Exhibit
4.22


 


EXECUTION
COPY


 


 


MASTER
AGREEMENT


 


AMONG


 


KERZNER INTERNATIONAL NORTH
AMERICA, INC.,


 


COLONY RIH HOLDINGS, INC.,


 


RESORTS INTERNATIONAL HOTEL
AND CASINO, INC.,


 


RESORTS REAL ESTATE
HOLDINGS, INC.,


 


RESORTS INTERNATIONAL HOTEL,
INC.


 


And


 


NEW PIER OPERATING COMPANY,
INC.


 


February 1, 2004


 

















 


Table of Contents


 


	
  ARTICLE I
  RECITALS

  	
   

  
	
  Section 1.1.

  	
  Recitals.

  	
   

  
	
  ARTICLE II
  DEFINITIONS

  	
   

  
	
  Section 2.1.

  	
  Definition of Certain Terms.

  	
   

  
	
  Section 2.2.

  	
  Use of Certain Terms.

  	
   

  
	
  ARTICLE III
  CONDITIONS PRECEDENT

  	
   

  
	
  Section 3.1.

  	
  Conditions Precedent to the
  Obligations of KINA.

  	
   

  
	
  Section 3.2.

  	
  Conditions Precedent to the
  Obligations of the Resorts Group Companies.

  	
   

  
	
  ARTICLE IV
  COVENANTS OF HOLDINGS AND PURCHASER

  	
   

  
	
  Section 4.1.

  	
  Maintenance of Office or Agency.

  	
   

  
	
  Section 4.2.

  	
  Maintenance
  of Existence and Conduct of Business.

  	
   

  
	
  Section 4.3.

  	
  Capital
  Structure.

  	
   

  
	
  Section 4.4.

  	
  Payment of
  Charges.

  	
   

  
	
  Section 4.5.

  	
  Books and
  Records.

  	
   

  
	
  Section 4.6.

  	
  Litigation.

  	
   

  
	
  Section 4.7.

  	
  Insurance.

  	
   

  
	
  Section 4.8.

  	
  Compliance
  with Law.

  	
   

  
	
  Section 4.9.

  	
  Certain Asset Sales.

  	
   

  
	
  Section 4.10.

  	
  Mergers, Etc.

  	
   

  
	
  Section 4.11.

  	
  Investments.

  	
   

  
	
  Section 4.12.

  	
  Indebtedness.

  	
   

  
	
  Section 4.13.

  	
  Maintenance
  of Business.

  	
   

  
	
  Section 4.14.

  	
  Transactions with Affiliates.

  	
   

  
	
  Section 4.15.

  	
  Financial Statements and Information.

  	
   

  
	
  Section 4.16.

  	
  Liens.

  	
   

  
	
  Section 4.17.

  	
  Capital
  Expenditures.

  	
   

  
	
  Section 4.18.

  	
  Restricted
  Payments.

  	
   

  
	
  Section 4.19.

  	
  Additional
  Holdings Obligations.

  	
   

  
	
  ARTICLE V
  ADDITIONAL COVENANTS OF HOLDINGS IN RESPECT OF RESORTS, RIH, NEW PIER AND
  EACH NEW GUARANTOR

  	
   

  
	
  Section 5.1.

  	
  Indebtedness.

  	
   

  
	
  Section 5.2.

  	
  Delivery of
  Amendments to Operating Company Debt Documents.

  	
   

  
	
  Section 5.3.

  	
  Indenture.

  	
   

  
	
  Section 5.4.

  	
  Transactions with Affiliates.

  	
   

  
	
  Section 5.5.

  	
  Restricted
  Payments.

  	
   

  
	
  Section 5.6.

  	
  Future
  Guarantees.

  	
   

  
	
  Section 5.7.

  	
  Financial
  Statements and Information.

  	
   

  
	
  Section 5.8.

  	
  CIT Credit
  Facility.

  	
   

  
	
  ARTICLE VI
  ADDITIONAL COVENANTS

  	
   

  
	
  Section 6.1.

  	
  Consent Fees.

  	
   

  
	
  Section 6.2.

  	
  Termination
  of Certain Covenants and Agreements.

  	
   

  
	
  ARTICLE VII
  REPRESENTATIONS AND WARRANTIES

  	
   

  
	
  Section 7.1.

  	
  Organization and Standing of the
  Resorts Group Companies; Ownership.

  	
   

  



 


i

















 


	
  Section 7.2.

  	
  Corporate Action.

  	
   

  
	
  Section 7.3.

  	
  Noncontravention.

  	
   

  
	
  Section 7.4.

  	
  Governmental Approvals.

  	
   

  
	
  Section 7.5.

  	
  Litigation.

  	
   

  
	
  Section 7.6.

  	
  Compliance.

  	
   

  
	
  Section 7.7.

  	
  Title to Capital Stock.

  	
   

  
	
  Section 7.8.

  	
  Indebtedness.

  	
   

  
	
  Section 7.9.

  	
  No Brokers or Finders.

  	
   

  
	
  Section 7.10.

  	
  No Defaults.

  	
   

  
	
  Section 7.11.

  	
  Material Business Purpose.

  	
   

  
	
  Section 7.12.

  	
  Ranking.

  	
   

  
	
  Section 7.13.

  	
  SEC Documents.

  	
   

  
	
  Section 7.14.

  	
  ERISA.

  	
   

  
	
  Section 7.15.

  	
  Holdings Subsidiaries.

  	
   

  
	
  Section 7.16.

  	
  CIT Agreements.

  	
   

  
	
  ARTICLE VIII MISCELLANEOUS

  	
   

  
	
  Section 8.1.

  	
  Complete
  Agreement; Amendments.

  	
   

  
	
  Section 8.2.

  	
  No
  Assignment.

  	
   

  
	
  Section 8.3.

  	
  Fees and
  Expenses.

  	
   

  
	
  Section 8.4.

  	
  No Waiver by
  Holder.

  	
   

  
	
  Section 8.5.

  	
  WAIVER OF
  JURY TRIAL.

  	
   

  
	
  Section 8.6.

  	
  Severability.

  	
   

  
	
  Section 8.7.

  	
  Parties.

  	
   

  
	
  Section 8.8.

  	
  Authorized
  Signature.

  	
   

  
	
  Section 8.9.

  	
  Governing
  Law.

  	
   

  
	
  Section 8.10.

  	
  Notices.

  	
   

  
	
  Section 8.11.

  	
  Confidentiality.

  	
   

  
	
  Section 8.12.

  	
  Section Titles.

  	
   

  
	
  Section 8.13.

  	
  Exhibits,
  etc.

  	
   

  
	
  Section 8.14.

  	
  Specific Performance.

  	
   

  
	
  Section 8.15.

  	
  Remedies Cumulative.

  	
   

  
	
  Section 8.16.

  	
  Counterparts.

  	
   

  
	
  Section 8.17.

  	
  Termination of Option Agreement.

  	
   

  
	
  Section 8.18.

  	
  Other Agreements.

  	
   

  



 


	
  Annexes, Schedules and Exhibits

  	
   

  
	
   

  	
   

  	
   

  
	
  Annex I

  	
  Certain Definitions

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule 2.1(1)

  	
  Casino Property
  Description

  	
   

  
	
  Schedule 2.1(2)

  	
  Operating Company Debt

  	
   

  
	
  Schedule 4.11

  	
  Permitted Investments
  of Holdings

  	
   

  
	
  Schedule 4.12

  	
  Existing Indebtedness
  of Holdings

  	
   

  
	
  Schedule 7.7

  	
  Equity Interests of
  Purchaser, Resorts, RIH and New Pier

  	
   

  
	
  Schedule 7.8

  	
  Operating Company Debt
  Documents

  	
   

  
	
  Schedule 7.15

  	
  Holdings Subsidiaries

  	
   

  
				



 


ii

















 


	
  Exhibit A

  	
  Form of Secured
  Promissory Note

  	
   

  
	
  Exhibit B

  	
  Form of Purchase
  Agreement

  	
   

  
	
  Exhibit C

  	
  Form of Security
  Agreement

  	
   

  
	
  Exhibit D

  	
  Form of First Mortgage

  	
   

  
	
  Exhibit E

  	
  Form of Assignment

  	
   

  
	
  Exhibit F

  	
  Form of Lease Amendment

  	
   

  
	
  Exhibit G

  	
  Form of Holdings
  Guarantee

  	
   

  
	
  Exhibit H

  	
  Form of Stock Pledge
  Agreement

  	
   

  
	
  Exhibit I

  	
  Form of RRN Guarantee

  	
   

  
	
  Exhibit J

  	
  Form of Subordination
  Agreement

  	
   

  
	
  Exhibit K

  	
  Form of Environmental
  Indemnity Agreement

  	
   

  
	
  Exhibit L

  	
  Form of Willkie Farr
  & Gallagher opinion

  	
   

  
	
  Exhibit M

  	
  Form of Potter Anderson
  opinion

  	
   

  
	
  Exhibit N

  	
  Form of Graham Curtin
  and Sheridan opinion

  	
   

  
	
  Exhibit O

  	
  Provisions to be
  included in the Amended and Restated Certificate of Incorporation of
  Purchaser

  	
   

  
	
  Exhibit P

  	
  Form of Irrevocable
  Instruction Letter to Trustee

  	
   

  
	
  Exhibit Q

  	
  Form of New Guarantor
  Guarantee

  	
   

  



 


iii

















 


MASTER AGREEMENT dated as of February 1, 2004, among KERZNER INTERNATIONAL NORTH AMERICA, INC. (f/k/a
Sun International North America, Inc.), a Delaware corporation (“KINA”),
COLONY RIH HOLDINGS, INC., a Delaware
corporation (“Holdings”), RESORTS INTERNATIONAL HOTEL AND CASINO, INC.
(f/k/a Colony RIH Acquisitions, Inc.), a Delaware corporation (“Resorts”),
RESORTS REAL ESTATE HOLDINGS, INC., a New Jersey corporation (“Purchaser”),
RESORTS INTERNATIONAL HOTEL, INC., a New Jersey corporation (“RIH”), and
NEW PIER OPERATING COMPANY, INC., a New Jersey corporation (“New Pier”)
(Holdings, Resorts, Purchaser, RIH and New Pier, together with any Subsidiary
of Resorts that hereafter issues a Guaranty (as defined below) to KINA are
herein referred to individually as a “Resorts Group Company”, and,
collectively, the “Resorts Group Companies”).


 


WHEREAS, Holdings owns 100% of the outstanding stock of Resorts, and Resorts,
through RIH, its Wholly Owned Subsidiary (as such term is defined in Article II
below), owns and operates the Casino Property (as defined below in Article II);


 


WHEREAS, Resorts acquired all the issued and outstanding shares
of capital stock of each of RIH and New Pier on April 25, 2001 from GGRI,
Inc., a Wholly Owned Subsidiary of KINA, pursuant to that certain Purchase
Agreement dated as of October 30, 2000 (as amended, the “Resorts
Purchase Agreement”), among KINA, as Parent, GGRI, Inc., as Seller and
Resorts, as Buyer;


 


WHEREAS, in connection with the transactions contemplated by the Resorts
Purchase Agreement, KINA and Resorts entered into that certain Option
Agreement, dated April 25, 2001 (as amended, the “Option Agreement”),
pursuant to which KINA has granted Resorts an option (the “Option”) to
purchase the Premises (as such term is defined in the Option Agreement) for a
purchase price in cash of $40,000,000;


 


WHEREAS, in connection with the transactions contemplated by the Resorts
Purchase Agreement, Resorts currently is leasing a portion of the Premises
pursuant to that certain Lease  Agreement dated as of April 25, 2001
(as amended prior to the Issue Date, the “Lease Agreement”), between
KINA and Resorts;


 


WHEREAS, the real property comprising the Premises is of significant value to
the operation of the Casino Property and its potential future expansion, as
well as of significant value to Holdings, Resorts, RIH and New Pier and their
respective current and planned operations and activities;


 


WHEREAS, Purchaser, a newly formed corporation and a Wholly Owned Subsidiary
of Holdings, has informed KINA that it wishes to enter into a purchase and sale
agreement pursuant to which it shall acquire the Premises on the Issue Date by
paying the purchase price therefor not in cash, but by the execution and
delivery of a secured promissory note;


 


WHEREAS, Holdings wishes to cause Purchaser to enter into such purchase and
sale agreement with KINA having similar terms and conditions as those contained
in the Option Agreement for the purposes of acquiring the Premises on the Issue
Date and issuing such secured promissory note to KINA;


 

















 


WHEREAS, KINA is willing to accommodate the Resorts Group Companies and agree
that Purchaser shall acquire the Premises on the Issue Date by payment of the
purchase price in the form of a secured promissory note issued by Purchaser to
KINA, provided that the Resorts Group Companies enter into this Agreement and
the other Transaction Documents (as such terms are defined below in Article II);


 


WHEREAS, pursuant to this Agreement, KINA and Resorts will terminate the
Option Agreement, and that certain Termination of Memorandum of Option
Agreement (the “Termination of Option Agreement”) will be recorded;


 


WHEREAS, immediately following the termination of the Option Agreement as
indicated above, KINA shall assign all its right, title and interest as lessor
under the Lease Agreement to Purchaser, whereupon Purchaser shall become lessor
of the Premises on the terms of such Lease Agreement as assigned;


 


WHEREAS, the ownership, use and control of the Premises are material to the
operation of the Casino Property and to the current and planned operations and
activities of each of the Resort Group Companies, and, in furtherance of their
business interests, the Resorts Group Companies wish to enter into this
Agreement and the other Transaction Documents;


 


WHEREAS, prior to the date hereof, the Resorts Group Companies have received
the written consent to the transactions contemplated by this Agreement and the
other Transaction Documents from the Gaming Authorities; and


 


WHEREAS, the parties hereto have agreed to execute, deliver and consummate the
transactions contemplated by, the Transaction Documents.


 


NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement and for other good and valuable consideration, the
receipt and sufficiency of which hereby are acknowledged, Holdings, Resorts,
Purchaser, RIH, New Pier and KINA 
hereby agree as follows:


 


ARTICLE I


 


RECITALS


 


Section 1.1.            Recitals.  The recitals to this Agreement are acknowledged
as true and correct, and are hereby integrated in their entirety into and form
a material part of the terms of this Agreement.


 


ARTICLE II



DEFINITIONS


 


Section 2.1.            Definition of Certain Terms. 
Capitalized terms and other defined
terms used in this Agreement shall (unless otherwise provided elsewhere in this
Agreement) have the meanings given to them in Annex I hereto.  All other undefined terms contained in this


 


2

















 


Agreement
shall, unless the context indicates otherwise, have the meanings provided for
by the Code as in effect in the State of New York to the extent the same are
used or defined therein.


 


Section 2.2.            Use
of Certain Terms.


 


(a)           Except as otherwise
provided in this Agreement, all computations and determinations as to
accounting or financial matters (including financial covenants) shall be made
in accordance with GAAP consistently applied for all applicable periods, and
all accounting or financial terms shall have the meanings ascribed to such
terms by GAAP.  All financial statements
to be delivered pursuant to this Agreement shall be prepared in accordance with
GAAP consistently applied for all applicable periods.


 


(b)           The
words “include”, “includes”, “including” and “such as”
shall be construed as if followed by the phrase “without limitation.”


 


(c)           The
words “herein,” “hereof” and “hereunder” and other words
of similar import refer to this Agreement as a whole, as the same may from time
to time be amended, modified or supplemented and not to any particular section,
subsection or clause contained in this Agreement.


 


(d)           Unless the context otherwise requires, each term
stated in either the singular or plural shall include the singular and the
plural, and pronouns stated in the masculine, feminine or neuter gender shall
include the masculine, the feminine and the neuter gender.


 


(e)           In
the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including” and the words “to” and “until”
each mean “to but excluding” and the word “through” means “to and including”.


 


ARTICLE III



CONDITIONS
PRECEDENT


 


Section 3.1.            Conditions
Precedent to the Obligations of KINA.


 


The obligation of KINA to
consummate the transactions contemplated by this Agreement on the date hereof
is subject to the following conditions precedent, each of which shall be
satisfied prior to or contemporaneously with the execution and delivery of this
Agreement:


 


(a)           The Resorts Group
Companies shall have delivered to KINA four counterparts of this Agreement duly
executed by each Resorts Group Company;


 


(b)           Purchaser shall have
delivered to KINA a secured promissory note of Purchaser dated the Issue Date,
in the principal amount of $40,000,000, in the form of Exhibit A
attached hereto (the “Secured Promissory Note”), duly executed by
Purchaser;


 


(c)           Purchaser shall have
delivered to KINA a purchase and sale agreement dated as of the Issue Date, in
respect of the sale by KINA and the purchase by Purchaser of the Premises, in
the form of Exhibit B attached hereto (the “Purchase Agreement”),
duly executed by Purchaser;


 


3

















 


(d)           Purchaser and
Holdings (i) shall have delivered to KINA a security agreement dated as of the
Issue Date, pursuant to which Purchaser shall grant to KINA and the permitted
assignees of KINA holding any Notes a first-priority security interest in all
of Purchaser’s assets and Holdings shall grant to KINA and the permitted
assignees of KINA holding any Notes a first-priority security interest in all
Restricted Payments received by Holdings from a Resorts Group Company after the
Issue Date, in the form of Exhibit C attached hereto (the “Security
Agreement”), duly executed by Purchaser and Holdings, and (ii) shall have
delivered to KINA such financing statements on Form UCC-1 for filing in the
respective jurisdictions of organization of Purchaser and Holdings, and as KINA
may otherwise reasonably request, as required pursuant to the Security Agreement;


 


(e)           Purchaser shall have
delivered to KINA a first mortgage dated as of the Issue Date, in respect of
the Premises, in the form of Exhibit D attached hereto (the “First
Mortgage”), duly executed by Purchaser;


 


(f)            Purchaser shall
have delivered to KINA (i) an assignment and assumption agreement dated as of
the Issue Date, pursuant to which, inter alia, all rights and obligations of
KINA under the Lease Agreement shall be assigned by KINA and assumed by
Purchaser, and all permits and general intangibles in connection therewith
shall be assigned by KINA to Purchaser in the form of Exhibit E attached
hereto (the “Assignment”), and (ii) an amendment to the Lease Agreement
as so amended, dated as of the Issue Date, in respect of the Premises, in the
form of Exhibit F attached hereto (the “Lease Amendment”), in
each case duly executed by Purchaser;


 


(g)           Holdings shall have
delivered to KINA a guarantee, dated as of the Issue Date, in the form of Exhibit
G attached hereto (the “Holdings Guarantee”), duly executed by
Holdings;


 


(h)           Holdings (i) shall
have delivered to KINA a stock pledge agreement dated as of the Issue Date,
pursuant to which Holdings shall pledge to KINA all the issued and outstanding
shares of capital stock of Purchaser to secure the Obligations, in the form of Exhibit
H attached hereto (the “Stock Pledge Agreement”), duly executed by
Holdings, and (ii) shall have delivered to KINA the stock certificates and
stock powers executed in blank as are required pursuant to the Stock Pledge
Agreement;


 


(i)            Each of Resorts,
RIH and New Pier shall have delivered to KINA a guarantee dated as of the Issue
Date, in the form of Exhibit I attached hereto (the “RRN Guarantee”),
duly executed by Resorts, RIH and New Pier;


 


(j)            Purchaser shall
have delivered to KINA all of the agreements, documents and instruments
required by the Purchase Agreement to be delivered by Purchaser on the Issue
Date, duly executed by Purchaser;


 


(k)           Resorts shall have
delivered to KINA a subordination agreement dated as of the Issue Date,
pursuant to which its interest in the Premises under the Lease Agreement shall
be subordinated to the lien of the First Mortgage, in the form of Exhibit J
attached hereto (the “Subordination Agreement”), duly executed by
Resorts and Purchaser;


 


(l)            Resorts shall have
delivered to KINA an environmental indemnity


 


4

















 


agreement, dated as of
the Issue Date, in the form of Exhibit K attached hereto (the “Environmental
Indemnity Agreement”);


 


(m)          KINA shall have
received: (i) with respect to each Resorts Group Company, such documentation as
KINA reasonably may require to establish the due organization, valid existence
and good standing of each such Person, its qualifications to do business in
each jurisdiction in which it is engaged in business or required to be so
qualified, its authority to execute, deliver and perform any Transaction
Documents to which it is a party, and the identity, authority and capacity of
each responsible official thereof authorized to act on its behalf; (ii) a
certificate of a senior officer of each Resorts Group Company dated the Issue
Date certifying that the conditions specified in Sections 3.1(n) and 3.1(o)
have been satisfied; (iii) opinions of Willkie Farr & Gallagher LLP, Potter
Anderson and Graham Curtin and Sheridan, outside counsel to the Resorts Group
Companies, dated the Issue Date, in the forms of Exhibit L, Exhibit M
and Exhibit N, respectively, attached hereto; and (iv) an opinion from
counsel reasonably acceptable to KINA that the execution, delivery and
performance of the transactions contemplated by the Transaction Documents do
not conflict with or violate applicable Gaming Laws, such opinion to be in form
and substance reasonably acceptable to KINA;


 


(n)           The representations
and warranties of each Resorts Group Company in this Agreement and the other
Transaction Documents shall be true and correct on and as of the Issue Date in
all material respects;


 


(o)           On the Issue Date,
each Resorts Group Company shall be in compliance in all material respects with
all the terms and provisions of the Transaction Documents applicable to it, no
Default or Event of Default shall have occurred and be continuing, and no event
constituting a Material Adverse Effect shall have occurred since March 31,
2003;


 


(p)           KINA shall have
received evidence reasonably satisfactory to it of the due execution and filing
of an amended and restated certificate of incorporation of Purchaser containing
those provisions listed in Exhibit O, attached hereto;


 


(q)           The Termination of
Option Agreement shall have been executed and delivered by Resorts;


 


(r)            The CIT
Subordination Agreement shall have been executed and delivered by CIT
Group/Equipment Financing Inc., Resorts, RIH and New Pier; and


 


(s)           The conditions
precedent applicable to each Resorts Group Company in the other Transaction
Documents shall have been satisfied.


 


Section 3.2.            Conditions
Precedent to the Obligations of the Resorts Group Companies.


 


The obligation of the
Resorts Group Companies to consummate the transactions contemplated by this
Agreement on the date hereof is subject to the following conditions precedent,
each of which shall be satisfied prior to or contemporaneously with the
execution and delivery of this Agreement:


 


(a)           KINA shall have
delivered to the Resorts Group Companies four (4) counterparts of this
Agreement, duly executed by KINA;


 


5

















 


(b)           KINA shall have
delivered to Purchaser the Purchase Agreement, duly executed by KINA;


 


(c)           KINA shall have
delivered to Purchaser the Assignment, duly executed by KINA;


 


(d)           KINA shall have delivered
to Resorts the Environmental Indemnity Agreement, duly executed by KINA;


 


(e)           KINA shall have
delivered to Resorts the RRN Guaranty, duly executed by KINA;


 


(f)            Purchaser shall
have received: (i) such documentation as Purchaser reasonably may require to
establish the due organization, valid existence and good standing of KINA in
its state of formation, its qualification to do business and good standing in
New Jersey, its authority to execute, deliver and perform any Transaction
Documents to which it is a party, and the identity, authority and capacity of
each responsible official thereof authorized to act on its behalf; and (ii) a
certificate of a senior officer of KINA, dated the Issue Date, certifying that
the conditions specified in Sections 3.2(g) and 3.2(h) have been
satisfied;


 


(g)           The representations
and warranties of KINA in this Agreement and the other Transaction Documents
shall be true and correct in all material respects on and as of the Issue Date;


 


(h)           On the Issue Date,
KINA shall be in compliance in all material respects with all the terms and
provisions of the Transaction Documents applicable to it;


 


(i)            The Termination of
Option Agreement shall have been executed and delivered by KINA;


 


(j)            The CIT
Subordination Agreement shall have been executed and delivered by KINA; and


 


(k)           The conditions
precedent applicable to KINA in the other Transaction Documents shall have been
satisfied.


 


ARTICLE IV



COVENANTS
OF HOLDINGS AND PURCHASER


 


Holdings and Purchaser,
jointly and severally, covenant and agree as follows:


 


Section 4.1.            Maintenance
of Office or Agency.


 


(a)           Purchaser shall
maintain in the Borough of Manhattan, the City of New York, an office or agency
where Notes may be surrendered for registration of transfer or for


 


6

















 


exchange and where notices and demands to or upon
Purchaser in respect of the Notes may be served.  Purchaser shall give prompt written notice to each Holder of the
location, and any change in the location, of such office or agency.  If at any time Purchaser shall fail to
maintain any such required office or agency or shall fail to furnish each
Holder with the address thereof, such presentations, surrenders, notices and
demands may be made or served at 660 Madison Avenue, Suite 1600, New York, New
York 10021, attn: Nicholas L. Ribis.


 


(b)           Purchaser may also
from time to time designate one or more other offices or agencies where the
Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations; provided, however, that
no such designation or rescission shall in any manner relieve Purchaser of its
obligation to maintain an office or agency in the Borough of Manhattan, the
City of New York for such purposes. 
Purchaser shall give prompt written notice to each Holder of any such
designation or rescission and of any change in the location of any such office
or agency.


 


(c)           Purchaser hereby
designates 1133 Boardwalk, Atlantic City, New Jersey, c/o Resorts International
Hotel, Inc., attn: Ms. Audrey Oswell as one such office or agency of Purchaser.


 


Section 4.2.            Maintenance
of Existence and Conduct of Business. 
Each of Holdings and Purchaser shall:  
(a) do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence, and its rights, licenses,
privileges and franchises; (b) continue to conduct its business substantially
as now conducted or as otherwise permitted hereunder; and (c) at all times,
consistent with industry practices, maintain, preserve and protect all of its trademarks,
trade names, patents, copyrights, trade secrets, know-how and other
intellectual property (except where the failure to do so is not reasonably
likely to have a Material Adverse Effect), and preserve all the remainder of
its property, in use in the conduct of its business, and keep the same in good
repair, working order and condition (taking into consideration ordinary wear
and tear) and from time to time make, or cause to be made, all needful and
proper repairs, renewals and replacements, betterments and improvements thereto
so that the business carried on in connection therewith may be properly and
advantageously conducted at all times.


 


Section 4.3.            Capital
Structure.  Holdings at all times
will own (a) directly all the issued and outstanding Equity Interests of
Purchaser, and (b) directly or indirectly, all the issued and outstanding
Equity Interests and Equity Rights of Resorts, RIH, New Pier and any other
Guarantor, in each case free and clear of all Liens (other than the Lien on the
capital stock of Purchaser created by the Stock Pledge Agreement and the Lien
on the capital stock of New Pier and RIH created by the Indenture Security
Agreement).  From and after the Issue
Date, Purchaser shall not issue (or agree to issue) any Equity Interests or
Equity Rights to any Person or alter (or agree to alter) its capital
structure.  Purchaser and Holdings shall
not amend the certificate of incorporation or by-laws of Purchaser without the
prior written consent of the Holders.


 


Section 4.4.            Payment
of Charges.


 


(a)           Subject
to Sections 4.4(b) and 4.4(c), each of Holdings and Purchaser
shall pay and discharge or cause to be paid and discharged promptly all (i)
Charges imposed upon it,


 


7

















 


its
income and profits, or any of its property (real, personal or mixed), and (ii)
lawful claims for labor, materials, supplies and services or otherwise before
any thereof shall become in default.


 


(b)           Each
of Holdings and Purchaser may in good faith, in lieu of payment, contest, by
proper legal actions or proceedings, the validity or amount of any Charges or
claims arising under Section 4.4(a), and may permit a Lien to exist
for such Charges or claims during such action or proceeding, provided that at
the time of commencement of any such action or proceeding, and during the
pendency thereof, (i) no Default or Event of Default shall have occurred; (ii)
adequate reserves with respect thereto are maintained on the books of Holdings
or Purchaser, as the case may be, in accordance with GAAP; (iii) such contest
operates to suspend collection of the contested Charges or claims and is
maintained and prosecuted continuously with diligence; (iv) each of Holdings
and Purchaser shall promptly pay or discharge such contested Charges and all
additional charges, interest, penalties and expenses, if any, and shall upon
request from a Holder deliver to such Holder evidence of such compliance,
payment or discharge, if such contest is terminated or discontinued adversely
to Holdings or Purchaser, as the case may be, and in any event at least 15 days
before the date on which any property of Holdings or Purchaser, as the case may
be, may be sold or transferred because of nonpayment of such Charges or claims.


 


(c)           Notwithstanding
anything to the contrary contained in Section 4.4(b), each of Holdings
and Purchaser shall have the right to pay the Charges or claims arising under Section 4.4(a)(ii)
and thereafter in good faith contest, by proper legal actions or proceedings,
the validity or amount of such Charges or claims.


 


Section 4.5.            Books and Records.  Each of Holdings and Purchaser shall keep
adequate records and books of account with respect to its business activities,
in which proper entries, reflecting all of its financial transactions, are made
in accordance with GAAP.


 


Section 4.6.            Litigation.  Each of Holdings and Purchaser shall notify KINA
in writing, within 15 days after
learning thereof, of any litigation commenced against:  (a) Purchaser; or (b) any other Resorts
Group Company involving, in the case of this clause (b), injunctive or other
equitable relief reasonably likely to have a Material Adverse Effect on such
Resorts Group Company or amounts reasonably likely to have a Material Adverse
Effect on such Resorts Group Company.


 


Section 4.7.            Insurance.  Each of Holdings and Purchaser shall
maintain insurance covering, without limitation, fire, theft, burglary, public
liability, property damage, product liability, workers’ compensation and
insurance on its property and assets in amounts customary for the industry in
which such Person operates under usual and customary policies issued by
reputable insurers.


 


Section 4.8.            Compliance with Law.  Each of Holdings and Purchaser shall comply in
all material respects with all Laws and regulations applicable to it, including
all Gaming Laws, those regarding the collection, payment and deposit of
employees’ income, unemployment and social security taxes and those relating to
environmental matters.


 


Section 4.9.            Certain Asset Sales.  Neither Holdings nor Purchaser shall sell,
transfer, lease, convey or otherwise dispose of any of its assets or properties (an “Asset Sale”); provided, however, the foregoing shall not
prohibit (a) the transactions contemplated by the Lease


 


8

















 


Agreement
or the First Mortgage,
(b) Asset Sales permitted under Section 4.10, or (c) the attachment
or granting of any Lien permitted hereunder.


 


Section 4.10.          Mergers, Etc.  (a)  Purchaser
shall not, directly or indirectly, by operation of law or otherwise, merge
with, consolidate with, amalgamate with or acquire all or substantially all of
the assets or capital stock of, or otherwise combine with, any Person.  Purchaser shall not sell, lease or otherwise
transfer all or substantially all of its assets unless at the time of
consummation thereof all the outstanding Obligations are irrevocably and
indefeasibly repaid in full.  Purchaser
shall not create any Subsidiaries.


 


(b)           Holdings shall not, directly or
indirectly, by operation of law or otherwise, merge with, amalgamate with or
acquire all or substantially all of the assets or capital stock of, or
otherwise combine with, any Person. 
Holdings shall not sell, lease or otherwise transfer all or
substantially all of its assets unless at the time of consummation thereof all
the outstanding Obligations are irrevocably and indefeasibly repaid in
full.  Holdings shall not create any new
Subsidiaries; provided, however, that the foregoing provisions of this Section 4.10(b)
shall not prohibit:


 


(A)          mergers,
consolidations and amalgamations of Holdings, the sole purpose of which is to
reincorporate Holdings in a new jurisdiction in the United States and pursuant
to which (1) the surviving entity assumes all the obligations of Holdings under
the Transaction Documents pursuant to agreements in form and substance
reasonably satisfactory to KINA, (2) immediately after giving effect to such
transaction, no Default or Event of Default exists, (3) the transaction would
not result in the loss, suspension or material impairment of any material
Gaming Approval, (4) immediately after giving effect to such transaction, the
surviving entity will have consolidated net worth equal to or greater than the
consolidated net worth of Holdings immediately preceding the transaction, and
(5) KINA shall be entitled to receive a certificate of an executive officer of the
surviving entity and an opinion of counsel (reasonably acceptable to KINA) to
the surviving entity as conclusive evidence that such merger, consolidation or
amalgamation complies with the provisions hereof; and


 


(B)           Investments
to the extent permitted by Section 4.11.


 


Section 4.11.          Investments.  Neither Holdings nor Purchaser shall, directly
or indirectly, lend money or credit or make advances to any Person, or purchase
or acquire any stock, obligations or securities of, or any other interest in
(including any Equity Interest or any Equity Right), or make any capital
contribution to, any other Person, or purchase or own a futures contract or
otherwise become liable for the purchase or sale of currency or other
commodities at a future date in the nature of a futures contract or permit to
exist any of the foregoing (each of the foregoing an “Investment”),
except that the following shall be permitted:


 


(a)           Holdings and Purchaser may consummate
the transactions contemplated by the Transaction Documents in accordance with
the provisions of the Transaction Documents;


 


(b)           (i) Purchaser may acquire and hold
accounts receivables owing to it if created or acquired in the ordinary course
of its business and payable or dischargeable in accordance with customary terms,
(ii) Holdings and Purchaser may acquire and hold cash and Cash Equivalents,
(iii) Purchaser and Holdings may endorse negotiable instruments


 


9

















 


for collection in the
ordinary course of business, and (iv) Purchaser may make lease, utility and
other similar deposits in the ordinary course of business;


 


(c)           Holdings may make cash capital
contributions to Purchaser or Resorts; provided, however, that (i) the
transaction or series of transactions with respect to which any such cash
capital contribution is to be made would not constitute a Default or Event of
Default, and (ii) KINA shall have given its prior written consent to the
consummation of such transaction or series of transactions, such consent not to
be unreasonably withheld or delayed (it being understood and agreed that no
such consent shall be required if (A) any such cash capital contribution to
Purchaser or Resorts is made simultaneously with, or immediately after, a cash
capital contribution to Holdings by its equity holders in an amount equal to or
greater than the amount of the cash capital contribution by Holdings to
Purchaser or Resorts, and (B) such cash capital contribution to Holdings is on
terms no less favorable to Holdings than the terms of the capital contribution
from Holdings to Purchaser or Resorts, as reasonably determined by KINA); and


 


(d)           Holdings may have the Investments
identified on Schedule 4.11.


 


Section 4.12.          Indebtedness.  Neither Holdings nor Purchaser shall create,
incur, assume or permit to exist any Indebtedness, except (a) the Obligations,
(b) Indebtedness arising in connection with endorsement of instruments
for deposit in the ordinary course of business, (c) Indebtedness owed by
Purchaser to a Resorts Group Company or any of their Affiliates incurred by
Purchaser in connection with the payment of costs and expenses related to the
negotiations, execution and delivery of the Transaction Documents in an amount
not to exceed $500,000 in the aggregate, and (d) Indebtedness of Holdings
existing on the date hereof listed on Schedule 4.12.


 


Section 4.13.          Maintenance of Business.  Neither Holdings nor Purchaser shall engage in
any business other than (a) in the case of Purchaser, the business of owning
the Premises and leasing the Premises to Resorts pursuant to the Lease Agreement
and activities incidental thereto, and (b) in the case of Holdings, the
business currently engaged in by Holdings and activities incidental thereto.


 


Section 4.14.          Transactions with Affiliates.  Neither Holdings nor Purchaser shall enter
into or be a party to, or otherwise permit to exist, any transaction with any other Resorts Group Company or any Affiliate of a Resorts
Group Company, except for (a) the Lease
Agreement, (b) transactions contemplated by the Transaction Documents, (c)
payments to Holdings for reimbursement of reasonable administrative expenses
incurred by Holdings on behalf of Purchaser, (d) tax sharing agreements entered
into after the date hereof reasonably satisfactory to Holder, which tax sharing
agreements shall not be modified or amended without the prior written consent
of KINA, such consent not to be unreasonably withheld or delayed, (e) with
respect to Holdings, the transactions existing as of the date hereof, and (f)
Investments permitted under Section 4.11.


 


Section 4.15.          Financial Statements and
Information.


 


(a)           Financial
Statements and Information.


 


(i)                While any of the Resorts Group Companies is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, Holdings shall
provide the


 


10

















 


Holder with such annual reports and other information, documents and
reports as are specified in Section 13 and 15(d) of the Exchange Act, such
information, documents and reports to be so provided at the times specified for
the filing of such information, documents and reports under such sections.


 


(ii)               If none of the Resorts Group Companies are subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, Holdings shall
provide the Holder with such annual reports and other information, documents
and reports as are required to be maintained by and/or filed with any Gaming
Authority, such information, documents and reports to be so provided at the
times specified by any Gaming Authority.


 


(iii)              If
Holdings is not subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, Holdings shall deliver to Holder:  (A) within 45 days after the end of the
first three fiscal quarters of each Fiscal Year, (1) a copy of the unaudited
balance sheets of Holdings as of the close of such quarter and related
statements of income and cash flows for that portion of the Fiscal Year ending
as of the close of such quarter, and (2) a copy of the unaudited statements of
income of Holdings for such quarter, all prepared in accordance with GAAP
(subject to normal year end adjustments) and accompanied by a certification of
the chief executive officer or chief financial officer of Holdings that all
such financial statements present fairly in accordance with GAAP (subject to
normal year end adjustments) the financial position, the results of operations
and the cash flows of Holdings as of the end of such quarter and for the
portion of the Fiscal Year then ended, and that there was no Default or Event
of Default in existence as of such time (or if any such Default or Event of
Default then existed, describing the nature thereof and any action taken or
proposed to be taken by the Company with respect thereto); (B) within 90 days
after the close of each Fiscal Year, a copy of the annual audited financial
statements of Holdings, consisting of a balance sheet and statements of income
and retained earnings and cash flows, setting forth in comparative form in each
case the figures for the previous Fiscal Year, which financial statements shall
be prepared in accordance with GAAP, certified by a firm of independent
certified public accountants of recognized national standing selected by
Holdings and reasonably acceptable to the Holders, and accompanied by (1) a
report from such accountants to the effect that, in connection with their audit
examination, nothing has come to their attention to cause them to believe that
a Default or Event of Default has occurred (or if any such Default or Event of
Default has occurred, describing the nature thereof and any action taken by
Holdings with respect thereto) (which certificate may be limited or eliminated
to the extent required by accounting rules or guidelines), and (2) a
certification of the chief executive officer or chief financial officer of
Holdings that all such financial statements are complete and correct and
present fairly in accordance with GAAP the financial position, the results of
operations and the cash flows of Holdings as at the end of such year and for
the period then ended that there was no Default or Event of Default in
existence as of such time (or if any such Default or Event of Default then
existed, describing the nature thereof and any action taken or proposed to be
taken by Holdings with respect thereto); and (C) such other documents and
reports as are reasonably requested by any Holder.


 


11

















 


(b)           Communication
with Accountants.  Subject to Section 4.15(c),
each of Holdings and Purchaser authorizes Holder, upon prior notice to such
Person, to communicate directly with its independent certified public
accountants and authorizes those accountants to disclose to Holder any and all
financial statements and other supporting financial documents and schedules
including copies of any management letter with respect to the business,
financial condition and other affairs of any Resorts Group Company.  Such Person shall be entitled to have a
representative present during all such communications or meetings.  If requested by Holder following the selection
of such accountants, such Person shall deliver a letter addressed to such accountants
instructing them to comply with the provisions of this Section 4.15(b).


 


(c)           Access.  Holder and any of its officers, employees
and/or agents shall have the right, exercisable as frequently as Holder (or
representative thereof) reasonably determines to be appropriate, during normal
business hours and upon reasonable prior notice, to inspect the properties and
facilities of the Resorts Group Companies (including, without limitation, the
Premises (as defined in the Option Agreement)) and to inspect, audit and make
extracts from all of such Person’s records, files, and books of account.  All information sought by Holder under Section 4.15(b)
and this Section 4.15(c) shall be limited solely to information
directly related to the ability of the Resort Group Companies to repay and
comply with the Obligations or comply with covenants hereunder or under the
other Transaction Documents and shall be subject to the confidentiality
provisions of Section 8.11. 
Notwithstanding the provisions of Section 4.15(b) or this Section 4.15(c),
no Holder (which Holdings determines in good faith is a Competitor (as defined
in the Note) and so notifies KINA) shall be entitled to receive or inspect
proprietary or confidential information (including marketing and player information)
and only KINA (and not any other Holder other than a Holder that is a
Subsidiary of KINA) shall be entitled to the benefits of Sections 4.15(b)
and this 4.15(c).


 


Section 4.16.          Liens.  Neither Holdings nor Purchaser shall create or
permit any Lien on any of its properties or assets except as permitted by the
First Mortgage and the Security Agreement.


 


Section 4.17.          Capital Expenditures.  Neither Holdings nor Purchaser shall make any
Capital Expenditures other than, in the case of Purchaser, additions and
alterations to the Premises to the extent permitted by the First Mortgage.


 


Section 4.18.          Restricted Payments.  Neither Holdings nor Purchaser shall make any Restricted Payments.


 


Section 4.19.          Additional Holdings Obligations.


 


(a)           Holdings shall take all commercially reasonable steps,
including the payment of money, necessary to enable Purchaser to meet its
payment and other obligations (other than the Obligations) as and when due to
the extent such obligations are not the obligations of Resorts, as tenant under
the Lease Agreement.  The foregoing
shall not affect in any manner Holdings’ obligations under the Holdings
Guarantee.


 


(b)           Holdings shall cause each of Resorts,
RIH, New Pier and each New Guarantor not to engage in any action if the result
thereof would constitute an Indenture Default in respect of such Person’s
obligations under the asset sale restrictions of Section 4.11 of the
Indenture.


 


12

















 


(c)           Holdings shall cause each of Resorts,
RIH, New Pier and each New Guarantor not to, directly or indirectly, in a
single transaction or series of related transactions, (i) consolidate or merge
with or into another person, or (ii) sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties, if the result
thereof would constitute an Indenture Default.


 


(d)           Notwithstanding anything herein that
may be to the contrary, Holdings shall not permit, nor suffer to exist, the
direct or indirect sale, assignment, transfer, lease, conveyance or other
disposition (“Transfer”) of the Casino Property, the Property (as
defined in the First Mortgage), except as permitted by the First Mortgage, or
any substantial part thereof, whether by Transfer of assets, by merger,
consolidation or amalgamation, by Transfer of stock or other equity interests,
or otherwise, and Holdings shall not agree or permit any other Person to agree
to do any of the foregoing.  For the
purposes of this Section 4.19(d), Transfer shall be deemed to
include any joint venture or partnership or similar arrangement in respect of
the ownership or use of the Casino Property, the Property (as defined in the
First Mortgage), except as permitted in the First Mortgage, or any substantial
part thereof, the granting to any Person of an option to cause the Transfer of
the Casino Property, the Property (as defined in the First Mortgage) or any
substantial part thereof, or the entering into of any contract or agreement to
Transfer the Casino Property, the Property (as defined in the First Mortgage)
or any substantial part thereof.


 


(e)           Notwithstanding anything herein to
the contrary, the failure of Holdings to perform, keep or observe any of the
provisions of Sections 4.19(b), 4.19(c) or 4.19(d) shall
not be deemed an Event of Default hereunder if, prior to or simultaneously with
the occurrence of any event specified in such provisions, either (i) the
Holders shall have been irrevocably and indefeasibly paid in full an amount in
the aggregate equal to the entire principal amount of the Notes, plus accrued
and unpaid interest thereon through the date of such payment plus any and all
other amounts then due to KINA or the other Holders pursuant to the Transaction
Documents, or (ii) (A) the Holders shall have been irrevocably and indefeasibly paid an amount in the aggregate equal
to the Guarantee Amount (as defined in the Guarantees) in effect as of the
Cut-off Date (assuming the Cut-off Date was the date of payment) (as defined in
the Guarantees), (B) Purchaser shall have executed and proffered to KINA or its
assigns (or its or their designee) a bargain and sale deed with a covenant as
to grantor’s acts in recordable form conveying marketable title to the Property
(as defined in the First Mortgage), subject only to Permitted Exceptions (as
defined in the First Mortgage), and sufficient to enable KINA or its assigns
(or its or their designee) to obtain an owner’s policy of title insurance for
the Property, subject only to Permitted Exceptions, (x) substantially the
same as the owner’s policy of title insurance in connection with its
acquisition of the Property assuming that such owner’s policy is then readily
available to owners of property, or (y) provided that the owner’s policy
set forth in clause (x) is not available, such other owner’s policy of title
insurance which may be available to owners of similarly situated properties of
similar type in Atlantic City, New Jersey, (C) the Lease Agreement shall have
been effectively terminated and the rights of any tenants claiming by, through
or under such Lease Agreement shall have been effectively terminated (other
than the rights of tenant under that certain lease agreement for Real Property
between KINA and 19 North Illinois Avenue Associates, L.L.C., dated
April 15, 1999), and (D) Purchaser
shall have paid all transfer taxes and fees incurred in connection with the
delivery and recordation of the bargain and sale deed executed and proffered by Purchaser to KINA or its assigns (or
its or their designee), if any.  Once the events in either clause (i) or
clause (ii) above shall have occurred, KINA or the Holders shall surrender for
cancellation the Notes.


 


13

















 


ARTICLE V 



ADDITIONAL
COVENANTS OF HOLDINGS IN RESPECT OF RESORTS, RIH, NEW

PIER AND EACH NEW GUARANTOR


 


Holdings shall cause each
of Resorts, RIH, New Pier and each New Guarantor to comply with the following
covenants, it being understood that none of the following covenants are direct
obligations of any of Resorts, RIH, New Pier or any New Guarantor:


 


Section 5.1.            Indebtedness.  None of Resorts, RIH, New Pier and any New Guarantor
shall, directly or indirectly, create, incur, issue, assume, guarantee or
otherwise become directly or indirectly liable, contingently or otherwise, with
respect to any Indebtedness (as defined in the Indenture on the date hereof) if
the result thereof would constitute an Indenture Default.


 


Section 5.2.            Delivery of Amendments to
Operating Company Debt Documents.  Resorts shall promptly deliver copies to KINA of
any amendments, extensions, renewals, replacements, or waivers that may be
entered into by any Resorts Group Company or granted by any lender with respect
to any Operating Company Debt.


 


Section 5.3.            Indenture.


 


(a)           Promptly, and in any event within two (2)
Business Days after learning thereof, each of Resorts, RIH, New Pier and each
New Guarantor shall notify KINA in writing, of the occurrence of a Default or an Event of Default (as such terms
are defined in the Indenture) under
the Indenture, specifying in reasonable detail the nature of such Default or
Event of Default (as such terms are defined in the Indenture).


 


(b)           On or prior to the Issue Date, Resorts
shall deliver to the Trustee (as such term is defined in the Indenture) a
letter in the form attached hereto as Exhibit P irrevocably instructing
the Trustee to promptly, and in any event
within two (2) Business Days after learning thereof, notify KINA in writing, of the occurrence of a Default or an Event of
Default (as such terms are defined in the Indenture) under the Indenture, and
Resorts shall use its reasonable best efforts to cause the Trustee to confirm
its receipt and acknowledgment of such letter.


 


Section 5.4.            Transactions with Affiliates.  None of Resorts, RIH, New Pier and any New
Guarantor shall make any payment to, or sell, lease, transfer or otherwise
dispose of any of its properties to, or purchase any property from, or enter
into or make or amend any contract, agreement, loan, advance or guarantee with,
or for the benefit of, any Affiliate if the result thereof would constitute an
Indenture Default.


 


Section 5.5.            Restricted Payments. 
None of Resorts, RIH, New Pier and any New Guarantor shall make any
Restricted Payments (as defined in the Indenture on the date hereof) if the
result thereof would constitute an Indenture Default.


 


Section 5.6.            Future Guarantees. 
If, on or after the date hereof, any Subsidiary executes a Guarantee (as
defined in the Indenture on the date hereof) in accordance with the Indenture,
then such Subsidiary shall execute and deliver to the Holders simultaneously
therewith a guarantee in the form of Exhibit Q attached hereto.


 


14

















 


Section 5.7.            Financial Statements and
Information.  Resorts shall deliver to Holder,
simultaneously with delivery to the Trustee or holders of the Indenture Notes
under the Indenture, all reports and financial statements delivered under the
Indenture, including Section 4.03 thereof.


 


Section 5.8.            CIT Credit Facility. 
RIH shall not, and shall not agree to, amend, modify or supplement any
of the CIT Agreements (or any amendment, modification or supplement thereof) in
any manner, the effect of which would be to create a Principal Increase
Provision (as defined in the CIT Subordination Agreement) or a Revolver
Provision (as defined in the CIT Subordination Agreement), in each case without
the prior written consent of such Holder.  In no event shall any amendment, modification or supplement to the
CIT Agreements (or any amendment, modification or supplement thereof) that
relates to re-borrowing of paid amounts or to principal or interest payments or
prepayments be effective until five days after KINA shall have received a
complete and accurate set of all documents, instruments and agreements
reflecting such amendment, modification or supplement, and, with respect to any
other amendment, modification or supplement, RIH shall promptly (but in no
event later than two business days following execution) deliver or cause to be
delivered to KINA promptly (but in no event later than two business days
following execution) a complete and accurate execution set of all documents,
instruments and agreements reflective thereof.


 


ARTICLE VI



ADDITIONAL
COVENANTS


 


Section 6.1.            Consent Fees.


 


(a)           If (i) any of Resorts, RIH, New Pier
and any New Guarantor seeks a waiver or consent from the holders of Indenture
Notes (other than in connection with compliance with the restrictions under
Section 4.08 of the Indenture or Section 5.1), and (ii) such
Person is or would be required to seek a substantially similar consent or
waiver from the Holders under the terms of this Agreement, then the Holders
shall grant any such waiver or consent to the same extent as the waiver or
consent granted by the holders of the Indenture Notes and, if a consent fee is
paid to the holders of the Indenture Notes in connection with any such waiver
or consent, such Person shall pay the Holders a consent fee equal to fifty
percent (50%) in the aggregate of the pro  rata amount that such
Holders would have been entitled to if they held an identical principal amount
of Indenture Notes.  For illustration
purposes only, assuming that there are $200,000,000 aggregate principal amount
of Indenture Notes outstanding and the holders of the Indenture Notes are paid
an aggregate consent fee of $2,000,000 (equal to one percent (1%) of the
outstanding principal amount), the Holders (assuming $40,000,000 of principal
amount was outstanding at the time of the payment) would be entitled to receive
an aggregate consent fee of $200,000 (equal to one-half of one percent (0.50%)
of the outstanding principal amount).


 


(b)           It is understood and agreed that Section 6.1(a)
shall not apply in respect of any of the covenants and agreements contained in Article IV.


 


Section 6.2.            Termination of Certain Covenants
and Agreements.  The covenants and agreements contained in Article IV,
Article V and this Article VI shall terminate upon the
earliest date upon which (a) all the outstanding Obligations are irrevocably and indefeasibly paid in full, and (b) the
Holders receive payment of the then applicable Guarantee Amount from


 


15

















 


Holdings
or Resorts, as the case may be.  Except as
expressly provided in the immediately preceding sentence, nothing in this Section 6.2
shall be deemed to impair, restrict or eliminate the rights, obligations or
remedies of the parties hereto under this Agreement and the other Transaction
Documents (including the foreclosure and other rights and remedies of KINA
under the First Mortgage).


 


ARTICLE VII



REPRESENTATIONS
AND WARRANTIES


 


Each of Holdings
and Purchaser, jointly and severally with respect to each other, and each of
Resorts, RIH, New Pier and each New Guarantor, severally as to itself, and not
with respect to, for, or in respect of, any other Person, represents and
warrants as of the Issue Date to each Holder as follows:


 


Section 7.1.            Organization and Standing of the
Resorts Group Companies; Ownership. 
Each of the Resorts Group Companies is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and has all requisite corporate power and authority for the
ownership and operation of its properties and for the carrying on of its
business as now conducted and as now proposed to be conducted.  Each of the Resorts Group Companies is duly
licensed or qualified and in good standing as a foreign corporation authorized
to do business in all jurisdictions wherein the character of the property owned
or leased, or the nature of the activities conducted, by it makes such
licensing or qualification necessary except where the failure to do so is not
reasonably likely to have a Material Adverse Effect.  Except for Holdings’ direct or indirect ownership of all of the
outstanding capital stock of Resorts, Purchaser, RIH and New Pier, as of the
date hereof, Holdings does not own any capital stock or other equity or
ownership or proprietary interest in any corporation, partnership, association,
trust, joint venture or other entity or Person.  Purchaser does not own any capital stock or other equity or
ownership or proprietary interest in any corporation, partnership, association,
trust, joint venture or other entity or Person.


 


Section 7.2.            Corporate Action.  Each of the Resorts Group Companies has all
necessary corporate power and authority to execute and deliver this Agreement
and the other Transaction Documents to which it is a party and to perform fully
its obligations hereunder and thereunder, and to consummate the transactions
contemplated hereby and thereby.  The
execution and delivery by such Resorts Group Company of this Agreement and the
other Transaction Documents to which it is a party and the performance by such
Resorts Group Company of its obligations hereunder and thereunder and the
consummation by such Resorts Group Company of the transactions contemplated
hereby and thereby have been duly and validly authorized by all necessary corporate
action on the part of such Resorts Group Company.  This Agreement and the other Transaction Documents to which such
Resorts Group Company is a party have been duly and validly executed and
delivered by such Resorts Group Company. 
This Agreement and the other Transaction Documents to which such Resorts
Group Company is a party constitute legal, valid and binding obligations of
such Resorts Group Company, enforceable against such Resorts Group Company in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally and by equitable
principles,


 


16

















 


including those limiting
the availability of specific performance, injunctive relief and other equitable
remedies and those providing for equitable defenses.


 


Section 7.3.            Noncontravention.  None of the execution and delivery by any
Resorts Group Company of this Agreement and the other Transaction Documents to
which it is a party, the performance by such Resorts Group Company of its
obligations hereunder and thereunder and the consummation by such Resorts Group
Company of the transactions contemplated hereby and thereby, will:


 


(a)             conflict with or
violate any provision of the charter or bylaws (or equivalent documents) or
other organizational documents of such Resorts Group Company;


 


(b)           conflict with,
result in (with or without due notice or lapse of time or both) a breach of,
constitute (with or without due notice or lapse of time or both) a default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify or cancel, or require any consent under, or
result in the loss of any rights, privileges, options or alternatives under, any
contract, agreement, commitment or understanding, to which such Resorts Group
Company is a party or by which such Resorts Group Company is bound or to which
any of such Resorts Group Company’s respective properties or assets is subject,
including the Indenture, except for any conflicts, breaches, defaults,
accelerations, rights to accelerate, terminations, modifications,
cancellations, consents, or loss of rights, privileges, options or alternatives
that could not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect;


 


(c)           result in the
imposition of any Lien upon the Equity Interests of such Resorts Group Company
other than (i) restrictions on the subsequent transfer of stock by the owner
thereof imposed under applicable securities laws, and (ii) the Lien on the
capital stock of Purchaser granted under the Stock Pledge Agreement;


 


(d)           result in the
imposition of any Lien (other than Liens granted under the Security Agreement
and the Stock Pledge Agreement) upon any assets of such Resorts Group Company;
or


 


(e)           violate in any
material respect any Law applicable to such Resorts Group Company or any of its
properties or assets.


 


Section 7.4.            Governmental Approvals.  No authorization, consent, approval,
license, exemption of or filing or registration with any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, including any Gaming Authority, is necessary in connection with the
execution and delivery by any Resorts Group Company of this Agreement and the
other Transaction Documents to which it is a party except for those which have
been obtained and are in full force and effect.


 


Section 7.5.            Litigation.  There is no litigation or governmental
proceeding or investigation pending or, to the knowledge of the Resorts Group
Companies after due inquiry, threatened against any of the Resorts Group
Companies which would reasonably be likely to have a Material Adverse Effect.


 


17

















 


Section 7.6.            Compliance.  Each Resorts Group Company is in compliance
in all respects with the terms and provisions of this Agreement and the other
Transaction Documents to which it is a party and in all respects with the
provisions of all Laws, including Gaming Laws, to which  it or its properties and assets
are subject, except where the failure to so comply would not reasonably be
likely to have a Material Adverse Effect.


 


Section 7.7.            Title to Capital Stock.  Holdings owns all the Equity Interests of
Resorts and Purchaser, free and clear of all Liens (other than the Lien on the
capital stock of Purchaser granted under the Stock Pledge Agreement), and
Resorts owns all the Equity Interests of RIH and New Pier, free and clear of
all Liens (other than the Lien on the capital stock of New Pier and RIH granted
under the Indenture Security Agreement). 
Thomas J. Barrack, Jr. directly or indirectly beneficially owns at least
a majority of the Voting Stock of Holdings. 
Schedule 7.7 indicates and describes all Equity Interests of
Purchaser, Resorts, RIH and New Pier and the ownership thereof.  All such Equity Interests are validly
issued, fully paid and non-assessable, and the issuance and sale thereof were
in compliance with all applicable federal and state securities and other
applicable laws; and the equity holders’ ownership of such Equity Interests is
free and clear of any Liens or other contractual restrictions, except as
indicated in this Section 7.7. 
None of Purchaser, Resorts, RIH and New Pier has issued any Equity
Rights.


 


Section 7.8.            Indebtedness.  The Resorts Group Companies are presently
subject to no Indebtedness other than the Indenture Notes, the Operating
Company Debt and Contingent Obligations in respect of Indebtedness under the
Operating Company Debt Documents (including Interest Rate Protection Agreements
and other hedging obligations secured under the related security
documents).  Except as set forth on Schedule 7.8,
true, accurate and complete copies of the Operating Company Debt Documents have
been delivered to KINA.


 


Section 7.9.            No Brokers or Finders.  No Person has or will have, as a result of
the transactions contemplated by this Agreement or the other Transaction
Documents, any right, interest or valid claim against or upon Holder for any
commission, fee or other compensation as a finder or broker because of any act
or omission by any of the Resorts Group Companies or any or their respective
agents.


 


Section 7.10.          No Defaults.  No Default or Event of Default (as those
terms are defined in the Indenture) has occurred and is continuing.  No Resorts Group Company is in default under
any agreement to which it or any of its Property is bound, except such defaults
that would not reasonably be likely to result in a Material Adverse Effect


 


Section 7.11.          Material Business Purpose.  Each of
Holdings, Resorts, RIH and New Pier represents and warrants to KINA that the
consummation of the transactions contemplated by this Agreement, the Purchase
Agreement and the other Transaction Documents are of material business value to
it.


 


Section 7.12.          Ranking.  The Secured Promissory Note constitutes (and
upon issuance each other Note will constitute) secured senior obligations of
Purchaser and the Secured Promissory Note is not, and at all times will not be
(and upon issuance each other Note at all times will not be), subordinate in
right of payment to any other Indebtedness of Purchaser.


 


Section 7.13.          SEC Documents.  Each of Holdings and Resorts has filed with
the SEC all reports, schedules, forms, statements and other documents required
to be filed with the SEC by it during the period beginning on the date of its
incorporation and ending on the Issue Date


 


18

















 


(together with all
information incorporated therein by reference, the “Filed SEC Documents”).  No Subsidiary of Holdings (other than
Resorts) is required to file any report, schedule, form, statement or other
document with the SEC.


 


Section 7.14.          ERISA.  The assets of Purchaser and each Guarantor
are not treated as “plan assets”, whether by operation of law or under
regulations promulgated under the Employee Retirement Income Security Act of
1974, as amended, and the regulations promulgated thereunder (as the same may
be amended from time to time).


 


Section 7.15.          Holdings Subsidiaries.  Holdings’ only Subsidiaries are set forth on
Schedule 7.15 attached hereto.


 


Section 7.16.          CIT Agreements.  The CIT Agreements (or any amendment,
modification or supplement thereof) do not, and will not, permit RIH to
reborrow after June 30, 2005 any amounts in excess of $5,000,000
previously borrowed and repaid thereunder.


 


ARTICLE VIII


 


MISCELLANEOUS


 


Section 8.1.            Complete Agreement; Amendments.  This Agreement (together with the other
Transaction Documents) constitutes the complete agreement and understanding
between the parties with respect to the subject matter hereof (and thereof),
and supersedes all prior agreements and understandings, oral or written,
express or implied, with respect to the subject matter hereof (and thereof),
and all such prior agreements and understandings shall be null and void and
without further effect as of the date hereof. 
No amendment or waiver of any provision of this Agreement, nor consent
to any departure by any of the parties hereto therefrom, shall in any event be
effective unless the same shall be in writing and signed by each of the parties
hereto, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.


 


Section 8.2.            No Assignment.  Under no circumstances shall any of the Resorts
Group Companies be permitted to assign any of its obligations under this
Agreement and any attempt by any such Resorts Group Company to assign such
obligations shall be null and void.


 


Section 8.3.            Fees and Expenses.


 


(a)           The Resorts Group Companies shall pay
to KINA the amount of $350,000 in accordance with the discussions between
Charles D. Adamo, Executive Vice President of KINA, and Nicholas Ribis, Vice
Chairman of Resorts.


 


(b)           If Holder shall employ counsel or
other advisors for advice or other representation or shall incur reasonable legal
or other costs and expenses in connection with (i) any amendment, modification
or waiver, or consent requested by a Resorts Group Company with respect to,
this Agreement or the other Transaction Documents or Holder’s rights hereunder,
or (ii) any litigation, contest, dispute, suit, proceeding or action (whether
instituted by Holder, a Resorts Group Company or any other Person) in any
attempt to enforce any rights of Holder against any Resorts Group Company with
respect to any of the Transaction Documents, then, and in any such event, the
attorneys’ and other parties’ fees arising from such services, including those
of any appellate proceedings, and all expenses, costs, charges and other fees
incurred by such


 


19

















 


counsel,
and others, in any way or respect arising in connection with or relating to any
of the events or actions described in this Section 8.3 shall be
payable, on demand, by the Resorts Group Companies to Holder.  Without limiting the generality of the
foregoing, such expenses, costs, charges and fees may include: paralegal fees,
costs and expenses; court costs and expenses; photocopying and duplicating
expenses; court reporter fees, costs and expenses; long distance telephone
charges; air express charges; telegram charges; secretarial overtime charges;
and expenses for travel, lodging and food paid or incurred in connection with
the performance of such legal services.


 


Section 8.4.            No Waiver by Holder.  Holder’s failure, at any time or times, to
require strict performance by any Resorts Group Company of any provision of
this Agreement shall not waive, affect or diminish any right of Holder
thereafter to demand strict compliance and performance therewith.  None of the undertakings, agreements,
warranties, covenants and representations of each of the Resorts Group
Companies contained in this Agreement shall be deemed to have been suspended or
waived by Holder, unless such suspension or waiver is by an instrument in
writing signed by Holder (as such term is defined in the applicable provision hereof)
and directed to such Resorts Group Company specifying such suspension or
waiver.


 


Section 8.5.            WAIVER OF JURY TRIAL.  THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY OF THE OTHER
TRANSACTION DOCUMENTS.


 


Section 8.6.            Severability.  Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.


 


Section 8.7.            Parties.  This Agreement shall be binding upon, and inure
to the benefit of, the respective successors of the Resorts Group Companies and
Holder and the assigns of Holder.


 


Section 8.8.            Authorized Signature.  Until Holder shall be notified by the applicable
Resorts Group Company to the contrary, the signature upon any document or
instrument delivered pursuant hereto of any duly elected officer of such
Resorts Group Company shall bind such Resorts Group Company and be deemed to be
the act of such Resorts Group Company.


 


Section 8.9.            Governing Law.  IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD
TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS, AND ANY APPLICABLE LAWS
OF THE UNITED STATES OF AMERICA.  Each
of Holder and the Resorts Group Companies agrees to submit to personal
jurisdiction and to waive any objection as to venue in the federal and state
courts of the County of New York, State of New York.  Service of process on any of the Resorts Group Companies and
Holder in any action arising out of or relating to any of the Notes shall be effective
if mailed to such party in accordance with Section 8.10.  Nothing herein shall preclude Holder or a
Resorts Group Company from bringing suit or taking other legal action in any
other jurisdiction.


 


20

















 


Section 8.10.          Notices. 
All notices, requests, demands, approvals, consents, waivers and other
communications required or permitted to be given under this Agreement (each, a
“Notice”) shall be in writing and shall be (a) delivered
personally, (b) mailed by first-class, registered or certified mail,
return receipt requested, postage pre-paid, (c) sent by next-day or
overnight mail or delivery, or (d) sent by facsimile transmission,
provided that the original copy thereof also is sent by pre-paid, first class
certified or registered mail or by next-day or overnight mail or personal
delivery:


 


(i)        if to a Resorts Group Company, to


 


Colony RIH
Holdings, Inc.


c/o Resorts
International Hotel, Inc.


1133 Boardwalk


Atlantic City, New Jersey


Facsimile:              (609) 340-7896


Attention:             Ms. Audrey Oswell


 


with copies to:


 


Willkie Farr &
Gallagher LLP


787 Seventh Avenue


New York, NY  10019


Facsimile:              (212) 728-8111


Attention:             Thomas M. Cerabino, Esq.


 


(ii)       if to Holder, to


 


c/o Kerzner International
Hotels Limited


Coral Towers


Paradise Island, The
Bahamas


Facsimile:              (242) 363-4581


Attention:             General Counsel


 


with copies to:


 


Proskauer Rose LLP


1585 Broadway


New York, NY  10036


Facsimile:              (212) 969-2900


Attention:             James P. Gerkis, Esq.


 


or, in each case at such other address as may be
specified in a Notice to a Resorts Group Company or Holder, as the case may
be.  Any Notice shall be deemed
effective and given upon receipt (or intentional refusal of receipt by the
addressee of such Notice).


 


Section 8.11.          Confidentiality.


 


21

















 


(a)           Each party agrees to
keep confidential information obtained by it pursuant to this Agreement and the
other Transaction Documents confidential in accordance with such party’s
customary practices and agrees that it will only use such information in
connection with the transactions contemplated hereby and not disclose any of
such information other than (i) to such party’s employees, representatives,
directors, attorneys, auditors, agents, professional advisors, trustees or
affiliates who are advised of the confidential nature thereof (such party being
liable for any breach of confidentiality by any person described in this clause
(i)), (ii) to the extent such information presently is or hereafter becomes
available to such party on a non-confidential basis from a person not an Affiliate
of such party not known to such party to be violating a confidentiality
obligation by such disclosure, (iii) to the extent disclosure is required by
any law, subpoena or judicial order or process (provided that notice of
such requirement or order shall be promptly furnished to Holdings unless such
notice is legally prohibited) or requested or required by any Governmental
Authority to whose jurisdiction such party may be subject, (iv) to prospective
assignees of Holder who agree in writing for the benefit of the Resort Group
Companies to be bound by the provisions of this Section 8.11, (v)
to the extent required in connection with any litigation between or among any
of the parties hereto, any Resorts Group Company and Holder with respect to any
of the Transaction Documents, or (vi) with the other parties’ prior written
consent.


 


(b)           Notwithstanding Section 8.11(a),
or any other written or oral understanding or agreement to which the parties
hereto are parties or by which they are bound, Holder (and its representatives,
agents and employees) may consult any tax advisor regarding the tax treatment
and tax structure of the transactions contemplated by this Agreement and the
other Transaction Documents and, from and after the earliest to occur of (i)
the Issue Date, (ii) the public announcement of the transactions contemplated
by this Agreement and the other Transaction Documents, and (iii) the public
announcement of our discussions regarding the transactions contemplated by this
Agreement and the other Transaction Documents, may disclose to any person,
without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and the other Transaction Documents
and all materials (including opinions or other tax analyses) that are provided
relating to such treatment or structure.


 


Section 8.12.          Section Titles.  The Section titles and Table of Contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.


 


Section 8.13.          Exhibits, etc.  All exhibits, schedules and annexes to this
Agreement constitute part of this Agreement and are hereby incorporated by this
reference in this Agreement.


 


Section 8.14.          Specific Performance.  Each of the Resorts Group Companies
acknowledges and agrees that Holder would be damaged irreparably in the event
any of the provisions of this Agreement are not performed in accordance with
their specific terms or otherwise are breached.  Accordingly, such Resorts Group Company agrees that Holder shall
be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and to enforce specifically this Agreement and the
terms and provisions hereof in any action instituted in any court of the United
States or any state thereof having jurisdiction over the parties hereto and the
matter.


 


22

















 


Section 8.15.          Remedies Cumulative.  The enumeration of the rights and remedies
of KINA and any Holder set forth in this Agreement and the other Transaction
Documents is not intended to be exhaustive and the exercise by KINA or any
Holder of any right or remedy shall not preclude the exercise of any other
right or remedy herein or in any of the other Transaction Documents, all of
which shall be cumulative, and shall be in addition to any other right or
remedy given hereunder or thereunder or that may now or hereafter exist at law
or in equity or by suit or otherwise. 
No delay or failure to take any action on the part of KINA or any Holder
in exercising any right, remedy, power or privilege shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, remedy,
power or privilege preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege or shall be construed
to be a waiver of any Default or any Event of Default.  No course of dealing between or among KINA
and any of the Holders, any of the Guarantors, the Purchaser or Holdings shall
be effective to change, modify or discharge any provision of this Agreement or
any of the other Transaction Documents or to constitute a waiver of any Default
or Event of Default unless such change, modification, discharge or waiver is
acknowledged in writing by KINA and each Holder.  Nothing contained in this Agreement shall release the Purchaser
from any of its obligations under any Transaction Document to which it is a
party except to the extent of amounts irrevocably and indefeasibly paid under
the Transaction Documents in respect of such obligations.  The obligations of the Resorts Group
Companies hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the irrevocable and
indefeasible payment in full in cash of the Obligations and as otherwise set
forth herein), and shall not be subject to any defense of set-off or
counterclaim.


 


Section 8.16.          Counterparts.  This
Agreement may be executed by the parties with counterpart signature pages or in
separate counterparts (including by facsimile), each of which when executed and
delivered shall be an original, but all counterparts shall together constitute
one and the same instrument.


 


Section 8.17.          Termination of Option Agreement.  As of the date hereof, KINA and Resorts
agree that the Option Agreement hereby is terminated and of no further force
and effect.  Each of the parties hereto
acknowledges and agrees that no duties, debts, claims, commitments, liabilities
or obligations of any party under the Option Agreement shall survive such termination.


 


Section 8.18.          Other Agreements.  Unless the context otherwise requires,
references in any of the Transaction Documents to any agreement shall refer to
such agreement, as the same may be amended, supplemented or modified from time
to time in accordance with its terms.


 


[SIGNATURE PAGES
FOLLOWS]


 


23

















 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.


 


	
   

  	
  COLONY
  RIH HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Nick Ribis

  	
   

  
	
   

  	
   

  	
  Name:  Nick Ribis

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RESORTS
  INTERNATIONAL HOTEL AND CASINO, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Nick Ribis

  	
   

  
	
   

  	
   

  	
  Name:  Nick Ribis

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RESORTS
  REAL ESTATE HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Nick Ribis

  	
   

  
	
   

  	
   

  	
  Name:  Nick Ribis

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  RESORTS
  INTERNATIONAL HOTEL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Nick Ribis

  	
   

  
	
   

  	
   

  	
  Name:  Nick Ribis

  
	
   

  	
   

  	
  Title:

  
					



 


24

















 


	
   

  	
  NEW
  PIER OPERATING COMPANY, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  Nick Ribis

  	
   

  
	
   

  	
   

  	
  Name:  Nick Ribis

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KERZNER
  INTERNATIONAL NORTH AMERICA, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  William C. Murtha

  	
   

  
	
   

  	
   

  	
  Name:  William C. Murtha

  
	
   

  	
   

  	
  Title:  Senior Vice President & Corporate
  Counsel

  



 


25

















 


ANNEX I


 


Certain Definitions


 


“Affiliate” shall mean, with
respect to any Person, any other Person which directly or indirectly controls,
or is under common control with, or is controlled by, such Person; provided,
however, that Holdings
shall not be deemed to be an Affiliate of any Wholly Owned Subsidiary of Holdings and no Wholly Owned Subsidiary of Holdings shall be deemed to be an
Affiliate of any other Wholly Owned
Subsidiary.  As used in this definition,
“control”
(including, with its correlative meanings, “controlled by” and “under common
control with”) shall mean possession, directly or indirectly, of
power to direct or cause the direction of management or policies (whether
through ownership of securities or partnership or other ownership interests, by
contract or otherwise).


 


“Agreement” shall mean this
Agreement (including the Exhibits, Schedules and Annexes hereto), as the same
from time to time may be amended, supplemented or waived in accordance with its
terms.


 


“Assignment” shall have the
meaning set forth in Section 3.1(f).


 


“Beneficial Owner” shall have
the meaning assigned to such term in Rules 13d-3 and 13d-5 under the Exchange
Act.  The terms “Beneficially Owns” and “Beneficially
Owned” shall have a corresponding meaning.


 


“Business Day” shall mean any day that is
not a Saturday, a Sunday or a day on which banks are required or permitted to
be closed in the States of New York or New Jersey.


 


“Capital Expenditures” shall
mean, for any period, any direct or indirect (by way of acquisition of
securities of a Person or the expenditure of cash or the transfer of Property
or the incurrence of Indebtedness) expenditures of a person which should be
capitalized in accordance with GAAP, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
GAAP), excluding (a) any expenditure made from the proceeds of asset sales or
from casualty or condemnation events (or from deductibles with respect to any
such casualty or condemnation event), and (b) the purchase price of equipment
to the extent that the consideration therefor consists of used or surplus
equipment being traded in at such time or the proceeds of a concurrent sale of
such used or surplus equipment.


 


“Capital Lease” as applied to
any person, shall mean any lease of any Property by that person as lessee
which, in conformity with GAAP, is required to be classified and accounted for
as a capital lease on the balance sheet of that person.


 


“Capital Lease Obligations”
shall mean, for any person, all obligations of such person to pay rent or other
amounts under a Capital Lease, and, for purposes of this Agreement, the amount
of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP.


 


“Cash Equivalents” shall mean,
for any person:  (a) direct
obligations of the United States of America, or of any agency thereof, or
obligations guaranteed as to principal and interest by the United States of
America, or by any agency thereof, in either case maturing not more than


 

















 


one year from the date of
acquisition thereof by such person; (b) time deposits, certificates of deposit
or bankers’ acceptances (including eurodollar deposits) issued by (i) any
bank or trust company organized under the laws of the United States of America
or any state thereof and having capital, surplus and undivided profits of at
least $500.0 million and a deposit rating of investment grade or (ii) any
Lender; (c) commercial paper rated A-1 or better by S&P or P-1 or better by
Moody’s, respectively, maturing not more than 270 days from the date of
acquisition thereof by such person; (d) repurchase obligations with a term
of not more than 30 days for underlying securities of the types described in
clause (a) above entered into with a bank meeting the qualifications described
in clause (b) above; (e) securities with maturities of six months or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States of America, or by any political
subdivision or taxing authority thereof, and rated at least A by S&P or A
by Moody’s; or (f) money market mutual funds that invest primarily in the
foregoing items.


 


“Casino Property” shall mean the real
property owned or leased by RIH in the County of Atlantic, State of New Jersey,
as more particularly set forth on Schedule 2.1(1) attached hereto,
the real property owned by New Pier in the County of Atlantic, State of New
Jersey, as more particularly set forth on Schedule 2.1(1) attached
hereto, and the real property owned by Resorts in the County of Atlantic, State
of New Jersey, as more particularly set forth on Schedule 2.1(1)
attached hereto.


 


“Change of Control” shall
mean, at any time, the occurrence of any of the following: (a) prior to the
consummation of an IPO, the Permitted Holders cease to be the Beneficial Owner
directly or indirectly of at least 51% of the fully diluted Voting Stock of
Holdings; (b) following the consummation of an IPO, (i) any “person” (including
any group that is deemed to be a “person” but, in any event, excluding the
Permitted Holders or any “group” that includes any of the Permitted Holders) is
or becomes the Beneficial Owner of more of the fully diluted Voting Stock of
the Company than the Voting Stock of the Company Beneficially Owned by the
Permitted Holders, or (ii) during any period of 24 consecutive months
commencing after the Issue Date, individuals who at the beginning of such
period constituted Holdings’ Board of Directors (together with any new or
replacement directors whose election by Holdings’ Board of Directors or whose
nomination for election by Holdings’ shareholders was approved by a vote of at
least a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved by the Permitted Holders) cease for any reason
to constitute a majority of the directors then in office; or (c) on or after
the Issue Date, Holdings fails to own, directly or indirectly, all of the
Equity Interests of any other Resorts Group Company.  The terms “person” and “group” shall have the meanings
ascribed to such terms in Section 13(d) of the Exchange Act.


 


“Charges” shall mean all Federal, state,
county, city, municipal, local, foreign or other governmental taxes, levies or
assessments relating to (a) the Obligations of each of Holdings and Purchaser,
(b) employees, payroll, income or gross receipts of each of Holdings and
Purchaser, (c) the ownership or use by each of Holdings and Purchaser of any of
its respective assets, (d) the other assets of any of Holdings and Purchaser,
or (e) any other aspect of any of Holdings’ or Purchaser’s business.


 


“CIT Agreements” shall mean, (a) the Amended and Restated Loan and Security
Agreement dated as of June 24, 2002, by and between CIT Group/Equipment
Financing, Inc. and


 


I-2

















 


RIH, as amended by that certain Amendment No. 1 to Amended and Restated
Loan and Security Agreement made as of September 22, 2003 and that certain
Amendment No. 2 to Amended and Restated Loan and Security Agreement made as of
January 16, 2004 (collectively, the “CIT Loan Agreement”), (b) other instruments
and documents that were executed and delivered in connection with the CIT Loan
Agreement, including, without limitation, that certain Guaranty and Suretyship
Agreement, dated as of June 24, 2002, by Resorts in favor of CIT Group/Equipment
Financing, Inc., and (c) any other instruments or documents that may at any
time in the future be executed and delivered in connection with the CIT Loan
Agreement, in each case, as has been and may subsequently be amended from time.


 


“CIT Credit Facility” shall mean the CIT
Agreements, as the same may subsequently be amended in any way in accordance
with Section 5.8.


 


“CIT Subordination Agreement” shall mean the
Subordination Agreement dated as of
         , 2004, among
CIT/Group/Equipment Financing, Inc., Resorts, RIH, New Pier and KINA.


 


“Code” shall mean the Uniform Commercial
Code of the jurisdiction with respect to which such term is used, as in effect
from time to time.


 


“Colony Investors” shall mean
Colony Investors IV, L.P.


 


“Contingent Obligation” shall
mean, as to any person, any obligation of such person guaranteeing or intended
to guarantee any Indebtedness, leases, dividends or other obligations (“primary
obligations”) of any other person (the “primary obligor”) in any
manner, whether directly or indirectly, including any obligation of such
person, whether or not contingent, (a) to purchase any such primary
obligation or any property constituting direct or indirect security therefor;
(b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or solvency
of the primary obligor; (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such primary
obligation; or (d) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business, any product warranty
in the ordinary course of business and any lease guarantees executed by any
Resorts Group Company in the ordinary course of business.  The amount of any Contingent Obligation
shall be deemed to be an amount equal to the stated or determinable amount of
the primary obligation in respect of which such Contingent Obligation is made
(or, if less, the maximum amount of such primary obligation for which such
person may be liable pursuant to the terms of the instrument evidencing such
Contingent Obligation) or, if not stated or determinable, the maximum
reasonably anticipated potential liability in respect thereof (assuming such
person is required to perform thereunder) as determined by such person in good
faith.


 


“Default” shall have the
meaning assigned to it in the Secured Promissory Note.


 


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“Disqualified Capital Stock”
shall mean, with respect to any person, any Equity Interest or Equity Right of
such person that, by its terms or by the terms of any agreement relating
thereto (or by the terms of any security into which it is convertible or
exercisable or for which it is exchangeable or by the terms of any agreement
relating thereto), or upon the happening of any event, matures (excluding any
maturity as the result of an optional redemption by the issuer thereof payable
to Holdings or a Wholly Owned
Subsidiary of Holdings) or is mandatorily redeemable (other than (i) solely for
Qualified Capital Stock, (ii) upon a sale of assets or a Change of Control so
long as any such mandatory redemption in the case of a sale of assets or Change
of Control is conditioned upon the prior payment in full of the Obligations or
(iii) as a result of a redemption required by Gaming Law), for any reason,
including pursuant to a sinking fund obligation or otherwise, or is redeemable
for any reason at the option of the holder thereof (other than solely for
Qualified Capital Stock or as provided in clause (ii) above) or exchangeable,
exercisable or convertible into debt securities of the issuer thereof at the
option of the holder thereof, in whole or in part, on or prior to the date
which is 181 days after April 25, 2008.


 


“Environmental Indemnity Agreement”
shall have the meaning set forth in Section 3.1(l).


 


“Equity Interests” shall mean,
with respect to any specified person, any and all shares, stock, interests,
participations or other equivalents (including membership interests and
partnership interests), regardless of how designated and whether voting or
non-voting, of such specified person, and any other interest or participation
that confers on a person the right to receive a share of the profits and losses
of, or distributions of assets of, such specified person (regardless of how
designated and whether voting or
nonvoting), including common stock, preferred stock or any other “equity
security” (as such term is defined in Rule 311-1 of the General Rules and
Regulations promulgated by the SEC under the Exchange Act), whether
outstanding on the Issue Date or issued thereafter.


 


“Equity Rights” shall mean,
with respect to any person, any outstanding subscriptions, options, warrants,
commitments, preemptive rights or agreements of any kind (including any
stockholders’ or voting trust agreements) for the issuance, sale, registration
or voting of, or outstanding securities exercisable or convertible into or
exchangeable for, any additional Equity Interests of any class, or partnership
or other ownership interests of any type in, such person.


 


“Event of  Default” shall have the
meaning assigned to it in the Secured Promissory Note.


 


“Exchange Act” shall mean the
United States Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC promulgated thereunder.


 


“fair market value” shall
mean, with respect to any Property, a price (after taking into account any
liabilities relating to such Property), as determined by Holdings in good
faith, that is within a reasonable range of prices which could be negotiated in
an arm’s-length free market transaction, for cash, between a willing seller and
a willing and able buyer, neither of which is under any compulsion to complete
the transaction.


 


“First Mortgage” shall have
the meaning set forth in Section 3.1(e).


 


“Fiscal Year” shall mean the fiscal year of
Holdings.


 


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“GAAP” shall mean generally
accepted accounting principles set forth as of the relevant date in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with similar functions of
comparable stature and authority within the U.S. accounting profession), which
are applicable to the circumstances as of the date of determination.  For purposes of clarity, accounts of one
party required to be disclosed in the accounts of another party solely as a
result of disclosure required by the SEC under “pushdown” accounting shall not
be treated as the accounts of such other party unless otherwise required under
GAAP.


 


“Gaming Authority” shall mean
the New Jersey Casino Control Commission and the New Jersey Division of Gaming
Enforcement (including any successors to either of them), and any other New
Jersey Governmental Authority which regulates gaming in any jurisdiction in the
State of New Jersey in which any of the Resorts Group Companies conduct gaming
activities and has jurisdiction over such persons.


 


“Gaming Law” shall mean any
New Jersey Law relating to gaming or gaming activities established by any
Gaming Authority.


 


“Guarantee” shall mean (i) the Holdings
Guarantee, (ii) the RRN Guarantee, or (iii) any guarantee issued by a New
Guarantor.


 


“Guarantor” shall mean any issuer of a
Guarantee.


 


“Governmental Authority” shall
mean any government or political subdivision of the United States or any other
country or any agency, authority, board, bureau, central bank, commission,
department or instrumentality thereof or therein, including, without
limitation, any court, tribunal, grand jury or arbitrator, in each case whether
foreign or domestic, or any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to such government or
political subdivision, including any Gaming Authority.


 


“Holder” shall, unless the context otherwise
requires, mean, at any time, any holder of all or any portion of the Note at
such time, which on the Issue Date shall be KINA.


 


“Holdings”
shall have the meaning set forth in the first paragraph of this Agreement, together with its successors and permitted
assigns, including in connection with any permitted merger.


 


“Holdings
Guarantee” shall have the meaning set forth in Section 3.1(g).


 


“incur” shall mean, with
respect to any Indebtedness or other obligation of any person, to create,
issue, incur (including by conversion, exchange or otherwise), assume,
guarantee or otherwise become liable in respect of such Indebtedness or other
obligation or the recording, as required pursuant to GAAP or otherwise, of any
such Indebtedness or other obligation on the balance sheet of such person, or
to grant or create a Lien upon any Property of such person to secure any Indebtedness
of another person (and “incurrence,” “incurred” and “incurring”
shall have meanings correlative to the foregoing).


 


“Indebtedness” of any person
shall mean, without duplication, (a) all obligations of such person for
borrowed money; (b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments; (c) all obligations of such
person under conditional sale or other


 


I-5

















 


title retention
agreements relating to property purchased by such person; (d) all
obligations of such person issued or assumed as the deferred purchase price of
property or services (excluding trade accounts payable and accrued obligations
incurred in the ordinary course of business and amounts payable to repurchase
Equity Interests in excess of the amount paid in accordance with Section 5.7);
(e) all Indebtedness of others secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on property owned or acquired by such person, whether or not the
obligations secured thereby have been assumed (provided, however, that if such obligations have
not been assumed, the amount of such Indebtedness included for the purposes of
this definition will be the amount equal to the lesser of the fair market value
of such property and the amount of the Indebtedness secured); (f) all
Capital Lease Obligations (including synthetic lease obligations) and Purchase
Money Obligations of such person; (g) all obligations of such person in
respect of Interest Rate Protection Agreements, foreign currency exchange
agreements or other interest or exchange rate hedging arrangements;
(h) all obligations of such person as an account party in respect of
letters of credit and bankers’ acceptances, except obligations in respect of
letters of credit issued in support of obligations not otherwise constituting
Indebtedness shall not constitute Indebtedness except to the extent such letter
of credit is drawn and not reimbursed within two Business Days; and
(i) all Contingent Obligations of such person in respect of Indebtedness
or obligations of others of the kinds referred to in clauses (a) through (h)
above.  The Indebtedness of any person
shall include the Indebtedness of any partnership in which such person is a
general partner unless recourse is limited, in which case the amount of such
Indebtedness shall be the limited amount. 
The amount of Indebtedness of the type referred to in clause (g) above
of any person shall be zero unless and until such Indebtedness shall be terminated,
in which case the amount of such Indebtedness shall be the then termination
payment due thereunder by such person.


 


“Indenture” shall mean that
certain Indenture dated as of March 22, 2002, among Resorts, the
guarantors party thereto and Bankers Trust Company, as trustee.


 


“Indenture Default” shall mean any Event of
Default (as such term is defined in the Indenture as in effect on the date of
this Agreement).


 


“Indenture Security Agreement”
shall mean that certain Security Agreement dated as of March 22, 2002,
among Resorts, the guarantors party thereto and Deutsche Bank Trust Company
Americas (formerly Bankers Trust Company), as trustee.


 


“Interest Rate Protection Agreement”
shall mean, for any person, an interest rate swap, cap or collar agreement or
similar arrangement between such person and one or more financial institutions
providing for the transfer or mitigation of interest risks either generally or
under specific contingencies.


 


“Investment” shall have the
meaning set forth in Section 4.11.


 


“IPO” shall mean an initial
underwritten offering of common stock of a Resorts Group Company for cash
pursuant to an effective registration statement under the Securities Act
following which the common stock of such Resorts Group Company is listed on a
national securities exchange or quoted on the national market system of NASDAQ
stock market.


 


“Issue Date” shall mean the date of this
Agreement.


 


“KINA” shall have the meaning
set forth in the first paragraph hereof.


 


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“Laws” shall mean,
collectively, all common law and all international, foreign, federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents, including without limitation the
interpretation thereof by any Governmental Authority charged with the
enforcement thereof.


 


“Lease Agreement” shall have
the meaning set forth in the recitals hereto.


 


“Lease Amendment” shall have
the meaning set forth in Section 3(f).


 


“Lien” shall mean, with
respect to any Property, any mortgage, lien, pledge, claim, charge, security
interest or encumbrance of any kind, any other type of preferential arrangement
in respect of such Property having the effect of a security interest, including
any easement, right-of-way or other encumbrance on title to Real Property, and
any agreement to give any of the foregoing.


 


“Material Adverse Effect”, with respect to
any specified Person, shall mean a material adverse effect on (a) the business,
assets, operations or financial or other condition of such specified Person and
its Wholly Owned Subsidiaries taken as a whole, or (b) the Resort Group
Companies’ ability to pay and satisfy the Obligations in accordance with the
terms thereof.


 


“Moody’s” shall mean Moody’s
Investors Service, Inc.


 


“New Guarantor” shall mean any
Subsidiary of Resorts that shall have issued a guarantee pursuant to Section 5.6.


 


“New Jersey Casino Control Commission” shall
mean the commission defined in New Jersey Statutes Annotated 5:12-14 as amended
from time to time.


 


“New
Pier” shall have the meaning set forth in the first paragraph of
this Agreement, together with its
successors and permitted assigns, including in connection with any permitted
merger.


 


“Note”
shall have the meaning set forth in the Secured Promissory Note.


 


“Obligations” shall mean all debts,
liabilities, and obligations for monetary amounts (whether or not such amounts
are liquidated or determinable) owing by Purchaser and the other Resorts Group
Companies to any Holder and arising under any of the Notes or the other
Transaction Documents, and all covenants and duties regarding such amounts, of
any kind or nature, present or future, whether or not evidenced by any note,
agreement or other instrument, arising under any of the Notes or the other
Transaction Documents.  This term
includes, without limitation, all interest, charges, expenses, attorneys’ fees
and any other sum chargeable to Purchaser or any other Resorts Group Company
under any of the Notes or other Transaction Document.


 


“Operating Company Debt” shall mean all
Indebtedness of any Resorts Group Company (other than Purchaser and Holdings)
on the date hereof.  The Operating
Company Debt is identified on Schedule 2.1(2).


 


“Operating Company Debt Documents” means all
material agreements, documents and instruments executed and delivered in
connection with Operating Company Debt.


 


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“Option Agreement” shall have
the meaning set forth in the recitals hereto.


 


“Permitted Holders” shall mean
Colony Investors and any Affiliates thereof and Thomas J. Barrack, Jr.,
Nicholas L. Ribis, Colony RIH Voteco, LLC, Colony GP IV, Inc., Colony Capital
IV, L.P. and any investment fund, partnership or other person sponsored by or
formed at the direction of Colony Capital LLC, a Delaware limited liability
company, or any successor organization (unless such investment fund,
partnership or other person is not managed by a person that is an Affiliate or
Related Person of any of the foregoing). 
As used herein, the term “Related Person” means (a) any controlling
stockholder, 80% (or more) directly or indirectly owned Subsidiary, or
immediate family member (in the case of an individual), of any Permitted
Holder, or (b) any trust, corporation, partnership or other entity if (x) the
beneficiaries, stockholders, partners, members, owners or other persons
beneficially owning (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act) in the aggregate 80% or more of the voting stock of such trust,
corporation, partnership or entity consist of any one or more Permitted Holders
or such other Permitted Holders referred to in clause (a), or (y) a general
partner or managing member or person otherwise controlling or having the power
to direct, or cause the direction of, the management and policies of such
trust, corporation, partnership or entity is any one or more of the Permitted
Holders or such other persons referred to in clause (a).


 


“Person” or “person” shall mean any individual,
corporation, company, voluntary association, partnership, limited liability
company, joint venture, trust, other entity, unincorporated organization or
government (or any agency, instrumentality or political subdivision thereof).


 


“Property” shall mean any
right, title or interest in or to property or assets of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible and
including all contract rights, real property interests, trademarks, trade
names, equipment and proceeds of the foregoing and Equity Interests or other
ownership interests of any person.


 


“Purchase Agreement” shall have
the meaning set forth in Section 3.1(c).


 


“Purchase Money Obligation”
shall mean, for any person, the obligations of such person in respect of
Indebtedness incurred for the purpose of financing all or any part of the
purchase price of any Property (including Equity Interests of any person) or
the cost of installation, construction or improvement of any property or assets
and any refinancing thereof; provided, however, that such
Indebtedness is incurred within 135 days after such acquisition of such Property
by such person.


 


“Qualified Capital Stock”
shall mean with respect to any person any Equity Interests of such person which
is not Disqualified Capital Stock.


 


“Real Property” shall mean all
right, title and interest of Holdings or Purchaser (including, without
limitation, any leasehold estate) in and to a parcel of real property owned or
operated by Holdings or Purchaser, whether by lease, license or other use or
occupancy agreement, together with, in each case, all improvements and
appurtenant fixtures, equipment, personal property, easements and other property
and rights incidental to the ownership, lease or operation thereof or thereon.


 


“Resorts”
shall have the meaning set forth in the first paragraph of this Agreement, together with its successors and permitted
assigns, including in connection with any permitted merger.


 


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“Resorts
Group Company” shall have the meaning set forth in the first
paragraph of this Agreement.


 


“Resorts Purchase Agreement”
shall have the meaning set forth in the recitals hereto.


 


“Restricted Payment” shall mean (a) the declaration
of any dividends or any other payment or distribution of cash or other property
or assets in respect of a Resorts Group Company (other than, in the case of any
Resorts Group Company other than Purchaser, any dividend or distribution
consisting solely of shares of Qualified Capital Stock), or (b) any payment on
account of the purchase, redemption, acquisition or other retirement of a Resorts Group Company’s Stock or other payment or distribution made in
respect thereof, either directly or indirectly (other than, in the case of any
Resort Group Company other than Purchaser, any payment consisting solely of
shares of Qualified Capital Stock). 
Notwithstanding anything to the contrary contained herein, Restricted
Payments shall not include the declaration and payment of dividends  by Holdings to its stockholders in the
amount of Remaining Funds (as defined in the Indenture as in effect on the date
of this Agreement).


 


“RIH” has the meaning set
forth in the first paragraph of this Agreement, together with its successors and permitted assigns, including in
connection with any permitted merger.


 


“RRN
Guarantee” shall have the meaning set forth in Section 3.1(i).


 


“S&P” shall mean
Standard & Poor’s, a division of The McGraw Hill Companies.


 


“SEC” shall mean the United
States Securities and Exchange Commission.


 


“Secured Promissory Note” has
the meaning set forth in Section 3.1(b).


 


“Securities Act” shall mean
the United States Securities Act of 1933, as amended, and all rules and
regulations of the SEC promulgated thereunder.


 


“Security Agreement” has the
meaning set forth in Section 3.1(d).


 


“Stock Pledge Agreement” has
the meaning set forth in Section 3.1(h).


 


“Subordination Agreement” has
the meaning set forth in Section 3.1(k).


 


“Subsidiary” shall mean, with
respect to any person, any corporation, partnership or other entity of which at
least a majority of the securities or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions of such corporation,
partnership or other entity (irrespective of whether or not at the time
securities or other ownership interests of any other class or classes of such
corporation, partnership or other entity shall have or might have voting power
by reason of the happening of any contingency) is at the time directly or
indirectly owned or controlled by such person and/or one or more Subsidiaries
of such person.


 


“Termination of Option Agreement”
shall have the meaning set forth in the recitals hereto.


 


“Transaction Documents” shall
mean this Agreement, the Secured Promissory Note and the other Notes, the
Purchase Agreement, the Security Agreement, the Lease Agreement, the


 


I-9

















 


Lease Amendment, the
Assignment, the Holdings Guarantee, the Stock Pledge Agreement, the
Environmental Indemnity Agreement, the RRN Guarantee, the First Mortgage, the
Termination of Option Agreement, the CIT Subordination Agreement and the Subordination
Agreement, in each case all documents, instruments and agreements related
thereto or to be executed and delivered in connection therewith (including any certificate, instrument or written
statement contemplated by or made or delivered pursuant thereto or in
connection therewith) and all exhibits, appendices, schedules and annexes
to any thereof, in each case (unless the context otherwise requires) as the
same may be amended, supplemented or modified from time to time in accordance
with its terms.


 


“Voting Stock” shall mean,
with respect to any Person, the capital stock (including any and all shares,
interests (including partnership, membership and other equity interests),
participations, rights in, or other equivalents (however designated and whether
voting or nonvoting) of, such capital stock, and any and all rights, warrants
or options exchangeable for or convertible or exercisable into such capital
stock) of such Person that ordinarily has voting power for the election of
directors (or persons performing similar functions) of such Person, whether at
all times or only as long as no senior class of Equity Interests has such
voting power by reason of any contingency.


 


“Wholly Owned Subsidiary” shall mean, with
respect to any person, any corporation, partnership or other entity of which
all of the Equity Interests (other than, in the case of a corporation,
directors’ qualifying shares or nominee shares required under applicable law)
are directly or indirectly owned or controlled by such person and/or one or
more Wholly Owned Subsidiaries of such person.


 


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