1996 Contribution Agreement - Donald J. Trump, Trump Casinos Inc., THCR/LP Corp. and Trump Hotels & Casino Resorts Holdings LP
1996 CONTRIBUTION AGREEMENT
1996 CONTRIBUTION AGREEMENT, dated as of April 17, 1996, between Donald J.
Trump ("Trump"), Trump Casinos, Inc., a New Jersey corporation wholly owned by
Trump (fka Trump Taj Mahal, Inc.) ("TCI"), THCR/LP Corporation, a New Jersey
corporation (fka TM/GP Corporation) ("THCR/LP" and collectively with Trump and
TCI, the "Transferors"), and Trump Hotels & Casino Resorts Holdings, L.P., a
Delaware limited partnership (the "Transferee").
W I T N E S S E T H:
WHEREAS, each of TCI and THCR/LP holds a 49.995% general partnership
interest in Trump Taj Mahal Associates ("Taj Associates, and each of Trump and
THCR Holding Corp. (fka Taj Mahal Holding Corp.)("THCR Holding") owns 50% of the
capital stock of Trump Atlantic City Corporation (fka The Trump Taj Mahal
Corporation) ("TACC"), which holds a .01% general partnership interest in Taj
Associates;
WHEREAS, concurrently with the execution of this Agreement, the Transferors
and Transferee are entering into a Second Amended and Restated Agreement of
Limited Partnership of the Transferee, dated as of the date hereof (the
"Partnership Agreement"), pursuant to which Trump will continue as a Limited
Partner (as defined therein) of the Transferee and each of THCR/LP and TCI will
become Limited Partners of the Transferee on the terms and subject to the
conditions set forth therein; and
WHEREAS, in connection with the acquisition of Taj Associates by the
Transferee and the other transactions related thereto (the "Merger
Transaction"), including the issuance of First Mortgage Notes by Trump Atlantic
City Associates and Trump Atlantic City Funding, Inc. (the "Mortgage Note
Offering"), following the consummation of the Mortgage Note Offering, Trump
Hotels & Casino Resorts, Inc. ("THCR") will cause THCR Holding to contribute the
shares of capital stock of TACC to THCR/LP, and each of Trump, TCI and THCR/LP
will then contribute their respective interests in Taj Associates and TACC to
the Transferee on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and the other agreements being entered in connection with the
Merger Transaction and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
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ARTICLE I.
The Contribution
Section 1.1. The Capital Contribution. Effective as of the date hereof and
in fulfillment of the obligation of the Transferors to make the capital
contributions pursuant to Section 4.1 of the Partnership Agreement, each of the
Transferors hereby contributes, transfers, assigns and conveys to the Transferee
all right, title and interest in and to those assets of the respective
Transferor set forth opposite its name on Schedule A hereto (the foregoing being
referred to collectively as the "Assets").
Section 1.2. Direction of Transfer. Transferee hereby directs that the
Transferors effect the transfer of the Assets by contributing, transferring,
assigning and conveying such Assets, on behalf of the Transferee, directly to
the Transferee's wholly owned subsidiary, Trump Atlantic City Associates.
ARTICLE II.
The Consideration
Section 2.1. Obligations of the Transferee. In further consideration for
the contribution of the Assets pursuant to Section 1.1, the Transferee, on
behalf of itself and its subsidiaries now existing and hereafter acquired,
hereby:
(i) accepts all right, title and interest in and to the Assets and
does hereby assume and agree to promptly and fully pay, perform and
discharge when due all obligations and liabilities associated with the
Assets (collectively, the "Assumed Liabilities," including, without
limitation, all obligations and liabilities of each of TCI, THCR/LP and
TACC as a general partner of Taj Associates, but excluding any liabilities
arising out of breaches of the representations and warranties of the
Transferors contained in Article III hereof); and
(ii) agrees to indemnify the Transferors against all actions,
proceedings, costs, damages, claims and demands arising in connection with
the Assumed Liabilities subsequent to the date hereof except insofar as
such actions, proceedings, costs, damages, claims and demands arise out of
the gross negligence or willful misconduct of such Transferor.
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ARTICLE III.
Representations and Warranties
Each Transferor hereby severally represents and warrants to the Transferee
that, as of the date hereof:
Section 3.1. Due Execution and Delivery; Enforceability. This Agreement has
been duly executed and delivered by such Transferor in accordance with its terms
and is a legal, valid and binding agreement of such Transferor enforceable
against such Transferor in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
similar laws affecting creditors' rights and remedies generally and to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
Section 3.2. No Conflicts. The execution, delivery and performance of this
Agreement by such Transferor, and the consummation of the transactions
contemplated hereby, do not and will not conflict with or result in a breach or
violation of (i) any of the respective charters or by-laws of such Transferor or
any of its subsidiaries, as applicable, (ii) any of the terms or provisions of,
or constitute a default or cause an acceleration or any obligation under, or
result in the imposition or creation of (or the obligation to create or impose),
any security interest, mortgage, pledge, claim, lien, encumbrance or adverse
interest of any nature (each, a "Lien") with respect to any obligation, bond
agreement, note, debenture or other evidence of indebtedness or any indenture,
mortgage, deed of trust or other agreement, lease or instrument to which such
Transferor or any of its Affiliates is a party or by which such Transferor or
any of its Affiliates is bound or to which any of the properties or assets of
such Transferor or any of its Affiliates (including, without limitation, the
Assets transferred by such Transferor) may be subject or (iii) any Federal,
state or local law, rule, administrative regulation or ordinance or order of any
court or governmental agency, body or official having jurisdiction over such
Transferor or any of the Assets transferred by such Transferor, except, in the
case of clauses (ii) and (iii), for such conflicts, breaches, violations,
defaults or Liens that would not have a material adverse effect on the Assets
transferred by such Transferor (a "Material Adverse Effect").
Section 3.3. No Consents or Approvals. No authorization, approval, consent
or order of, or filing with, any court or governmental body, agency or official,
including the New Jersey Casino Control Commission, the New Jersey Department of
Environmental Protection and the Indiana Gaming Commission, is necessary in
connection with the transactions contemplated by this Agreement, except those of
which have been obtained or made on or prior to the date hereof.
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Section 3.4. Title to Assets. Such Transferor has good title to the Assets
that it is transferring pursuant to this Agreement, free and clear of any Liens.
ARTICLE IV.
Further Documents
Each of the Transferors and the Transferee hereby undertakes that it will,
and will cause its Affiliates to, execute and undertake to perform at the
Transferee's expense all such further agreements, documents and other actions as
may be reasonably necessary for vesting the Assets in the Transferee and Trump
AC and otherwise for giving full effect to this Agreement.
ARTICLE V.
Miscellaneous
Section 5.1. Waiver, Amendment. Neither this Agreement nor any provision
hereof shall be waived, amended, modified, changed, discharged or terminated
except by an instrument in writing executed by the Transferors and the
Transferee.
Section 5.2. Assignability. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by the Transferors or the Transferee, without the prior written
consent of each other parties.
Section 5.3. Entire Agreement. This Agreement, together with the schedule
hereto, sets forth the entire agreement and understanding of the parties hereto
with respect to the transactions contemplated hereby and supersedes any and all
prior agreements and understandings relating to the subject matter hereof. No
representation, promise or statement of intention has been made by any party
hereto which is not embodied in this Agreement or the written schedules or other
documents delivered pursuant hereto or in connection with the transactions
contemplated hereby, and no party hereto shall be bound by or liable for any
alleged representation, promise or statement of intention not set forth herein
or therein. All of the documents referred to in the immediately preceding
sentence are hereby incorporated by reference and shall be deemed a part of this
Agreement with the same effect as if set forth in full herein.
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Section 5.4. Severability. If any provision of this Agreement or the
application of any such provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, this Agreement shall continue in full force and effect without
said provision.
Section 5.5. Section and Other Headings. The section headings contained in
this Agreement and the schedules thereto are for reference purposes only and
shall not affect in any way the meaning or interpretation of this Agreement.
Section 5.6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW JERSEY, WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF. THE TRANSFERORS AND
THE TRANSFEREE HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF ANY NEW JERSEY
STATE COURT SITTING IN ATLANTIC CITY, NEW JERSEY OR ANY FEDERAL COURT SITTING IN
ATLANTIC CITY, NEW JERSEY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPT FOR THEMSELVES AND
IN RESPECT OF THEIR PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE
AFORESAID COURTS. THE TRANSFERORS AND THE TRANSFEREE IRREVOCABLY WAIVE, TO THE
FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION
WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN ANY
INCONVENIENT FORUM.
Section 5.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which together shall be deemed to be one and the same
agreement.
Section 5.8. Notice. Each notice, demand, request, request for approval,
consent, approval, disapproval, designation or other communication (each of the
foregoing being referred to herein as a "notice") required or desired to be
given or made under this Agreement shall be in writing (except as otherwise
provided in this Agreement), and shall be effective and deemed to have been
received (i) when delivered in person, (ii) when sent by facsimile transmission
with receipt acknowledged, (iii) three (3) days after having been mailed by
certified or registered United States mail, postage prepaid, return receipt
requested, or (iv) the next business day after having been sent by a nationally
recognized overnight mail or courier service, receipt requested (a) if to Trump
or TCI, at 725 Fifth Avenue, 26th Floor, New York, NY 10022 or (b) if to THCR/LP
or the Transferee, at Mississippi Avenue and The Boardwalk, Atlantic City, New
Jersey 08401 and addressed to the attention of the Corporate Secretary.
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Section 5.9. Compliance with State Gaming Regulations. Each of the
provisions of this Agreement is subject to and shall be enforced in compliance
with the provisions, regulations or approvals required by any state gaming
authority, including, without limitation, the New Jersey Casino Control
Commission and the Indiana Gaming Commission.
Section 5.10. Third Party Rights. Except as otherwise set forth herein,
nothing in this Agreement is intended or shall be construed to confer upon or
give any Person, other than the parties hereto, Trump AC and THCR, and each of
their respective successors, any rights or remedies under or by reason of this
Agreement or any transaction contemplated hereby.
Section 5.11. Limitation on Damages. No party shall be liable to the other
parties for any consequential damages resulting from a breach of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the date first above written.
------------------------------
DONALD J. TRUMP
(individually and as sole
stockholder of Trump
Casinos, Inc.)
TRUMP CASINOS, INC.
By:
------------------------------
Donald J. Trump
President
THCR/LP CORPORATION
By:
------------------------------
Nicholas F. Moles
Secretary
TRUMP HOTELS & CASINO RESORTS
HOLDINGS, L.P.
By: Trump Hotels & Casino Resorts, Inc.,
its general partner
By:
--------------------------
Robert M. Pickus
Executive Vice President
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Schedule A
Assets
Transferor Assets Transferred
--------------------------------------------------------------------------------
Donald J. Trump 20 shares of Common Stock of
Trump Atlantic City Corporation
(fka The Trump Taj Mahal
Corporation)
Trump Casinos, Inc. 49.995% general partnership
interest in Trump Taj Mahal
Associates
THCR/LP Corporation 20 shares of Common Stock of
Trump Atlantic City Corporation
(fka The Trump Taj Mahal
Corporation)
and
49.995% general partnership
interest in Trump Taj Mahal
Associates