profit) which such Lender may sustain: (i) if for any reason (other than a
default by such Lender) a conversion from or into Eurodollar Loans does not
occur on a date specified therefor in a Notice of Conversion (whether or not
withdrawn by Borrower or deemed withdrawn pursuant to Section 1.09(a)); (ii) if
any repayment (including any repayment made pursuant to Section 2.02 or as a
result of an acceleration of the Loans pursuant to Section 7) or conversion of
any of its Eurodollar Loans occurs on a date which is not the last day of an
Interest Period with respect thereto; (iii) if any prepayment of any of its
Eurodollar Loans is not made on any date specified in a notice of prepayment
given by Borrower; or (iv) as a consequence of (x) any other default by Borrower
to repay its Loans when required by the terms of this Agreement or any Note held
by such Lender or (y) any election made pursuant to Section 1.09(b) or Section
1.12. Calculation of all amounts payable to a Lender under this Section 1.10
shall be made as though that Lender had actually funded its relevant Eurodollar
Loan through the purchase of a Eurodollar deposit bearing interest at the
Eurodollar Rate in an amount equal to the amount of that Loan, having maturity
comparable to the relevant Interest Period and through the transfer of such
Eurodollar deposit from an offshore office of that Lender to a domestic office
of that Lender in the United States; provided, however, that each Lender may
fund each of its Eurodollar Loans in any manner it sees fit and the foregoing
assumption shall be utilized only for the calculation of amounts payable under
this Section 1.10.
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<PAGE>
1.11 Change of Lending Office. Each Lender agrees that on the occurrence of
any event giving rise to the operation of Section 1.09(a)(ii) or (iii), Section
1.09(c) or Section 2.04 with respect to such Lender, it will, if requested by
Borrower, use reasonable good faith efforts (subject to overall policy
considerations of such Lender) to designate another lending office for any Loans
affected by such event; provided that such designation is made on such terms
that such Lender and its lending office suffer no significant economic, legal or
regulatory disadvantage, with the object of avoiding the consequence of the
event giving rise to the operation of such Section. Nothing in this Section 1.11
shall affect or postpone any of the obligations of Borrower or the right of any
Lender provided in Sections 1.09 and 2.04.
1.12 CCC Restrictions. If Borrower receives a notice from any applicable
Gaming Authority that a Lender is not qualified to make Loans to Borrower or to
hold the securities of a casino licensee under applicable Gaming Laws (and such
Lender is notified by Borrower and the Lead Arranger in writing of such
disqualification), Borrower shall have the right to replace such Lender with a
Person that is an Eligible Transferee or prepay the Loans held by such Lender,
even if a Default exists. Any such prepayment shall be deemed voluntary
prepayment, as set forth in Section 2.01. Notice to such Lender shall be given
ten (10) days before the required date of transfer or prepayment, as the case
may be, and shall be accompanied by evidence demonstrating that such transfer or
redemption is required pursuant to Gaming Laws. Upon receipt of a notice in
accordance with the foregoing, the replaced Lender shall cooperate with Borrower
in effectuating the required transfer or prepayment within the time period set
forth in such notice, not to be less than the minimum notice period set forth in
the foregoing sentence. Further, if the transfer or prepayment is triggered by
notice from the Gaming Authority that the Lender is disqualified, commencing on
the date the Gaming Authority serves the disqualification notice upon Borrower:
(i) such Lender shall no longer receive any interest on the Loans; (ii) such
Lender shall no longer exercise, directly or through any trustee or nominee, any
right conferred by the Loans; and (iii) such Lender shall not receive any
remuneration in any form from Borrower for services or otherwise in respect of
the Loans.
SECTION 2. Prepayments; Payments; Taxes.
2.01 Voluntary Prepayments. Borrower shall have the right to prepay the
Loans, without premium or penalty, in whole or in part at any time and from time
to time on the following terms and conditions: (i) Borrower shall give
Administrative Agent prior to 12:00 Noon (New York time) at its Notice Office
(x) at least one Business Day prior to the date that a prepayment of Base Rate
Loans is to be made, prior written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay Base Rate Loans and (y) at least
three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of its intent to prepay Eurodollar Loans, the amount of
such prepayment and the Types of Loans to be prepaid and, in the case of
Eurodollar Loans, the specific conversion or conversions pursuant to which made,
which notice Administrative Agent shall promptly transmit to each of the
Lenders; (ii) each prepayment shall be in an aggregate principal amount of at
least $1,000,000 (or, if less, the full amount of such outstanding Loans);
provided that if any partial prepayment of Eurodollar Loans shall reduce the
outstanding Eurodollar Loans to an amount less than $5,000,000, then such
Borrowing may not be continued as a Borrowing of Eurodollar Loans and any
election of an Interest Period with respect thereto given by Borrower shall have
no force or effect; (iii) prepayments of Eurodollar Loans made pursuant to this
Section 2.01 on any day other than the last day of an Interest Period applicable
thereto shall be accompanied by the amounts
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required under Section 1.10; and (iv) each prepayment in respect of any Loans
pursuant to a Borrowing shall, except as set forth below, be applied pro rata
among such Loans.
2.02 Mandatory Repayments.
(a) Final Maturity. Notwithstanding anything to the contrary contained
elsewhere in this Agreement, all then outstanding Loans shall be repaid in full
on the Maturity Date.
(b) Asset Sales. In addition to any other mandatory repayments pursuant to
this Section 2.02, on each date after the Funding Date upon which Borrower or
any of its Subsidiaries receives proceeds from any sale of assets (other than
Excluded Asset Sales), an amount equal to 100% of the Net Sale Proceeds
therefrom shall be applied as a mandatory repayment of principal of outstanding
Loans in accordance with the requirements of Section 2.02(e); provided that such
Net Sale Proceeds shall not be required to be so applied on such date to the
extent that Borrower shall have delivered a certificate to Administrative Agent
on or prior to such date stating that such Net Cash Proceeds shall be used to
purchase replacement assets or to make improvements or additions to existing
properties or new properties related to the Casino-Hotel no later than 180 days
following the date of such sale of assets (which certificate shall set forth the
estimates of the proceeds to be so expended); provided, however, that if all or
any portion of such Net Cash Proceeds not required to be applied to the
prepayment of outstanding Loans shall not be so reinvested in replacement assets
within such 180-day period, such unused portion shall be applied on the last day
of such period as a mandatory prepayment of principal of outstanding Term Loans
as provided in this Section 2.02(b).
(c) Takings or Casualties. In addition to any other mandatory repayments
pursuant to this Section 2.02, within 10 days following each date after the
Funding Date on which Borrower or any of its Subsidiaries receives any proceeds
from a Total Taking or Casualty, an amount equal to 100% of the net proceeds of
such Total Taking or Casualty (net of reasonable costs and taxes incurred in
connection with such Total Taking or Casualty including any amounts paid by
Borrower in connection with self-insurance payments or obligations but excluding
proceeds of business interruption insurance) shall be applied as a mandatory
repayment of principal of outstanding Loans in accordance with the requirements
of Section 2.02(e); provided that with respect to any Taking or Casualty that
shall not constitute a Total Taking or Casualty, Borrower shall comply with the
applicable provisions of the Credit Facility Mortgage.
(d) Issuance of Equity or Indebtedness. In addition to any other mandatory
repayments pursuant to this Section 2.02, on each date after the Funding Date
upon which Borrower or any of its Subsidiaries receives any proceeds in cash or
Temporary Cash Investments from any capital contribution or sale or issuance of
its equity from any Person (other than Borrower or its Subsidiaries) or the
issuance of any indebtedness (other than Permitted Indebtedness), an amount
equal to 100% of the net proceeds (net of underwriting discounts and commissions
and other costs associated therewith including, without limitation, legal and
other professional fees and expenses) of such capital contribution or sale or
issuance of its equity or indebtedness shall be applied as a mandatory repayment
of principal of outstanding Loans in accordance with the requirements of Section
2.02(e).
(e) Application of Payments. Each amount required to be applied to Loans
pursuant to Sections 2.02(b), (c) and (d) shall be applied pro rata to each
Lender. Any amount required
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to be applied to Loans pursuant to Sections 2.02(b), (c) and (d) shall be
applied to repay the outstanding principal amount of Loans then outstanding.
With respect to each repayment of Loans required by this Section 2.02, Borrower
may designate the Types of Loans which are to be repaid and, in the case of
Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which made;
provided that (i) repayments of Eurodollar Loans pursuant to this Section 2.02
may only be made on the last day of an Interest Period applicable thereto unless
all Eurodollar Loans with Interest Periods ending on such date of required
repayment and all Base Rate Loans have been paid in full; and (ii) if any
repayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce
the outstanding Eurodollar Loans made pursuant to such conversion to an amount
less than $5,000,000, such Borrowing shall be converted at the end of the then
current Interest Period into a Base Rate Loan. In the absence of a designation
by Borrower as described in the preceding sentence, Administrative Agent shall,
subject to the above, make such designation in its sole discretion.
2.03 Method and Place of Payment. Except as otherwise specifically provided
herein, all payments under this Agreement or any Note shall be made to
Administrative Agent for the account of the Lender or Lenders entitled thereto
not later than 1:00 P.M. (New York time) on the date when due and shall be made
in Dollars in immediately available funds at the Payment Office of
Administrative Agent. Whenever any payment to be made hereunder or under any
Note shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal, interest shall be payable at the applicable
rate during such extension.
2.04 Net Payments. (a) Except as provided in this Section 2.04, all
payments made by Borrower to each Lender or Administrative Agent under this
Agreement or under any Note shall be made without setoff, counterclaim or other
defense and free and clear of, and without deduction or withholding for, any
Covered Taxes levied or imposed by any Governmental Authority with respect to
such payments. In addition, Borrower agrees to pay any current or future stamp,
intangible or documentary taxes or any other excise or property taxes, charges
or similar levies (including mortgage recording taxes and similar fees but not
including any Excluded Taxes) that arise from the execution, delivery or
registration of or otherwise with respect to (other than as to any payments,
Taxes on which shall be governed by the preceding sentence) this Agreement, or
any other document in connection with this Agreement or any Note (all such
taxes, charges and levies are hereinafter referred to as, collectively, "Other
Taxes").
(b) If Borrower shall be required by law to deduct or withhold any Covered
Taxes from or in respect of any sum payable hereunder to any Lender or
Administrative Agent, then except as provided in this Section 2.04, (i) the sum
payable shall be increased as necessary so that after making all such required
deductions and withholdings (including deductions and withholdings applicable to
additional sums payable under this Section 2.04) such Lender or such Agent, as
the case may be, receives an amount equal to the sum it would have received had
no such deductions or withholdings been made; (ii) Borrower shall make such
deductions and withholdings; and (iii) Borrower shall pay the full
amountdeducted or withheld to the relevant taxing authority or other authority
in accordance with applicable law. Within 30 days after the date of any payment
by Borrower of Covered Taxes or Other Taxes, Borrower shall furnish to
Administrative Agent the original or a certified copy of a receipt evidencing
payment thereof, or other evidence of payment reasonably satisfactory to
Administrative Agent.
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(c) Borrower agrees to indemnify and hold harmless each Lender and each
Agent for (i) the full amount of Covered Taxes (including any Covered Taxes
imposed on amounts payable under this Section 2.04) which arise from any payment
made under this Agreement or any Note and are paid by such Lender or such Agent
and any liability (including penalties, interest, additions to tax and expenses)
arising therefrom or with respect thereto, whether or not such Covered Taxes
were correctly or legally asserted, and (ii) any Taxes paid or payable by such
Lender or such Agent (the amount of which will be determined in good faith by
such Lender or such Agent in its sole discretion, and will be binding on all
parties to this Agreement unless manifestly unreasonable) which were levied or
imposed by any Governmental Authority on any additional amounts paid by Borrower
under this Section 2.04. A certificate as to the amount of any such required
indemnification payment prepared with a reasonable basis by the Lender or such
Agent shall be final, conclusive and binding for all purposes. Payment under
this indemnification shall be made within 30 days after the date such Lender or
such Agent makes written demand therefor by the delivery of such certificate.
(d) If a Lender or Agent receives a refund or credit of Taxes paid by
Borrower pursuant to subsection (b) or (c) of this Section 2.04, then such
Lender or such Agent shall promptly repay Borrower such amount as the Lender or
Administrative Agent determines will leave it, after such payment, in no better
or worse financial position than if the Taxes giving rise to such refund or
credit had never been imposed in the instance; provided, however, that if, due
to any adjustment of such Taxes, such Lender or such Agent loses the benefit of
all or any portion of such refund or credit, Borrower will indemnify and hold
harmless such Lender or such Agent in accordance with this subsection; provided,
further, however, that such Lender will determine the amount of any such refund
or credit, and the amount of any lost benefit in respect thereof, in its sole
discretion, and such determinations will be binding on all parties to this
Agreement unless manifestly unreasonable. Nothing in this Section 2.04(d) shall
require any Lender to disclose its Tax Returns to Borrower or any of its
Subsidiaries.
(e) If Borrower is required to pay additional amounts to any Lender or
Administrative Agent on behalf of any Lender pursuant to this Section 2.04, then
such Lender shall use reasonable efforts (consistent with legal and regulatory
restrictions) to change the jurisdiction of its Lending Office or take other
appropriate action so as to eliminate any such additional payment by Borrower
which may thereafter accrue, if such change or other action in the reasonable
judgment of such Lender is not otherwise disadvantageous to such Lender.
(f) (i) Each Lender which is a U.S. Person (as defined in Section
7701(a)(30) of the Code) agrees that it shall, no later than the Funding Date
(or, in the case of a Lender which becomes a party hereto after the Funding
Date, the date upon which such Lender becomes a party hereto), deliver to
Administrative Agent and to Borrower through Administrative Agent two accurate
and complete signed originals of Internal Revenue Service Form W-9 or any
successor thereto, as appropriate.
(ii) Each Lender which is not a U.S. Person (as defined in Section
7701(a)(30) of the Code) agrees that it shall, no later than the Funding Date
(or, in the case of a Lender which becomes a party hereto after the Funding
Date, the date upon which such Lender becomes a party hereto), deliver to
Administrative Agent and to Borrower through Administrative Agent (x) two
accurate and complete signed originals of Internal Revenue Service Form W-8ECI
(certifying the Lender's
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status as beneficial owner and entitlement to exemption from withholding on the
income as effectively connected with the conduct of a U.S. trade or business) or
W-8BEN (certifying the Lender's status as beneficial owner and entitlement to
the benefits, if any, of an income tax treaty) or any successor thereto, as
appropriate, or (y) if such Lender is not a "bank" within the meaning of Section
881(c)(3)(A) of the Code and cannot deliver either Internal Revenue Service Form
W-8ECI or Form W-8BEN pursuant to clause (x) above, a certificate (any such
certificate, a "Section 2.04(f) Certificate") and, in the case of either clause
(x) or (y), two accurate and complete original signed copies of Internal Revenue
Service Form W-8BEN (certifying the Lender's status as beneficial owner).
(iii) Each Lender shall, before or promptly after the occurrence of any
event (including the passing of time) requiring a change in or renewal of the
most recent Form W-9, Form W-8ECI, Form W-8BEN or Section 2.04(f) Certificate
previously delivered by such Lender, deliver to Administrative Agent and to
Borrower through Administrative Agent two accurate and complete original signed
copies of Form W-9, Form W-8ECI, Form W-8BEN or a Section 2.04(f) Certificate,
as the case may be, in replacement of the forms previously delivered by such
Lender.
(iv) Each Lender shall, unless unable to do so by virtue of a Change in Law
occurring after the date such Lender becomes a party hereto, certify (to the
extent it has not already done so in clause (i) or clause (ii)) (x) either (1)
that it is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes, or (2) in the case of
an assignee Lender that becomes a party hereto after the Funding Date, that it
is subject to deduction or withholding of United States federal income taxes at
a rate no greater than the rate applicable to the assignor Lender, and (y) that
it is entitled to an exemption from United States backup withholding tax.
(v) Notwithstanding the foregoing provisions of this subsection (f) or any
other provision of this Section 2.04, following the date it becomes a party
hereto, no Lender shall be required to deliver any form pursuant to this Section
2.04 if such Lender is not then legally able to do so as result of a Change in
Law that occurs following the date it becomes a party hereto.
(g) Borrower will not be required to pay any additional amount in respect
of Taxes pursuant to this Section 2.04 to any Lender or to Administrative Agent
with respect to any Lender if (i) the obligation to pay such additional amount
would not have arisen but for a failure by such Lender to comply with its
obligations under Section 2.04(f) or (ii) in the case of an assignee Lender, to
the extent Borrower would not have been obligated to pay such additional amount
to the assignor Lender, except to the extent the obligation to pay an excess
additional amount to the assignee Lender resulted from a Change in Law occurring
after the date the assignee Lender became a party hereto.
SECTION 3. Conditions Precedent to Effective Date. The occurrence of the
Effective Date pursuant to Section 11.10 is subject to the satisfaction of the
following conditions:
3.01 Execution of Agreement; Notes. On or prior to the Effective Date (i)
this Agreement shall have been executed and delivered as provided in Section
11.10 and (ii) if requested by any Lender in writing, there shall have been
delivered to Administrative Agent for the account of
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such Lender the appropriate Note executed by Borrower, in each case in the
amount, maturity and as otherwise provided herein, which Note shall be held in
escrow by counsel to Administrative Agent and dated and delivered to such Lender
on the Funding Date.
3.02 Opinions of Counsel. On the Effective Date, Administrative Agent shall
have received from Graham Curtin & Sheridan and Sterns & Weinroth, in each case
special counsel to Borrower, an opinion addressed to Administrative Agent and
each of the Lenders and dated as of the Effective Date in form and substance
reasonably acceptable to counsel to Administrative Agent, which opinion of
Sterns & Weinroth shall be held in escrow by counsel to Administrative Agent and
delivered to Administrative Agent on the Funding Date.
3.03 Corporate Documents; Proceedings; etc. (a) On the Effective Date,
Administrative Agent shall have received (i) a certificate of the Secretary or
Assistant Secretary of TCHI in the form of Exhibit D with the attachments
described therein and (ii) a long form certificate as to the good standing for
Borrower and TCHI.
(b) All corporate and legal proceedings and all material instruments and
agreements in connection with the transactions contemplated by the Credit
Documents shall be reasonably satisfactory in form and substance to
Administrative Agent and the Required Lenders, and Administrative Agent shall
have received all information and copies of all documents and papers, including
records of corporate proceedings, governmental approvals, good standing
certificates and bring-down telegrams or facsimiles, if any, which
Administrative Agent reasonably may have requested in connection therewith, such
documents and papers where appropriate to be certified by proper corporate or
Governmental Authorities.
3.04 Transactions, etc. (a) Administrative Agent shall have received
satisfactory evidence that Borrower shall (x) on the Effective Date, deliver
appropriate documentation, in form and substance satisfactory to the
Administrative Agent, to the trustees under the Existing Senior Note Indenture
in order to effectuate a redemption of the Existing Senior Notes and (y) on the
Funding Date, use the proceeds of the Loans to pay or redeem the Existing Senior
Notes and extinguish all intercompany indebtedness related thereto.
(b) Administrative Agent shall have received satisfactory evidence that,
after giving effect to the Credit Documents and the discharge of the Existing
Senior Note Indentures and respective related agreements (together the
"Transactions"), Borrower and its Subsidiaries shall have no outstanding
Indebtedness or preferred stock other than (1) the Loans made on the Effective
Date, (2) the Second Priority Notes, (3) the PIK Notes and (4) the Existing
Indebtedness.
3.05 Solvency Certificate; Insurance. On or before the Effective Date,
Borrower shall cause to be delivered to Administrative Agent (i) a solvency
certificate from the chief financial officer of Borrower in the form of Exhibit
E hereto and (ii) certificates of insurance naming Administrative Agent as an
additional insured and/or loss payee and otherwise complying with the
requirements ofthe Credit Facility Mortgage Documents for the business and
properties of Borrower and its Subsidiaries, in scope and form reasonably
satisfactory to Administrative Agent.
3.06 Officer's Certificate. On the Effective Date, Administrative Agent
shall
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have received a certificate dated such date and signed by an appropriate officer
of Borrower, confirming compliance with the conditions precedent set forth in
this Section 3.
3.07 Approvals. On or prior to the Effective Date, all necessary and
material governmental (domestic and foreign (other than any Gaming Authority))
and third party approvals (including the Noteholder Representatives (as defined
in the Partnership Agreement)) in connection with the transactions contemplated
by the Credit Documents and otherwise referred to herein or therein shall have
been obtained and remain in effect and all applicable waiting periods shall have
expired without any action being taken by any competent authority which
materially restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated by the Credit Documents and otherwise referred to
herein or therein. Additionally, there shall not exist any judgment, order,
injunction or other restraint issued or filed or a hearing seeking injunctive
relief or other restraint pending or notified prohibiting or imposing materially
adverse conditions upon the making of Loans.
3.08 Credit Facility Mortgage Documents. On the Effective Date, Borrower
shall have authorized, executed and delivered all documents, including, without
limitation, the Credit Facility Mortgage and the Intercreditor Agreement, and,
subject to the proviso of this Section 3.08, taken all actions necessary or
appropriate as described on Schedule 3.08 to grant in favor of Administrative
Agent a valid and perfected first priority (subject to Permitted Liens) security
interest in the Collateral; provided that any documents to be filed or recorded
in connection therewith shall be held in escrow by counsel to Administrative
Agent and filed or recorded on the Funding Date.
3.09 Adverse Change, etc. (a) At the Effective Date and after giving effect
thereto, nothing shall have occurred since December 31, 2001 (and Administrative
Agent shall have become aware of no facts, conditions or other information not
previously available to them) which Administrative Agent reasonably believes
could have a material adverse effect on: (i) the rights or remedies of
Administrative Agent or the Lenders, (ii) the ability of Borrower to perform its
obligations to Administrative Agent and the Lenders or (iii) the general
affairs, management, business, properties, assets, condition (financial or
otherwise), prospects or results of operations of Borrower, or Parent (the
circumstances described in clauses (i), (ii) and (iii) as they apply to Borrower
and its Subsidiaries being collectively referred to as a "Material Adverse
Effect").
(b) As of the Effective Date, there shall not have occurred since May 1,
2002 (i) a suspension in trading in securities generally on the New York or
American Stock Exchange and the establishment of minimum or maximum prices on
any such exchange; (ii) the declaration of a banking moratorium by New York or
United States authorities; (iii) a material adverse change or material
disruption in the financial, banking or capital markets generally (including,
without limitation, the markets for loans or debt securities), which has had or
could reasonably be expected to have a material adverse effect on the
syndication of any portion of the credit facility or any refinancing thereof, as
determined in the sole reasonable discretion of the Lead Arranger. In addition,
Borrower shall have fully co-operated in the Lead Arranger's syndication efforts
for the credit facilities provided for in this Agreement, including, without
limitation, by promptly providing the Lead Arranger with all information
reasonably deemed necessary by it to successfully complete the syndication.
3.10 Litigation. On the Effective Date, no litigation by any entity
(private or gov-
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ernmental) shall be pending or threatened with respect to this Agreement or any
documentation executed in connection therewith, or which Administrative Agent
shall reasonably believe could have a Material Adverse Effect.
3.11 Financial Statements; Projections. On or prior to the Effective Date,
Administrative Agentshall have received any financial statements, pro forma
financial statements and/or projections that it may reasonably request.
SECTION 4. Conditions Precedent to Funding Date. The occurrence of the
funding of the Loans("Funding Date") is subject to the satisfaction of the
following conditions:
4.01 Payment of Fees. On the Funding Date, all costs, fees and expenses,
and all other compensation contemplated by this Agreement or the Fee Letter due
to Administrative Agent or the Lenders (including, without limitation,
reasonable legal fees and expenses), shall have been paid to the extent then
due.
4.02 Transactions, etc. Administrative Agent shall have received
satisfactory evidence that Borrower shall, on the Funding Date, use the proceeds
of the Loans to pay or redeem the Existing Senior Notes and all intercompany
indebtedness related thereto shall have been extinguished.
4.03 Minimum EBITDA. Administrative Agent shall have received satisfactory
evidence that Borrower shall for the four quarter period ended on June 30, 2002,
taken as one accounting period, have EBITDA of at least $51.0 million.
4.04 Approvals. On or prior to the Funding Date, all necessary and material
Gaming Authority approvals in connection with the transactions contemplated by
the Credit Documents and otherwise referred to herein or therein shall have been
obtained and remain in effect.
4.05 Officer's Certificate. On the Funding Date, Administrative Agent shall
have received a certificate dated such date and signed by an appropriate officer
of Borrower, confirming compliance with the conditions precedent set forth in
Section 4.
SECTION 5. Representations, Warranties and Agreements. In order to induce
the Lenders to enter into this Agreement and to make the Loans as provided
herein, Borrower makes the following representations, warranties and agreements,
all of which shall survive the execution and delivery of this Agreement and the
Notes, and the making of the Loans on the Funding Date being deemed to
constitute a representation and warranty that the matters specified in this
Section 5 are true and correct in all material respects on and as of the
Effective Date (it being understood and agreed that any representation or
warranty which by its terms is made as of a specified date shall be required to
be true and correct only as of such specified date).
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5.01 Corporate Status. Borrower and each of its Subsidiaries (i) is a duly
organized and validly existing limited partnership or other organization in good
standing under the laws of the jurisdiction of its incorporation, (ii) has the
organizational power and authority to own its property and assets and to
transact the business in which it is engaged and (iii) is duly qualified and is
authorized to do business and is in good standing in each jurisdiction where the
conduct of its business requires such qualifications except for failures to be
so qualified which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
5.02 Corporate Power and Authority. Borrower has the organizational power
and authority to execute, deliver and perform the terms and provisions of each
of the Credit Documents to which it is party and has takenall necessary
organizational action to authorize the execution, delivery andperformance by it
of each of such Credit Documents. Borrower has duly executed and delivered each
of the Credit Documents to which it is party, and, assuming due execution and
delivery of each other party thereto, each of such Credit Documents constitutes
the legal, valid and binding obligation of Borrower, enforceable against
Borrower in accordance with its terms, except to the extent that the
enforceability thereof may be limited by (a) bankruptcy, insolvency, fraudulent
conveyance, preferential transfer, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting creditors' rights and
remedies generally, (b) general principles of equity (whether such
enforceability is considered in a proceeding in equity or at law), and by the
discretion of the court before which any proceeding therefor may be brought, or
(c) public policy considerations or court, administrative, regulatory or other
governmental decisions that may limit rights to indemnification or contribution
or limit or affect any covenants or agreements relating to competition or future
employment.
5.03 No Violation. Neither the execution, delivery or performance by
Borrower of the Credit Documents to which it is a party, nor compliance by it
with the terms and provisions thereof, (i) will contravene any provision of any
applicable law, statute, rule or regulation or any applicable order, writ,
injunction or decree of any court or governmental instrumentality, in each case,
to the extent such contravention could reasonably be expected to result in a
Material Adverse Effect, (ii) will conflict with or result in any breach of any
of the terms, covenants, conditions or provisions of, or constitute a default
under, or result in the creation or imposition of (or the obligation to create
or impose) any Lien (except pursuant to the Credit Facility Mortgage Documents)
upon any of the material properties or assets of Borrower or any of its
Subsidiaries or Parent pursuant to the terms of, any indenture, mortgage, deed
of trust, credit agreement or loan agreement, or any other material agreement,
contract or instrument (including, without limitation, the indentures and other
related agreements in respect of the Second Priority Notes and the PIK Notes),
to which Parent, Borrower or any of its Subsidiaries is a party or by which it
or any of its property or assets is bound or to which it may be subject, which
conflict, breach or default would not reasonably be expected to have a Material
Adverse Effect, or (iii) will violate any provision of the organizational
documents of Borrower or any of its Subsidiaries.
5.04 Governmental Approvals. No consent, approval, authorization or order
of any court or governmental agency or body, or third party, is required in
connection with (i) the execution, delivery and performance of any Credit
Documents or (ii) the legality, validity, binding effect or enforceability of
any such Credit Document, except such as have been obtained. None of Borrower or
its Subsidiaries is (i) in violation of its organizational documents, (ii) in
breach or violation of any
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statute, judgment, decree, order, rule or regulation applicable to any of them
or any of their respective properties or assets, except for any such breach or
violation that would not, individually or in the aggregate, be reasonably
expected to have a Material Adverse Effect, or (iii) in breach of or default
under (nor has any event occurred that, with notice or passage of time or both,
would constitute a default under) or in violation of any of the terms or
provisions of any indenture, mortgage, deed of trust, loan agreement, note,
lease, license, franchise agreement, permit, certificate, contract or other
agreement or instrument to which any of them is a party or to which any of them
or their respective properties or assets is subject (collectively, "Contracts"),
except for any such breach, default, violation or event that would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect; all such consents, approvals, authorizations, licenses,
qualifications, exemptions and orders (including, without limitation, pursuant
to any statutes, laws, rules or regulations relating to gaming or wagering which
are applicable to the businesses of Borrower or its Subsidiaries) which are
required to be obtained by the Effective Date have been obtained and are in full
force and effect and not the subject of any pending, or threatened, attack by
appeal or direct proceeding or otherwise.
5.05 Financial Statements; Financial Condition; Undisclosed Liabilities;
etc. (a) The audited annual and unaudited interim financial statements (as to
Borrower and as to its Subsidiaries on a combined basis) delivered to
Administrative Agent present fairly in all material respects the financial
condition of Borrower at the dates of said statements and the results for the
periods covered thereby. All such financial statements have been prepared in
accordance with GAAP consistently applied and the financial statements as of and
for the fiscal years have been audited by and accompanied by the opinion of
Arthur Andersen LLP, independent public accountants.
(b) Since December 31, 2001, after giving effect to the Transactions,
nothing has occurred that has had or could reasonably be expected to have a
Material Adverse Effect.
(c) Immediately after the consummation of the Transactions contemplated by
this Agreement, the fair value and present fair saleable value of the assets of
each of Borrower and its Subsidiaries (each on a consolidated basis) will exceed
the sum of its stated liabilities and identified contingent liabilities; none of
Borrower and its Subsidiaries (each on a consolidated basis) is, nor will any of
them (each on a consolidated basis) be, after giving effect to the execution,
delivery and performance of this Agreement and the consummation of the
Transactions contemplated hereby, (a) left with unreasonably small capital with
which to carry on its business as it is proposed to be conducted, (b) unable to
pay its debts (contingent or otherwise) as they mature or (c) otherwise
insolvent.
(d) Except as fully disclosed in the financial statements delivered to
Administrative Agent, and except for the Indebtedness incurred under this
Agreement and the Transactions, there were as of the Effective Date no
liabilities or obligations with respect to Borrower or any of its Subsidiaries
of any nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in aggregate, would be
material to Borrower and its Subsidiaries taken as a whole. As of the Effective
Date, Borrower knows of no basis for the assertion against it of any liability
or obligation of any nature whatsoever that is not fully disclosed in the
financial statements delivered to Administrative Agent which, either
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.06 Litigation. There is not pending or, to the knowledge of Borrower or
any of
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<PAGE>
its Subsidiaries, threatened any action, suit, proceeding, inquiry or
investigation to which Borrower or any of its Subsidiaries is, or to which the
property or assets of Borrower or any of its Subsidiaries are, subject, before
or brought by any court, arbitrator or governmental agency or body that, if
determined adversely to Borrower or any of its Subsidiaries, as the case may be,
would, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
5.07 True and Complete Disclosure. To the best of Borrower's
knowledge, no factual information (taken as a whole) furnished by Borrower in
writing to Administrative Agent for purposes of or in connection with this
Agreement, the other Credit Documents or any transaction contemplated herein or
therein contained, and no other such factual information (taken as a whole)
hereafter furnished by Borrower in writing to Administrative Agent or any Lender
will contain, any untrue statement of a material fact or omitted or will omit
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
5.08 Use of Proceeds; Margin Regulations. (a) All proceeds of
the Loans shall be used by Borrower solely to refinance the Existing Senior
Notes and pay fees and expenses related thereto.
(b) No part of the proceeds of any Loan will be used to
purchase or carry any Margin Stock or to extend credit for the purpose of
purchasing or carrying any Margin Stock in violation of Regulation U of the
Board of Governors of the Federal Reserve System. Neither the making of any Loan
nor the use of the proceeds thereof will violate or be inconsistent with the
provisions of Regulation T, U or X of the Board of Governors of the Federal
Reserve System.
5.09 Tax Returns and Payments. Each of Borrower and its
Subsidiaries has filed all necessary federal, state and foreign income and
franchise Tax Returns, except where the failure to file such returns would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect, and has paid all taxes shown as due thereon; and other than tax
deficiencies that any of Borrower and its Subsidiaries is contesting in good
faith and for which any of them has provided adequate reserves, there is no tax
deficiency that has been asserted against any of Borrower and its Subsidiaries
that would be reasonably expected to have, individually or in the aggregate, a
Material Adverse Effect.
5.10. Compliance with ERISA. None of Borrower or any of its
Subsidiaries has any liability for any prohibited transaction or funding
deficiency or any complete or partial withdrawal liability with respect to any
pension, profit sharing or other plan that is subject to the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), to which any of them makes or
ever has made a contribution and in which any employee of Borrower or any of its
Subsidiaries is or has ever been a participant. With respect to such plans, each
of Borrower and its Subsidiaries is in compliance in all material respects with
all applicable provisions of ERISA.
5.11 The Credit Facility Mortgage Documents and Properties. (a)
The provisions of the Credit Facility Mortgage Documents are effective to create
in favor of Administrative Agent for the benefit of the Lenders a legal, valid
and enforceable security interest in all right, title and interest of Borrower
in the Collateral described therein, as collateral security for the payment and
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performance of the Loans and the other Obligations, and the Credit Facility
Mortgage Documents, upon the filing of Form UCC-1 financing statements or the
appropriate equivalent or other methods of perfection and upon recording the
applicable Credit Facility Mortgage Documents in the jurisdictions in which the
real property covered by the applicable Credit Facility Mortgage is located,
creates a fully (and to the extent required by the Credit Facility Mortgage
Documents) perfected first lien on, and security interest in, all right, title
and interest in all of the Collateral described therein, which security interest
shall be subject to no other Liens other than Permitted Liens. The Credit
Facility Mortgage Documents encumber that same collateral and have the same
priority of security interest that was granted to the trustees under the
Existing Senior Notes.
(b) Borrower has good title to all real property owned by it
(including, without limitation, the Trust Estate free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (i) are created or permitted pursuant to
the Credit Documents or (ii) do not, individually or in the aggregate,
materially affect the value of such property and do not interfere with the use
made and proposed to be made of such property by Borrower; and all of the leases
and subleases material to the business of Borrower (including, without
limitation, the portion of the Trust Estate subject to a leasehold mortgage),
and under which Borrower holds properties, are in full force and effect, and
Borrower has not received any notice of any material claim of any sort that has
been asserted by anyone adverse to the rights of Borrower under any of the
leases or subleases mentioned above, or affecting or questioning the rights of
Borrower to the continued possession of the leased or subleased premises under
any such lease or sublease which claim if adversely determined would reasonably
be expected to have a Material Adverse Effect.
(c) No taking has been commenced or to the knowledge of
Borrower is contemplated with respect to all or any portion of the Trust Estate
or for the relocation of roadways providing access to the Premises. There are no
actions, suits, claims, legal proceedings or other proceedings affecting any
portion of the Trust Estate before any court or agency the adverse determination
of which could reasonably be expected to have a Material Adverse Effect.
(d) The Trust Estate has adequate rights of access to public
ways and is served by all necessary utilitiy facilities except as could not
reasonably be expected to have a Material Adverse Effect. To Borrower's
knowledge, all public utilities necessary for the continued use and enjoyment of
the Trust Estate as presently used and enjoyed are located in the public
right-of-way abutting the premises or within easements serving the premises, and
all such utilities are connected so as to serve the Trust Estate without passing
over other property, (i) except for such easements or property of the utility
company providing such utility service in each case or (ii) except as could not
reasonably be expected to have a Material Adverse Effect. To Borrower's
knowledge, all roads necessary for the full utilization of the Trust Estate for
its current purpose have been completed and dedicated to public use and accepted
by all applicable regulatory and governmental authorities or are the subject of
leases or access easements for the benefit of the Trust Estate except as could
not reasonably be expected to have a Material Adverse Effect.
(e) There are no pending or to the knowledge of Borrower
proposed special or other assessments for public improvements or otherwise
affecting the Premises other than those that could not reasonably be expected to
have a Material Adverse Effect, nor are there any contemplated improvements to
any portion of the Trust Estate that may result in such special or other
assessments
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<PAGE>
other than those that could not reasonably be expected to have a Material
Adverse Effect.
(f) None of the buildings within the Trust Estate is located in
a special flood hazard area as defined by the Federal Insurance Administration
except as shown on the survey or could not reasonably be expected to have a
Material Adverse Effect.
(g) The Trust Estate is free of material structural defects and
all material building systems contained therein are in good working order
subject to ordinary wear and tear.
(h) Except as disclosed in the survey delivered in connection
with the title commitment, (i) no improvements on adjoining properties encroach
upon any portion of the Trust Estate, (ii) no easements or other encumbrances
upon the Trust Estate encroach upon any of the improvements, so as to affect the
value or marketability of the Trust Estate except those insured against by title
insurance, (iii) no improvements encroach upon a property line or easement,
requiring removal and relocation of all or a portion of the improvements at the
Premises, and (iv) all of the improvements comply with all requirements of any
applicable zoning and subdivision laws and ordinances, except for noncompliance
that could not reasonably be expected to have a Material Adverse Effect.
(i) Borrower has good title to all personal property owned by
it, including, without limitation, all Collateral, free and clear of all liens,
charges, encumbrances or restrictions, except, in each case, as created or
permitted pursuant to the Credit Documents or such as would not, singly or in
the aggregate, have a Material Adverse Effect.
5.12 Representations and Warranties in Documents. All
representations and warranties set forth in the other Credit Documents are true
and correct in all material respects at the time as of which such
representations and warranties were made (or deemed made) and will be true and
correct in all material respects on the Effective Date.
5.13 Subsidiaries and Corporate Structure. On and as of the
Effective Date, Borrower has no Subsidiaries other the subsidiaries listed on
Schedule 5.13, all of which are wholly-owned. In addition, Schedule 5.13 sets
forth the corporate structure of Borrower and Parent.
5.14 Compliance with Statutes, etc. Borrower and its
Subsidiaries are in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of their business and the
ownership of their property, except such noncompliances as could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
5.15 Investment Company Act. None of Borrower or any of its
Subsidiaries is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act of 1940,
as amended.
5.16 Public Utility Holding Company Act. None of Borrower or any
of its Subsidiaries is a "holding company," or a "subsidiary company" of a
"holding company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public Utility
Holding Company Act of 1935, as amended.
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<PAGE>
5.17 Environmental Matters. Except as would not, individually or
in the aggregate, be reasonably expected to have a Material Adverse Effect, (a)
each of Borrower and its Subsidiaries is in compliance with and not subject to
liability under applicable Environmental Laws, (b) each of Borrower and its
Subsidiaries has made all filings and provided all notices required under any
applicable Environmental Law, and has and is in compliance with all Permits
required under any applicable Environmental Laws and each of them is in full
force and effect, (c) there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter or request for information pending or, to the knowledge
of any of Borrower and its Subsidiaries, threatened against any of Borrower and
its Subsidiaries under any Environmental Law, (d) no lien, charge, encumbrance
or restriction has been recorded under any Environmental Law with respect to any
assets, facility or property owned, operated, leased or controlled by any of
Borrower and its Subsidiaries, (e) none of Borrower or any of its Subsidiaries
has received notice that it has been identified as a potentially responsible
party under the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended ("CERCLA"), or any comparable state law and (f) no
property or facility of any of Borrower and its Subsidiaries is (i) listed or to
the knowledge of Borrower proposed for listing on the National Priorities List
under CERCLA or (ii) listed in the Comprehensive Environmental Response,
Compensation and Liability Information System List promulgated pursuant to
CERCLA, or on any comparable list maintained by any state or local governmental
authority.
5.18 Labor Relations. There is no strike, labor dispute,
slowdown or work stoppage with the employees of Borrower or any of its
Subsidiaries that is pending or, to the knowledge of Borrower or any of its
Subsidiaries, threatened.
5.19 Patents, Licenses, Franchises and Formulas. Borrower and
its Subsidiaries own or possess adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property, including, without limitation, the right to use the "Trump" name and
the likeness of Donald J. Trump, in connection with Borrower and its
Subsidiaries' gaming operations (collectively, "Intellectual Property")
necessary to carry on the business now operated by them or proposed to be
operated by them and none of Borrower or any of its Subsidiaries has received
any notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or of any
facts or circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of Borrower and its Subsidiaries therein, and
which infringement or conflict (if the subject of any unfavorable decision,
ruling or finding) or invalidity or inadequacy, individually or in the
aggregate, would result in a Material Adverse Effect.
5.20 Indebtedness. Schedule 5.20 sets forth a true and complete
list of all Indebtedness of Parent, Borrower and its Subsidiaries as of the
Effective Date (other than the Second Priority Notes and the PIK Notes) and
which is to remain outstanding after the Funding Date (the "Existing I
debtedness"), in each case showing the aggregate principal amount thereof and
the name of the respective borrower and any other entity which directly or
indirectly guaranteed such debt.
5.21 Transactions. On the Effective Date, (a) each of the
Transactions contemplated to occur on the Effective Date shall have been
consummated in all material respects in accor-
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<PAGE>
dance with the terms of the respective documents and all applicable laws, (b)
there shall not exist any judgment, order or injunction prohibiting or imposing
material adverse conditions upon the Transactions or the performance by Borrower
of its obligations under the respective Credit Documents and (c) all actions
taken by Borrower pursuant to or in furtherance of the Transactions will have
been taken in all material respects in compliance with the respective Credit
Documents and all applicable laws. Prior to the Funding Date, all necessary
material consents and approvals of, and filings and registrations with, and all
other actions in respect of, all governmental agencies, authorities or
instrumentalities required in order to make or consummate the Transactions will
have been obtained, given, filed or taken and will be in full force and effect
(or effective judicial relief with respect thereto will have been obtained). On
the Funding Date, the obligations under the Existing Senior Notes will have been
discharged in full by deposit of such amounts as are required under the
indentures in respect thereof with the trustees thereunder.
SECTION 6. Affirmative Covenants. Borrower hereby covenants and
agrees that as of the Effective Date and thereafter for so long as this
Agreement is in effect and until the Loans, together with interest and all other
obligations (other than indemnities described in Section 10.06 which are not
then due and payable) incurred hereunder, are paid in full:
6.01 Information Covenants. Borrower will furnish the following
to each Lender:
(a) Monthly Reports. Within 30 days after the end of each
fiscal month of Borrower, any monthly financial reports delivered to any
Gaming Authority.
(b) Quarterly Financial Statements. Within 45 days after the
close of each of the first three quarterly accounting periods in each
fiscal year of Borrower, consolidated and consolidating balance sheets of
Borrower and its Subsidiaries as at the end of such quarterly accounting
period and the related consolidated and consolidating statements of
operations, statements of changes in stockholders equity, and statements
of cash flows for such quarterly accounting period and for the elapsed
portion of the fiscal year ended with the last day of such quarterly
accounting period, all of which shall be in reasonable detail and
certified by the chief financial officer or other Authorized Officer of
Borrower that they fairly present in all material respects the financial
condition of Borrower and its Consolidated Subsidiaries taken as a whole
as of the dates indicated and the results of their operations and changes
in their cash flows for the periods indicated, subject to normal year-end
audit adjustments and the absence of footnotes.
(c) Annual Financial Statements. Within 95 days after the close
of each fiscal year of Borrower, (i) the consolidated and consolidating
balance sheets of Borrower and its Consolidated Subsidiaries as at the
end of such fiscal year and the related consolidated and consolidating
statements of operation and retained earnings/stockholders deficiency and
of cash flows for such fiscal year setting forth comparative figures for
the preceding fiscal year and certified (except for the consolidating
balance sheets and statements of operations) by an independent certified
public accountants of recognized national standing reasonably accept-
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<PAGE>
able to Administrative Agent, together with a report of such accounting
firm stating that in the course of its regular audit of the financial
statements of Borrower and its Subsidiaries, which audit was conducted in
accordance with generally accepted auditing standards, such accounting
firm obtained no knowledge of any Default or Event of Default which has
occurred and is continuing under Section 8 insofar as they relate to
accounting matters or, if in the opinion of such accounting firm such a
Default or Event of Default has occurred and is continuing, a statement
as to the nature thereof, and (ii) management's discussions and analysis
of the important operational and financial developments during such
fiscal year.
(d) Management Letters. Promptly after the receipt thereof by
Borrower or any of its Subsidiaries, a copy of any final "management
letter" received by any of them from its certified public accountants and
the management's responses thereto.
(e) Budgets. No later than February 15, 2003, a budget in form
consistent with past practices and in the form delivered to
Administrative Agent on or prior to the Effective Date (including
budgeted statements of operations and sources and uses of cash and
balance sheets) prepared by Borrower for fiscal year 2003 prepared in
reasonable detail, of Borrower and its Subsidiaries.
(f) Officer's Certificates. At the time of the delivery of the
financial statements provided for in Sections 6.01(a), (b) and (c),
certificates of an Authorized Officer of Borrower to the effect that, to
the best of such officer's knowledge, no Default or Event of Default has
occurred and is continuing or, if any Default or Event of Default has
occurred and is continuing, specifying the nature and extent thereof and
what action Borrower proposes to take with respect thereto.
(g) Notice of Default or Litigation. Promptly, and in any event
within three Business Days, after an officer of Borrower obtains
knowledge thereof, notice of (i) the occurrence of any event which
constitutes a Default or Event of Default specifying the nature and
extent thereof and what action Borrower proposes to take with respect
thereto and (ii) any litigation or governmental investigation or
proceeding (including, without limitation, ERISA matters) pending against
Borrower or any of its Subsidiaries which, singly or in the aggregate,
could reasonably be expected to have a Material Adverse Effect with
respect to any material Indebtedness of Borrower and its Subsidiaries
taken as a whole.
(h) Other Reports and Filings. Promptly, copies of all
financial information, proxy materials and other information and reports,
if any, which Borrower or any of its Subsidiaries shall file with the
Securities and Exchange Commission or any successor thereto or send
generally to analysts or holders of capital stock or other securities of
Borrower or any of its Subsidiaries (in their capacities as such)
including holders of its Indebtedness pursuant to the terms of the
documentation governing such Indebtedness (or any trustee, agent or other
representative therefor).
(i) Other Information. From time to time, such other
information or documents (financial or otherwise) with respect to
Borrower or its Subsidiaries as any Lender may reasonably request in
writing.
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<PAGE>
6.02 Credit Facility Mortgage Documents; Performance of
Obligations. Borrower will, and will cause each of its Subsidiaries to, do or
cause to be done all things necessary to comply with the provisions of the
Credit Facility Mortgage Documents. In addition, Borrower will, and will cause
each of its Subsidiaries to, perform all of its other obligations under the
terms of each mortgage, indenture, security agreement and other debt instrument
by which it is bound, except such nonperformances as could not, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.03 Corporate Existence and Franchises. (a) Borrower will do or
cause to be done all things necessary to preserve and keep in full force and
effect their respective corporate or partnership existence, rights (charter and
statutory) and their respective franchises; provided, however, that Borrower
shall not be required to preserve any such right or franchise if Borrower's
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of its business and that the loss thereof would not
reasonably expected to result in a Material Adverse Effect.
(b) Borrower shall keep itself fully licensed with all licenses
required to operate such Person's business under applicable law, maintain such
person's qualification to participate in the gaming industry in the manner in
existence on the Effective Date, except to the extent that the loss or
relinquishment of such qualification, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect. Borrower will
promptly furnish or cause to be furnished to the Administrative Agent copies of
all reports and correspondence it or any Subsidiary sends or receives relating
to any loss or revocation (or threatened loss or revocation) of any
qualification described in this paragraph. To the extent required by applicable
Gaming Laws, Borrower shall file with the applicable Gaming Authorities (i)
executed copies of the Credit Documents within five business days of the
Effective Date and (ii) a list of the names and interests held by the Lenders
hereunder promptly after the Effective Date.
6.04 Payment of Taxes and Other Claims. Borrower will, and will
cause its Subsidiaries to, pay or discharge or cause to be paid or discharged,
before any fine, penalty, interest or cost may be added for nonpayment, (a) all
taxes, assessments and governmental charges levied or imposed upon Borrower or
any of its Subsidiaries or upon the income, profits or property of Borrower or
any of its Subsidiaries and (b) all lawful claims for labor, materials and
supplies, which, if unpaid, might by law become a lien upon the property of
Borrower or any of its Subsidiaries and shall otherwise comply with the Credit
Facility Mortgage Documents; provided, however, that neither Borrower nor any of
its Subsidiaries shall be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted and in respect of which appropriate reserves
(in the good faith judgment of management of Borrower) are being maintained in
accordance with GAAP consistently applied.
6.05 Maintenance of Properties. Borrower will, and will cause
its Subsidiaries to, cause all properties owned by Borrower or any of its
Subsidiaries or used or held for use in the conduct of Borrower's business or
the business of any of its Subsidiaries to be maintained and kept in good
condition, repair and working order (excepting reasonable wear and tear) and
supplied with all necessary equipment and will cause to be made all necessary
repairs, renewals, replacements, better-
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<PAGE>
ments and improvements thereof, all as in the judgment of Borrower may be
necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent Borrower from discontinuing or allowing
the discontinuance of the maintenance of any of such properties if such
discontinuance is, in the judgment of Borrower, desirable in the conduct of
their respective businesses or the business of any of its Subsidiaries and would
not reasonably expected to result in a Material Adverse Effect. Nothing in this
Section 6.05 shall diminish the obligations of Borrower with respect to the
Collateral as set forth in the Credit Facility Mortgage Documents.
SECTION 7. Negative Covenants. Borrower hereby covenants and
agrees that as of the Effective Date and thereafter for so long as this
Agreement is in effect and until the Loans, together with interest and all other
Obligations (other than any indemnities described in Section 11.13 which are not
then due and payable) incurred hereunder, are paid in full:
7.01 Consolidation, Merger, Conveyance, Transfer or Lease.
Borrower shall not, without the consent of Administrative Agent and the Required
Lenders, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets (as an entirety or substantially as an entirety in
one transaction or series of related transactions) to any other Person or group
of affiliated Persons or permit any of its 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 Borrower and its Subsidiaries on a consolidated basis to any other Person or
group of affiliated Persons.
7.02 Limitation on Indebtedness. Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume or directly or
indirectly guarantee or in any other manner become directly or indirectly liable
for the payment of any Indebtedness (including any Acquired Indebtedness, but
excluding Permitted Indebtedness) unless, in the case of Indebtedness of
Borrower and Acquired Indebtedness,
(a) Borrower's Consolidated Fixed Charge Coverage Ratio for the
four full fiscal quarters immediately preceding such event, taken as one
period (and after giving pro forma effect to: (i) the incurrence of such
Indebtedness and (if applicable) the application of the net proceeds
therefrom, including to refinance other Indebtedness, as if such
Indebtedness were incurred and the application of such proceeds occurred
at the beginning of such four-quarter period; (ii) the incurrence,
repayment or retirement of any other Indebtedness by Borrower or the
Subsidiaries since the first day of such four-quarter period as if such
Indebtedness were incurred, repaid or retired at the beginning of such
four-quarter period (except that, in making such computation, the amount
of Indebtedness under any revolving credit facility shall be computed
based upon the average daily balance of such Indebtedness during such
four-quarter period); and (iii) the acquisition (whether by purchase,
merger or otherwise) or disposition (whether by sale, merger or
otherwise) of any company, entity or business acquired or disposed of by
Borrower or the Subsidiaries, as the case may be, since the first day of
such four-quarter period, as if such acquisition or disposition occurred
at the beginning of such four-quarter period), would have been at least
equal to a ratio of 1.75 to 1;
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(b) except in the case of Permitted Indebtedness, Acquired
Indebtedness or Pari Passu Indebtedness, such Indebtedness created,
incurred, assumed or guaranteed pursuant to this Section 7.02 has an
Average Life to Stated Maturity that exceeds the remaining Average Life
to Stated Maturity of the Notes and (ii) has a Stated Maturity for its
final scheduled principal payment later than the Stated Maturity for the
final scheduled principal payment of the Notes; and
(c) if such Indebtedness created, incurred, assumed or
guaranteed pursuant to this Section is Pari Passu Indebtedness which is
not Permitted Indebtedness or Acquired Indebtedness, such Indebtedness
shall have (i) an Average Life to Stated Maturity no shorter than the
remaining Average Life to Stated Maturity of the Notes and (ii) a Stated
Maturity for its final scheduled principal payment that is not earlier
than the Stated Maturity for the final scheduled principal payment of the
Notes.
7.03 Limitation on Liens. Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or suffer to exist any Liens upon any
of its assets, except for the Liens of the Credit Facility Mortgage Documents
and Permitted Liens.
7.04 Limitation on Restricted Payments. (a) Borrower will not,
and will not permit any Subsidiary to, directly or indirectly:
(i) declare or make any distribution on Borrower's Equity
Interests (other than distributions payable in Borrower's Qualified
Equity Interests or in options, warrants or other rights to purchase such
Qualified Equity Interests);
(ii) purchase, redeem or otherwise acquire or retire for value
any such Equity Interests, or any options, warrants or other rights to
acquire such Equity Interests;
(iii) make any principal payment on or redeem, repurchase,
defease or otherwise acquire or retire for value prior to any scheduled
principal payment or maturity, any Pari Passu Indebtedness (other than
Permitted Indebtedness) or Subordinated Indebtedness of Borrower; or
(iv) incur, create, assume or suffer to exist any guarantee
(other than guarantees existing on the date of this Credit Agreement and
any renewals, extensions, substitutions, refinancings or replacements of
such guarantees) of Indebtedness of any Affiliate of Borrower;
(the foregoing actions set forth in clauses (i) through (iv) being referred to
as "Restricted Payments").
(b) Notwithstanding the foregoing, and so long as there is no
Default or Event of Default continuing, the foregoing provisions will not
prohibit:
(i) payments made pursuant to the terms of the Services
Agreement or the Administrative Services Agreement, in each case as in
effect on the date hereof;
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(ii) the redemption of any Equity Interest of Borrower or
Indebtedness of Borrower, if (A) the holder thereof delivers an opinion
of counsel to Administrative Agent that failure to so redeem would
subject the holder thereof to an adverse action by a Gaming Authority
(or, if applicable, a failure to act by a Gaming Authority that is
adverse to the holder) and (B) the Board of Directors of Borrower
determines (as evidenced by a Board Resolution delivered to the Agent)
that such adverse action (or, if applicable, such failure to act) would
be likely to have a material adverse effect on such holder;
(iii) (A) distributions or intercompany loans to Funding by
Borrower to pay interest in cash on the Outstanding Amount of Second
Priority Notes in accordance with the terms thereof, (B) distributions or
intercompany loans to Funding by Borrower to pay interest in cash on the
Outstanding Amount of PIK Notes in accordance with the terms thereof,
provided that the condition described in clause (a) in Section 7.02 is at
that time satisfied and (C) distributions or intercompany loans to
Funding by Borrower to pay any tax liability of Funding resulting from
any distribution or intercompany loan made in compliance with (A) or (B)
above; or
(iv) distributions or intercompany loans by Borrower, pursuant
to the Partnership Agreement as in effect on the date of this Agreement,
to pay (a) reasonable general and administrative expenses, including
directors' fees and premiums for directors' and officers' liability
insurance of any corporate partners and (b) to make indemnification
payments as required by the Certificate of Incorporation of TCHI or
Funding, in each case as in effect on the date hereof, or the Partnership
Agreement as in effect on the date hereof; and (c) to make distributions
by Borrower, pursuant to the Partnership Agreement, to Partners in
amounts in respect of any tax year of Borrower which do not exceed the
Partners' tax liability in respect of Borrower's income for such year
computed as if the Partners were each taxpayers, deriving items of
income, gain, loss or deduction only from Borrower for such year and by
applying the sum of the higher of (x) the highest federal income tax rate
imposed on individuals for such year or (y) the highest federal income
tax rate imposed on corporations for such year, plus (z) in either case,
eight percent (8%) as the rate applicable to such year's results.
7.05 Limitation on Leases. Borrower will not, and will not
permit any of its Subsidiaries to, lease as tenant or subtenant real or personal
property (except Permitted Leases), unless Borrower's Consolidated Fixed Charge
Coverage Ratio for the four full fiscal quarters immediately preceding such
event, taken as one period (and after giving pro forma effect to any such lease
as if such lease was entered into at the beginning of such four-quarter period
and any events set forth in clauses (a)(ii) and (a)(iii) of Section 7.02
hereof), would have been at least equal to a ratio of 1.75 to 1. In giving
effect to the lease as of such four full fiscal quarters, it will be assumed
that the rent for such prior four fiscal quarters was the greater of the (i)
average rent over the term of such lease and (ii) rent payable for the first
four fiscal quarters.
7.06 Limitation on Preferred Stock of Subsidiaries and
Subsidiary Distributions.
(a) Borrower will not permit any of its Subsidiaries to, directly
or indirectly, issue or sell any Preferred Stock (except to Borrower or a
Wholly-owned Subsidiary thereof).
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(b) Borrower will not permit any of its Subsidiaries to,
directly or indirectly, (i) declare or pay any dividend or make any distribution
on the Equity Interests of such Subsidiary or to the holders of such
Subsidiary's Equity Interests (other than dividends or distributions payable in
Equity Interests of such Subsidiary) or (ii) purchase, redeem or otherwise
acquire or retire for value any such Equity Interests; provided that this
covenant shall not prevent the payment by any Subsidiary of dividends or other
distributions to Borrower or a Wholly-owned Subsidiary or the redemption or
repurchase by any Subsidiary of any of its Equity Interests owned by Borrower or
a Wholly-owned Subsidiary.
7.07 Limitation on Payment Restrictions Affecting Subsidiaries.
Except as otherwise provided herein, Borrower will not, nor will any of its
Subsidiaries be permitted to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of Borrower or such Subsidiary to (a) pay dividends or make any other
distributions on Borrower's Equity Interests or such Subsidiary's Equity
Interests or pay any Indebtedness owed to Borrower or any other Subsidiary, (b)
make any loans or advances to Borrower or any other Subsidiary or (c) transfer
any of its property or assets to Borrower or any other Wholly-owned Subsidiary,
except (i) any restrictions, with respect to a Subsidiary that is not a
Subsidiary on the date of this Agreement, in existence at the time such Person
becomes a Subsidiary of Borrower (but not created in contemplation of such
Person becoming a Subsidiary), (ii) any restrictions with respect to a
Subsidiary imposed pursuant to an agreement which has been entered into for the
sale or disposition of all or substantially all of the Equity Interests or
assets of such Subsidiary, (iii) any encumbrance or restriction pursuant to an
agreement in effect at or entered into on the date of this Agreement, and (iv)
any restrictions existing under any agreement which refinances or replaces the
agreements containing the restrictions in clauses (i), (ii) and (iii), provided
that the terms and conditions of any such agreement are no less favorable to the
Lenders than those under or pursuant to the agreement evidencing the
Indebtedness refinanced.
7.08 Limitations on Transactions with Affiliates. Borrower will
not, and will not permit any Subsidiary to, directly or indirectly, enter into
or suffer to exist any transaction or series of related transactions (including,
without limitation, the sale, purchase, exchange or lease of assets, property or
services) with any Affiliate of Borrower (other than a Wholly-owned Subsidiary)
unless (a) such transaction or series of related transactions is on terms that
are no less favorable to Borrower or such Subsidiary, as the case may be, than
would be available at the time of such transaction or transactions in a
comparable transaction in arm's-length dealings with an unaffiliated third party
and with respect to a transaction or series of related transactions involving
aggregate payments equal to or greater than $5,000,000, such transaction or
series of related transactions is approved by the Required Lenders and (b)
Borrower delivers an Officers' Certificate to Administrative Agent certifying
that such transaction or transactions comply with clause (a) above. The
foregoing restriction will not apply to (1) the operations under the Services
Agreement or the Administrative Services Agreement, in each case as in effect on
the date of this Agreement, (2) the payment of compensation to the senior
executive officers of Borrower (excluding Donald J. Trump) which has been
approved by the Required Lenders, (3) the payment of an annual bonus to Donald
J. Trump which has been approved by the Required Lenders, (4) the payment of
director fees (other than to Donald J. Trump) not in excess of those in effect
as of the date of this Agreement, (5) payments made pursuant to the Partnership
Agreement as in effect on the date of this Agreement, and (6) Restricted
Payments otherwise permitted pursuant to the provisions of Section 7.04.
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7.09 Restrictions on Transfer of Assets. Borrower will not sell,
convey, transfer, lease or otherwise dispose of its assets or property to any of
its Subsidiaries.
7.10 Limitation on Activities and Investments. (a) Neither
Borrower nor any of its Subsidiaries will engage in any business or investment
activities other than those necessary or appropriate for, incident to, in
connection with or arising out of developing, financing, owning and operating
the Casino-Hotel.
(b) Borrower will not establish, create or acquire any additional
Subsidiaries without the prior written consent of the Administrative Agent.
(c) Borrower will not, and will not permit any Subsidiary to make
any investment other than a Permitted Investment.
(d) Funding will not conduct any business (including having any
Subsidiary) whatsoever, other than to comply with its obligations under this
Agreement, the Credit Facility Mortgage Documents, the Second Priority Note
Indenture, the Second Priority Notes, the PIK Note Indenture and the PIK Notes.
(e) Funding will not incur or otherwise become liable for any
Indebtedness (other than (x) the Second Priority Notes and any renewal,
extension, substitution, refunding, refinancing or replacement thereof in
accordance with this Agreement and the Second Priority Note Indenture, (y) the
PIK Notes, including any PIK Notes issued as payment of interest, and any
renewal, extension, substitution, refunding, refinancing or replacement thereof
in accordance with this Agreement and the PIK Note Indenture, and (z) any
intercompany loan from Borrower permitted to be made by Borrower in accordance
with this Agreement) nor issue any Preferred Stock.
7.11 Restriction on Payment of Services Fee. Borrower will not,
and will not permit its Subsidiaries to, pay any Services Fee under the Services
Agreement or pay or reimburse any expenses relating thereto if a Default or
Event of Default has occurred and is continuing. The terms of the Services
Agreement cannot be amended to increase the amounts to be paid thereunder in the
aggregate or on any particular date, or in any other manner which would be
adverse to Borrower, and Borrower will not, and will not permit its Subsidiaries
to, enter into any management or consulting agreement with any Affiliate
relating to the Casino-Hotel other than the Services Agreement or the
Administrative Services Agreement.
7.12 Second Priority Notes and PIK Notes. Notwithstanding
anything to the contrary contained in this Agreement, without the consent of the
Required Lenders by act of such Required Lenders delivered to Borrower, Borrower
shall not, directly or indirectly, effect (i) any amendment or supplement to the
Second Priority Note Indenture or the PIK Note Indenture which would reasonably
be expected to have an adverse effect on the Lenders or (ii) any redemption of
the Second Priority Notes or the PIK Notes (including, without limitation, any
open market purchases or purchases made pursuant to a tender offer).
7.13 Minimum EBITDA. Borrower and its Subsidiaries will not
permit EBITDA for any four fiscal quarter period, in each case taken as one
accounting period, ended on the last day
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of March, June, September and December of each year of Borrower to be less than
$51.0 million.
7.14 Capital Expenditures. (a) Borrower will not, and will not
permit any of its Subsidiaries to, make any Capital Expenditures, except that
during any four fiscal quarter period, in each case taken as one accounting
period, ended on the last day of March, June, September and December of each
year, Borrower and its Subsidiaries may make Capital Expenditures so long as, in
any such four quarter period, the aggregate amount of such Capital Expenditures
made under this Section 7.14(a) does not exceed the sum of (i) $12.5 million
plus (ii) the amount by which EBITDA for the immediately preceding fiscal
quarter exceeds $14.5 million (the "Earned Capex Amount") plus (iii) any unused
Earned Capex Amount.
(b) In addition to the Capital Expenditures permitted pursuant
to the preceding paragraph (a), Borrower and its Subsidiaries may make
additional Capital Expenditures as follows: (i) Capital Expenditures consisting
of the reinvestment of Net Cash Proceeds of asset sales not required to be
applied to prepay the Loans pursuant to Section 2.02(b) and (ii) the
reinvestment of proceeds of a Taking or Casualty not required to be applied to
prepay the Loans pursuant to Section 2.02(c).
SECTION 8. Events of Default. Upon the occurrence of any of the
following specified events (each, an "Event of Default"):
8.01 Payments. Borrower shall default, and such default shall
continue unremedied for three or more Business Days, in the payment when due of
any principal or interest of any Loan or any Note or fees or any other amounts
owing hereunder or under the Credit Facility Mortgage Documents; or
8.02 Representations, etc. Any representation, warranty or
statement made by Borrower herein or in any other Credit Document or in any
certificate delivered pursuant hereto or thereto shall prove to be untrue in any
material respect on the date as of which made or deemed made; or
8.03 Covenants. Borrower shall (i) default in the due
performance or observance by it of any term, covenant or agreement contained in
Section 6.01(g) or Section 7 or (ii) default in the due performance or
observance by it of any other term, covenant or agreement contained in this
Agreement and such default shall continue unremedied for a period of 30 days
after written notice to Borrower by Administrative Agent or any Lender; or
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